Brougham v Aboriginal Health Council of South Australia - [2022] FedCFamC2G 399

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brougham v Aboriginal Health Council of South Australia [2022] FedCFamC2G 399

File number(s): ADG 235 of 2020

Judgment of: JUDGE BROWN

Date of judgment: 24 May 2022

Catchwords: INDUSTRIAL LAW – Fair work – allegation of breach of general protection provisions – adverse action – failure to extend contract of employment – exercise of workplace rights – workplace right to make complaint regarding bullying – allegation contract of employment not extended because of complaint – reverse onus under section 361 – who was relevant decision maker – allegation decision influenced others for proscribed reasons – accessorial liability – standard of proof – evidence provided by relevant decision maker – whether any proscribed reason was a substantial and operative reason for adverse action – whether respondent has discharged onus arising under section 361 of the Fair Work Act 2009 (Cth)

Legislation:
Evidence Act 1995 (Cth) ss 136, 140, 144

Fair Work Act 2009 (Cth) p 3-1, ss 12, 125, 140, 340, 341, 342, 346, 351, 360, 361, 550, 789FC

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, Div 16.1, r 16.04, 16.08

Cases cited:
Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500

Brougham v Aboriginal Health Council of South Australia [2021] FCCA 2031

CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157

CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243.

CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014

CFMEU v Martin & Gaparini Pty Ltd [2017] FCA 1046

Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804.

Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365

Fox v Percy (2003) 214 CLR 118

Gibbs v Palmerston Town Council [1987] FCA 477

Hadgkiss v Sunland Constructions Pty Ltd & Ors (2007) 158 FCR 193

Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399

Khiani v Australian Bureau of Statistics [2011] FCAFC 109

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449

State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184

Transport Workers’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244

Wong v National Australia Bank Ltd [2021] FCA 671

Yorke v Lucas [1985] HCA 65

Division: Division 2 General Federal Law

Number of paragraphs: 249

Date of last submission/s: 17 March 2022

Date of hearing: 15, 16 & 17 March 2022

Place: Adelaide

Counsel for the Applicant: Mr Manuel

Solicitor for the Applicant: Starke Lawyers

Counsel for the Respondents: Mr Collinson

Solicitor for the Respondents: Edge Legal
ORDERS

ADG 235 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ANGELA BROUGHAM

Applicant

AND:
ABORIGINAL HEALTH COUNCIL OF SOUTH AUSTRALIA LIMITED

First Respondent

POLLY SUMNER-DODD

Second Respondent

ANNIE-ROSE THURNWALD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

24 MAY 2022

THE COURT ORDERS THAT:
1.The application filed by the Applicant on 8 July 2020 is hereby 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
JUDGE BROWN:
INTRODUCTION

These reasons for judgment relate to a general protection application brought by Angela Jane Brougham,[1] against her former employer, the Aboriginal Health Council of South Australia,[2] pursuant to the provisions of the Fair Work Act 2009 (Cth).[3] In brief, Ms Brougham asserts that she was subject to illegal adverse action because she engaged her workplace right to complain to her employer about having been subject to bullying in her workplace.
[1] Hereinafter referred to as “the Applicant” or “Ms Brougham”.
[2] Hereinafter referred to as “the First Respondent” or “AHCSA”.
[3] Hereinafter referred to as “the FWA” or “the Act”.
Each of the other respondents, in the action, held either an executive or managerial role at the AHCSA, at relevant times. It is Ms Brougham’s case that, although none of them can be characterised as the person who had explicit authority, at AHCSA, to make the decision to take the relevant adverse action against her, each played a material role in the applicable decision making process and, in so doing were influenced by motivations proscribed by the Act.
Essentially, Ms Brougham alleges the second, third and fourth respondents, either individually or in tandem, exerted influence on the Chief Executive Officer of AHCSA, to have her employment terminated, because of the malice they held toward her and, in these circumstances, although the CEO ostensibly made the relevant decision, their illegal considerations directed it and therefore the resulting decision is tainted by illegality and thus proscribed by the FWA.
Ancillary to the principle aspect of her claim, the Applicant has alleged that the First Respondent has breached provisions of the Act, which relate to the National Employment Standards, namely that she was not provided with a copy of the Fair Work Information Sheet, in breach of section 125 of the Act and was denied access to the relevant enterprise agreement, pursuant to which she was employed.
The relevant agreement is the Aboriginal Health Council of SA Ltd Enterprise Agreement (2018).[4] It is unclear to me what provisions of the Act are alleged to have been breached in respect of the alleged non-provision of the Enterprise Agreement, which Ms Azar, the Council’s current HR manager, has deposed is available on its electronic records store, which is accessible by all employees.
[4] See Exhibit A.
AHCSA acknowledges that it took adverse action against Ms Brougham, when it terminated her employment. However, it is the position of the first respondent that the substantive and operative reason for this action related to it having to restrict its activities due to funding constraints. In which arose in the context of the COVID-19 pandemic emergency and the relevant decision was made by its CEO, completely independently of any input from any of the other respondents.
In these circumstances, the other respondents to the application each individually deny that, at relevant times, they played any material role in the decision to terminate Ms Brougham’s employment, which was made solely by the CEO of the AHCSA, on legitimate fiscal grounds. Thus, each asserts that Ms Brougham has misconceived her application against them and they have no accessorial liability for AHCSA’s decision under the relevant provisions of the FWA.
For obvious reasons a person in Ms Brougham’s position cannot be privy to all the internal processes of her employer leading to the decision to terminate her employment. If anyone associated with AHCSA was inclined to dismiss her, for a reason spurious to the ground actually provided, such an individual is hardly likely to disclose freely their true motivation to her.
The law recognises the evidentiary difficulty facing those such as Ms Brougham. Accordingly, in evidentiary and legal terms, this case turns on the application of the principles contained in section 361 of the FWA. This section creates a reverse onus.
Essentially, once an applicant has established that adverse action has been taken against him or her, by an employer within an industrial context, it falls to the relevant decision maker, within the employer concerned, to provide evidence in respect of the reason why that action was taken and to establish that it was not for a protected aspect of employment.
These reasons for judgment focus on who was the constructive or effective decision maker in respect of Ms Brougham’s termination; what was the information on which that decision was based and whether that information was tainted by any erroneous or illegal considerations; and centrally, what was the substantive and operative reason for her dismissal? Essentially, the court must determine why was Ms Brougham really dismissed?
BACKGROUND
Ms Brougham began her employment with AHCSA on 12 November 2018. She was employed as its strategic business executive. Her contract of employment fixed a period of employment until 30 June 2019 and stipulated that it was subject to funding being received for this position and further stated should funding cease then this position will cease. Her base salary was approximately $103,500.00.
The contract of employment was signed, on behalf of the AHCSA, by Shane Mohor, who at the time was the First Respondent’s Chief Executive Officer. He left the position in August 2019 but returned to it on 11 May 2020. He remains in the position as at the date of these proceedings.
On 22 May 2019, whilst still in his position, Mr Mohor wrote to Ms Brougham advising her that her contract of employment, previously due to expire on 30 June 2019, would be extended up to and including 30 June 2020. As with her earlier employment, this contract was stated to be subject to funding or surplus being available for the position, otherwise its terms and conditions remained unchanged.
As will be outlined in greater detail, as these reasons for judgment unfold, during much of 2019 and 2020, the AHCSA was not always a happy workplace, both from Ms Brougham’s perspective and that of some of her immediate colleagues.
Complaints of racism and homophobia were levelled at Ms Brougham, who in turn perceived that she had been the subject of bullying and harassment by other members of staff, because of her response to these complaints. In this context, Ms Brougham asserts that she was targeted because of religious views, which she held.
In mid-October 2019, AHCSA appointed Ms Nahtanha Davey as its CEO. Her employment was terminated on 1 April 2020. It is apparent that she left the organisation on unhappy terms. Her termination was subject to a non-disclosure agreement. Professor Alex Brown was appointed interim CEO between 9 April and 8 May 2020, until a replacement could be found. This replacement turned out to be Mr Mohor.
On Friday 8 May 2020, at 4.16pm, Ms Brougham sent an email to Professor Brown enclosing a formal complaint of having been subject to workplace bullying and harassment; and further that she had been hampered in the performance of her duties at the AHCSA.
In her complaint, Ms Brougham indicated as follows:
I am a non-Aboriginal mother of three Aboriginal children. I hold Christian values. I feel that I am treated differently because of my race and the beliefs that I hold. There have been no claims against me in regards to the standard, quality, or efficiency of my work.
…
I don’t feel safe being targeted by certain staff and board members in the AHCSA environment. I feel I have been harassed, bullied, humiliated by having my role diminished and My Christian values questioned.
I am concerned for myself and the organisation as a whole. I am particularly concerned when dealing with Polly Sumner-Dodd, Debra Stead and Annie-Roe (sic) Thurnwald as I feel victimised by their bullying and vindictive behaviour.[5]
[5] See Annexure LA-9 to the affidavit of Laura Azar filed 30 April 2021. The complaint is also annexed to Ms Brougham’s affidavit but inaccurately referenced.
In addition, Ms Brougham made complaints of irregularities in financial monitoring and claimed that there were active attempts, in place, including from Board level, to have her removed from her position, which she described as cunning and discrete in nature and including subtly restricting the support she required to do her job properly.
As 8 May 2020 was Professor Brown’s last day as acting CEO, he indicated to Ms Brougham that he would forward her complaint onto Mr Mohor, who would resume the position the following Monday.
There can be no controversy that, from mid-March 2020 onwards, Australia was in the grip of the COVID-19 pandemic emergency. I consider that I can take judicial notice of the fact that this was a period marked by a significant level of disruption in many workplaces in South Australia and this, of itself, is a matter of common knowledge.[6]
[6] See Evidence Act 1995 (Cth) at section 144.
After 8 May 2020, Ms Brougham worked from home due to COVID-19 restrictions. On 21 May 2020, Ms Brougham submitted a worker’s compensation claim, supported by a medical certificate, dated 7 May 2020, which indicated that Ms Brougham was suffering anxiety and depression, which related to bullying and harassment at her work. The relevant certificate indicated that Ms Brougham was unfit to undertake her duties until 4 June 2020.
On 10 June 2020, Mr Mohor wrote to Ms Brougham to remind her that her fixed term employment with AHCSA would come to an end on 30 June 2020. As the letter indicated she was requested to return her swipe card to the AHCSA premises, together with any of its business equipment in her possession to its HR Department, prior to her last day. By necessary implication, the purpose of this letter was to inform Ms Brougham that her contract would not be extended or otherwise rolled over. No explanation was provided for this decision on the face of the letter itself.
It is Mr Mohor’s evidence that, as the Chief Executive Officer of AHCSA, in June 2020, he was the relevant decision maker as to whether or not Ms Brougham’s employment should be extended after 30 June 2020. Why Mr Mohor made the particular decision which he did and whether he was influenced by any of the other respondents in the case is the major evidentiary issue in the case.
It is the effect of Mr Mohor’s evidence that he had little, if any, personal knowledge of Ms Brougham’s complaint to Professor Brown, firstly, as he was not personally involved in its investigation and secondly, it had occurred during the time he had been absent from the organisation and had played no part in its administration.
In these circumstances, it is the effect of his evidence that the decision to terminate Ms Brougham’s employment was made for operational reasons, relating to funding constraints and particularly the direction of the South Australian Health Department, one of AHCSA’s principle funders, that it should re-direct its operations towards COVID-19 pandemic management, particularly in remote Aboriginal communities.
In these circumstances, Mr Mohor has deposed that he formed the view that Ms Brougham’s position was now otiose for funding reasons. Essentially, it had become necessary for him to allocate AHCSA’s funding in other directions, particularly towards funding positions relating to pandemic education and support, in Aboriginal communities, which did not include the continuation of the role which Ms Brougham had hitherto filled.
Accordingly, it is his case that Ms Brougham’s complaint of 8 May 2020 had no operative role in his decision, which was made solely for funding reasons, which arose because SA Health had informed the organisation that it needed to redirect its priorities in the light of the pandemic emergency.
In addition, he denies that any protected attribute, germane to Ms Brougham, namely her religious views or affiliations or her racial background played any part in his decision, which under the administrative structure of AHCSA was his decision alone to make.
Ms Brougham does not accept the truth of these assertion. It is her position that the true reason her employment was terminated was because she made a complaint of having been bullied at work to Professor Brown, of which Mr Mohor and others related to the management of AHCSA were well aware.
In her application to the court filed on 8 July 2020 Ms Brougham claims that she was subject to unlawful adverse action because she exercised her workplace right to complain about being bullied in the workplace.
The adverse action of which she complains was the failure of AHCSA to extend her contract after 30 June 2020. It being her position that she had a reasonable expectation that it would be extended given her perception that funding was available to continue it.
In her initiating application, Ms Brougham initially stated that she had also been subject to adverse action on the basis of her religion and race, particularly that she was not an appropriate cultural fit at AHCSA.
In this context, she described herself as a practicing Christian and non-indigenous person. She also denied that she was racist or otherwise culturally insensitive to others in the workplace. In these circumstances, she asserted that her dismissal had been occasioned by a personal attribute protected by section 351 of the FWA.[7] The section reads as follows:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
[7] See Claim Form filed 9 July 2020 at [11] – [14].
In this context, it should be noted that counsel for Ms Brougham, Mr Manuel indicated at the outset of the case, prior to the taking of any evidence, that his client was not pursuing any claim relating to section 351 of the Act.[8] However, in my assessment, it remains an element in her case, that various of the other respondents, either individually or in tandem, exerted some form of influence on Mr Mohor to terminate her because they did not approve of some of her personal views or their perception of them.
[8] See Transcript at page 2.
The second respondent, Polly Sumner-Dodd is and was at relevant times the Chairperson of the Board of the AHCSA, a position which she has held since 2018. She has a long history of involvement with the organisation, which she calculates to be around forty years in duration. Ms Brougham also asserts that there is a kinship relationship between Ms Sumner-Dodd and Mr Moher, which has the effect of the former being able to wield influence over the latter.
It is Ms Sumner-Dodd’s evidence that she became aware that complaints had been made regarding some aspects of Ms Brougham’s behaviour by other of her colleagues at some stage in 2019. In cross-examination, Ms Sumner-Dodd deposed that some staff members at AHCSA had informed her that Ms Brougham had expressed the view that “God created Adam and Eve and not Adam and Steve” and the relevant staff members concerned had found this statement to be offensive, as had Ms Sumner-Dodd herself. As such, she (Ms Sumner-Dodd) had reported her concerns to the then CEO, Ms Davey.
Otherwise, it was the effect of Ms Sumner-Dodd’s evidence that she and other members of the Board of AHCSA have no authority to make employment or administrative decisions regarding staff members at the organisation, including in respect of termination decisions. All such decisions fall within the ambit of the CEO. The only employment decisions, in which the Board involves itself regard the performance of the CEO but otherwise she deposed as follows:
As a member of the Board, I work with fellow members to oversee the performance of the CEO of AHCSA. We have no authority over the day-to-day operational matters of AHCSA and rely on updates from the CEO.[9]
[9] See affidavit of Ms Sumner-Dodd filed 22 November 2021 at [6].
As a context, it was the effect of Ms Sumner-Dodd’s evidence that she was personally unaware that Ms Brougham’s contract of employment had not been renewed and necessarily she played no role whatsoever in the decision not to do so, which was solely within the remit of Mr Moher.

