Chambers v Commonwealth of Australia (Bureau of Meteorology) - [2024] FedCFamC2G 100

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chambers v Commonwealth of Australia (Bureau of Meteorology) (No 2) [2024] FedCFamC2G 100

File number(s): SYG 1632 of 2021

Judgment of: JUDGE D HUMPHREYS

Date of judgment: 9 February 2024

Catchwords: INDUSTRIAL LAW – Fair Work – Contraventions of the Fair Work Act 2009 (Cth)

Legislation: Fair Work Act 2009 (Cth) ss 50, 340, 341, 342, 360, 361, 386, 570

Cases cited:
Ashby v Commonwealth of Australia [2022] FCAFC 77

Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191

Australian Consumer and Competition Commission v TPG Internet Pty Ltd (2013) 250 CLR 640

Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441

Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215

Board ofBendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Browne v Dunn (1893) 6 R 67

Briginshaw v Briginshaw (1938) 60 CLR 336

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25

Construction, Forestry, Mining & Energy Union v Clermont Coal Pty Limited [2015] FCA 1014

Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697

Construction, Forestry, Mining and Energy Union v Victoria [2013] FCA 445

Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163

Guerinoni v Synthes Australia Pty Ltd [2016] FCCA 1710

Jasmine Chambers v Commonwealth of Australia (Bureau of Meteorology) [2021] FWC 4622

Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899

Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908

Mohazab v Dick Smith Electronics Pty Ltd [No 2] [1995] IRCA 625

Morley v Australian Securities and Investments Commission [2010] NSWCA 331

Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754

National Union of Workers v Qenos Pty Ltd [2001] FCA 178

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR

Police Federation of Australia v Nixon and Anor [2008] 168 FCA 467

Ramos v Good Samaritan Industries (No 2) (2011) FMCA 341

Rowland v Alfred Health [2014] FCA 2

State of New South Wales v Paige (2002) 60 NSWLR 371

Tattsbet Limited v Morrow [2015] FCAFC 62

Tran v Macquarie University (No 2) [2019] FCCA 2049

Division: Division 2 General Federal Law

Number of paragraphs: 327

Date of last submission/s: 24 January 2024

Date of hearing: 23 October 2023 – 3 November 2023

Place: Parramatta

Counsel for the Applicant: Mr Brennan SC and Mr Whitbread

Solicitor for the Applicant: Maurice Blackburn

Counsel for the Respondent: Mr White SC and Ms Wright

Solicitor for the Respondent: McInnes Wilson Lawyers
ORDERS

SYG 1632 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
JASMINE CHAMBERS

Applicant

AND:
COMMONWEALTH OF AUSTRALIA (BUREAU OF METEOROLOGY)

Respondent

ORDER MADE BY:

JUDGE D HUMPHREYS

DATE OF ORDER:

9 FEBRUARY 2024

THE COURT ORDERS THAT:
1.Judgment be entered in favour of the Applicant for the contraventions found proven. All other matters are dismissed.
2.The matter is listed at 9.30am on 16 February 2024 for a Direction Hearing.

THE COURT DECLARES THAT:
3.The alleged contravention of section 340 of the Fair Work Act 2009 (Cth) (“the Act”) by:
(a)Making threats to dismiss the applicant; and
(b)Rating the Applicant’s performance as ‘unsatisfactory’ in August 2019.

is dismissed.
4.The alleged contravention of section 340 of the Act by rating the Applicant’s performance as unsatisfactory on 14 November 2019 is dismissed.
5.The alleged contravention of section 340 of the Act by:
(a)Failing to advance recruitment into the General Manager International Development (“GMID”) position throughout 2020; and
(b)Stopping recruitment into the GMID role in October 2020, and at all times prior to the Applicant’s dismissal in December 2020.

is dismissed.
6.The alleged contravention of section 50 of the Act when it failed to advise the Applicant of the reasons why her position may become excess, in breach of clause C.9.5 of the Bureau of Meteorology Enterprise Agreement 2018 (“EA”) is dismissed.
7.The Respondent contravened section 340 of the Act by its decision to declare the Applicant’s position ‘potentially excess’ and ‘excess’.
8.The Respondent contravened section 50 of the Act when it failed to take all reasonable steps to assign new duties to the applicant during her retention period, in breach of clause C.9.32 of the EA.
9.The alleged contravention of section 345 of the Act when it represented to the Applicant that the Agency Head and Director of the Bureau of Meteorology, had received advice from a redeployment assistance service provider that there were no reasonable prospects of redeployment for the Applicant in the Australian Public Service, is dismissed.
10.The Respondent contravened section 50 of the FW Act when it presented and pursued the early termination option pursuant to C.9.36 of the EA, in circumstances where no redeployment assistance service provider had advised that there were no reasonable prospects of the Applicant being redeployed in the Australian Public Service.
11.The Respondent contravened section 340 of the Act by dismissing the Applicant.

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 D HUMPHREYS
PAGE NUMBER                 HEADING
1.  INTRODUCTION
4.  THE ALLEGED CONTRAVENTIONS
5.  THE LAW IN RELATION TO ADVERSE ACTION
9.  THE PLEADING OBJECTIONS
9.  THE EVIDENCE
10.THE APPLICANT’S EVIDENCE: THE APPLICANT’S RECRUITMENT
15.FIRST ALLEGED CONTRAVENTION - JULY/AUGUST 2019 THREATS TO DISMISS
25.SECOND ALLEGED CONTRAVENTION – THE NOVEMBER 2019 PERFORMANCE ASSESSMENT.
34.FOURTH ALLEGED CONTRAVENTION – FAILING TO ADVISE THE APPLICANT OF THE REASONS FOR BEING ‘EXCESS’
38.FIFTH ALLEGED CONTRAVENTION – ‘POTENTIALLY EXCESS’ AND ‘EXCESS’
52.THIRD AND SIXTH ALLEGED CONTRAVENTIONS – FAILURE TO REDEPLOY AND FAILURE TO TAKE REASONABLE STEPS TO ASSIGN NEW DUTIES TO THE APPLICANT
59.SEVENTH AND EIGTH ALLEGED CONTRAVENTIONS – THE NO PROSPECT REPRESENTATION
64.THE NINETH ALLEGED CONTRAVENTION – THE DISMISSAL

