Conradsen v Carpentaria Land Council Aboriginal Corporation - [2022] FedCFamC2G 679

Federal Circuit and Family Court of Australia
(DIVISION 2)
Conradsen v Carpentaria Land Council Aboriginal Corporation [2022] FedCFamC2G 679

File number(s): BRG 6 of 2021

Judgment of: JUDGE EGAN

Date of judgment: 19 August 2022

Catchwords: INDUSTRIAL LAW – Adverse action claim – multiple confusing allegations – failure to properly plead case – lack of evidentiary basis for the making of most claims – finding that decision to terminate the applicant’s employment not made for any prohibited reason – application dismissed.

Legislation: Fair Work Act 2009 ss. 340(1)(a)(ii), 341(1)(a)(ii), 341(1)(b), 342(1) Item 1, 360, 361, 539, 540(1), 544, 545, 546, 550, 557a

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

Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250

Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740

CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014

Alam v National Australia Bank Ltd [2021] FCAFC 178

Division: Division 2 General Federal Law

Number of paragraphs: 42

Date of last submission/s: 2 June 2022

Date of hearing: 16 – 25 November 2021

Place: Cairns

The Applicant: Self-represented Litigant

Counsel for the Respondent: Ms S Moody

Solicitor for the Respondents: Thynne Macartney
ORDERS

BRG 6 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
KIMM OLE CONRADSEN

Applicant

AND:
CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION ABN 99 121 997 933.

Respondent

order made by:

JUDGE EGAN

DATE OF ORDER:

19 August 2022

IT IS ORDERED THAT:
1.The Application filed on 10 March 2021 be dismissed.