Annie-Rose Thurnwald was and remains the manager of the Registered Training Organisation associated with the AHCSA. She reports to the CEO. Ms Thurnwald and Ms Brougham worked together on a number of projects at the direction of the former CEO, Ms Davey.
Ms Thurnwald acknowledges that she made two formal complaints, regarding Ms Brougham’s conduct in the workplace, in early June of 2019 and March of 2020. Ms Thurnwald characterised her complaints as centring on issues of racist behaviour and sexual orientation. Her complaints were provided to Laura Azar, who was formerly the Human Resources Business Partner at AHCSA.
In her evidence, Ms Thurnwald deposed that her perception of Ms Brougham’s comments to her caused the relationship between the two to become strained but in her words she made an effort to separate my personal feelings from what we needed to do professionally in a day-to-day environment.[10] In this context, she denies that she personally bullied or victimised or otherwise targeted Ms Brougham, as alleged in her complaint of 8 May 2020 to Professor Brown.
[10] See affidavit of Ms Thurnwald filed 22 November 2021 at [6].
Ms Thurnwald has deposed that she was personally unaware that Ms Brougham had made a complaint about her to Professor Brown until she (Ms Thurnwald) read the affidavit material relating to Ms Brougham’s case. She further deposes that she was also unaware that Ms Brougham’s contract was due to expire in June of 2020 and therefore she played no part in the decision-making process not to renew it.
The fourth respondent, Debra Stead was and remains the finance and procurement manager of AHCSA. Her position is analogous to that of senior finance manager. It is her evidence that she was unaware that Ms Brougham had made a complaint to Professor Brown regarding her conduct in the workplace.
It is also her evidence that, although she was aware Ms Brougham’s fixed term contract was up for renewal on 30 June 2020, the decision to renew it was Mr Mohor’s alone, as he was CEO at the time. She denies that she was involved in the decision making process or that Mr Mohor discussed the issue with her.
In addition, Ms Stead denies Ms Brougham’s allegation that she intentionally acted in any way to undermine Ms Brougham in the performance of her work. It is Ms Stead’s position that she re-allocated duties, from time to time, between Ms Thurnwald and Ms Brougham, but this was within the scope of her (Ms Stead’s) responsibilities.
In all these circumstances, each of Ms Sumner-Dodd, Ms Thurnwald and Ms Stead assert that Ms Brougham has misconceived the accessorial liabilities of the FWA, contained in section 550, in bringing her claim against them. As such they seek the dismissal of her case as it pertains to each of them.
CONDUCT OF THE PROCEEDINGS
Ms Brougham commenced the case on 8 July 2020. On the joint application of the parties, it was referred to mediation. The Registrar appointed to conduct the mediation vacated the date fixed for the medication on the basis that the applicant had failed to comply with some mandatory procedural directions. The case returned to court on 8 February 2021, when the previous docket judge, Judge Heffernan fixed it for final hearing on 23 August 2021.
As a corollary of the hearing date, orders were made for the filing of affidavit material by each side. Ms Brougham filed her affidavit on 19 March 2021. Thereafter, AHCSA filed affidavits of Mr Mohor, whom it contends was the relevant decision maker and of Ms Azar, its HR manager. Ms Azar deposed that she was tasked with managing complaints made Ms Thurnwald and another employee, Isaac Hill, regarding comments said to have been made by Ms Brougham, to which offence was taken by them.
In turn, Ms Azar further deposed that she became responsible for the management of the complaint made by Ms Brougham to Professor Brown on 8 May 2020. Later, she was involved with the management of her workers’ compensation claim. It is not alleged that Ms Azar was a specific decision maker in respect of the termination of Ms Brougham’s employment. However, Ms Azar’s evidence is that she was aware that her contract was due for renewal and she was aware that AHCSA was facing some changes in how it focussed its operations are a result of funding issues.
Judge Heffernan was appointed to the District Court of South Australia in early April of 2021, which from recollection coincided with some difficulties regarding interstate travel due to the pandemic emergency. Accordingly it became apparent that the August trial could not proceed. The case was allocated to me and the trial was unfortunately vacated. Thereafter a controversy arose as to whether the case could be adjudicated in an electronic format.
I resolved this issue on 27 August 2021[11] and determined that proceedings should be conducted in the conventional manner, in Adelaide, where all the relevant witnesses lived. At that stage, I was told that Ms Brougham was only intending to call herself as a witness. In these circumstances, I re-fixed the case for hearing in March 2022 and directed that Ms Brougham file any further affidavits by 25 October 2021; the AHCSA file any further affidavits by 22 November 2022; with Ms Brougham being given a right of reply by 6 December 2021; the intention being that the evidence would be complete well in advance of the trial.
[11] Brougham v Aboriginal Health Council of South Australia [2021] FCCA 2031.
Ms Brougham did not avail herself of the opportunity to file a further affidavit. AHCSA filed affidavits of Ms Sumner-Dodd; Ms Thurnwald; and Ms Stead; on 22 November 2021. Ms Brougham exercised her right of reply in an affidavit filed on 22 December 2021. These various affidavits are the only written evidence in the case.
In early March of 2022, Ms Brougham’s solicitor requested the issue of nine subpoenas. Division 16.1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021[12] provides the regulatory framework in which subpoena are to be issued. In particular, Rule 16.04 limits the number of subpoenas which may be issued to five.
[12] Hereinafter referred to as “the Rules”.
On this basis, the case was listed before me on 3 March 2022 for directions in respect of the subpoena issue. On this occasion, I declined the request on the basis that given the trial was scheduled for less than a fortnight away it was axiomatic that the issue had been left until the last moment, when the issues in dispute between the parties seemed to have been relatively clearly defined.
More particularly, I was concerned that the time for filing affidavit evidence was long concluded and there was a lack of explanation, in these circumstances, as to why so many subpoenas had to be issued and more particularly there was no detail provided as to their forensic purpose and why had it not been possible to secure the evidence sought to be adduced, from the individuals concerned, both earlier and in a more conventional and transparent manner.
In these circumstances, on 10 March 2022, Ms Brougham’s solicitor secured the issue of four subpoenas, which were directed to a professional services company directing it to produce emails and other documents said to have passed between Ms Davey and it on 30 March 2020; as well as to three individuals, including Ms Davey, Mr Mark Thyer and Professor Brown, directing them to attend at court to give oral evidence.
The solicitors for AHCSA indicated that they sought to have each of the subpoenas set aside pursuant to the provision of rule 16.08 of the Rules. When the case commenced on 15 March 2022, counsel for Ms Brougham, Mr Manuel indicated that he was no longer pursuing the subpoenas in question and thus consented to the dismissal of each of them. He further indicated that Ms Davey had attended at court personally and wanted to volunteer herself to give evidence.
Mr Collinson, counsel for AHCSA indicated his concern that he had not been given notice of this course or provided with any detail as to what would be the nature of her evidence, particularly as Ms Davey had left the organisation prior to the actual adverse action having been taken against Ms Brougham.
Ms Davey, as foreshadowed, did attend at court. She did not provide an affidavit or a proof of her evidence. Mr Manuel indicated that it was his understanding that as a condition of her leaving the employment of AHCSA, she was subject to a nondisclosure agreement. In these circumstances, his instructing solicitor had arranged for Ms Davey to be provided with independent legal advice, at the expense of the instructing solicitor.
Mr Collinson objected to Ms Davey giving evidence in these circumstances. He was concerned that her evidence might lack relevance and more significantly it would be fundamentally unfair and potential prejudicial to his client to allow such inchoate evidence to be led, particularly from an actor who had had apparently her own unhappy history with the AHCSA.[13]
[13] See Evidence Act 1995 (Cth) at section 136.
I shared these concerns given the nature of these proceedings, which are solely concerned with the situation of Ms Brougham in the workplace and the substantive and operative reason why she was dismissed, no one else. Clearly, given the timing of her dismissal from AHCSA, Ms Davey can have played no part in the actual process itself, particularly in the context of the date of Ms Brougham’s letter to Professor Brown, which Ms Brougham asserts is the operative reason for the relevant adverse action.
More specifically, this is not an inquiry into the circumstances surrounding Ms Davey’s resignation from AHCSA and whether she was or was not subject to some sort of campaign of undermining by Ms Thurnwald, Ms Stead or Ms Sumner-Dodd. Axiomatically, the probity or otherwise of the internal politics of AHCSA are beyond the remit of these proceedings.
Given the fact that she was seeking independent legal advice regarding the possible implications of the non-disclosure agreement Ms Davey was not available to give evidence during Ms Brougham’s case. In these circumstances, it was agreed that Mr Collinson should proceed with his case on behalf of the AHCSA. After his case had been completed, Ms Davey attended at court with the solicitor provided for her, Mr Sallis, who indicated her preparedness to give evidence, if the court directed it. Mr Collinson reiterated his objection.
Ultimately, I determined, notwithstanding the potential prejudice and my concern that Ms Brougham was attempting to buttress her case on the basis of supposition, that it was in the interests of justice that Ms Davey give evidence. The relevance of Ms Davey’s evidence that Ms Davey had said to Ms Azar that Ms Sumner-Dodd had requested Ms Brougham be terminated because she was a racist and not a cultural fit and that necessarily this was the real reason why Ms Brougham’s contract was not extended.
In this context, Ms Brougham denied that she had ever made the comment attributed to her about Adam and Steve and had never in fact had a conversation with Ms Sumner-Dodd. In addition, as previously indicated, at relevant times there appears to have been some level of conflict between various staff members and Ms Brougham and vice versa, which led to complaints being made to the management of AHCSA.
In my view, I have to be careful not to be distracted by these issues from the discharge of the function conferred upon me by the general protection provisions of the FWA. In this context, in my view, it is useful for me to delineate what these proceedings are not. They are not concerned with the generic fairness of the conduct accorded to Ms Brougham in her workplace or an inquiry into the probity or otherwise of her conduct or behaviour.
In particular, I am not inquiring into whether the decision of AHCSA to terminate Ms Brougham employment was procedurally fair or the correct one. This is not a broad inquiry as to whether Ms Brougham has been “subjected to a procedurally fair or substantially unfair outcome.”[14]
[14] See Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17 at [48] per Bromberg J.
Rather, the only issue subject to the determination of the court is whether AHCSA took that the relevant adverse action for a proscribed reason. It is not a review generally of the fairness of the employer’s conduct. As the Full Court observed in Khiani v Australian Bureau of Statistics:
A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.[15]
[15] See Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] per Gray, Cowdroy & Reeves JJ.
For reasons upon which I will expand upon, as the judgment develops, I am satisfied that there were some unhappy under currents at AHCSA, which rendered the workplace amenable to rumour and suspicion. In particular, there were issues between Ms Brougham and some of her colleagues and no doubt some of those issues percolated into the consciousness of some board members, particularly Ms Sumner-Dodd.
It is also apparent to me that Ms Brougham became a confidant of Ms Davey and vice versa. I must be careful, for obvious reasons, that the case is determined on the basis of the evidence before me not on the basis of innuendo or rumour or the assumption that because there is a correlation between the happening of one event and another that there is a casual relationship between the two.
LEGAL PRINCIPLES RELATING TO THE EVIDENCE
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observations of the demeanour of each of the witnesses concerned.[16] I have tried to reach my conclusions as to credibility and reliability, on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[17]
[16] See Evidence Act 1995 (Cth) at section 140.
[17] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow & Kirby JJ.
The relevant standard of proof is the balance of probabilities. In addition, I bear in mind section 140(2) of the Evidence Act, which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
Mr Mohor has deposed that, as CEO of AHCSA, it was his role alone to make decisions regarding the termination of staff at the organisation and he did so, in the case of Ms Brougham solely for reasons relating to the funding of the organisation, which had changed in the light of it response to the pandemic emergency. He denies that he was influenced in any way or even knew of any issue relating to the alleged homophobia of Ms Brougham or of her lack of cultural congruence with the organisation.
In particular, he denies that he acted at the clandestine direction of Ms Sumner-Dodd, in her role as Chair of the AHCSA or at the direction of any other member of the organisation who was offended by statements attributed to Ms Brougham. In addition, it is Mr Mohor’s evidence that he knew of Ms Brougham’s complaint to Professor Brown only in the most general of terms and played no role in its investigation.
It is the effect of Ms Brougham’s case that Mr Mohor and Ms Sumner-Dodd are being untruthful in their evidence and there was, in effect, a conspiracy between them to dismiss Ms Brougham because she had firstly complained to Professor Brown and was seen as some form of trouble maker at AHCSA. Essentially, the reason provided by Mr Mohor for the relevant adverse action is a sham and in reality he was in cahoots with Ms Sumner-Dodd and others at AHCSA to bring Ms Brougham down.
In my view, this is a most significant allegation. Although Mr Mohor is not a direct party to the proceedings, Ms Sumner-Dodd, Ms Thurnwald and Ms Stead are. Theoretically, a finding against any of them could result in the imposition of a civil penalty under the Act. Such a finding could only be based on the court concluding that one of all of them were material decision makers in Mr Mohor’s decision to not renew Ms Brougham’s contract, and was influenced by their antipathy for her because she (Ms Brougham) had the temerity to complain about them to Professor Brown and had then deliberately concealed this fact.
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[18] the High Court indicated as follows:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
[18] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449.
In Hadgkiss v Sunland Constructions Pty Ltd & Ors[19] Kiefel J (as her Honour was previously) summarised the considerations relevant to establishing facts, on the balance of probabilities, in civil proceedings, particularly those involved in civil penalty proceedings. Her Honour indicated as follows:
·The strength of the evidence necessary to establish a fact or facts, on the balance of probabilities, may vary according to the nature of what it is sought to be proved;
·The conventional perception is that people do not ordinarily engage in conduct prescribed by legislation and, as such, a court should not lightly make a finding to this effect, in civil litigation.
[19] Hadgkiss v Sunland Constructions Pty Ltd & Ors (2007) 158 FCR 193 at 195 [11].
The subtlety arising in this case is that, as a consequence of the operation of section 361 of the FWA, the onus is on AHCSA to discharge the presumption that it took the adverse action against Ms Brougham for a protected reason. In respect of the standard of proof required of the employer to satisfy the onus lying upon it pursuant to section 361 of the FWA, it is the establishment of a reasonable satisfaction on the preponderance of probabilities.[20]
[20] See Transport Workers’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244 at [284].
LEGISLATIVE PROVISIONS
Part 3-1 of the FWA is headed General Protections. Pursuant to section 340(1) a person must not take “adverse action” against another person because that other person has a workplace right.
Section 342(1) of the Act contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person. The table provides as follows:

Meaning of adverse action

Item
Column 1
Adverse action is taken by …
Column 2 if …

1 an employer against and employee
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 employee and other employees of the employer

Section 341(1) provides the definition of workplace right. A person has such a right if, amongst other matters, he or she:
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
The expression workplace law is defined within section 12 of the Act. It includes any law of a state or territory that regulates the relationship between employers and employees, including dealings in respect of occupational health and safety matters. Ms Brougham asserts that the relevant raft of workplace rights germane to her in the case are more extensive than a right to complain simpliciter.
In this context, she relies on her right to apply to the Fair Work Commission pursuant to section 789FC of the Act for an order to stop being bullied at work. The provisions of the Enterprise Agreement[21] which govern the conditions of her employment, including how any changes to it are to be made, including mandating consultation prior to major changes being implement, as well as proscribing bullying at AHCSA.
[21] Exhibit A - Aboriginal Health Council of SA Ltd Enterprise Agreement of 2018.
Counsel for the AHCSA, Mr Collinson concedes that the complaint made by Ms Brougham to Professor Brown on 8 May 2020 constituted such a workplace right for the purposes of section 341(1)(c) of the Act.[22] I have already provided some details of this complaint. In summary, Ms Brougham asserted that:
·AHCSA had breached its own code of conduct in its behaviour towards her;
·She had been bullied and harassed at work;
·Senior personnel, including board members were actively seeking her dismissal;
·There had been financial irregularities at AHCSA;
·Her reporting obligations had been changed;
·Her duties had been varied without consultation;
·She had been subject to false allegations and complaints, particularly of racism;
·She had been undermined in respect of her responsibility to supervise subordinate staff.
[22] See Respondent’s Outline of Submissions filed 2 March 2022 at [28].
The applicant asserts that adverse action taken against her was the fact that her contract was not renewed and therefore she lost the opportunity for ongoing employment with AHCSA. Again AHCSA concedes that this constitutes adverse action within the terms of item 2 section 342(1)(c) as it constitutes a prejudicial alteration of her employment.[23]
[23] See Respondent’s Outline of Submissions filed 2 March 2022 at [32].
As a consequence of the use of the word because in section 340 there must be a factual link between the taking of the adverse action against the applicant concerned and a protected attribute relating to that applicant as a consequence of a workplace right exercised by him or her.
In a general protection claim, sections 360 and 361 of the FWA are of central importance. As previously indicated, the latter section creates what is often described as the reverse onus. It reads as follows:
361 Reasons for action to be presumed unless proved otherwise
(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.
Clearly, adverse action can be taken for one reason or a variety of reasons, some potentially proscribed, some not. In these circumstances, section 360 is relevant. It reads as follows:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reason for the action include that reason.
As will become more evident in due course, where there is controversy as to the motivation for a particular incident of adverse action, the requirement on the court is to determine the substantive or operative reason for the action in question.
The controversy in this case is easily articulated. AHCSA asserts that its decision not to renew Ms Brougham’s contract was made by Mr Mohor alone, in his role as CEO of the Council and it was made for reasons relating to funding constraints. As such, it was not for any reason or characteristic attributable to Ms Brougham which is protected under the Act.
On the other hand, Ms Brougham contends that various individuals at AHCSA were involved in the decision not to extend her contract and they were motivated by the fact that she had formally complained about their activities in the workplace to Professor Brown.
Essentially, she asserts, as I understand her case, that Mr Mohor rubberstamped the decision which had been taken by others to have her removed from the workplace and these individuals therefore are assumed to have accessorial liability for the relevant decision, which they made for reasons liable to be impugned under the Act.
As such, she assets that Ms Sumner-Dodd, Ms Thurnwald and Ms Stead are to be regarded as being involved in the decision making process, leading up to the illegal decision not to renew Ms Brougham’s contract and therefore should be civilly liable for their role in this process.
Section 550(1) of the Act provides that a person who is involved in a contravention of a civil remedy provision of the Act is also taken to have contravened that provision. Section 550(2) provides a definitive list of the circumstances in which a person is taken to be involved in a contravention. A person is so involved only if the person concerned:
·has aided, abetted, counselled or procured the contravention; or
·has induced the contravention, whether by threats or promises or otherwise; or
·has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
·has conspired with others to effect the contravention.
It is the submission of Mr Manuel that Ms Summer-Dodd, Ms Thurnwald and Ms Stead each procured or counselled Mr Mohor to make the relevant decision; conspired together and with him to not renew Ms Brougham’s contract; or were knowingly involved or a party to the illegal decision-making processes.
In Yorke v Lucas[24] the High Court indicated that in order to establish that any of Ms Sumner-Dodd, Ms Thurnwald or Ms Stead were involved in the relevant contravention of section 340 of the Act, it must be established that they were intentional participants in the contravention and had knowledge of each of the essential elements of it.
[24] Yorke v Lucas [1985] HCA 65.
In Fair Work Ombudsman v Devine Marine Group Pty Ltd[25] White J explained the concept of a party being knowingly concerned in a contravention under the FWA in the following terms:
The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention…
[25] Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [178].
For obvious reasons, it is a very difficult task for an applicant to prove what was occurring in the mind of any person alleged to have taken the adverse action in question. The task is made more difficult in the case of decisions made in a collegiate environment. These difficulties, arising in the context of beneficial legislation directed toward remedying injustices in the industrial context is the rationale for the reversal of the onus of proof under section 361 of the FWA.
The effect of section 361 is to reverse the legal onus in relation to the establishment of the reason or reasons for which the adverse action was taken. That is to say, at the end of the evidentiary process, the question for the court will be whether the first respondent has established, on the civil standard of proof, that Ms Brougham’s employment was not terminated for a reason, or for reasons, which included a reason, proscribed by the Act.
Section 361 of the Act comes into operation only after it has been established that adverse action was taken” and “that a relevant workplace right exists” “as an objective fact”.[26]In Jones v Queensland Tertiary Admissions Centre Limited (No 2) Collier J explained the operation of section 361 in the following terms:
That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason … it is not sufficient for [an applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [an applicant] is able to prove these allegations, the burden is then cast on to [the employer] to prove that adverse action was not taken against [an applicant] because of [her] workplace rights for the purposes of section 340 and 361 of the Act.[27]
[26] See CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [76].
[27] See Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10] (Collier J).
Necessarily, after adverse action has been established and its relation to a workplace right, the reverse onus must involve an analysis, by the court, of the reason or reasons why the adverse action was taken by the person or persons who made the relevant decision to take the adverse action.
Where there is only one person who made the relevant decision, this process is relatively simple. It involves an inquiry in the reasoning process leading to that person’s decision to take the adverse action. Albeit in a different kind of adverse action case (one concerning industrial organisation) Gageler J said as follows in respect of the onus arising under section 361:
Where the adverse action taken is in consequence of a decision made by a responsible individual within a corporation, the existence or non-existence of a particular reason as an operative and immediate reason for taking that adverse action turns on an inquiry into the mental processes of that individual.[28]
[28] See CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243 at 18 [85].
Necessarily, it becomes more complex if a number of individuals are involved, with varying degrees of knowledge about the relevant issues and the decision making process can be described as collaborative – essentially one involving the thought processes of more than one person. This complexity is intensified if there is controversy about the identity of the various decision makers in question – essentially who decided what and on what bases.
In the current matter, AHCSA asserts that Mr Mohor was the sole decision maker. It refutes any suggestion that he was directed to act, in the manner in which he did, by any other person, particularly Ms Sumner-Dodd. Even if Mr Mohor was aware of Ms Brougham’s complaint or the fact that she was the subject of some friction in the workplace, which Mr Mohor denies, AHCSA denies that any factor relating to these issues was a substantive or operative reason for Ms Brougham’s contract not being extended. Certainly it is denied by both AHCSA and each of the other respondents that Mr Mohor was their dupe who was manipulated by them to rubber stamp the decision which they had made for improper reasons.
In Gibbs v Palmerston Town Council[29] Gray J identified this issue in the following terms:
…there is still a difficult question of the extent to which the improper purpose of one person may be a substantial and operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other, if the actual decision maker truly believes the false and innocent reasons advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.
[29] See Gibbs v Palmerston Town Council [1987] FCA 477 at [114].
In this context, it is necessary to detail the jurisprudence relating to both cases involving an individual decision maker and those involving decisions which are disbursed throughout an organisation. In each case, the emphasis is on the reasoning process underpinning the decision to take the relevant adverse action.
It is clear that in both such scenarios, the focus of the inquiry is on the reason why the decision to take the adverse action was made. This remains the focus whether the fact making scenario relies on a sole decision-maker or where the decision making is disbursed through a collegiate group. The inquiry is centred, in each case, on what was the operative reason for the relevant decision. This arises as a consequence of the use of the word because in section 340(1). Matters are potentially further complicated, in a group making decision process, where the relevant adverse action is predicated upon more than one specific item of conduct, on the part of the employee concerned.
Leading High Court authority, namely Board of Bendigo Regional Institute of Technical & Further Education v Barclay[30] and CFMEU v BHP Coal Pty Ltd,[31]which focus on an analogous provision in the FWA relating to industrial action (section 346 of the Act), dealt with single decision makers and one specific episode of conduct leading to the taking of adverse action.
[30] Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500.
[31] CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243.
In Barclay Heydon J expressed the nature of the inquiry required in the following terms:
The word "because" requires an investigation of Dr Harvey's reasons for her conduct. Section 360 provided that "a person takes action for a particular reason if the reasons for the action include that reason." The Explanatory Memorandum makes it clear that to satisfy s 360 the particular reason must be an "operative or immediate reason for the action". Under s 361 of the Act, it is presumed that action was taken for a prohibited reason, unless the employer proves otherwise. Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.[32]
[32] See Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500 at 544 [140] (footnotes omitted).
French CJ and Kiefel J provided a similar analysis in BHP Coal as follows:
The focus of the enquiry as to whether section 346(b) has been contravened is upon the reasons for Mr Brick taking the adverse action. This is evident from the word "because" in section 346, and from the terms of section 361. The enquiry involves a search for the reasoning actually employed by Mr Brick. The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences.[33]
[33] See CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243 at [7].
Given this is an inquiry into a factual state of affairs – why did someone make a decision to do something – caution must be taken to avoid converting the relevant inquiry into an examination of either the objective or subjective circumstances surrounding what occurred. As their Honours indicated the application of the reverse onus does not involve an objective test. Rather,
To speak of objectively ascertained reasons risks the substitution by the court of its own view, rather than making a finding of fact as to the true reason of the decision-maker.[34]
[34] See CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243 at [9].
Accordingly, in this case, I must be careful to avoid any conflation between Ms Brougham subjective views as to why her employment was not continued with any inadvertent objective assessment of the possibly different motivations and actions of the various actors concerned, which may be influenced by the context in which the decision was made. Rather the court must focus on the reasoning process which led to the impugned decision. It is an issue of fact. What is the substantive and operative reason leading to making of the decision in question?
In Barclay, French CJ and Crennan J made it clear, in so doing, the court is required to take into account all the relevant facts and circumstances of the case, as established by the evidence. They said as follows:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.[35]
[35] See Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500 [45] (footnotes omitted).
In similar vein, Gummow and Hayne JJ said that:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under section 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.[36]
[36]See Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500, 542 at [127] per Gummow and Hayne JJ.
Given the need to focus on the substantial and operative reasons germane to the relevant decision, in order to ascertain whether it is affected by the alleged prohibited reasons, an employer:
·Need not negate every reason, however immaterial it was to the decision to dismiss the employee concerned;
·Is not a roving search into the minds of relevant employees;
·Is not in the nature of an objective inquiry;
·Nor can it entail some attempt to elicit the unconscious reasoning of the ultimate decision-maker.[37]
[37] See CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014 at [121] per Reeves J.
As indicated in Gibbs, it is axiomatically a more difficult task to analyse the rationale for an adverse action, in an employment situation, when more than one individual is asserted to be involved in the decision-making process. This is a central evidentiary issue in the current matter, given Mr Mohor asserts that he alone made the decision, whilst Ms Brougham asserts otherwise and alleges that the real weight of the decision making process rested elsewhere.