70. CONCLUSION
INTRODUCTION

This is a general protections application alleging multiple contraventions of the Fair Work Act 2009 (Cth) (“the Act”). The applicant, Jasmine Chambers, alleges that due to exercising her workplace rights on nine occasions, adverse action was taken against her culminating in her dismissal from her employment at the respondent, the Bureau of Meteorology (“the Bureau”).
The hearing was held over 10 days commencing on 23 October 2023. Following the completion of evidence, very lengthy written closing submissions were filed by both parties. A further day of oral submissions took place on 24 January 2024. The matter was very hard fought both at hearing and in the written submissions. The respondent has contested the matter on both fact and law, arguing every available factual and legal point.
The applicant is a science communicator and marketer who previously worked as the General Manager of the Division of Natural Sciences at University of Sydney. She had worked at Sydney University for 21 years. The applicant had considerable experience engaging at an international level on behalf of the University of Sydney. The applicant does not have a pure science background at Doctoral level.
While at the University of Sydney, she was headhunted to work at the respondent organisation, the Bureau, in the position of General Manager, Global and National Science Relations (“GM GNSR”). She commenced employment at the Bureau on 27 November 2018.
At the Bureau, the applicant was hired as an Executive Level 2 (“EL2”) with a base salary between $130,000.00 and $140,000.00. She was paid an additional ‘leadership allowance’ that was contained within an Individual Flexibility Agreement (“IFA”) to form her total remuneration package of $218,700.00. She claims that during the recruitment process, representations were made to her that she would benefit from the same entitlements as those offered to Senior Executive Service (“SES”) employees, such as business class flights. The applicant claims the entitlement to SES level travel entitlements was a deal breaker and she only accepted the position after she was told this would be approved. The applicant accepted the role with the Bureau, notwithstanding it involved a lesser remuneration package than she was receiving at the University of Sydney.
IFA’s were introduced as a ‘work around’ in response to limits imposed by the government on the recruitment of higher graded or SES level public servants. In effect, an IFA enabled a person to be remunerated at an equivalent SES remuneration package, while being to all other purposes graded at a lesser level. IFA’s could be characterised as a game of ‘smoke and mirrors’ played to hide the fact that public servants were being paid at higher rates than might be otherwise imagined.
At the Bureau, the applicant reported to a Dr Gilbert Brunet, the Bureau’s Chief Scientist. Dr Brunet was relatively new to the Bureau as well, having been recruited shortly before the applicant, after a career in similar organisations overseas. He assumed the position of Chief Scientist from Dr Sue Barrell, who was the main person the applicant dealt with in the recruitment process. Dr Barrell has retired.
It did not take long for things to go wrong in regard to the applicant’s employment with the Bureau. In May 2019, the applicant was advised by Dr Brunet that her six-month probationary period would be extended, as she had failed to complete induction courses and she ‘seemed to complexify things’. Further, Dr Brunet was not seen to be controlling her. The Court notes that this seems more a reflection on Dr Brunet than the applicant.
In June 2019, the applicant travelled to Paris to attend the Assembly of the Intergovernmental Oceanographic Commission of the United Nations as part of her duties. During this trip, the applicant flew in business class and took two days of annual leave in addition to some other personal time off. Her trip, including all time off, was approved by Dr Brunet prior to her travel.
After the trip, the Chief Operating Officer of the Bureau, Ms Gale, contacted the applicant to inform her that she was the subject of an audit, as she had travelled on business class flights, taken leave, and claimed expenses that were only available to those at an SES level. It is to be noted that the applicant was not paid in advance for her travel expenses, but rather, sought reimbursement for expenses incurred, other than flights, after her return.
On 14 August 2019, the applicant claims that she was told by Dr Brunet in a meeting, that she was to be dismissed as she had not passed her probation. The applicant then sought legal advice and advised the Bureau that she would seek urgent injunctive orders in the Federal Court of Australia to prevent her dismissal unless an undertaking was given not to dismiss her. These undertakings were given.
In November 2019, the applicant was again rated by Dr Brunet in her performance appraisal as unsatisfactory. She made a complaint to the Merit Protection Commissioner, who found the assessment to be wrong and that the evidence did not support an assessment of her performance as unsatisfactory.
On 20 November 2019, the Bureau announced that it was going to perform an organisational restructure. Under this restructure, the applicant’s position was to be made redundant. The applicant’s position was to be replaced by another position, a General Manager International Development (“GMID”), at the same grade, but allegedly with a different position description.
In the following months, the applicant sought information on the GMID position, the reasons for the restructure, as it applied to her position, and her rights to be redeployed to it. Although announced, the GMID position was not advertised until July 2021, after the applicant had ceased employment with the Bureau and her redeployment period had expired.
The applicant’s employment ceased with the Bureau with effect on 21 December 2020, after she accepted a payout of her redundancy period.
THE ALLEGED CONTRAVENTIONS
In an Amended Statement of Claim, filed on 5 April 2022, the applicant alleged nine contraventions of the Act. The applicant asserts that she relied upon a number of workplace rights which she exercised, and claims were the reason for adverse action being taken against her. The applicant claims that those rights are summarised follows:
(1)The right to take approved leave during the trip to Paris on 21 and 24 June 2019.
(2)The right to fly business class return to Paris.
(3)The right to be reimbursed her actual expenses incurred during the Paris trip.
(4)Making enquiries or complaints in relation to her employment by responding to criticisms from Ms Gale and Dr Brunet in relation to her rights to annual leave, travel on business class flights and claim SES level travel expenses.
(5)Causing correspondence to issue from her Solicitors seeking undertakings not to dismiss the applicant, which the Bureau subsequently agreed to.
(6)Seeking to have her legal costs incurred in seeking the undertakings set out above, reimbursed by the Bureau.
(7)Making a complaint to the Merit Protection Commissioner.
(8)Making a bullying complaint.
(9)Seeking to enforce her redeployment rights under cl C.9.2 the Bureau of Meteorology’s Enterprise Agreement, after she became potentially excess.
(10)Making inquiries about the GMID position.
(11)Making inquiries about the reasons for the restructure.
The following contraventions, which are characterised as adverse action, are alleged to have occurred:
(1)Threats to dismiss the applicant between July - August 2019.
(2)Providing an ‘unsatisfactory’ performance assessment in November 2019.
(3)Failing to advise the applicant for the reasons she was being made excess.
(4)Declaring the applicant was ‘potentially excess’ and then ‘excess’.
(5)Failure to redeploy the applicant.
(6)Failure to take reasonable steps to assign new duties to the applicant.
(7)Making a false representation that the applicant had no reasonable prospect of redeployment within the Australian Public Service (“APS”).
(8)Terminating the applicant’s employment in circumstances where the conditions of cl 9.36 the Enterprise Agreement (“EA”) as to no reasonable prospect of redeployment had not been met; and
(9)Dismissing the applicant from her employment.
A further allegation relating to “Misleading Recruitment”, including negligent misstatement and contravention of the Australian Competition and Consumer Act 2010 (Cth) and s 345 of the Act has not been pressed in closing submissions by the applicant.
THE LAW IN RELATION TO ADVERSE ACTION
Part 3-1, Division 3 of the Act sets out various workplace rights for employees. Section 340 of the Act provides as follows:
Protection
1. A person must not take adverse action against another person:
a)because the other person:
i.has a workplace right; or
ii.has, or has not, exercised a workplace right; or
iii.proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
b)to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
Section 341 of the Act relevantly defines a ‘workplace right’ to include:
Meaning of workplace right
1. A person has a workplace right if the person:
…
c)is able to make a complaint or inquiry:
…
ii.if the person is an employee--in relation to his or her employment.
Section 342 of the Act relevantly sets out the meaning of ‘adverse action’. This includes:
Meaning of adverse action
Adverse action is taken by… an employer against an employee if… the employer:
a)dismisses the employee; or
b)injures the employee in his or her employment; or
c)alters the position of the employee to the employee’s prejudice; or
d)discriminates between the employee and other employees of the employer.
The definition of s 341(1)(c)(ii) of the Act is one that might be satisfied by an employee making a complaint to their employer: (see; Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908 at 141). There must be a relevant connection between the complaint and the employee’s employment, albeit it may be an indirect one: (see; Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [61]-[64]).
Where an applicant alleges a contravention of s 340 of the Act, they bear no burden of proving the reasons for the adverse action. Section 361 of the Act provides as follows:
Reason 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.
This must, however, be taken in conjunction with s 360 of the Act which states as follows:
Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Thus, although under s 360 of the Act the prohibited reason need only be one of multiple reasons for acting, the prohibited reason must be a “substantial or operative factor” in influencing the adverse action, or alternatively, an operative or immediate reason for acting: (see; Board ofBendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (“Barclay”) at [62] per French CJ and Crennan J, at [104] per Gummow and Hayne JJ, and at [140] per Heydon J).
This requires the Court, at a minimum, to conduct an enquiry into the state of mind of the decision maker. Where multiple people are involved in the decision-making process, such an enquiry may involve taking into account all these decision maker’s reasons: (see; Construction, Forestry, Mining & Energy Union v Clermont Coal Pty Limited [2015] FCA 1014 per Reeves J at [103]-[104]). Reeves J quotes the following from Barclay at [109]:
Generally, it will be extremely difficult to displace the statutory presumptions in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.
The applicant submitted that they bore the onus in relation to contraventions four, six, seven and eight, being the failure to advise the reasons for her being excess, the failure during the retention period to take reasonable steps to assign new duties, making the “No Reasonable Prospect” representation and pursuing the early termination option in breach of the EA.

The balance of the alleged contraventions, being one, two, three, five and nine, follow the normal path, with the applicant having the onus of proving the alleged adverse action and establishing the existence of the circumstances giving rise to it which are said to be the reason for the taking of the adverse action. Once that is done, s 361 of the Act is engaged and the case turns upon whether the respondent can rebut the statutory presumption: (see; Tattsbet Limited v Morrow [2015] FCAFC 62 at [119]).
The respondent submitted that the right under s 341(1)(c) of the Act, is the use of the term “is able to” are words of limitation, in that there must be an entitlement or right to make the complaint. The Court does not accept this proposition. The Court prefers the position arrived at by Colvin J in Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163 at [516], where the following was said:
It follows that in order to rely upon s 341(1)(c)(ii) Mr Quirk and Mr Miller had to point to some form of ability to complain or inquire which might arise from the conferral by law of a right or entitlement to complain or inquire or the making of a complaint that concerned a legal right or entitlement in relation to the terms or circumstances of their employment about which they could therefore make a complaint or inquiry.
Thus, the requirement does not rise to the level of proving an entitlement or right, rather a form of ability to complain or inquire about a matter concerning their employment. The Court notes and accepts the respondent’s submissions that it must find the relevant matters it is required to determine on the balance of probability, taking into account the gravity of the consequences of the causes of action: (see; Morley v Australian Securities and Investments Commission [2010] NSWCA 331 at [724], [726], Briginshaw v Briginshaw (1938) 60 CLR 336 at [361]-[362]).
It was further submitted that the applicant carries the onus of proving ‘adverse action’. Only if this is proven, does the rebuttable presumption under s 361 of the Act arise. Section 342(1) of the Act as set out above defines adverse action. It was submitted that “dismissal’” as defined in s 386 of the Act can include where an employee resigns but was “forced to do so” by conduct engaged in by the employer. This means that the employee had no other reasonable choice. This will not be present where the employee has exercised personal autonomy to resign, and the employer has not acted to restrict the employee’s options; (see; State of New South Wales v Paige (2002) 60 NSWLR 371 at [286]). Further, there must be real and substantial prejudice in the adverse action, not merely the possible or hypothetical: (see; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [4]).
It was submitted that in relation to each claim there must be an allegation that satisfied the requirements of s 361(1)(a) of the Act, being that it is alleged a person took, or is taking, action for a particular reason or intent. The applicant must establish as an objective fact, the circumstance said to be the reason for the taking of the adverse action. The applicant must establish that the evidence is consistent with the hypothesis that the respondent was actuated by a prescribed purpose. That is, the connection between the reason alleged and the impugned conduct is not so remote as to be fanciful (see; Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215 at [67] – [74]).
It was submitted that a threat of adverse action must extend to any of the matters set out in