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

The applicant is the holder of tertiary degrees in Law and Communications. Prior to his employment with the respondent in 2019, the applicant deposed to his having had experience in assisting Aboriginal organisations, in both a voluntary and paid capacity, from as early as 1991.
The respondent was an incorporated Land Council which was a regional advocate and service provider for a number of Prescribed Body Corporates. A Prescribed Body Corporate (PBC) is required to be established when native title holders have their traditional claims recognised. The Waanyi PBC was one of the PBCs whose interests were represented by the respondent.
The people who constituted the senior management team (SMT) for the respondent were as follows:
(a)Rachel Amini-Yanner, the Respondent’s Chief Executive Officer (CEO) based in Burketown;
(b)Patricia Steineck, the Respondent’s Deputy Chief Executive Officer (DCEO based in Cairns; and
(c)Kevin Murphy, The Respondent’s Principal Legal Officer (PLO) based in Brisbane.
The applicant was employed by the respondent, on a probationary basis, on 21 November 2019. The applicant’s employment ceased as and from 1 May 2020.
Because of the number and diversity of issues raised in this proceeding, reference will be made, in the body of this judgment, to the relevant contractual documents which governed the applicant’s employment with the respondent. Those documents were as follows: [1]
(d)Position Description – Native Title & PBC Support Services Project Officer (WNTAC) (Waanyi Native Title Aboriginal Corporation)
(e)Letter of Offer of Employment dated 24 October 2019
(f)Extract and Acknowledgment of Terms and Conditions of Employment
(g)Terms and Conditions of Employment
[1] Exhibit 3 - Court Book (CB) – pp. 335-367.
Clause 7 of the Terms and Conditions of Employment related to the engagement of the applicant on a probationary basis, and relevantly provided as follows:
“7. Probation Period
a)Upon first commencing employment, the Contract of Employment is subject to the Employee serving a probationary period of six months. If at the end of such period the Chief Executive Officer is satisfied that the Employee has met the requirements of service contained in Clause 6, the CLCAC will provide employment in the agreed terms and conditions for the remainder of the period set out in the Term of Employment in the Extract and Acknowledgment of Employment.
b) CLAC may terminate the Contract of Employment at any time during the probationary period with one week’s notice.
c) If this contact is a Contract of Employment which extends the employment of an existing employee, then this clause 7 will not apply to the new term of employment.”
Clause 16.2 of the respondent’s Policies and Procedures Manual required that a review of the applicant’s performance be undertaken at the end of his probationary period. Such clause relevantly provided as follows: [2]
[2] CB pp. 1478-1479
“16.2 Probation Review
When an Employee is placed on probation, a plan of action will be determined and agreed upon by the Employee, the CEO and the Employee's Unit Manager. The probation period will be between one and six months.
At the end of the probation period, the Employee's performance and/or conduct will be evaluated by the Unit Manager and a recommendation made to the CEO. (Refer to Policies and Procedure Fonn-PF6: Probationary Period Recommendation).
The CEO and Unit Manager will discuss the evaluation and recommendation with the employee and their support person, if the Employee chooses to have one, at a private meeting. The Employee will be provided with a copy of the evaluation and recommendation.
A decision in relation to the Employee's employment will be based on the Unit Managers evaluation and recommendation. Depending on the results of the evaluation and the recommendation of the Unit Manager, the Employee may:
i.Be taken off probation;
ii.Be suspended, or
iii.Have his/her employment terminated.
Discussions and meetings in relation to such disciplinary action taken will be documented. A copy of all records will be filed in the employee’s personal file.”
As Principal Legal Officer, Mr Murphy was the applicant’s unit manager who conducted the applicant’s performance evaluation. On 23 April 2020, Mr Murphy emailed a briefing note to Rachel Amini-Yanner in her capacity as the respondent’s CEO to whom he was required to make a recommendation in respect of the applicant’s future employment. The briefing note provided as follows: [3]
[3] CB pp. 1966-1968.
“…
Background:
Following extensive advertising and a selection process overseen by the writer, Mr Kim Conradsen was offered a position with CLCAC as a PBC Support Officer subject to probation period of 6 months.
Kimm commenced duties in November 2019. The probation period expires on 20 May 2020.
Issues:
As his line manager for 5 months, I do not believe Kimm has the necessary communication skills, nor the ability to focus on issues sufficiently, to carry out the roles involved with a PBC Support Officer to a professional standard.
A PBC Support Officer necessarily needs to be able to communicate effectively with Traditional Owners living in remote areas as well as with people in all levels of government, work colleagues and his work managers.