Essentially, on the one hand, Mr Mohor denies that the decision involved was, in any way, a group decision or was disbursed, in some way, either formally or informally, throughout the organisation. Whilst Ms Brougham asserts otherwise. It being her positon that it is axiomatic that given she had made a complaint of bullying, involving various individuals at the AHCSA, including its chair, that there must be a causal connection between that and her effective dismissal.
I accept that if it can be established that others were involved in the decision making process and their prohibited reasons were a factor in influencing the ultimate outcome of the decision formally made by Mr Mohor, even if this occurred inadvertently, such influence has the potential to lead to the invalidation of the relevant decision.
This was the situation arising in Elliott v Kodak Australasia Pty Ltd.[38] The case involved a redundancy process. Two supervisors were tasked with ranking Mr Elliott by reference to criteria and then a third person, the general manager was charged with making the ultimate decision to terminate Mr Elliott. Necessarily, the outcome of the ranking process was influential in the ultimate redundancy decision. The decision making process was disbursed or, to put it another way, collegiate in nature.
[38] See Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804.
Thus, if the thought processes of one of the supervisors could be characterised as having been influenced by an improper consideration, the ultimate decision was liable to being impugned, even if the ultimate decision-maker was unaware of it. The court said as follows of this scenario, involving two rankers, who provided information to the ultimate decision maker:
The first difficulty with this argument is that Lay made an indispensable contribution to the rankings. He and Shannon co-operated in a joint assessment, with each giving an account of what influenced them individually. If it were the fact that Lay was influenced in giving a low mark by a prohibited reason, it can be assumed that if the ranking were done without having regard to that prohibited reason, it is likely that a different ranking would have been given by Lay. This, inevitably, would have affected the ranking process, whatever the views of Shannon. It would have been a different assessment process. Furthermore, whatever debate there might be about the extent of Walshe’s power or involvement in the decision, his evidence was that he took the Lay/Shannon assessment and worked from there. It follows that if the Lay/Shannon assessment is affected (or infected) by either Lay or Shannon having held an undisclosed prohibited reason, then he would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of Walshe.[39]
[39] See Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804 at [37].
In my view, the major difficulty with Ms Brougham assertion that the decision not to extend her contract was, in some way a group decision, is based on her conjecture and suspicion rather than any concrete evidence. Unlike in the Kodak situation, there is no evidence to indicate AHCSA formally or informally disbursed the issues to do with staff issues to others within the organisation’s structure.
In particular, apart from Ms Brougham’s view that various actors at AHCSA had it in for her, there is no evidence to indicate that Mr Mohor either formally or informally canvassed anyone else’s views about Ms Brougham or that he actuated or was influenced by a prohibited reason emanating from some other person in the organisation.
Mr Manuel, counsel for Ms Brougham characterises the position of Mr Mohor and Ms Sumner-Dodds as a situation of the former adopting a position of hearing no evil and seeing no evil or, as I take it wilfully ignoring the reality of the situation concerning Ms Brougham at the workplace. He characterises Ms Sumner-Dodd as being actively involved in AHCSA and Mr Mohor as her nephew and submit that it would be absurd to consider that he did not have some knowledge of her antipathy for Ms Brougham.
In Clermont Coal, Reeves J summarised the implications of Kodak as follows:
…where the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry does not involve a roving search of the minds of the employees of the kind rejected by Heydon J in Barclay. Nor does it involve an objective inquiry of the kind rejected in Barclay, nor import some “unconscious” reasoning to the ultimate decision-maker that was also rejected in Barclay …Instead, it focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason that will impugn the ultimate decision. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak…[40]
[40] See CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014 at [121].
Accordingly, as outlined by Reeves J, in Clermont, I consider the scope of the inquiry in this matter should proceed in two parts. Firstly, an inquiry to ascertain from the evidence of Mr Mohor, Ms Sumner-Dodd, Ms Thurnwald and Ms Stead to ascertain whose actions, if any had a material effect on the reasoning process which ultimately led to Mr Mohor’s formal decision not to extend Ms Brougham’s contract.
Secondly, an inquiry to examine the thought process or reasoning employed by those people to ascertain whether they were affected by a prohibited purpose or in the terms of section 360, whether AHCSA has established to the requisite standard of proof that none of the reasons identified by Ms Brougham namely her complaints relating to being bullied in the workplace or the fact that she brought what she considered to be significant shortcomings in the management of AHCSA to the attention of Professor Brown was a substantial and operative reason for the decision made by Mr Mohor not to extend her employment.[41]
[41] See CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014 at [122].
The central question of why adverse action was taken is neither objective nor subjective. It is fundamentally a question of fact to be determined by reference to all the facts established in the case. The court should be careful not to be distracted by suggestions that some proscribed reasons has subliminally or subconsciously influenced the decision in question.
The effect of section 361 is to place an onus on the applicable respondent to establish that a proscribed characteristic was not a substantial and operative factor leading to the taking of the adverse action in question.
The applicable principles are summarised by the Full Court in State of Victoria (Office of Public Prosecutions) v Grant in which the relevant principles were summarised as follows:
·The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
·That question is to be answered having regard to all the facts established in the proceeding.
·The court is concerned to determine the actual reason or reasons which motivated the decision-maker. The court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
·It will be “extremely difficult to displace the statutory presumption in section 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
·Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
·If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by section 361.[42]
In this case, all the individuals alleged by Ms Brougham to have been influential in the decision making process concerning her have given evidence and denied any occult motivation. It is in this context that consideration must be given to whether this evidence rebuts the presumption that either individually or in tandem the decision was made because Ms Brougham exercised a workplace right.
It is Ms Brougham’s submission that she was not privy to the decision making process concerning her. Axiomatically, this is the case. She acted on the assumption that her position remained funded and would ordinarily be extended, as had occurred in the past, without any controversy.
In her mind, that her contract was not so extended must be viewed in the light of her complaint to Professor Brown about her experience of being bullied in the workplace and her perception that Ms Sumner-Dodd had taken a set against her, because of these issues, a view which was apparently confirmed to her by Ms Davey.
It is in this context, that the legal provisions arising under section 340 and section 361 must be applied. As previously indicated, the test does not include either a subjective or objective component. It is directed towards ascertaining the true reason for the relevant decision.[43] This inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected right and the adverse action.[44]
[43] See CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243 at [9].
[44] See CFMEU v Martin & Gaparini Pty Ltd [2017] FCA 1046 at [300].
However, if such a connection is demonstrated, it may necessitate some consideration of the true motivation or reason of the decision maker. As such, it is not necessary for a decision maker to dissociate the adverse action taken from a protected attribute entirely. As previously indicated, in all cases, the issue is one of fact, focused on why the relevant decision was made.
THE EVIDENCE
Ms Brougham
In her evidence Ms Brougham indicated how much she enjoyed her role at AHCSA and that, in her view, she was a hardworking and competent employee of the organisation. I do not consider that it has been asserted otherwise by anyone associated with the Council. However, it is the clear import of Ms Brougham evidence that she felt that the organisation structure of the Council was flawed and it was factionalised, which led her to ventilate complaints about it.
A significant component of Ms Brougham’s case is that her contract had previously been rolled over in the past without comment. It is her position that the Council’s funding situation had not drastically changed and hence she asserts that her non-renewal occurred for the proscribed reasons which she has delineated.
In her letter of complaint to Professor Brown, Ms Brougham characterised those who were responsible for her bullying as being very discrete, cunning, play mental games and refrain from delivering up what is required so I can perform my duties.[45] It is not my function to ascertain the truth or otherwise of this assertion. I accept, however, in general terms, the workplace at AHCSA was, at times, an unhappy and fractious one. One major concern I have about much of Ms Brougham’s evidence is its inchoate nature.
[45] See Annexure AJB 6 to Ms Brougham’s affidavit filed 19 March 2021.
Ms Brougham herself, Ms Azar and Ms Thurnwald have provided details regarding various complaints that were made at the workplace between late October 2019 and the complaint to Professor Brown of 8 May 2020. Ms Brougham and Ms Thurnwald were both characterised as team leaders and so were on the same level at AHCSA. They each reported to the CEO, who coordinated their involvement with one another. Ms Brougham deposed that she considered that she had a good relationship with Mr Moher, when he was CEO at the time she was recruited to join AHCSA.
In her oral evidence, Ms Brougham provided her opinion that Ms Thurnwald was a non-performer who was difficult to work with. Ms Brougham also deposed that the AHCSA was an organisation, in her perception, that was beset by organisational politics. After the departure of Mr Mohor and his replacement by Ms Davey, she felt the latter was more conducive to how she considered the organisation should be managed. This does not seem to have been a view universally held at AHCSA.
It is the effect of Ms Brougham’s evidence that she felt she was being undermined because of her alignment with Ms Davey. She in fact complained, to this effect, to Ms Davey. For reasons already provided, it is not the court’s role to sort out the rights and wrongs of the politics of this particular workplace.
In June of 2019, Ms Thurnwald complained about comments made by Ms Brougham about some Indigenous students, who were attending at AHCSA for training, which she found offensive and insensitive. It is the effect of Ms Azar’s evidence, which I accept, that she investigated this issue in the absence of Mr Mohor.
In the course of her investigation, Ms Azar convened a meeting with Ms Brougham and Ms Thurnwald, the outcome of which was that Ms Brougham accepted that her comments, although unintended to give offence, might be perceived as such. In these circumstances, Ms Azar indicated that she did not intend to take any further action. She did however report the incident to Mr Mohor.
In late October 2020, Mr Hill, a work colleague of Ms Brougham complained that she had made a comment, in the lunchroom, which he found offensive, given the Indigenous nature of the organisation which employed them both. Ms Brougham accepted that her comment was unfortunate and later apologised for it. However, she also complained that she felt bullied by the person who had taken offence at her comment. Again, Ms Azar, with the assistance of Ms Davey, was able to conciliate the dispute without concrete action being taken against either party.
Ms Thurnwald made a further complaint about Ms Brougham in March of 2020. This complaint centred on Ms Thurnwald’s perception that Ms Brougham was putting forward a person to work as a trainer at the Council, whom Ms Thurnwald regarded as being homophobic in his past conduct towards her.
Ms Thurnwald’s perception was that Ms Brougham was insensitive to the emotional distress caused to her by what she considered was the unwarranted endorsed of this person by Ms Brougham caused her. At a later meeting held between Ms Azar and Ms Thurnwald, on 3 June 2020, Ms Thurnwald alleged that Ms Brougham had, in the past made, homophobic comments in her presence, which she found offensive.
It is the effect of Ms Brougham’s evidence that she and Ms Davey perceived that Ms Thurnwald was not efficient in her management of the Registered Training Organisation associated with AHCSA. As a consequence, Ms Davey directed Ms Brougham to undertake a functional analysis of the RTO.
This seems to have been part of a process which led to or added to existing frictions in the workplace and the alignment of staff who were either with or against Ms Davey. It is the effect of Ms Brougham’s evidence that Ms Sumner-Dodd was aware of these tensions, which by necessary implication provided the impetus for her to solicit Mr Mohor to not renew her contract.
In her principal affidavit, Ms Brougham deposes as to how closely she worked with Ms Davey and was provided by her with what she describes as privileged and confidential information which she characterises as dealing with the financial failings of AHCSA and its senior staff. Essentially, Ms Brougham identifies herself and Ms Davey as being some form of whistle blowers at AHCSA, whose efforts were ultimately stymied by the forced resignation of Ms Davey on 30 March 2020.[46]
[46] See affidavit of Ms Brougham filed 19 March 2021 at [35] – [43].
In cross-examination from Mr Collinson, Ms Brougham accepted that she regarded Ms Davey as her buffer at AHCSA, given her (Ms Brougham’s) perception that Ms Thurnwald, Ms Stead and Ms Sumner-Dodd did not approve of her. In this context, Ms Brougham specifically denied that she ever made the Adam and Steve comment attributed to her. She also asserted that Ms Davey had told her that Ms Sumner-Dodd had requested her (Ms Brougham’s) dismissal at a board meeting and later Ms Davey had told her it was not safe for her at the AHCSA and therefore she needed to very, very careful.
In her evidence, Ms Brougham indicated that she sought clarification from Professor Brown, in the period when he was acting CEO, as to whether her contract was going to be renewed. In addition, she asserts that she informed him of what were the issues concerning her being effectively blocked by Ms Stead and Ms Thurnwald, in the performance of her duties.
Ms Brougham has deposed that Professor Brown told her on 4 May 2020 her contract would be renewed with Ms Sumner-Dodd’s explicit approval.[47] In the submission of her counsel Mr Manuel this confirms his client’s position that there must be something untoward in regards to Ms Brougham’s contract, given this assurance.
[47] See affidavit of Ms Brougham filed 19 March 2021 at [60] – [61].
I do not accept this submission. Firstly, Professor Brown has not provided a scintilla of evidence in the case. Secondly, and more importantly, he had left the organisation when the relevant decision was made and, in my view, cannot be regarded as playing any part in making it. In addition, this evidence, such as it is, is that Ms Sumner-Dodd was not acting against her, which is at odds with Ms Brougham’s current case.
As observed in Khiani (supra) it is neither appropriate nor, in my view, possible for me to resolve the byzantine politics of the AHCSA, at the time, which involved, it would seem, two competing factions. It is clear to me that the various controversies involved evoked strong feelings in the individuals concerned, who clearly mistrusted one another.
AHCSA may or may not have been poorly administered. Ms Davey or the previous administration may or may not have been the source of the problems. I do not know. My function is to ascertain the substantive reason why Ms Brougham’s contract was not renewed. As such, I must caution against speculating about what influence one or other of the factions’ view may have played a part in this outcome. I am not at liberty to consider the objective circumstances of the case in this regard.
The inquiry is one based on ascertaining the substantive and operative reason for the adverse action not one based on an inferential assessment of its objective context. As indicated above, AHCSA need not negate every single factor which was at large in the workplace. It seems clear that Ms Brougham was not particularly popular with some members of staff, who did not approve of how she behaved, in the workplace, from time to time. I would be naïve to think that all members of the Board, including Ms Sumner-Dodd, can be regarded as being completely oblivious of what was going on in the workplace.
In these circumstances, I must make some assessment of the credibility of Ms Brougham, bearing in mind that her view of why the decision was made cannot be determinative. Firstly because she cannot know why the decision was made, as she did not make it and secondly, she is naturally inclined to lack detachment about it. Clearly, her perception is that she has been targeted because she spoke out, with Ms Davey, about what she perceived to be mismanagement at the organisation and because of this it was expedient that she not continue with the organisation.
In my view, Ms Brougham’s assertions, in this regard, are largely based on innuendo and conjecture, arising from her perception of the context surrounding Mr Mohor’s decision not to renew her contract. I cannot resolve whether AHSCA was poorly run, as she asserts. She relies largely on her description of the context of the case to support her assertion that she must have been dismissed, in effect, for a protected reason.