s 342(2)(a) of the Act, that, if taken would constitute adverse action under s 342(1) of the Act. The communication of a possibility that action might be taken, whether dependent upon the satisfaction of identified conditions or otherwise, is not to threaten it.
During oral submissions the applicant submitted to this Court that they had been the subject of a conspiracy or scheme by senior employees of the Bureau. The Court was taken to Brougham v Aboriginal Health Council of South Australia [2022] FedCFamC2G 399, wherein his Honour Judge Brown said the following at [74]:
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 the standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
Counsel for the Bureau submitted that allegations of impropriety against senior public servants were particularly grave and this should be factored into any consideration. To the extent that this submission suggests that senior public servants occupy some special position as regards to the veracity and credibility of their evidence as compared to other categories of witnesses, this submission is rejected. Senior public servants are witnesses in the same manner as other witnesses. Their evidence should be considered in the same manner. No veneration can be given to their evidence as compared to other witnesses.
Further, the Court is not required to positively find a conspiracy for the applicant to succeed in relation to any adverse action claims. All this Court is required to do is determine whether; the applicant exercised their workplace rights, if adverse action were taken such that s 361 of the Act is engaged, and then if the respondent has shown that the exercise of the workplace rights was not a substantial or operative reason for the adverse action.
While there is nothing to stop the Court going further and finding that a conspiracy or scheme existed, it is not necessary to do so in order for the applicant to succeed.
THE PLEADING OBJECTIONS
At the commencement of the hearing, and following the applicant’s opening oral submissions, a number of objections were raised by the respondent’s Counsel. These included issues with the pleading of the ninth alleged contravention, the dismissal. The Court dealt with this in an interlocutory judgment of 24 October 2023, granting leave for the respondent to adduce further evidence from its witnesses (or new witnesses) to respond to matters they said were not previously raised. This occurred with additional or new evidence from a number of witnesses.
The second dealt with the existence of various workplace rights. These will be dealt with separately below when discussing each alleged contravention.
Further objections were raised in the written submissions. The Court has considered all of these objections. The Court is satisfied that the respondent has been given a fair opportunity to respond to the case presented by the applicant, including in the written submissions at the close of the case. The Court is satisfied the respondent has suffered no unfairness as a result.
THE EVIDENCE
Evidence was called from the following witnesses on behalf of the applicant:
(1)The applicant; and
(2)Ms Georgia Charles.
The Court notes the applicant was cross examined over three days. Ms Charles is the sister-in-law of the applicant and gave evidence of sitting in as a support person during a video conference meeting with Dr Brunet and Ms Ward in November 2019.
Evidence was called from the following witnesses on behalf of the Bureau:
(1)Ms Kristen Garwood;
(2)Ms Christine Ward;
(3)Ms Amy Hall;
(4)Mr Andrew Jones;
(5)Ms Paula Goodwin;
(6)Ms Jennifer Gale;
(7)Dr Andrew Johnson;
(8)Dr Gilbert Brunet;
(9)Ms Simone Keenan;
(10)Dr Peter Stone;
(11)Dr Sue Barrell; and
(12)Mr Hawke.
The Court notes Dr Barrell and Mr Hawke were not required for cross examination. The Court also notes that this is a ‘document rich’ matter where there is a plethora of contemporaneous documentation created either at or near the time of alleged events. The Court in general prefers the material in the documentation where its different from the later recollections of the various witnesses.
THE APPLICANT’S EVIDENCE: THE APPLICANT’S RECRUITMENT
It is appropriate first to look at the applicant’s evidence as to the circumstances surrounding her recruitment by the Bureau. The Court notes that Dr Barrell was not called for cross examination as a witness, however the Court accepts Dr Barrell's evidence as set out below. On 17 July 2018, the applicant had a telephone conversation with Dr Barrell, the then Chief Scientist of the Bureau. She recalls the conversation as follows:
Dr Barrell:This role is really exciting. I would describe it as International Science Diplomacy. I don’t know how much you know about the WMO?
Applicant:I have been doing some research online – it looks fascinating.
Dr Barrell:Well nations around the world must reach agreement on technical matters with respect to how we observe weather, and we do this through WMO. Australia is a member of WMO, and the CEO is Australia’s representative. The person in this role is the Alternate for the Representative, so you would be spending quite a bit of time in meetings for the WMO. In addition to this, the GNSR program oversights Australia’s multilateral and bilateral relationships in particular with Met Office in the UK, Korea, Japan and New Zealand. And partners in the Indo-Pacific.
Applicant:How much travel would you anticipate there being?
Dr Barrell:Likely 2-4 international trips a year, depending on the cycle of meetings. Next year the WMO Congress will be held which is the ‘weather Olympics’. The other body is the UNESCO Intergovernmental Oceanographic Commission which is the body responsible for ocean science and services.
Applicant:That is exciting given my academic background in marine science. What about domestic science relationships?
Dr Barrell:Well, this is where your experience in universities and across the STEM sector will be very welcome. We do need to build up scientific capability through partnerships. We have relationships with CSIRO and the University of Melbourne, but there is a lot more that needs to be done.
Applicant:And what is happening in the Bureau – I understand there is some change going on?
Dr Barrell:Yes, we have moved to a more matrix structure organisation. This is something Andrew, the CEO, has brought with him from the CSIRO.
Applicant:Right. I am familiar with developing matrix structures and working with them.
Dr Barrell:The Business Solutions Group is new-ish and the lead for that is Kirsten Garwood who is just amazing – you will enjoy working with her. She is really connected in government and doing a lot of external focused work so there will be quite some cross over with that group. The Bureau is going through a significant internal transformation right now. You may have heard there was a data breach some years ago?
Applicant:Yes, I have read about that.
Dr Barrell:Well, this has led to a major program of work called ROBUST which is rebuilding infrastructure. There is also work occurring which will likely centralise forecasting.
Applicant:I have had a lot of experience in large-scale organisational transformation, so I will be comfortable in an environment of change. How is the GNSR team?
Dr Barrell:Well, they will really benefit from a strong leader. There has been a lot of change, and it will be good to have them settled and I have really worked to design this role and the program to be able to scale and work across the Bureau.
Applicant:It sounds like a great role, Sue.
Dr Barrell:Well, the other things to let you know is that I will be retiring soon – probably around late August.
Applicant:Oh, That’s a shame!
Dr Barrell:I will likely be around as an honorary – the details of that need to be sorted out.
On 20 July 2018, the applicant attended an interview at the Bureau’s Brisbane office, before a panel constituted of Dr Barrell, Dr May and Ms Garwood. At or around 3:00 pm that same day, Ms Sutton called the applicant to advise her that she was the preferred candidate and put her on notice that they would be contacting her referees. The applicant received a text message on 26 July 2018 confirming that reference checks were complete and to await for the next steps.
On 27 July 2018, the applicant was sent an email from Dr Barrell which sought to arrange a time for her to interview with the CEO, Dr Johnson. On 6 August 2018, the applicant met with Dr Johnson at the Bureau’s Brisbane office. Dr Johnson told the applicant towards the beginning of the meeting that it was not an interview and more for a get to know each other. The applicant recalls part of the conversation as follows:
Dr Johnson:This role is a senior and transformative role in the Bureau. The Bureau itself is about to undergo a major transformation program. You may have read that there was a major security breach a couple of years ago. As a result, we have a program called ROBUST running which is a major upgrade in the ICT infrastructure of the Bureau. We have been hiring a lot of new capability and this role is part of those changes.
We are also looking to really refocus our services for customers, and so we have the Business Solutions Group which has a customer focus and you have met Kirsten.
I do not know a lot about the relationships with the WMO but there is a lot of activity associated with it in the Bureau. We need to sort out what is required and what is not. There is a sense of entitlement around overseas travel in the Bureau and I just don’t know much of it is necessary, so honing in on the meaningful relationships will be important.
Applicant:Okay, that is good to understand. This speaks to the Engagement Framework?
Dr Johnson:Yes, that’s right. We have good relationships with the CSIRO and other agencies. We are signing a Memorandum of Understanding with CSIRO soon and you will need to be across that, and there are others that are required with universities too and your experience will be valuable.
You and I will be involved in the ‘weather Olympics’ next year for the WMO Congress. I have never been to one of those. There is a meeting coming up in October for Regional Association which Australia is a member of. The President is a Tongan and it will be held in Tonga. It would be very good if you could come to that meeting.
Applicant:Depending on the timing that would be terrific. Sue has let me know that she will be retiring before I arrive, so obviously I will be reporting to someone I have not yet met.
Dr Johnson:Yes, that is a risk. The person we are talking to is well respected in the field of meteorology. Also, Kirsten Garwood will be a senior contact for you, she is mentoring a number of people in the Bureau.
On 7 August 2018, the applicant contacted Dr Barrell making queries concerning her position, the team she would be working with and the remuneration package. Dr Barrell responded on 9 August 2018 and provided a copy of the structure and duty descriptions of the team. The applicant responded on 9 August 2018, indicating her willingness to accept the role subject to there being conditions in place to ensure she would be successful in the role. The applicant and Dr Barrell had a telephone discussion on 10 August 2018 where the following was said:
Applicant:I am interested in the role, but I understand you will not be able to match my current package. As mentioned to Jenny Sutton, I am willing to take a hit to the take home, but I cannot have my life be more difficult as a result of taking this role.
Dr Barrell:Yes. The salary for this role – pushing out as far as we can, will be $218,700.00.
Applicant:Okay. This is good for me to understand. I do have a young family and an equally busy husband, so with the amount of travel outlined for this role, I cannot be stepping off planes from overseas trips exhausted. I will need to be able to hit the ground running. My travel here at the University is business class for flights over 3 hours and has been at that rate for over a decade, so that would be a deal breaker if that was not possible.
Dr Barrell:Okay, I understand. I am working on that.
On 11 August 2018, the applicant emailed Dr Barrell outlining her current salary and a proposal to ameliorate the pay cut she would receive in the new role. On 14 August 2018, Dr Barrell responded stating that the Bureau could not meet the remuneration proposal and sought to have further discussions. Later that day, the applicant had a conversation with Ms Garwood over the telephone to the following effect:
Applicant:Sue [Barrell] has outlined to me that the offer is around $218,000.00. That is a significant delta for me in my current role Kirsten.
Ms Garwood:   $218,000.00 is the top of SES band 1 and then there is a leadership allowance for travel, so above this would be considered unnatural for the role of General Manager. The reality in government, Jas, is that dialling up for the executive talent is not easy. I am finalising recruitment for two other senior women in the same way because in the Bureau we have hit our cap for SES Banded roles.
Applicant:I note that I currently have a professional development opportunity with the University worth around $10,000 plus business class flights to occur in early 2019. I am keen not to forego this opportunity.
Ms Garwood:   That should not be a problem. You’ll be travelling overseas 3 to 4 times a year in this role, and I believe Sue is working on confirming business class flights.
Applicant:Yes, she is.
Ms Garwood:   One of my direct reports in aviation recently went to a conference in London around developing global guidelines. That was a $12,000.00 to $13,000.00 trip for 9 days, so we do this. I am supporting a staff member to undertake university training in the MBA – this is at my discretion, so Group Executives can do this. Regarding salary, to give you an idea, the Executive Team are band 2 upper so a band one up from you with a base salary of $259,000.00. I have an Individual Flexibility Agreement on top of this.
Applicant:What about travel and time away from home?
Ms Garwood:   Yes, I have two school age children. I generally only spend one night away per week, but the Bureau is very flexible with this.
Applicant:Would working from home be a possibility? Do I need to write that into my arrangements?
Ms Garwood:   Yes, that would be fine and no, these are things you would just agree with your supervisor.
Applicant:Thanks for your time, Kirsten. I really appreciate it.
On 15 August 2018, the applicant had a telephone conversation with Dr Barrell where words were exchanged to the following effect:
Dr Barrell:Presently there are no SES roles at the Bureau but in time you can actively look for opportunities to have the mechanics of your role be transferred or regarded as SES… for this role, you will be employed as an Executive Level 2 upper, and the CEO will have an IFA with you.
The IFA will include benefits such as leadership allowance for around $70,000 to $80,000 and will provide for you to fly business class on flights of over 4 hours duration. Your entitlements will be SES equivalent, for example SES hotels etc. There are other people being recruited to the Bureau in a similar situation in Kirsten’s Group.
Applicant:Okay, so to be clear, the $218,000.00 was actually a base salary of $130,000.00 to $140,000.00 with a loading on top of that of around $80,000.00. But essentially the role is SES.
Dr Barrell:Yes, that is correct. It is a base salary of the EL2 Upper plus the IFA is tied into the role. The letter of offer will set out the name of the job and the salary – none of that is at risk. The Employment Contract is between you and the Director and each year it is refreshed.
Applicant:Is there flexibility around being able to work from home up to 2 days a week?
Dr Barrell:Yes, that can be arranged.
…
Applicant:And business class travel is confirmed for flights over 4 hours?
Dr Barrell:Yes, that is confirmed – domestically, economy is standard but business for overseas and SES rates for hotels.