My experience with Kimm, as his manager, is that he is an interesting and amiable person but quite obtuse in his verbal and written communications. It might be said that this is due to his training as a lawyer. But as a lawyer myself, I don't find Kimm's communications straightforward at all.
Further, despite having years of experience in Central Australia working with Indigenous clients, Kimm constantly seeks my advice on what needs to be included in verbal and written communications with Indigenous clients of CLCAC. Whilst this may have seemed reasonable at the start of his tenure, there seems to be little improvement over the last 5 months.
Another aspect of Kimm's communications is that there is a decided lack of focus often manifesting in communiques and conversations wandering away from work topics.
Kimm also devotes time to matters that isn't warranted and as such shows a lack judgement in respect of prioritising work.
I therefore have no confidence that his communication with Traditional Owners, government and management is effective at a level required for the role of PBC support Officer.
Recommendations:
1.I recommend that CLCAC inform Kimm that, for the reasons noted above, his tenure as PBC Support Officer is terminated at an appropriate time during the period of probation.
2.That I liaise with Corporate Services as to the timing and terms of the termination.
3. That I keep you informed of the progress and details of the termination.”
Paragraph 8 of the Terms and Conditions of Employment set out the means by which the termination of the applicant’s employment might be effected, and relevantly provided as follows: [4]
[4] CB pp. 349-350.
“8. Termination
a)The Contract of Employment may be terminated by the Employee giving four (4} weeks' notice to the Chief Executive Officer of the CLCAC.
b)The Contract of Employment may be terminated by the CLCAC giving either four (4) weeks' notice to the Employee, or four (4) weeks payment in lieu of notice.
c)In the event of termination of the Contract of Employment by CLCAC, and the Employee is over the age of 45 years with at least two years continuous service, an additional one weeks' notice will be given. '
d)Notwithstanding anything to the contrary in the Contract of Employment, the CLCAC may terminate the Contract of Employment at any time and without notice to the Employee if the Employee:
i.Wilfully disobeys or disregards any lawful order made or given by a person having authority to make the order; or
ii.Breaches the Confidentiality Deed executed by the Employee: or
iii.Is absent from work without leave ("abandonment of employment") for a period of 2 days or more, this absence not being due to any unforeseen circumstance; or
iv.Causes damage to any person or thing {including CLCAC cars or boats) as a result of wilful or grossly negligent misuse or use by the Employee of any CLCAC cars or boats or other property; or
v.Is otherwise negligent or careless in the discharge of his or her duties; or
vi.Is inefficient or Incompetent through causes which appear to be within his or her own control; or
vii.Is guilty of any improper conduct, in his or her official capacity; or
viii.Engages in improper conduct otherwise than in his or her official capacity, being conduct that adversely affects the performance of his or her duties, or brings the CLCAC into disrepute; or
ix.Commits a breach of the terms and conditions of the Contract of Employment as in force at the time of committing the said breach; or
x.Has, whether before or after becoming an employee wilfully supplied incorrect or misleading Information, in connection with his or her employment by the CLCAC.”
Clause 9.2(e) of the Policies and Procedures Manual [5] specifically authorised Ms Amini-Yanner, in her capacity as the CEO, “ e. to employ and/or terminate employment of all staff, other than the Chief Executive Officer.”
[5] CB p. 1457.
The Court finds that notwithstanding the recommendation to terminate the applicant’s employment was made by Mr Murphy, Ms Amini-Yanner was the sole decision maker in accordance with the Policies and Procedures Manual, and that she alone terminated the applicant’s employment within the scope of her authority to do so.
By Ms Amini-Yanner’s letter dated 30 April 2020, [6] the respondent terminated the applicant’s employment. That letter of termination relevantly provided as follows:
[6] CB pp. 412-413.
“CLCAC
30 April 2020
Private and Confidential
Delivery by email
Dear Kimm,
Re: Unsuccessful Completion of Probationary Period and Letter of Termination of Employment.
I am writing to you in relation to your employment as Native Title & PBC Support Services Project Officer with CLCAC.
Your probationary period commenced on 20 November 2019 and is due to end on 20 May 2020. Under Clause 7 (b) of the Standard Terms and Conditions of your Employment Agreement, CLCAC may terminate your Contract of Employment at any time during the probationary period with one weeks' notice.