Ms Thurnwald confirmed that she made two complaints about Ms Brougham to Ms Azar, which in her terminology related to aspect of Ms Brougham’s behaviour which she considered racist and inappropriate because of attitudes in respect of sexual orientation. Ms Thurnwald concedes that her two complaints strained her working relationship with Ms Brougham.
Ms Thurnwald further deposed she had been unware, until the proceedings commenced that Ms Brougham had made a complaint about her to Professor Brown. She denies, in her affidavit that she frustrated the manner in which Ms Brougham was required to do her work. In this context, Ms Thurnwald agrees that she disagreed with the direction she perceived Ms Davey was taking AHCSA and complained about her (Ms Davey) to Ms Sumner-Dodd. She denies that she undermined Ms Brougham in this context or any other.
Ms Thurnwald gave evidence that it was common practice for a large proportion of AHCSA staff to be on fixed term contracts given the organisation was reliant on funding from external sources to continue operating and it needed to be responsive to changes in funding. She deposed specifically as follows:
I was not aware that Ms Brougham’s contract, specifically, was expiring in June 2020 or that Mr Mohor was considering whether to renew Ms Brougham’s contract.[55]
[55] See Ms Thurnwald’s affidavit filed 22 November 2021 at [10].
Mr Manuel did not cross examine Ms Thurnwald on the basis it was asserted that she bore accessorial liability for the decision not to extend Ms Brougham’s contract or indicate to her how it was alleged she influence the relevant decision. In fact it was not put to her that she was a relevant decision maker in respect of the issue.
Again, Ms Thurnwald may or may not have borne some form of grievance against Ms Brougham for what she believed were attitudes to all manner of things but that is not sufficient, in my view, for Ms Brougham to make out her case of illegality against Ms Thurnwald specifically. In particular, in my view, Ms Brougham has not established to the prerequisite degree that Ms Thurnwald was an actor in the process, which led AHCSA to not extend Ms Brougham’s contract.
Ms Stead
Ms Stead deposed that she had little involvement in how Ms Brougham performed her day to day duties. She has further deposed that she was unaware that Ms Brougham had made any complaint about her to Professor Brown, until she was provided with the material relating to the current proceedings.
As Senior Finance Officer, Ms Stead was aware that Ms Brougham’s contract was up for renewal at the end of the 2020 financial year. However, she deposed that she was not involved in Mr Mohor’s decision in this regard and he did not discuss it with her.
Mr Manuel cross examined Ms Stead about funding aspect to do with AHCSA and whether, as at the end of the financial year in 2020, the organisation had assured funding for the next three year period. Ms Stead did not accept this indicating that funding depended on the Council satisfactorily reporting to its funding bodies. In this context, Mr Manuel cross examined Ms Stead as follows:
Now, I think Ms Brougham commenced, I think, in 2018; would that sound right?---Probably, yes,
And she would have had her contract rolled over along with the return, her fixed term contract extended on at least one occasion; is that right?---Yes.
And that on the last one, where it says 30 June, and I will get the year wrong in a moment - - -?---2020.
2020, that wasn't the case; that wasn't renewed?---No.
Were you involved in that process?---No.
Were you doing, basically, doing the figures and things?---No, all I do is ask, as the contracts are coming up, are they being renewed. Like, I'm doing it right now because there's we've got 22 staff that their contracts finish, so that's my job every year, to see if they're being renewed, so we can do budgets.
And how do you know it's going to be renewed; does some particular person tell you, or do you work it out yourself?---The CEO works it out. The CEO is the only person that has the authority to hire or fire people in AHCSA.
With the end of the contract being 30 June, was there any consultation or consideration of alternative positions?---I've got no idea. It's nothing to do with me.
That's not your business?---No.[56]
[56] See Transcript at page 96.
Ms Stead indicated that she was aware that complaints had been made about Ms Brougham’s conduct form time to time. She was, in fact, co-opted to be Ms Brougham’s support person in one of the complaint interviews conducted by Ms Azar. In this context, Ms Stead deposed that Ms Brougham frequently commented that she believed in Adam and Eve not Adam and Steve. Ms Stead also conceded that she compared Ms Brougham to Scott Morrison. Whether this was intended by her to be pejorative or otherwise was not clarified with her. It confirmed my impression that Ms Brougham’s case was based on innuendo and suspicion.
Again, it was not specifically put to Ms Stead what were the aspects of her conduct which were captured by the accessorial provisions of section 550 of the FWA. It was not put to her what were the alleged specifics of her role in the decision making process or how it was asserted she had influence Mr Mohor. In these circumstances, as with Ms Sumner-Dodd and Ms Thurnwald, it is my view that Ms Brougham has not established to the required degree that Ms Stead played any part in the process which led to Mr Mohor’s decision not to extend Ms Brougham’s contract.
Ms Azar
Ms Azar presented as a professional and credible witness. I have no reason to doubt the veracity of her evidence. Ms Azar describes her role at AHCSA as being:
…a generalist human resources role which covers recruitment, provision of advice on employment legislation, interpretation of our enterprise agreement and policies, assisting and coaching staff on how to manage grievances as well as managing day to day human resources operations.[57]
[57] See affidavit of Ms Azar filed 30 April 2021 at [3].
Ms Azar commenced her employment on 6 November 2018, which was just before Ms Brougham started at AHCSA. Accordingly, Ms Brougham’s recruitment and induction was handled by her predecessor, Mr Mountford. In this context, Ms Azar deposes as follows:
All employees have access to AHCSA’s policies, procedures and relevant industrial documents including the enterprise agreement through Alfresco, AHCSA’s document management system. Ms Brougham would have been directed to these upon commencement of her employment. She would have also been provided with a copy of AHCSA’s enterprise agreement.[58]
[58] See affidavit of Ms Azar filed 30 April 2021 at [8].
In her oral evidence, Ms Azar deposed that she had a copy of the relevant enterprise agreement on the desk in her office, which she frequently consulted and which was visible to all. Her assumption is that Mr Mountford provided Ms Brougham with a copy of the Fair Work Information Sheet. However, as she did not deal with Ms Brougham’s induction, she cannot confirm this for certain.
Ms Azar confirmed that she was tasked with dealing with the various complaints made about Ms Brougham comments in the workplace which was taken to be offensive by Mr Hill and Ms Thurnwald. She denied, in cross examination that she had had any discussions with Ms Sumner-Dodd about these complaints and their content or that she had been directed to do anything in respect of Ms Brougham’s employment by Ms Sumner-Dodd.
As far as I can understand, Ms Brougham does not assert that Ms Azar acted other than appropriately in how she managed and conciliated each of the complaints brought by Mr Hill and Ms Thurnwald. I accept Ms Azar’s evidence that she was unable to take Ms Thurnwald’s second complaint further due to the fact that Ms Brougham did not return to work due to her taking sick leave and ultimately pursing a claim for worker’s compensation.
As indicated above, Ms Brougham’s complaint to Professor Brown was emailed at around 5.00 pm on 8 May 2020, which was Professor Brown’s last day as acting CEO. Due to the abandonment of the subpoena to him and the absence of any affidavit material from him, there is no evidence, referrable to him specifically, as to his knowledge of the workplace controversies between Ms Davey, Ms Thurnwald and Ms Stead and what role, if any, either he or Ms Sumner-Dodd played in them.
It is Ms Brougham’s evidence that she felt that she was being set up, I presume in the context of these controversies and her perception that she was aligned with Ms Davey. Ms Brougham contended that she contacted Ms Azar about her concerns in this regard by telephone and email. Ms Azar denies that any such contact was made. She was not cross examined about this issue.
It is Ms Azar’s evidence, confirmed by Mr Mohor, that she was tasked with dealing with Ms Brougham’s complaint of 8 May 2020 in the context of her role as HR manager for AHCSA. I accept Ms Azar’s evidence that she did not discuss the contents of the complaint with any of its subjects, namely Ms Stead, Ms Thurnwald nor Ms Sumner-Dodd.
I accept this evidence and find that Ms Azar acted entirely appropriately in how she managed Ms Brougham’s complaint. More significantly I accept that Mr Mohor left the complaint to her to manage and he had only knowledge that a complaint had been made but not what its parameters were.
In addition, I accept her evidence that she found Ms Brougham’s complaint to broad in nature. As a consequence, she requested to meet with Ms Brougham so that she could provide her with more specific details. On 21 May 2020, Ms Azar and Ms Brougham met at a local café. Ms Brougham declined to provide oral answers to Ms Azar’s question. Rather, Ms Brougham made it clear that she preferred to provide further particulars in writing.
In this context, Ms Brougham provided a document headed Evidence in support of claims. It is the effect of Ms Azar’s evidence that she did not find this to be a particularly helpful document, as from her perspective, it contained generalised claims without providing any specific examples of bullying, financial irregularities or discrimination against her.