On 21 August 2018, the applicant spoke to Dr Barrell and Ms Garwood in a telephone call whereby Dr Barrell advised that the Bureau would not support the applicant engaging in a Harvard course. Ms Garwood then reassured the applicant that there would be many other excellent learning opportunities. The applicant states that at no point during this conversation did Dr Barrell or Ms Garwood inform her that Dr Johnson had rejected the applicant receiving the SES travel entitlements, including business class flights and SES accommodation.
Based on the totality of the evidence, including the evidence of the applicant, noting that Ms Barrell was not called, the Court is satisfied it was represented to the applicant she would be entitled to SES travel rates for overseas travel. No explanation has been given as to why it was not included in her IFA, noting that Dr Johnson, in an email that is part of Exhibit 8, approved the applicant being offered SES travel rates. The Court does not accept the evidence of Dr Johnson given in re-examination that he did not intend to give written authority for the applicant to travel at SES rates on overseas travel.
Each alleged contravention will now be dealt with. The applicable evidence will be discussed by reference to the alleged contravention.
FIRST ALLEGED CONTRAVENTION – BETWEEN JULY - AUGUST 2019 THREATS TO DISMISS
The Applicant’s Submissions
The applicant’s legal representatives drew the Court’s attention to the applicant’s first probation report where the applicant was rated as “met expectations” in all respects of her role. The following was stated by Dr Brunet:
[sic] Progressing very find in her new position. She shows great assiduity, rigor and creativity in her tasks. She leads with confidence her team and takes the needed actions to insure [sic] the long-term planning of their activities and well-being. She is a good listener and contribute(s) constructively to management discussions. Overall, she is very capable, autonomous and well-organised person. It is agreeable to work with her.
In early March 2019, the applicant was tasked with organising an upcoming work-related trip to Paris to occur between June and July. The applicant sought to take some annual leave during this trip. It was submitted that she took all necessary steps to ensure that she complied with all relevant policies and practices in doing so. She consulted the respondent’s International Travel Policy and Personal Time Off During Official International Travel policy. She claims she spoke to her colleagues about taking leave, including the head of the Bureau’s travel section, Mr McLardie.
The applicant claims that on 18 March 2019, she was advised by Dr Brunet in a telephone call that her taking two days of leave when in Paris was fine. The applicant again confirmed with Dr Brunet in an email sent on 22 March 2019 that her proposal to take leave was okay, to which he replied “ok”.
The applicant completed and submitted an “Overseas Visit Submissions” form to the Bureau on 9 May 2019. This form was signed and approved by Mr McLardie and Dr Brunet. After the form was submitted, there was a change in schedule for the Paris trip such that the applicant was needed to commence official duties one day earlier. The applicant withdrew her previous leave request and re-submitted it, changing the dates that she intended to take leave. This request was again approved by Dr Brunet.
It was submitted that the applicant exercised her workplace rights by taking leave in Paris, flying on business class flights, and making reimbursements claims for expenses.
Upon her return from the trip, the applicant was advised by Ms Gale, the Chief Operating Officer, that she was the subject of an audit due to travelling on business class flights, taking leave and claiming SES level expenses.
It was submitted that the applicant made several complaints or inquiries to Ms Gale and Dr Brunet between July - August 2019 about the audit and the reprimands she was facing, which can be summarised as follows:
(1)Complaining or inquiring to Ms Gale in discussion on 19, 25, and 26 July 2019 that she was entitled to business class travel, SES level expenses and to take leave;
(2)Complaining to or inquiring of Dr Brunet on 25 and 31 July 2019 that the audit made her feel targeted, that it was unfair and that she did not think it was appropriate to assess her performance in relation to these issues; and
(3)Putting her concerns in writing on 31 July and 12 August 2019.
It was submitted that Ms Gale, in a threat that perfectly encapsulated the Bureau’s and Dr Johnson’s views towards the applicant’s workplace rights, advised the applicant not to seek her entitlements because, “if you start pushing, and he [Dr Johnson] is not inclined” then the applicant would end up “leaving the organisation”.
On 14 August 2019, Dr Brunet in a meeting with the applicant, informed the applicant she was to be terminated for not passing her probation period as her performance had been assessed as ‘unsatisfactory’. The reason for this action related to the amount of time off the applicant had taken while in Paris. It was submitted that in so doing, Dr Brunet (and the Bureau) engaged in adverse action: s 342(2)(a) of the Act in that it was a threat to dismiss the applicant (see; Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445 at [221]). Further, under the applicant’s IFA (cl 3.3.2) the applicant could be terminated as a result of a formal assessment of underperformance. The communication of a formal assessment of ‘unsatisfactory’ enlivened the power of termination and thereby altered the position of the applicant prejudicially. This constitutes adverse action.
It was submitted that Dr Brunet did not deny saying the words attributed to him (Affidavit of G Brunet 16 September 2022 at [49 - 50]). It was submitted that Ms Gale’s affidavit evidence on those conversations were vague – rising no higher than disclaiming specific recollections (Affidavit of J Gale 5 September 2022 at [28 - 29]).
It was submitted that the applicant was entitled to take two days annual leave while in Paris, on 21 and 24 June 2019, in addition to a weekend as Personal Time Off (“PTO”). She was further entitled to travel business class to and from Paris and have her actual expenses reimbursed. The annual leave was approved by Dr Brunet. The business class travel was a right under the applicant’s IFA which stated at cl 5.2.1 that “on international flights, the employee may fly premium economy or business class”. The reimbursement right existed at cl F.13.15 of the Bureau’s EA which states in respect of international travel:
The costs of an employee’s accommodation and meals will be met by the Bureau (where these costs are not met by another party).
The Court notes at this point, there is no reference to any ‘SES international travel rates’ in the EA, rather the meeting of costs. During the trial, a call was made by the applicant for any document that specified SES international travel rates. No document was produced by the respondents. The only document available (Exhibit 39) was a document that specified travel rates for meals and accommodation for domestic travel. The Court is satisfied that there is no specified meals and accommodation rates that apply to SES officers as compared to other employees, on international travel, rather actual costs will be met.
It was submitted that three officers of the Bureau were relevant to the decision advised by Dr Brunet that the applicant’s employment would be terminated under cl 3.3.2 of the applicant’s IFA, based on a formal assessment of underperformance. They were Dr Johnson, Dr Brunet and Ms Gale.
In relation to Dr Brunet, it was submitted that as of July 2019, he had decided to assess the applicant’s performance as satisfactory. It was only after Dr Brunet became aware of the ‘audit’ by Ms Gale that he changed his mind. The issue that caused the concern was the number of personal days off (including annual leave) the applicant had taken while in Paris. He changed his assessment to unsatisfactory on 19 July 2019.
Further, it was submitted that the respondent has not discharged its onus to demonstrate that the applicant’s taking leave and the other matters raised in Ms Gale’s audit were not one of the substantive and operative reasons for the adverse action. In cross examination, Dr Brunet confirmed that he discussed the leave issue with Ms Gale and Dr Johnson, and it was a serious matter in terms of perception. This followed a meeting with Ms Gale and Dr Johnson on 13 August 2019. During this time the applicant had been writing to Dr Brunet and Ms Gale about the audit and her rights, including on 12 August 2019, prior to the meeting between Dr Brunet, Ms Gale and Dr Johnson.
In relation to the reasons of Dr Johnson, it was submitted that Dr Brunet, Ms Gale and himself met in late July and agreed that the time off spent by the applicant demonstrated a major lapse in judgement by the applicant.
Further, included in the operative reasons for the lapse in judgement was the email to Dr Brunet of 12 August 2019. That email (Court Book 440) noted that Dr Brunet and Dr Johnson believed that the applicant exercised questionable judgement in applying for and taking leave prior to the IOC mission in circumstances where the applicant had acted in circumstances where:
(1)The leave that was within relevant Bureau policies available to her;
(2)She had a conversation with Dr Brunet about the leave;
(3)The leave was approved; and
(4)The above occurred prior to the applicant taking the leave.
The applicant stated that she was concerned that the audit conducted by Ms Gale was being conflated with her end of cycle review and period of probation.
Despite being involved in the decision to rate the applicant as unsatisfactory, Dr Johnson gave no evidence about it. Dr Johnson did not deny that he and others took the decision in response to the applicant seeking to exercise her workplace rights. In the absence of that evidence, the Court should find that the respondent has failed in its obligation to adduce evidence to deny the allegation (see; Tran v Macquarie University (No 2) [2019] FCCA 2049 at [107]). That threat to dismiss the applicant was only avoided by the applicant threatening legal proceedings against the respondent.
In terms of Ms Gale’s reasons, it was first submitted that the history of the applicant’s travel to Paris should be set out. This included applying for and being granted leave while in Paris, submitting an Overseas Travel Form that was approved, it being an estimate of costs only, which was also approved. The applicant was required to lodge an acquittal form within 28 days of return, however Ms Gale’s audit commenced prior to that form being lodged. Further, the applicant told Ms Gale that she never intended to claim travel allowance, but rather, was trialling a system of reimbursement of actual expenses.
It was submitted that Ms Gale was an unimpressive witness, repeating that she wanted to understand why the travel dates were different and why the applicant had claimed SES rates. It was submitted that the audit was premature as the applicant, at that time, had made no actual claim for money, all that had been submitted was a pre-travel estimate. Further, the claim that the applicant was not targeted cannot be made out given that the two other persons the subject of the audit had ‘travel documentation (that) aligned’. If this was the case, why audit them? More tellingly, one of the persons supposedly audited, Ms Dalton, only travelled after the time of the audit of the applicant, being 5 August 2019.
Ms Gale repeatedly claimed that the applicant had claimed travel at SES rates, when no such rates existed. She also denied the existence of an International Travel Team, in circumstances where Dr Brunet acknowledged the existence of such a team and Exhibit 34, being a paper to the Bureau executive which made reference to the International Travel Team, being consulted.
The Respondent’s Submissions
The respondent does not dispute that the applicant took two days annual leave on 21 and 24 June 2019, and that the applicant was entitled to do so. The concern was the combination of annual leave with PTO, which Dr Brunet did not become aware of until he received a memorandum on 14 August 2019, which was the applicant’s initial response to the audit (Exhibit 32). It was submitted that PTO in accordance with the International Travel Policy incorporates and includes annual leave.
In his Affidavit, Dr Brunet set out his concerns as to the manner in which the applicant had submitted her requests, indicating poor judgement as an EL2 Upper Public Servant. Ms Gales concerns were not about the annual leave, but compliance with the PTO policy and public perception as to the overall amount of PTO taken. Ms Gale had concerns that entering on the Travel Estimate form the applicant’s grading as SES meant that the form would calculate her entitlement for meals and incidentals as SES, not at the lower level for an EL2. It was submitted that there was no basis for the suggestion put to Ms Gale that she had conflated annual leave with PTO as this is what the applicant had done.
It was further submitted that it was a red herring to suggest that the Overseas Travel Submission was a claim or not. The concerns of Ms Gale and Dr Brunet arose from the larger issue of the failure by the applicant to submit correct information within the Overseas Travel Submission and failing to comply with the PTO policy and the potential for adverse public perception in her travel plans are summarised as follows:
(1)The applicant started the actual IOC meeting on 26 June 2019. It ultimately ended on 3 July, a day earlier and she flew out on the afternoon of 4 July.
(2)The applicant left Australia on 19 June, when she was not required to be in Paris for official duty until 25 June. She had several days in Paris before she was required for official duty.
(3)The applicant selected the most expensive flight of three options available costing $8299.36 as compared to the cheapest $5697.96, failing to take account of value for money. Her explanation was that the timing of the flight, leaving in the evening, best suited her need to organise things at home that afternoon.
(4)Reference is made to the arrangements made by another employee who also attended the conference who flew Premium economy and left Australia (Perth) at 11.55pm on Saturday 22 June, arrived in Paris on Sunday night and commenced duty the next morning.
In terms of the business class travel, it was submitted the applicant did not need permission to fly business class as it was included in her IFA, and she had done so on a previous trip to Geneva. It was submitted that there is no evidence the respondent took adverse action on the basis the applicant took a business class flight.
CONSIDERATION
At this point it is appropriate to make some observations about the demeanour, credibility and reliability of the witnesses. The applicant impressed as a mature and confident woman with a wealth of previous management and international experience within the higher education sector but at one institution, being the University of Sydney. She had not previously worked in the public sector, either Commonwealth or State. In the Court’s view, she was naive as to the sensitivities of the public service on many matters, such as international travel.
Given her previous senior level within the University of Sydney, she impressed as a person confident of her own knowledge and as a result willing to push back when provided with feedback that she disagreed with and seek justification for any position she disagreed with. This characteristic did not endear her within the very hierarchical and public service structure of the Bureau.
The Court accepts that the applicant was reasonably under the impression she was approved to travel at SES standards. The applicant’s IFA allowed for business class overseas travel; a benefit apparently not available to non-SES staff. The issue of SES standards of travel was a matter, the Court accepts, that was a deal breaker to the applicant accepting the position with the Bureau. This is reinforced by the email from Dr Johnson approving the applicant being offered SES travel rates.
The Court accepts that the applicant has tried to recall her evidence as best she can and overall, the Court finds her evidence is reliable and credible.
Dr Brunet joined the Bureau shortly before the applicant. He had occupied senior positions within similar organisations in other countries and had moved to Australia to take up the position he occupied. While he agreed he approved the applicant’s overseas travel plan in advance, including the PTO and annual leave, he refused to accept any responsibility for the approval not complying with usual requirements. The Court accepts the applicant’s recall of a conversation in July 2019 where Dr Brunet said to the applicant “Don’t show me the rules, - you need to learn. I do not have time to read the documentation that I am approving. I have to trust my people, you and others, that you will not do the wrong thing”. The Court formed the view that Dr Brunet was not prepared to accept any personal responsibility for any matters involving the applicant where it may have negatively impacted upon his position within the Bureau. It was clear that Dr Brunet would defer in his view on any matter to that of Dr Johnson, even where he may have disagreed with that view. His Affidavit evidence needs to be carefully scrutinised and compared to the contemporary records before being relied upon.
Ms Gale’s evidence was troubling. She disavowed that she had targeted the applicant in relation to the travel audit she undertook. The Court does not accept that proposition. The other people she claimed to have audited were EL2 staff who undertook domestic travel only. The Court accepts in relation to one of the staff members named as having been audited, her travel occurred after the audit commenced. The inference is that Ms Gale commenced an investigation into the travel of the applicant for the Paris trip at the instigation of Dr Johnson, rather than as a matter of good governance.
At the time the investigation was commenced, the applicant had not made an acquittal of her expenses and was only claiming actual expenses rather than a per diem rate. Any claim that the applicant had claimed at SES accommodation rates is simply untenable. No such rate existed. The fact that the applicant had entered SES into the travel into a particular portion of the travel estimate form that was approved by Dr Brunet, in advance of her travel, was not a matter of great importance. It could have easily been corrected upon the applicant’s return and any monies due adjusted to reflect the proper amount for meals and incidentals. The Court accepts that the entry of SES into the relevant portion of the travel estimate document was a reflection of the applicant’s genuine understanding of what she was entitled to.
The applicant recounts a conversation with Ms Gale when she was advised of the audit. That conversation is as follows (Court Book 171):
Ms Gale: There are two parts to this Jas. I have discovered that your contract does not allow you to take SES entitlements. I agree you were told you would be entitled. You cannot – from here on – take SES entitlements now that you are aware.
Ms Chambers: I agree. But I want the longer-term issue resolved. For me to have that conversation with Gilbert what we do going forward.
Ms Gale:My advice to you privately is that I don’t think Andrew will agree to it. He hasn’t done this for anyone else. Sue (Barrell) had no authority to do what she did. I believe the purchasing arrangement will resolve this because it when it comes in all levels will go away – I expect that in the next few months.
Ms Chambers: I have to understand what the delta between the SES is and other and the expectations. I understood my agreement to be SES equivalent.
Ms Gale:Let me be frank Jas, is it worth you leaving this organisation over that delta? My advice, it is that small to you, look at the last six months it’s tiny. If you start pushing and he (Dr Johnson) is not inclined, that is where you are going to be at.