For reasons to be outlined by your Manager; Kevin Murphy, I wish to confirm that you have been assessed as being not suited to the role of Native Title and PBC Support Services Project Officer, providing support to Waanyi Native Title Aboriginal Corporation. You will therefore not be offered full time employment beyond your probationary period. This letter is confirmation of termination of your employment with CLCAC with one weeks' notice. In this instance however, I believe it is in CLCAC's best interest, as well as yours, that you do not work out the required notice period. Your employment will therefore be terminated effective immediately, with one week's pay in lieu of notice.
Under Clause 28 of the Terms and Conditions of your Employment Agreement, should employment be terminated by CLCAC during the probationary period, the employee will reimburse CLCAC fifty per cent (50%) of relocation costs paid by the CLCAC to the employee. On this occasion however I confirm that CLCAC has elected to waive the repayment provisions.
In addition, CLCAC is offering to cover the cost of your relocation expenses up to $1,500 back to Port Macquarie, on the condition you immediately provide access to and return all CLCAC files and equipment currently in your possession
Corporate Services Unit staff, Bronwyn Morgan and Tui Ale, will attend your residence on Friday 1 May 2020 to collect the following items:
•Laptop;
•Mobile Device;
•WIFI dongle;
•HD Webcam;
•PG and Printer, including monitor stand, document holder, keyboard and mouse;
•Power surge board and cables;
•Desk, desk extension (lockable cabinet) and chair;
•Paper Shredder and waste bin;
•CLCAC hard copy documents / files;
•Office Keys and swipe pass card;
•Stationery;
•Uniforms; and
•Any other CLCAC equipment or assets or supplies that have been provided to you in the course of your employment
I confirm that any accrued annual leave entitlement owed to you, along with payment in lieu of notice; will be processed on return of the items listed above.
I take this opportunity to thank you for your service and contribution to CLCAC and sincerely wish you well with your future employment.
If you have any questions regarding this letter please do not hesitate to speak with Kevin Murphy, Principal Legal Officer.
Yours sincerely
Rachel Amini-Yanner
Chief Executive Officer”
Commencement of Proceedings
By reason of the termination of his employment, the applicant filed an application seeking relief in the registry of the Federal Court of Australia. By order of Justice Logan made on 4 September 2020, the proceeding so instituted was transferred for hearing to the then Federal Circuit Court of Australia. No submission was made that this Court did not have jurisdiction to hear and determine the applicant’s claim.
On 26 May 2021, the applicant filed a Statement of Claim (SOC). The applicant relied upon that pleading, together with a Reply filed on 24 June 2021, at the trial of the proceeding. The Court Book of five (5) volumes (Exhibit 3) also contained the affidavits respectively relied upon by each of the applicant and the respondent.
The relief sought by the applicant, as set out in paragraphs 28 – 38 of the SOC, was as follows:
“28. Contraventions
Pursuant to s.539(1)&(2) the Applicant relies on the Civil Remedy Provisions at Item 11, Column 1, including 340(1) and 340(2) and, Column 2.
The Applicant also relies on s.540(1)(a) and s.544(a) providing for an employee to apply for a Division 2 civil remedy for compensation within 6 years of the contravention.
29. Compensation as a result
By its contraventions the Respondents have enlivened s 545(1)&(2)(b) of the Fair Work Act being the provision that gives the Court the power to make any order it considers appropriate in the circumstances of the contravention. The Applicant respectfully submits that the Court should make orders for compensation for the contraventions provided by s.545(2)(b) of the Fair Work Act and in the manner the Applicant sets out below.
30. The Applicant seeks:
Wages:  $71,172.50 (to 24 April 2021) plus thereafter to judgment
Superannuation:   $6,761.39
Economic:   $17,771.91
Interest (4.25% @ 7 mths + 4.10% @ 4 mths): $5928.56 plus thereafter to judgment
Future economic loss:             $894,748.08
Total:  $1,081,382.00
Total compensation sought     $750,000.00
Loss of wages and remuneration: $74,530.00
(a). $71,172.50
11 months wages to 24 April 2021 – plus thereafter to judgment (Termination date of 1 May 2020 being last day worked, then subsequent one weeks notice paid in lieu + two weeks annual leave + 7.60 hours accrued paid in lieu)
(b). $6,761.38 – plus thereafter to judgment
Superannuation
Economic loss: $ 17,481.91
(a). $640.00
Costs of participation exercise facility for mental for mental health.
(b). $6391.95 (incl. super)
4 weeks wages for organising and packing move from NSW and returning to NSW.
(c). $1800.00
Losses in not being supported in finding suitable accommodation for the first two and half months after the Applicant arrived in Cairns contrary to CLCAC’s operations manual. The Applicant reported this verbally and in writing to the line manager, the CEO and HR and in the last month of his employment the Applicant sent a claim for re-imbursement to the line manager, the CEO and HR.
(d). $2,862.00
Removals back to NSW, includes: increased volume of chattels); flights back to NSW.