As a consequence, on 22 May 2020 Ms Azar emailed Ms Brougham with a pro forma list of questions and asked her to provide the details requested on the form. Ms Brougham did not respond to the questions. She was asked specifically what made her feel concerned her employment would be terminated and why it was widely known Ms Sumner-Dodd wanted her employment terminated.[59] Shortly afterwards, Ms Brougham went on extended sick leave.
[59] See Annexure LA 13 to Ms Azar’s affidavit filed 30 April 2021.
In my view, it is highly significant that all of these machinations occurred prior to the re-appointment of Mr Mohor and whilst he was not a member of staff of the AHCSA. It was not suggested to him that he was involved in some way behind the scenes given his long term involvement with the organisation. Accordingly, prior to Ms Brougham’s formal complaint, it would seem that the only individuals who could have been involved in exerting pressure to have Ms Brougham dismissed were existing board or staff members.
In this context, Ms Azar contacted Amanda Green, who was the Executive Officer, who prepared minutes of board meetings in March 2020, to inquire whether there had been any discussions about Ms Brougham at any such meeting. Ms Green indicated there had been no such discussion. However, at a meeting held on 12 March 2020, at which Ms Sumner-Dodd officiated. Ms Davey is also noted as an attendee, her evidence of the meeting is set out below. The minutes indicate as follows:
The Rainbow Tick Survey was circulated to the Board for their participation in the Survey. Concerns were raised regard the behaviour and attitude of a staff member. Discussion was held regarding ensuring that the AHCSA staff induction process outlines AHCSA’s expectations and code of ethics, to ensure AHCSA is a safe place for all. Cultural awareness and respect training is also to be provided to all staff.[60]
[60] See Annexure LA 15 to Ms Azar’s affidavit filed 30 April 2021.
Ms Sumner-Dodd was not cross-examined about what role she played in this discussion or whether she ventilated any concerns about the unspecified staff member and what those concerns were and who the identity of the individual concerned. What is clear is that no specific action was mandated against any staff member in respect of employment issues, at the meeting and, in specific terms, Mr Mohor did not play any part in this process.
Ms Azar deposed that AHCSA’s primary sources of funding were the National Aboriginal Community Controlled Health Organisation (NACCHO) and the SA Peak Body for Aboriginal Community Health Services (ACHS). It is Ms Azar’s evidence that at the end of each financial year, the CEO reviews each contract of employment up for renewal in the context of the organisation’s ongoing funding.
Ms Azar’s deposed that her involvement, in this process, was only provided in an HR implementation sense or in other words she was not a decision maker as to which contracts would be renewed and which not. I accept this evidence. Specifically, Ms Azar deposed as follows:
In May 2020, AHCSA’s funding was uncertain due to the AHCSA not having met its funding requirements in relation to the SA Peak Body Agreement on time. Moreover, AHCSA had not received confirmation that the NACCHO funding would be renewed so it was a time of great uncertainty for the organisation which was also exacerbated due to the effects of COVID-19. COVID-19 had also caused AHCSA to need to re-prioritise the services it was providing.
…
In approximately the last week of May or the first week of June 2020, Mr Mohor came and spoke to me in my office. In that discussion, Mr Mohor told me that he had spoken with SA Health and they had directed AHCSA focus the of funding on COVID-19 related roles, including employing a COVID-19 Coordinator, which is more focussed on being clinical role (sic), and a Media and Communications Coordinator to handle the community messaging.[61]
[61] See Ms Azar’s affidavit filed 30 April 2021 at [55] & [57].
It is the effect of Ms Azar’s evidence that Ms Brougham’s position, which was focussed on seeking grants, was not suited to the satisfaction of either of these functions. It is also Ms Azar’s evidence that Ms Brougham’s position was also one which was affected by the non-confirmation of NACCHO funding.
As a consequence, Mr Mohor went through the list of employees whose contracts were due to expire, who were affected by this funding arrangement and directed her to draft letters of non-renewal to them, one of whom was Ms Brougham. Essentially, Ms Azar confirms Mr Mohor’s evidence as to the process surrounding the decision not to extend Ms Brougham’s contract and the reasons why the decision was made. I accept Ms Azar’s evidence in this regard.
Ms Azar referred Ms Brougham’s complaint to Professor Brown to a firm of solicitors for their management given the fact that it involved existing staff and board members. She had Mr Mohor’s approval to do this. Ms Azar also liaised with the relevant insurer regarding Ms Brougham’s claim for worker’s compensation. In this capacity, she was interviewed by an assessor on 15 June 2020.[62] Mr Manuel did not cross examine Ms Azar about the contents of this interview or make reference to it in his submissions.
[62] See Annexure AJB 21 to Ms Brougham’s affidavit filed 23 December 2021.
It was the effect of Ms Azar’s evidence that Ms Brougham’s complaint to Professor Brown was not finalised because Ms Brougham did not provide the particulars requested of her. Further Ms Brougham did not herself pursue the matter and did not return to the workplace after she went on sick leave.
Ms Davey
The manner in which Ms Davey came to give her evidence was wholly unsatisfactory. Any suggestion that her evidence would provide a coherent thread to pull together Ms Brougham’s inchoate case proved to be illusory.
Ms Davey indicated her view that she had a good relationship with Ms Sumner-Dodd. Ms Davey confirmed that she had been present at the Board meeting in March of 2020 at which there had been discussion about Ms Brougham’s attitude to LGBTIQ individuals. In her evidence in chief, Ms Davey deposed as follows:
And were there any comments about her on whether Ms Brougham would have ongoing employment?---There were comments. I remember one of the board members said, "There is no evidence that Angela talks poorly about LGBTIQ," and, however, it was stated that Polly did say, well, "They can no longer be in this organisation," so that was the comment. That was the fact. That's the information that was shared.
Was that only related to Ms Brougham, or were there other employees captured by that as well?---1 did not know of any other employees who were religious, so the only concern that I know of that Polly had was with Angela, and that is a fact, and I - and she shared a text message in relation to that with me, because when I was provided the subpoena, I had to go over this, and so I recall the - a test after that. There was nobody else.[63]
[63] See Transcript at page 120.
I was provided with the relevant text message, which has an intimate tone but is brief in nature and so difficult to definitively interpret.[64] Ms Davey appears to express solidarity with Ms Sumner-Dodd’s apparent disquiet about Ms Brougham, which she indicates she finds too much to bare. She concludes: I believe I can address that in the new restructure and also because I think her contract ends soon!
[64] See Exhibit H.
To which Ms Sumner-Dodd replies:
Thank you for that Nahtahna. We can’t have people with those attitudes, who make a mockery of our Cultural history and personal identities roaming around in our organisations.
Significantly, it was Ms Davey who made the comment about Ms Brougham’s contract being up for renewal. However, it is clear that nothing occurred in respect of Ms Brougham’s position until after Ms Davey had left the organisation.
Just because Ms Sumner-Dodd expressed some negative animus for Ms Brougham, at one stage, does not elevate this to the substantive and operative reason for the non-extension of Ms Brougham’s contract, in the light of a significant amount of evidence provided by the person who headed the organisation at relevant times that the reasons for it were based in operational and funding considerations.
As previously indicated, there is no evidence to suggest that Ms Sumner-Dodd took any concrete steps in respect of her statement above or that she attempted to influence Mr Mohor in any way. In my view, the overwhelming evidence indicates that the reason for Ms Brougham’s dismissal arose after the controversies between the actors concerned had coalesced and were independent of them.
CONCLUSIONS
It is Ms Brougham’s case that she was subject to illegal adverse action because she made a complaint to Professor Brown that she had been subject to bullying in her workplace. That she made a complaint cannot be doubted. What is the subject matter of that complaint and whether the matters complained of occurred is less clear. It is not my function to ascertain the truth of her complaints.
Ms Brougham does not have a window into the minds of the decision maker or decision makers, who were involved in the decision not to extend her contract. She can only rely on her subjective context of the circumstances surrounding the decision and her perception that it was an improperly motivated decision. It is for that reason, the relevant legislation has created a reverse onus.
For the reasons provided above, I am satisfied that the sole decision maker, in this case, was Mr Mohor and he acted alone in deciding not to extend Ms Brougham’s contract. I am satisfied that it was not a collegiate decision and that Mr Mohor was not influenced, in any material way, by the concerns or motives of other, particularly those who are alleged by Ms Brougham to have accessorial liability for the decision.