The Court accepts the above conversation took place and is accurate as to its contents. It is revealing in that it reflects upon the management style of Dr Johnson. It also indicates to the Court that other members of the executive team acquiesced to Dr Johnson’s views and sought to implement them, whether they agreed with them or not.
Dr Johnson gave both Affidavit and oral evidence and was cross examined for some time. The Court formed a view that he had significant reservations in relation to the applicant, in that she did not come from the scientific background and that she took “strong positions” whereas in his view, the applicant should have backed off and listened. Dr Brunet described these actions as embarrassing to Dr Johnson (Court Book 175). The Court formed the view that Dr Johnson managed the Bureau using a close and detailed management style, in which his views were final, and not subject to any challenge. The fact that the applicant pushed back, seeking examples and justifications for positions, in the Court’s view, would have been a matter that would have exacerbated Dr Johnson’s negative views of the applicant.
The applicant threatening legal action against the Bureau in relation to their threats to dismiss her, and lodging a complaint with the Merit Protection Commissioner, would have been matters of extreme concern to him. His evidence needs to be evaluated carefully as to whether or not he formed a view early that he wished to take all necessary action that would result in the applicant leaving the Bureau, and when initial actions failed to achieve that outcome, the Bureau simply moved to another strategy to ensure that outcome, being a restructure out.
Dr Stone’s evidence is dealt with further on in this judgment. The Court found his evidence unsatisfactory and not credible or reliable. He sought to explain away issues with his evidence. His explanations were unconvincing. The lack of credibility of Dr Stone’s evidence however not only impacts upon his evidence. It impacts on the entire narrative being put forward by the Bureau. It invites negative findings as to the whole of the narrative, despite the evidence of other witnesses.
A matter which the Court notes, but upon which it makes no finding, is that many of the witnesses who gave evidence on behalf of the Bureau have left the organisation since the time of the events which are subject of this litigation. While some turnover in senior staff is normal, it is of interest that so many of the players in this matter no longer work with the Bureau.
With these matters in mind, the Court now turns its attention as to whether the first alleged contravention is made out. The Court is satisfied that the applicant exercised workplace rights by taking leave in Paris, flying on business class flights, and then making a reimbursement claims for expenses.
The Court is also satisfied that the applicant made several complaints or enquiries to Mrs Gale and Dr Brunet in July/August about the audit she was facing, including that she was entitled business class travel, SES level expenses and was entitled to take leave while in Paris. The applicant also complained to Dr Brunet that she felt targeted. The Court is satisfied that Ms Chambers exercised workplace rights pursuant to ss 340 and 341 of the Act. The Court is also satisfied that the statement by Dr Brunet that he would dismiss the applicant from her employment was made and was more than a threat to dismiss the Applicant. It was a statement of intent. In any event, even if it was a standalone threat, it was adverse action within the meaning of s 342 of the Act. A threat (s 342(2)(a) of the Act) was made to dismiss the applicant. Dismissal is adverse action pursuant to s 342(1)(a) of the Act.
In these circumstances, the presumption in s 361 of the Act is engaged with the burden of proof falling on the respondent to show that the action taken was not taken for a prohibited reason or was not “a substantial or operative factor” where there were multiple reasons in influencing the adverse action.
The Court is satisfied on the totality of the evidence that the threat to dismiss the applicant arose as a result of a loss of confidence in her judgement, by reason of her taking personal time off in addition to annual leave while attending the Paris conference. The Court considers the travel at business class and the incorrect filling in of the travel estimate form were not a substantial or operative reason in the threat to dismiss the applicant. The Court does not consider the complaints or enquiries made by the applicant prior to the threat to dismiss her to be a substantial or operative reason leading to the adverse action.
Whether or not, given the Court is satisfied that the applicant had approval from Dr Brunet, for the time off in Paris, and what was in the Court’s mind a minor issue in relation to the meals and incidental allowances while in Paris, noting she was entitled to fly business class, justified the threat to dismiss her is another matter, noting the Merit Protection Commissioner later overturned both unsatisfactory performance ratings. Rather, the Court must focus on whether or not the adverse action was taken for a prohibited reason. It was not. The contravention is not made out.
SECOND ALLEGED CONTRAVENTION – THE NOVEMBER 2019 PERFORMANCE ASSESSMENT
The Applicant’s Submissions
It was submitted that Dr Brunet and the Bureau engaged in a second act of adverse action by rating the applicant’s performance as “unsatisfactory” in her November 2019 performance review.
In response to this, the applicant made two complaints, namely to the Merit Protection Commissioner about her performance rating and a complaint that she had been the subject of bullying.
The Merit Protection Commissioner completed its report on 19 June 2020 and recommended that the Bureau set aside its two “unsatisfactory” performance ratings of August 2019 and November 2019. This was ultimately accepted by the Bureau, notwithstanding the Bureau had a number of reservations with the findings and recommendations.
It was submitted that the performance assessment was adverse action by reason of the terms of cl 3.3.2 of the IFA, the formal communication of that performance assessment altered the position of the employee to the employee’s prejudice, within the meaning of item 1(c) of