(e). $750.00
Clothes specific for tropical heat of Cairns.
(f). $3352.96
Loss on sale of car: $2500.00
Rego: $559.30 for 12 months
Insurance $293.66
The Applicant is 55 years of age. The Applicant purchased his first car when I was 47 yoa and living in Alice Springs and, did so for the same reason with the car in question: mobility with air conditioning.
(g). $395.00
Noise cancelling headphones due to unrestrained noise and intrusion of HR. This included HR yelling out comments throughout the day: “Ah, Cuntry”, “She fell fanny up! Ha Ha Ha!.” She’s hunting you! [of the DECEO]”
(h.) $120.00
Subscriptions to Flatmates.com.au to find accommodation, due to time diverted moving around hostels and pub accommodation.
(i.) $1200.00.
Breaking lease at current rental accommodation.
Non economic loss – shock, distress, hurt, humiliation, breach of trust, denial of human rights, denial of workplace rights, loss of amenity, inconvenience, psychological effects: $85,000.00.
The Applicant submits that the level of distress and torment from workplace bullying was on par with case law dealing with brutality in circumstances of police stations and the military.
The loss of amenity included the Applicant being in Cairns away from friends in his home state of NSW without the supportive friendship that usually comes from work colleagues. Compounded by restrictions of Covid19.
Future economic loss: $894,748.08
The Applicant ould have continued his employment and career with the Respondent had the contravention of the Respondent not intervened. When the Applicant took the job HR said the job was “forever”.
a) The Applicant’s previous role was as a Senior Solicitor.
b) The Applicant has suffered a significant blow to his career path which at 55yrs old will be difficult to recover. The above figure is calculated as the projected lost income the Applicant will incur until retirement at the age of 70.
c) The Line Manager (the PLO) was preparing for retirement. The Applicant’s skills and experience gave him a high % chance of assuming the role.
d) At present, the Applicant is faced with severe disadvantage in an over subscribed legal job market, advancing age and no referee from the time employed by the Respondent.
e) The position the Applicant was employed in by the Respondent is a very sought after job and hard to secure in reputable organisations. It is a niche position.
The following page containes ‘Table 1’ sts out calculations of future economic loss including 3% cpi.
Other
To be provided by the Respondent to the Applicant
(a)An apology from the SMT, HR, the Board of Directors.
(b)A written employment reference from the Board of Directors stating that the Applicant was an outstanding employee that implemented overdue changes.
(c)A contactable referee to attest to the Applicant’s positive value to the Respondent organisation.
PECUNIARY PENALTIES
[per PART l (con’t) Questions 22 & 23 of Form 4 Fair Work Division]
The Applicant relies on Fair Work Act 2009 – Pecuniary penalty orders – Chapter 4 Compliance and enforcement Part 4-1 – Civil remedies
31. The Applicant seeks pecuniary penalties to be paid to him under s.546(3)(c).
(a).The Applicnat is the person affected by the s.340(1) contravention at item 11, Column 2 in the table of s. 539(2).
(b). As an employer under s. 540(1)(a) and, in making an application under s. 544(a) within six years of the contravention, the Applicant can apply for orders for pecuniary penalties.
(c). Under s.546(1) the ‘court may, on application, order a person to pay a pecuniary penalty.
(d). The amount of penalty units that can be paid by individuals and body corporates is provided by .546(2)(a)&(b)
Involvement and Contravention treated the same was as actual contravention: s550
32. This provision goes to the meaning of the word ‘involvement’ in contraventions.
The nature of the contravention against the Applicant was systemic and the officers of the Respondent Corporation named below were involved to the extent of ss. 550(1)&(2).
s.550(2) is made out on the following basis, from at least 2017 when the CEO and DCEO were promoted to their current positions:
(a) The involvement has been systemic and involved the senior executive management team, HR the Chairperson and the Board Member Murrandoo Yanner.
(b) The involvement has been long term and known to the officers of the Respondent corporation since 2017;
(c) The involvement has included threats and intimidation of witnesses. The Applicant wrote to the President of the Fair Work Commission about this in August 2020.
(d) The involvement has caused the following:
i. High turn over of staff;
ii. Psychiatric and psychological harm in at least 5 instances known to the Applicant;
(e) The officers knew they were not compliant with the WHS Act 2011 (Qld). The CEO obstructed a WorkSafe Qld investigation and the Respondent only initiated becoming compliant with the WHS Act 201 (Qld) when issued with WorkSafe Qld notices on 21 July 2020.
Serious contravention of civil remedy provisions: s.557A
33. The Applicant submits that this provision is made out by the factors listed above in paragraph 32 and by the following:
(a). When the Applicant’s employment was unlawfully terminated on 1/05/20 the Chairperson telephoned around to staff warning them that the DCEO was a workplace bully. The Chairperson had been told since 2018 by staff, including in writing that the DCEO was a workplace bully;
(b). Records of contraventions, including workplace bullying against staff were not initiated or kept by the Respondent. Performance assessment was sporadic and totaled two instances according to the WorkSafe Notices issued 21/07/20. A performance assessment had been used to construct the dismissal of an employee and then the record blotted.
(c). Three Fair Work Commission Applications filed during mid 2020 and one other known Application filed in 2017. All Applications related to workplace bullying;
(d). Violence has been normalised in the Respondent organisation by the Board member Mr Yanner to the extent that threats of violence are made openly by this senior person.
(e). Mr Yanner has previously been removed from his role at CLCAC in response to the Federal Funding Agency withholding funding on the basis of his criminal violence. Mr Yanner is a repeat offender.
(f). The Line Manager routinely manipulates the lack of governance in the Respondent organisation by knowingly approaching Mr Yanner and not the Chairperson or the Board of Directors and does so on the basis that Mr Yanner controls the Respondent Organisation and not Mr Yanner.
(g). The Respondent executive strategy meetings are organized around the attendance of Mr Yanner and are held off site;
(h). The Line Manager made a knowingly untruthful representation to the Fair Work Commission on 16 June 2020 and during 2020 made a recklessly untruthful representation to WorkCover in response to a WorkCover claim of an SSPO colleague.
(i). Mr Yanner has attempted to unlawfully terminate CLCAC staff by mobile phone text.
(j). The Respondent being a publicly funded corporation.
(k). The Line Manager as a solicitor and barrister having sworn the oath to the Administration of Justice
(l). The need for the Applicant and colleagues to make reports to Queensland Police, WorkSafe Australia and the President of the Fair Work Commission. This reporting has resulted in the WorkSafe Investigation issuing notices against the Respondent and, an on-going Police investigation into the Respondent organisation for ‘Misconduct and Corruption’. The report to the President of the Fair Work Commission was based on the witness intimidation of the CEO, the DCEO and HR. At the time Respondent did not fully appreciate his approach to the SSPO colleague Rachael Arnold as witness intimidation; the Line Manager was a name respondent to the relevant FWC proceedings at the time. Similarly the Applicant was not fully aware of the witness intimidation of Mr Yanner.
34. The Applicant applies for the Respondent Corporation to pay the following pecuniary penalty
The Respondent Corporation to pay the maximum pecuniary penalty for a corporation provided at Item 11, Column 4 in the table of s.539(2), subject to s.546(2)(b) of the Fair Work Act. That maximum penalty being 60 penalty units multiplied by 5 as provided at the s.546(2)(b). The penalty to be paid to the Applicant under s546(3)(c).
[1 penalty unit = $222.00; 60 penalty units = $13,320.00; 5 x 60 units = $66,600.00].
35. The Applicant applies for the following officers of the Respondent Corporation to each pay the pecuniary penalty below
•The CEO, Rachel AMini-Yanner
•The Line Manager, Kevin Murphy (The Principal Legal Officer)
•The Deputy CEO (‘DCEO’), Patricia Steineck
•The Human Resources Officer (‘HR’), Bronwyn Morgan
•The Chairperson, Mr Thomas Wilson
•The Board Member, Mr Murrandoo Yanner
The above Officers of the Respondent Corporation to pay the maximum pecuniary penalty for individuals provided at Item 11, Column 4 in the table of s.539(2), subject to s.546(2)(a) of the Fair Work Act. That maximum penalty being 60 penalty units. The penalties to be paid to the Applicant under s.546(3)(c).
[60 penalty units = $13,320.00]
36. The Applicant applies for the Line Manager and Principal Legal Officer Kevin Murphy to pay the pecuniary penalty below
The Line Manager contravened the civil remedy provision section 345 of the Fair Work Act. This provision attracts the Part 4-1 civil remedy provisions of the Fair Work Act. Pursuant to s.539(1)&(2) the Applicant relies on the Civil Remedy Provisions at Item 11, Column 1, including s.345(1) and, ‘(a)’ at column 2. The Applicant also relies on s.540(1)(a) and s.544(a) providing for an employee to apply for a Division 2 civil remedy for compensation within 6 years of the contravention.
Facts to apply for this pecuniary penalty
37. The Applicant pleads the fact as set out above at paragraph 24 and particulars supporting paragraph 24 under the heading Attempts to conceal workplace bullying in relation to the Line Manager making a knowingly untruthful representation to the Fair Work Commission.
38. The Applicant applies for the Line Manager to pay the maximum pecuniary penalty for individuals provided at Item 11, Column 4 in the table of s.539(2), subject to s.546(2)(a) of the Fair Work Act. That maximum penalty being 60 penalty units. The penalty to be paid to the Applicant under s.546(3)(c).
[60 penalty units = $13,320.00]
The Law