In my assessment, Mr Mohor and the other individuals at AHCSA, who conduct has been impugned by Ms Brougham, have done all that can be expected of them to provide evidence regarding how the relevant decision was made. It is a question of fact. I am not entitled to attribute some subconscious animus to any of the individuals concerned or draw my own objective inferences.
Rather, in order to discharge the onus resting on it, AHCSA is required to call each relevant actor concerned so that each may indicate why they did what they did and for that evidence to be tested. For the reasons, I have provided, I accept the veracity of the evidence of Mr Mohor and Ms Azar regarding why the decision was made not to extend Ms Brougham’s contract. The substantive and operative reason was that the contract in question was subject to recurrent funding and was coming to an end.
The funding relevant to Ms Brougham’s position was not secure and due to the COVID-19 pandemic emergency, the Council and its funders had decided to re-direct its focus away from the areas for which Ms Brougham had been recruited. In my view, the general unhappiness, at the AHCSA workplace, relating to the various controversies surrounding Ms Brougham, Ms Thurnwald, Ms Davey and indeed Ms Sumner-Dodd were extraneous to this decision and certainly were not the substantial and operative reasons for it.
In all these circumstances, I am satisfied that AHCSA had discharged the onus upon it, pursuant to section 361 of the FWA and has established, on the preponderance of probabilities, that the reason Ms Brougham’s contract was not extended was for financial reasons relating to the funding of the organisation, given its changes of priorities in the light of how it had been directed to respond to the pandemic crisis by government and its funders, particularly in terms of providing support and information about COVID-19 to remote and vulnerable Aboriginal communities.
The vast majority of the hearing and almost the entirety of the affidavit material dealt with Ms Brougham claim that she was subject to adverse action because of her complaint to Professor Brown. In this context, Ms Brougham has bluntly asserted that she did not receive the fair work information sheet required by section 125 of the Act.
This omission alleged occurred in November of 2018. It was not subject to any previous complaint, as far as I know. The person who then administered HR matters at AHCSA has left its employ. Ms Azar has given evidence that, in her experience, AHCSA provided relevant documents and industrial information to its employees electronically and was assiduous in its responsibilities in this regard.
In all the circumstances, I do not accept that the applicant has discharged the evidentiary onus to establish the contravention of the Act, in respect of the provision of fair work information.
For all these reasons, I have reached the conclusion that Ms Brougham’s application should be dismissed. The orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and forty-nine (249) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.
Associate:
Dated: 24 May 2022
SCHEDULE OF PARTIES