s 342(1) of the Act.
Following her initial unsatisfactory performance assessment, and the threat of legal action by the applicant, the Bureau accepted that any probation period had expired. In that context, the Bureau undertook it would not dismiss the applicant as threatened in the first alleged contravention but maintained it would “manage” her performance.
On 14 November 2019, Dr Brunet together with Ms Ward, met with the applicant and her sister-in-law, Ms Charles, via video conference for a performance review. Dr Brunet again told the applicant that he was rating her performance as unsatisfactory. Dr Brunet was told previously by Ms Gale that he should not factor in the applicant’s taking any of her leave in Paris in any performance decision he made. Dr Brunet, it was submitted, attempted to say in cross examination that he put the applicant’s taking of leave in Paris out of his mind – or at least he tried to do so as he was told to do so by Ms Gale (Transcript 2 November 2023, page 850 line 8).
Later, in cross examination, Dr Brunet accepted that the reasons he held for the performance outcome he gave on 14 November 2019 were the same as the reasons as to why he had given the applicant the same rating on 14 August 2019 (Transcript 2 November 2023, page 853 line 10). Dr Brunet admitted, that his reasons on 14 August 2019, included his concerns about the applicant taking “too many” leave days in Paris.
In the event that Dr Brunet was confused about what he accepted, as described above, it was submitted that the reasons recorded as alleged “performance concerns” in his 14 November 2019 meeting, and in earlier meetings were completely baseless and unjustified. Further, this evidence cannot be reconciled with the chronology of the 14 August 2019 appraisal, in which notwithstanding all other “performance issues”, Dr Brunet rated the performance as “satisfactory” until he learnt of Ms Gale’s audit.
It was submitted that Dr Brunet’s explanations as to the asserted actual reasons for the unsatisfactory performance rating are not credible or believable, and in the absence of a credible reason for the unsatisfactory rating, the respondent has failed to discharge its onus on the second contravention is established.
In a lengthy Annexure to the written submissions, the applicant’s legal representatives sought to rebut each of the alleged performance issues. These included an issue in relation to the University of Queensland, where Dr Johnson believed he had been embarrassed by being booked for a keynote lecture by the applicant without consulting him. This was described as:
…another example of her dictating her way to demonstrate that she is in contact [sic], but this was done to the detriment of the Bureau reputation (Court Book 2115).
It was submitted that in fact the evidence was that the applicant had consulted with Dr Johnson, and he had authorised her committing Dr Brunet to attend if Dr Johnson declined. The issue arose because Dr Brunet failed to advise Dr Johnson that he would attend if Dr Johnson was unavailable. It was submitted that this matter again showed that Dr Brunet remained silent as to what he had agreed to do in circumstances where remaining silent caused damage to the applicant. It was also submitted this was an example of Dr Johnson’s very close and detailed personal management style.
The next issue concerns the overseas mission plan strategy. This was prepared by the applicant for Dr Brunet. Several versions were presented, and Dr Johnson gave feedback that he wanted the proposals to be simpler. Dr Brunet took no responsibility for the negative feedback, in circumstances where he was ultimately responsible for the various versions of the paper. There is no failure by the applicant to make any amendments that he proposed to any draft because this simply did not happen. Again, it was submitted that this was an example of Dr Brunet preferencing harming the applicant, over disclosing to Dr Johnson his own responsibility for papers with which Dr Johnson evidently disagreed.
A further issue related to the MET Authority team, which in May 2019 was involved in a difficult and urgent situation at Melbourne airport. Dr Brunet described the matter as being one where the CEO was put in front of an untenable position of being asked (recommendation) to approve a major non-compliance finding with no other option/s being presented to him, including contingency plan. This was said to be an example of the applicant’s “lack of good judgement”.
Dr Brunet acknowledged he did not expect the applicant herself to have any form of expertise in the technical aspects of what the MET Authority Team did (Transcript 2 November 2023 page 840 line 20). He acknowledged that this was not a performance concern that he personally had, rather, he was passing on the views of Dr Johnson. It was submitted that no evidence was adduced from Dr Johnson about the matter. It was submitted that Dr Brunet did not believe that the issue indicated unsatisfactory performance. He believed it was not an issue that the applicant was reasonably expected to address. It was submitted Dr Brunet again preferenced his own position over the applicant rather than disagreeing with Dr Johnson.
A further issue related to the travel of a staff member in circumstances where they had a long history of issues, including taking sick leave. Subsequent to their overseas travel, the staff member took sick leave. The applicant had told Dr Brunet that the staff member was a high performer, who had some issues, but was fit to travel. Subsequent to the travel, the staff member did in fact take sick leave. It was submitted that Dr Brunet had no basis to form a view that the applicant knew the staff member was going to take leave before they undertook the international travel. He wrongly assumed this from the fact they took leave after the trip (Transcript 2 November 2023 page 810 line 19).
It was submitted that the idea that the applicant was aware that the staff member was going to take sick leave was an invention of Ms Gale, as emails demonstrate she varied Dr Brunet’s proposed performance feedback to include this (Exhibit 8 to Applicant’s Tender Bundle ‘A’ page 517). It was submitted that Dr Brunet knew this assessment was without foundation, as the staff member was fit to travel prior to the trip, as the staff member had obtained a medical clearance to do so.
The next issue related to the Global and National Science Relations (“GNSR") budget. The applicant was directed that she needed to find a 20 per cent reduction in the budget of her area. Dr Brunet described the response of the applicant as “forceful and pushing back”.
In fact, what had happened is that the applicant was asked by Dr Brunet to address two hypothetical scenarios, one being a 10 per cent reduction and secondly a 20 per cent reduction in budget and advise the consequences.
The applicant responded with a short one-page paper that explained the area had certain fixed costs. If it were to be reduced by a staffing level of one full-time employee, there would be particular activities of the program that would be impacted. Further, the GNSR area program budgeted with a significant negotiated cost into the IOC Perth program office. Whilst there might be an opportunity to reduce that expenditure, it would be complex because there are number of stakeholders including; the IOC, the Western Australian government and Department of Foreign Affairs and Trade.
Dr Brunet responded with “okay to take the redundancy in IOC” (Exhibit 38). It was submitted that the response made no sense, because his initial request was not for advice and options, but advice on the impact of hypothetical scenarios, where as his response was to agree with a proposal that had not been made. Secondly, the effect of the applicant’s advice was that while substantial savings were potentially available from the IOC program, securing them would be complex and could not be done quickly. It was submitted the applicant did not push back. The applicant did not propose an approach that was problematic – Dr Brunet did. It was submitted that in cross examination, it demonstrated that Dr Brunet had no rational basis for this criticism of the applicant.
The next issue relates to allegedly embarrassing Dr Johnson on a trip taken to Geneva, shortly before the Paris trip. The applicant had raised with Dr Brunet that Dr Johnson had seemed distant in his dealings with her while in Geneva and she found it difficult to understand why. Dr Brunet passed that query on to Dr Johnson and recorded “Andrew feels it didn’t go too well with Jas… He feels that she takes strong positions about topics which she is not mastering” (Court Book 2113).
In evidence to the Court, Dr Johnson said he had told Dr Brunet something to the effect that “the applicant spent a lot of time talking at people, would be more effective if – particularly given it was her first meeting of the WMO, if she listened effectively and that would enhance her contributions” (Transcript 1 November 2023 page 695 line 5). It was submitted that Dr Johnson never spoke to the applicant about this and as a result, Dr Brunet could not actually articulate what the applicant had actually done. When pressed during his discussion with the applicant on 14 August 2019 to provide an explanation, Dr Brunet said he could not. Instead, he undertook to speak to Dr Johnson “to give an example” (Court Book 1098). It was submitted that instead of seeking to understand Dr Johnson’s concern, Dr Brunet embellished and exaggerated it in order to manufacture a performance issue. At Court Book 2115 (relating to an assessment made on 29 July) he recorded that Dr Johnson felt the applicant had “outspoken manner, based on superficial understanding” and was “embarrassment for the Australian delegation”. It was submitted that Dr Johnson had said nothing about “an outspoken manner” and nothing about “superficial understanding” and certainly nothing about an “embarrassment” to anyone. In cross examination, Dr Brunet agreed that he hadn’t been told by Dr Johnson that the applicant had been “uninformed” and that a reference to her being “dilettante’ relating to his assessment made on 14 August 2019 (Court Book 218) may have been his words rather than the words used by Dr Johnson. It was submitted that Dr Brunet had no basis for raising this issue as indicating unsatisfactory performance. In so doing, he harmed the applicant.
The next performance issue related to a criticism that the applicant fails to ‘present things with clarity’ and he (Dr Brunet) ‘often needs to double check what she is doing’. He used four bullet points provided by the applicant as an example of how she ‘lacks clarity in her narrative’. Yet the four bullet points he complained about were presented without alteration by Dr Brunet to an executive meeting not as future GSNR activity highlights but as ‘learnings’ (Court Book 2119 and Transcript 2 November 2023 page 830 line 1). Whilst it was accepted that as particulars for future GNSR activity highlights, the meaning might be obscure, as they are presented as learnings, and adopted by Dr Brunet, there could be no basis for there being any performance issue. It was submitted that in cross examination, Dr Brunet failed to consider the inappropriateness of this matter as a performance issue, thereby demonstrating malice. His insistence that the four bullet points constituted a performance issue could only be consistent with a desire to harm the applicant, even when he knew he had no rational basis to do so.
The next performance issue related to the attendance of the GNSR team at the Pacific Meteorological Council (“PMC”) to be held in Samoa. The applicant sought a meeting with Dr Brunet to discuss the composition of the Australian delegation in circumstances where it was proposed that no one from the GNSR team would be in attendance. In cross examination, Dr Brunet recalled that the applicant came to his office and stated that the CEO wanted just one or two people for the delegation and what could I (Dr Brunet) do about it. When asked what the rationale was, Ms Chambers said New Zealand was sending three people, the US five people or some numbers that he didn’t recall the number exactly and that we should be five. Dr Brunet said that’s not a good rationale. He responded, “Maybe it is the CEO’s prerogative to decide that he doesn’t want to be there the crowd and …only need one or two person and that’s it” (Transcript 2 November 2023 page 834 line 25). It was submitted that the conversation recorded could not possibly form a rational basis for an unsatisfactory performance rating.
It is to be noted that the Court asked Dr Brunet whether there was a culture within the Bureau of not questioning the CEO to which Dr Brunet replied “…Not always, but yes. Sometime decision is made”. It was submitted by raising this as a performance issue, Dr Brunet preferenced harming the applicant for no reason other than having to deal with professional advice which could result in him having to advise Dr Johnson to change a decision. It was submitted that Dr Brunet’s conduct strongly supports the applicant’s case that she was victimised for raising complaints which challenged positions taken by Dr Johnson.
The last issue in the performance review related to work done on prioritising relationships. This related to an exercise done by three consultative workshops each of 90 minutes with SLT members. The applicant was criticised on the basis of the outcome of the workshops, that it was a complex mapping that was much too comprehensive. It was suggested that the exercise could have been achieved in two to three hours with the proper choice of managers in the room.