The relevant sections of the Fair Work Act 2009 (Cth) for first consideration in this matter were ss. 340(1)(a)(ii), 341(1)(a)(ii), 341(1)(b), 342(1) Item 1, 360 and 361. Those sections respectively provided as follows:
“Section 340 – 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).
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).
Section 341 – Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
…
Section 342 – Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Item 1
Column 1 Adverse action is taken by…
an employer against an employee
Column 2 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.
…
“Section 360 – 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.
Section 361 – 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.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
For the applicant’s adverse action claims to be proven, the applicant must have asserted and established that:
·he exercised a workplace right or rights as pleaded in his SOC;
·the conduct complained of in fact occurred; and
·the conduct constituted adverse action pursuant to the provisions of s. 342(1) of the FWA.
If it is established by the applicant that the impugned conduct was carried out and that it constituted adverse action, it is for the first respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible proscribed reason.
As to the proper approach to be adopted by a court when considering whether adverse action has been established or not, the Court respectfully adopts the principles as set out in the decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [5] per French CJ and Crennan J; at [104] and [129] per Gummow and Hayne JJ; and at [140] and [141] per Heydon J where it was respectively said:
“[5]The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. This appeal was concerned with identifying the correct approach to that task.”
…
[104] In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.”
…
[129] … The test is whether adverse action has been taken because of a proscribed reason.
…
[140]… Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.
[140]… The assessment of a witness’s mental processes is an assessment of that witness’s state of mind. It is pre-eminently a matter in which a trial judge has a considerable advantage over an appellant court…”
A causal link must be established between the adverse action the subject of complaint, and the matters referred to in s. 340(1)(a)(i) – (iii) inclusive of the FWA, due to the use of the word “because” in s. 340(1)(a) of the FWA. That issue was dealt with by Foster J in Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] and [63] where His Honour said:
“[60]The provisions particularly relied upon by the applicant (ss 44, 97, 340, 341, 351 and 352 of the FWA) all use the expression “because” or “because of” as describing the necessary causal link between the adverse action and the relevant prohibited reason for that action.
...
[63]It is not necessary for an applicant to establish that the only reason or the dominant reason that adverse action was taken was a prohibited reason. It is sufficient if the prohibited reason is one of several reasons for the taking of the action although it may be that the prohibited reason must have operated as a substantial and operative factor in the taking of the adverse action.”
On the issue of what evidence was needed to be canvassed in relation to the impugned action taken by an employer, it was said by French CJ and Crennan J in Barclay at [41], [44] and [45] as follows:
[41] The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.
…
[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
[45]This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
(Footnotes omitted) (Emphasis added)
On the question of onus, it was said by French CJ and Crennan J in Barclay at [50] as follows:
“[50] The following description of a legislative predecessor to s 361 given by Mason J in General Motors-Holden’s Pty Ltd v Bowling remains pertinent: “the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.”
(Footnotes omitted)
An employer’s onus may not be satisfied by a mere statement that the action taken by the employer was not for a proscribed reason. As was said by French CJ and Crennan J at [54] of Barclay:
“[54] … a question arose as to whether the director’s evidence was sufficient to satisfy the onus cast upon the employer. In deciding that the director’s evidence was sufficient, the majority in Pearce recognised that mere declarations of an innocent reason or intent in taking adverse action may not satisfy the onus on an employer if contrary inferences are available on the facts.”
(Emphasis added)
When deciding, for the purposes of s. 361 of the FWA, who the relevant decision-maker was, or upon whose advice or recommendation the decision-maker relevantly acted upon when taking any adverse action, White J in Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [121] – [127] inclusive said:
“[121] My conclusion that the applicant’s exercise of his workplace rights played no part in the decision of Mr De Angelis and the recommendation of Mr Kerswell is not conclusive of the applicant’s case with respect to the termination of his employment. Regard should also be had to the basis for the underlying recommendation on which they acted. If those making the recommendation to Mr De Angelis did so because of the making of the applicant’s First Complaint, Transfield would not discharge the s 361 onus. This is evidenced by the authorities.
[122] In Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239, the finance committee of the respondent Council had recommended that the applicant’s position be abolished. The report of the finance committee was adopted later that same day by the full Council. Evatt J held at 256 that the decision of the finance committee was the critical decision in the case because the full Council had merely rubber stamped its recommendation. Accordingly, it was essential that the Court have evidence from the members of the finance committee so that it could determine whether a proscribed reason had been a substantial and operative factor influencing the decision of any individual councillor.
[123] Smithers J addressed the question of principle involved in Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 at 19 in a context analogous to the present:
[19] In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr Kane, that mind may be located in the mind of one authorised officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon.
However, as Smithers J went on to acknowledge, that does not preclude the possibility that one of the participants may have as his or her motive an undisclosed proscribed reason for joining in the decision.
[124] Gray J also noted the issue in Gibbs v Palmerston Town Council (unreported, 21 December 1987) at 84‑5 when he said:
[T]here is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.
[125] Gray J reviewed and applied these authorities in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [25]‑[29].
[126] Counsel for the applicant referred to Rowland v Alfred Health [2014] FCA 2. The decision in that case confirms that it is appropriate to have regard to the reasons actuating the members of a selection committee making a recommendation, and not just to the reasons of the ultimate decision maker.
[127] Accordingly, it is appropriate in the present case to have close regard to the reasons of those who made the recommendations to Mr De Angelis and Mr Kerswell. This includes their reasons for recommending the restructure which Transfield adopted as well as their reasons for selecting the applicant as a person to be made redundant in consequence of that restructure. The evidence of Mr Rynja and Mr Hall is particularly significant in this respect. Mr Handy did not contribute to the recommendation to Mr De Angelis, and Mr Vigus had only a limited role.”
It will always be a question of fact as to whether the allegedly proscribed reasons, as pleaded in a SOC as constituting the reason/reasons or motive for the taking of the adverse action, have been rebutted. Motive is a relevant consideration for the Court to take into account, when assessing the evidence before it, in that regard.
Whether or not a complaint or inquiry has been made by an employee in relation to his or her employment for the purposes of s. 341(1)(c)(ii) of the FWA is to be considered objectively.
When considering the factors relevant to an assessment of what the relevant reasoning process was in relation to the termination decision, Reeves J in CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014 at [120] – [123] inclusive said as follows:
“Two parts to the inquiry
[120] These authorities therefore place the focus on the reasoning process that led to the ultimate decision. Where the decision was made by one person and her or his reasoning for the decision was based on one incident involving the employee, the task is relatively straightforward. The judgments in Barclay and BHP Coal require a focus on the reasoning process employed by that person to determine whether the employer has discharged its onus under s 361(1) of the FWA to show that the reasoning process did not include, as a substantial and operative reason, the alleged prohibited reason or reasons. However, the employer is only required to show that none of those reasons was a “substantial and operative reason”. It does not need to negate every reason, however immaterial it was to the reasoning process underpinning the decision to dismiss the employee concerned: see Barclay at [104] and [127] per Gummow and Hayne JJ, and [140] per Heydon J.
[121] On the other hand, where the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry does not involve a roving search of the minds of the employees of the kind rejected by Heydon J in Barclay (at [146]). Nor does it involve an objective inquiry of the kind rejected in Barclay (at [44] and [126]), nor import some “unconscious” reasoning to the ultimate decision-maker that was also rejected in Barclay (at [124] per Gummow and Hayne JJ, and [146] per Heydon J). Instead, it focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak (see at [117] above).
[122] I therefore consider the focus and scope of the inquiry in this matter should proceed in two parts. First, an inquiry to ascertain whose reasons had a material effect on the reasoning process that preceded Mr Pretorius’ ultimate decision to dismiss Mr Scott. And, secondly, an inquiry to examine the reasoning employed by those persons to ascertain whether it was affected by a prohibited reason or, to put it in the terms of s 360 of the FWA, whether Clermont Coal has established to the requisite standard that none of the alleged “particular reasons” was a substantial and operative reason for the decision to dismiss Mr Scott. I will proceed to undertake the first part of this inquiry under this issue and attend to the second part of it under the next issue. But first, I will review the evidence bearing upon both parts of the inquiry. In that review, it is unnecessary to further consider the evidence of Ms Washington because it is already sufficiently summarised above. I will therefore begin with the evidence of Mr Fry, Mr Scott’s supervisor, and then turn to the evidence of Mr Pretorius, Mr Christensen and, finally, Mr Fleming.
The Applicant’s Asserted Exercise of Workplace Rights to Make Complaints
The application of s. 340 with s. 361 of the FWA was recently considered in Alam v National Australia Bank Ltd [2021] FCAFC 178 at [14] where it was held, per White, O’Callaghan and Colvin JJ, as follows:
“[14] Several matters bearing upon the application of s 361 in relation to s 340 are settled:
(a) in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217 (Dowsett, Bromberg and Murphy JJ) at[55];