ADG 235 of 2020

Respondents

Fourth Respondent:

DEBRA STEAD

[42] See State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32].

File number(s):	ADG 235 of 2020
Judgment of:	JUDGE BROWN
Date of judgment:	24 May 2022
Catchwords:	INDUSTRIAL LAW – Fair work – allegation of breach of general protection provisions – adverse action – failure to extend contract of employment – exercise of workplace rights – workplace right to make complaint regarding bullying – allegation contract of employment not extended because of complaint – reverse onus under section 361 – who was relevant decision maker – allegation decision influenced others for proscribed reasons – accessorial liability – standard of proof – evidence provided by relevant decision maker – whether any proscribed reason was a substantial and operative reason for adverse action – whether respondent has discharged onus arising under section 361 of the Fair Work Act 2009 (Cth)
Legislation:	Evidence Act 1995 (Cth) ss 136, 140, 144 Fair Work Act 2009 (Cth) p 3-1, ss 12, 125, 140, 340, 341, 342, 346, 351, 360, 361, 550, 789FC Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, Div 16.1, r 16.04, 16.08
Cases cited:	Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500 Brougham v Aboriginal Health Council of South Australia [2021] FCCA 2031 CFMEU v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243. CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014 CFMEU v Martin & Gaparini Pty Ltd [2017] FCA 1046 Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804. Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fox v Percy (2003) 214 CLR 118 Gibbs v Palmerston Town Council [1987] FCA 477 Hadgkiss v Sunland Constructions Pty Ltd & Ors (2007) 158 FCR 193 Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 Transport Workers’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244 Wong v National Australia Bank Ltd [2021] FCA 671 Yorke v Lucas [1985] HCA 65
Division:	Division 2 General Federal Law
Number of paragraphs:	249
Date of last submission/s:	17 March 2022
Date of hearing:	15, 16 & 17 March 2022
Place:	Adelaide
Counsel for the Applicant:	Mr Manuel
Solicitor for the Applicant:	Starke Lawyers
Counsel for the Respondents:	Mr Collinson
Solicitor for the Respondents:	Edge Legal

ADG 235 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ANGELA BROUGHAM Applicant
AND:	ABORIGINAL HEALTH COUNCIL OF SOUTH AUSTRALIA LIMITED First Respondent POLLY SUMNER-DODD Second Respondent ANNIE-ROSE THURNWALD (and others named in the Schedule) Third Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	24 MAY 2022

ADG 235 of 2020
Respondents
Fourth Respondent:	DEBRA STEAD