It was submitted that as to (b) in cl C.9.36, the clause does not require that the advice be provided to the agency head only, the advice given by the service provider. Advice from the service provider was in this case conveyed to Ms Keenan by the applicant herself, including in the email dated 2 November 2020 where she wrote (Court Book 845):
My meeting with Converge group, which involved going through the background to where I am today, also indicated that I have little likelihood of finding a redeployment option where my skills would be utilised at a level of seniority that would benefit my experience.
It was submitted this was not the applicant’s opinion, but the actual advice given by Converge. It was also submitted that the evidence from the applicant was contrived in that the applicant knew that the retention period and potential payout period would be extended from seven months to 13 months if she did not receive written notice of her excess status until after her 45^th birthday on 5 August 2020. It was submitted the applicant had no intention of taking an available EL2 position with the respondent, yet she has attempted to paint a picture that she was left with no viable option.
It was submitted the applicant took leave in advance from 1 July 2020 to 7 August 2020, being the date that she was to be declared excess to a date just after she turned 45. The applicant wished to achieve the maximum financial payout.
Consideration
Firstly, in terms of the last submission that the applicant planned and took action to ensure she received the maximum possible payout is not a matter the Court considers can be adversely held against the applicant. The applicant had certain workplace rights. If she acted to ensure those workplace rights were exercised in a manner to her maximum advantage, no breach of any workplace laws has occurred. No real criticism of the applicant can be made. She simply exercised her rights.
Section 345 of the Act provides as follows:
Misrepresentations
(1) A person must not make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effects of the exercise, of a workplace right.
Note: this section is a civil remedy provision (Part 4-1)
Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely upon it.
In terms of the alleged misleading representation, the Court is not satisfied that the applicant was in fact mislead. It was the applicant who first raised the possibility of an early termination. The applicant was a sophisticated employee with apparent access to expert legal advice as to her workplace rights and entitlements. She is not, and was not at the time, a person who could be easily misled in the circumstances she found herself in.
This alleged misrepresentation occurred in circumstances where the applicant was not being provided with any productive work by the Bureau. The Court is reasonably satisfied the applicant was not mislead in any way by Ms Keenan. In the alternative, the Court is satisfied that if any representation was made by Ms Keenan, the applicant did not in fact rely upon it and was thus not mislead. Alleged contravention seven is not made out.
In terms of the alleged eight contravention, cl C.9.36 of the Bureau’s EA has been reproduced above.
It appears to be common ground between the parties that Converge did not provide any formal written or even oral advice directly to the Bureau. Nor has either of the parties sought to provide any evidence from a representative of Converge that any such advice was given. The only evidence is that of the applicant recalling to Ms Keenan what she was told by Converge.
The Court is satisfied that no advice was in fact provided by Converge. Rather, Ms Keenan acted on the representation by the applicant as to what Converge told her. That is, it was the applicant’s take on what Converge told her. It was not direct advice to the Bureau. This leaves the possibility that the applicant was in fact mistaken as to what Converge told her, or even was providing untruthful advice to Ms Keenan. It is for this reason that in the Court’s view, direct advice from Converge to the Bureau was required.
In terms of the appropriate construction of the EA, the Court is of the view that cl C.9.36 requires the Agency Head to be satisfied of certain things. This includes being relevantly satisfied that the service provider has advised there is no reasonable prospect of redeployment of the employee. A hearsay advice, via the employee, in the Court’s view, does not meet the required threshold for the Agency head to be properly satisfied. The Agency Head can only be so satisfied if they have direct advice from the service provider. As the Agency Head of the Bureau could not be so satisfied, the necessary preconditions for the making of the early termination offer were not there.
In these circumstances contravention eight is made out.
THE NINETH ALLEGED CONTRAVENTION – THE DISMISSAL
The Applicant’s submissions.
On behalf of the applicant, it was submitted the applicant’s employment was terminated at the instigation of the employer. That was adverse action within the meaning of s 342(1)(a) of the Act.
The termination was brought about by the following steps:
(1)It was determined that the Bureau would do GNSR differently. The respondent unlawfully failed and refused to advise the applicant for the reasons for that change (the fourth contravention).
(2)The applicant was declared excess (the fifth contravention) where her employment could not have been terminated at the instigation of the employer but for that declaration.
(3)The applicant was prevented from seeking or obtaining redeployment to the GMID role by the respondents repeated and deliberate delays in recruiting to that role and by the respondent’s failures to respond to the applicants GMID enquiries and deliberate untruths when responses were provided (the third contravention).
(4)In circumstances where the course of correspondence made clear that the applicant, as part of the due diligence, required formal advice in terms of cl C. 9.36 of the EA before she would acquiesce to early termination of a redeployment period, Ms Keenan’s false no prospect representation (the seventh and eighth contraventions) were central in procuring, for the benefit of the Bureau, the early termination of the applicant’s redeployment period and thereby defeating her efforts to be considered for redeployment into the GMID role.
It was submitted, that when Dr Brunet’s proposal to terminate the applicant by giving her an unsatisfactory performance rating in 2019, was defeated, by the applicant threatening legal action, Dr Johnson unilaterally devised the proposal to restructure the GNSR activities that were conducted by the Bureau in such a way as the applicant’s position would be abolished.
The applicant does not need to demonstrate she was the best candidate in Australia for the job of GMID rather, the Court needs to be satisfied that the question that should have been asked but which was not, was “can Jasmine Chambers do this?”. It was submitted that when she was asked the question outlined above in cross examination, she gave a thoughtful and considered and detailed answer. However, that question was never considered. Dr Stone never turned his mind to it, neither did Ms Keenan or Dr Johnson. It was submitted that the applicant’s skill set, when considered objectively, was such that she had considerable experience in the areas for which the GMID position description set out. The only reason why she was not considered for the role was that she was a litigious individual and a troublemaker within the Bureau. It was submitted that the applicant does not bear the onus. The respondent does. It is sufficient for the Court to conclude that it is not persuaded by the evidence, and particularly that of Dr Stone, Ms Keenan and Dr Johnson that a prescribed reason was not a substantial and operative reason for the dismissal.
That conclusion should be reached because of the falsity and unreliability of the evidence given by Dr Stone, Ms Keenan and Dr Johnson and because of the major gaps in the Bureau’s evidence.
Any suggestion that the applicant was not dismissed should be rejected for the reasons of DP Beaumont in the Fair Work Commission decision referred to above.
The Respondent’s Submissions
The respondent submitted that the applicant had not established as an objective fact that she was dismissed. It was the applicant that invited Ms Keenan on 3 December 2020 to make an offer of early termination.
Reliance was placed on Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754 at [496] - [502] where Ranjiah J found that an agreed dismissal by way of redundancy did not alter an employee’s position to their prejudice. He stated (citations omitted):
[496]. Dr Morton appears to contend that Dr Manners, Dr Cook and Ms Walsh manufactured the redundancy of her position because she exercised her rights to make complaints or enquiries and to receive workers compensation benefits. She also alleges that Mr Roy and Mr helped were aware of the fact that she had a common care claim when they signed off on her redundancy. Dr Morton’s submission seems to be that this is an indication that a reason for her redundancy was that she had a Comcare claim.
[497]. When Dr Morton’s position was made redundant, her employment was terminated by CSIRO. This falls within the description of “dismiss the employee” within the definition of “adverse action” in s342(1) of the FW Act. While in Maritime Union Authority v Geraldton Port Authority it was held that a voluntary redundancy is not a dismissal, this was not a voluntary redundancy. Dr Morton’s request for a VRS was rejected and her position was made redundant. This was adverse action.
[498]. However, for there to be a contravention of s340(1), the adverse action must be taken because the employee, relevantly, exercised a workplace right. In this case, Dr Morton alleges that the workplace right she exercised were to make complaints or enquiries and receive workers compensation benefits.
[499]. I find that the reason why Dr Cook and Ms Walsh made a case for the redundancy of Dr Morton’s position was that she had requested a VRS, and they sought to accommodate her desire to leave CSIRO with a redundancy payment. I find that the reason why Dr Manners, Mr Heldt and Mr Roy approved the redundancy was because they were satisfied of the merits of the redundancy case that had been made, and, in Dr manners case, he sought to accommodate Dr Morton’s request for redundancy. I find that Dr Morton’s complaints, and the fact that she applied for and received worker’s compensation benefits, played no part in her redundancy. CSIRO is discharged its onus of demonstrating that Dr Morton was not dismissed from her employment because she exercised workplace rights.
[500]. Further, since CSIRO merely assisted Dr Morton to achieve the outcome, she set out to achieve, namely leaving CSIRO with a redundancy payment, she was not injured in her employment, her position was not altered to her prejudice, and there was no discrimination between her and other employees. She was happy with the outcome. In these respects, there was no adverse action within s342(1) of the FW Act.
[501]. Further, even if Dr Morton’s redundancy involved adverse action, I would find that it was done to accommodate her desire to leave CSIRO with redundancy payout, rather than because she exercised her workplace rights to make complaints against Dr Glencross and Dr Preston.
[502]. I find that CSIRO did not contravene s340(1) of the FW Act as alleged in Claim 1 of the further amended statement of claim.
The respondent makes various criticisms of the applicant’s Counsel on the basis that matters were not put in cross examination to the various witnesses. For example, the word conspiracy or conspire was never put to Dr Johnson nor was the term ‘get rid’. It was submitted that given the gravity of the matters alleged, the applicant was obliged to put the allegation squarely upon the terms relied upon to each of the witnesses upon whom they alleged were part of the adverse action. Complaints are also made the pleadings with the assertion that they were inadequate. Despite the lack of pleadings, the respondent asserts that the applicant has not proven there was a conspiracy by multiple senior employees to deliberately breach the Act. Such an allegation needed to be considered by the Court which should not find lightly that such matters have been proved on ‘inexact proofs or strained inferences’.
It was submitted that the applicant’s case that the respondent engaged in a prolonged, detailed complicated organisation wide conspiracy to dismiss her in December 2020 is fanciful and against the substance of the lengthy evidence of what actually happened, all documented by appropriate contemporaneous records. The central allegation by the applicant is not supported by any contemporaneous documentation.
Consideration
It is appropriate to deal first with the submission by the respondent, including the reliance on Morton, that the termination of the applicant’s employment was not a dismissal and therefore adverse action within the meaning of the Act.
This precise issue was agitated at length before Deputy President Beaumont in Jasmine Chambers v Commonwealth of Australia (Bureau of Meteorology) [2021] FWC 4622. The fact that the respondent seeks to re-agitate the issue in this Court is perhaps somewhat disappointing, in the light of the obligations on the respondent of the Commonwealth’s Model Litigant Guidelines, noting the respondent did not seek to appeal DP Beaumont’s decision.
In that matter, after setting out the relevant background, it was noted at [63] an accelerated separation option and additional payment under cl C.9.9 of the relevant EA was not pursued when the applicant met with Ms Keenan in January 2020. At [64] – [68], it was found that in August 2020, the applicant received notification that her role had been formally declared excess to requirements. The applicant did not accept an offer of voluntary retrenchment with payment of a severance benefit, within the meaning of cl C.9.11 – C.9.16 of the EA. Rather she elected to exhaust her options for redeployment during the “redeployment and retention period”. At [69], reference was made to Mohazab v Dick Smith Electronics Pty Ltd [No 2] [1995] IRCA 625, where the then Industrial Court explained that what was important regarding the phrase “termination at the initiative of the employer” was the employment relationship was not voluntarily left by the employee.
DP Beaumont found at [70] the critical actions that gave rise to the applicant’s termination of employment, in the sense referred to in Mohazab, were the restructure of the respondent organisation such that the applicant’s role was made redundant, the proposal of the respondent under cl C.9.36 of the Bureau’s EA, and thereafter the action of the Agency Head who determined there was no reasonable prospects of redeployment within the APS and there was insufficient productive work available for the remainder of the retention period with the respondent organisation. If the Agency Head had had not been so satisfied of the factors set out at cl C.9.36(c) of the Bureau’s EA, the applicant would never have been placed to agree to the termination of employment pursuant to cl C.9.36. DP Beaumont concluded at [72]:
Having regard to all of the objective evidence, the weight of that evidence is that the respondent’s actions resulted consequentially in the termination of the employment and the employment relationship of the applicant.
In my view, the analysis by DP Beaumont is correct. Morton can be distinguished on the basis that it was the applicant in that case that was seeking the redundancy. In this case, the Court satisfied that the applicant was not seeking the redundancy. She accepted an early payout on the basis that she considered she had no alternative realistic options available to her.
The complaint by the respondent that the applicant did not put the allegation that the senior management of the Bureau engaged in a conspiracy must also be rejected. While the word “conspiracy” was used in submissions, the applicant’s counsel put on a number of occasions to the respondent’s witnesses they “engaged in a scheme to be rid of the applicant”. The Court is satisfied that the use of the term scheme is sufficient for purposes of Browne v Dunn (1893) 6 R 67. Further, the respondent’s witnesses had adequate notice of the applicant’s contentions as evidence was given by way of affidavit, with the respondent’s being able to answer that evidence in their own affidavit. The Court is satisfied all parties were on notice of the evidentiary issues by reason of affidavits having been exchanged (see Cross on Evidence, 6^th Australian Edition, paragraph [17460] footnote 12).
The Court accepts that it need not find a Bureau wide conspiracy to find in favour of the applicant. For this alleged contravention, the Court must only be satisfied that the respondent has not shown, on the balance of probability, that the adverse action taken was not substantially or operatively taken as a result of the exercise of a workplace right by the applicant.
The Court has found that the applicant exercised a number of workplace rights, set out above. As pointed out by the respondent however, the restructure itself predated the applicant making a complaint to the Merit Protection Commissioner. The Court does not take this into account when considering if this contravention is proven.
In terms of the allegations of contraventions, the Court has found only in favour of the applicant in relation to contraventions five, six, eight and nine. Each of the other contraventions has not been proven to the required standard. The question then becomes is the Court’s findings in relation to the contraventions found proven, together with the other facts found, sufficient to find in the applicant’s favour, noting the reverse onus of proof on the respondent.
First, the Court is satisfied that the applicant did exercise workplace rights. These have been set out at length above. Second, the Court has found that the dismissal of the applicant was adverse action. That then requires the Court to consider whether the Bureau have satisfied the Court that the exercise of the applicant’s workplace rights was not a substantive and operative reason for the dismissal.
On the basis of all the available evidence, including what can be described as a course of conduct by the Bureau. The Court is not satisfied the respondent has shown that the exercise by the applicant of her workplace rights were not a substantive and operative reason for her dismissal.
The decision to defeat the applicant’s redeployment rights was that of Dr Stone and Ms Keenan. The applicant was not given any work during her redeployment period. The offer of early termination did not comply with the requirements of the EA, in that Converge had not provided any ‘advice’ as required on the applicant’s redeployment prospects.
Up until the time of her leaving the Bureau, the applicant had successfully frustrated all efforts of senior management of the Bureau to dismiss her during her period of probation and rate her performance as unsatisfactory. While the Court accepts that the restructure taking place at the Bureau was more than just in relation to the applicant’s area, the explanations for the rationale behind the restructure as it related to the GNSR area and move it to the Office of the CEO and disestablish he position, must be looked at in the context of the events leading up to and after that occurring. The Court accepts the applicant was a difficult and litigious employee. She knew her rights and was able to access very good legal advice.

The clear inference from Dr Stone’s conversations with Aston Carter is that the Bureau were deliberately delaying the recruitment of the GMID role until after the applicant’s redeployment rights were exhausted. Why do that unless the Bureau simply did not want the applicant working at the Bureau any further, in any role? This view is reinforced by the lack of any genuine attempts to find the applicant work during her redeployment period.
The contravention is made out.
CONCLUSION
The Court has found that contraventions five, six, eight and nine have been made out. The Court will list the matter for a Directions hearing after the parties have had time to consider this judgment in order to make directions for the filing of evidence and submissions on penalty.

I certify that the preceding three hundred and twenty-seven (327) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.
Associate:
Dated: 9 February 2024

File number(s):	SYG 1632 of 2021
Judgment of:	JUDGE D HUMPHREYS
Date of judgment:	9 February 2024
Catchwords:	INDUSTRIAL LAW – Fair Work – Contraventions of the Fair Work Act 2009 (Cth)
Legislation:	Fair Work Act 2009 (Cth) ss 50, 340, 341, 342, 360, 361, 386, 570
Cases cited:	Ashby v Commonwealth of Australia [2022] FCAFC 77 Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191 Australian Consumer and Competition Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441 Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215 Board ofBendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 Browne v Dunn (1893) 6 R 67 Briginshaw v Briginshaw (1938) 60 CLR 336 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 Construction, Forestry, Mining & Energy Union v Clermont Coal Pty Limited [2015] FCA 1014 Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Construction, Forestry, Mining and Energy Union v Victoria [2013] FCA 445 Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163 Guerinoni v Synthes Australia Pty Ltd [2016] FCCA 1710 Jasmine Chambers v Commonwealth of Australia (Bureau of Meteorology) [2021] FWC 4622 Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908 Mohazab v Dick Smith Electronics Pty Ltd [No 2] [1995] IRCA 625 Morley v Australian Securities and Investments Commission [2010] NSWCA 331 Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754 National Union of Workers v Qenos Pty Ltd [2001] FCA 178 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR Police Federation of Australia v Nixon and Anor [2008] 168 FCA 467 Ramos v Good Samaritan Industries (No 2) (2011) FMCA 341 Rowland v Alfred Health [2014] FCA 2 State of New South Wales v Paige (2002) 60 NSWLR 371 Tattsbet Limited v Morrow [2015] FCAFC 62 Tran v Macquarie University (No 2) [2019] FCCA 2049
Division:	Division 2 General Federal Law
Number of paragraphs:	327
Date of last submission/s:	24 January 2024
Date of hearing:	23 October 2023 – 3 November 2023
Place:	Parramatta
Counsel for the Applicant:	Mr Brennan SC and Mr Whitbread
Solicitor for the Applicant:	Maurice Blackburn
Counsel for the Respondent:	Mr White SC and Ms Wright
Solicitor for the Respondent:	McInnes Wilson Lawyers

SYG 1632 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	JASMINE CHAMBERS Applicant
AND:	COMMONWEALTH OF AUSTRALIA (BUREAU OF METEOROLOGY) Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	9 FEBRUARY 2024