(b) the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow [2015] FCAFC 63; (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 (ABCC v Hall) at [100];

(c) an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason: Bendigo v Barclay at [104] (Gummow and Hayne JJ).

(d) the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision‑makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]‑[44];

(e) the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];

(f) while the evidence of the decision‑maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre‑condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215, 273 FCR 332 at [72];

(g) the Court’s rejection of the evidence of the decision‑maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 at [116]), but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Gold at [27]; Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision‑maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action; ibid at [113]; TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137 at [105]‑[106];

(h) even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Territory Education Union v Royal Melbourne Institute of Technology [2013] FCA 451,(2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, (2020) 274 FCR 225 at [154] (Snaden J);

(i) the decision‑maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]‑[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, (2015) 231 FCR 150 at [32], [47]‑[48] (Jessup J); and

(j) adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).”

For the purposes of this judgment, and primarily because of the number of alleged complaints made by the applicant, the Court will abbreviate its findings by the use of two short form phrases, designed to identify such findings, as follows:
(a)Failure by applicant to properly plead adverse action – where the applicant has failed to allege with sufficient particularity both the action said to constitute “adverse action”, and the particular reason or particular intent with which it was said the action was taken.
(b)Objective fact not established – where the applicant, having alleged that adverse action was taken because of a particular circumstance, has failed to establish the existence of that circumstance as an objective fact.
The applicant’s pleaded case in respect of the exercise by him of the workplace right to make complaints commenced at paragraph 11 of the Statement of Claim. It is most convenient for those allegations to be dealt with, seriatim, as follows:
11(a)    Work Uniform
(a)The applicant claimed that he was required to wear a black uniform in the extreme heat of the Gulf of Carpentaria, and that he had complained to his line manager, Mr Murphy, and to the Human Resources department representative, namely Ms Morgan, about that requirement.
(b)First, Exhibit 6 was a long sleeved shirt of the same style and colour as the shirt given to the applicant by Ms Morgan at the commencement of the applicant’s employment. The shirt was a small black and white check with the “CLCAC” logo on the upper left chest side. Overall, the pattern was productive of a shirt which had a grey colour to it. It could not be described as a long sleeved black shirt.
(c)Second, the applicant gave no sworn evidence in his various affidavits about his having made a complaint to anyone about that grey shirt. In about the second week of his employment, the applicant had attended a work related meeting in Burketown in the Gulf of Carpentaria, but on that occasion he wore his own clothes. At paragraph 15 of his affidavit filed on 13 September 2021, when relating what he alleged he said to one Emily Sexton about the wearing of a black shirt prior to leaving for Burketown, the applicant said as follows:
” Emily told me that the smart casual I was wearing would be suitable. She also told me about the black uniform for men. I diplomatically raised the issue as to whether it was somewhat hot in the Gulf in the summer to be wearing black. Emily simply agreed and shrugged and tilted her head. It was my first days in the job, I was excited about the job and I was conscious of not raising complaints.”
(d)In his cross-examination about the wearing of a uniform, the applicant admitted that from the time of his return to Cairns from Burketown until about 25 March 2020, when staff were required to work from home due to Covid, the applicant only wore the grey shirt along with long trousers on the week days other than mufti Fridays. At [19] of his affidavit filed on 13 September 2021, the applicant said that he had “raised the dangers of the black uniform face-to-face” with Mr Murphy. That allegation was denied by Mr Murphy. In circumstances where the applicant only ever wore the grey shirt, and not any black coloured shirt, the Court finds it implausible that the applicant would have made any such complaint to Mr Murphy, or anyone else. On that issue, as with all other issues addressed by the court in these reasons, the Court does not accept that the applicant was a credible witness.
(e)Throughout his cross-examination evidence, the applicant was evasive, and at times illogical, when giving answers to simple questions. Mr Murphy was a logical and sensible witness who the Court accepted as being a credible witness. On the question of the applicant’s credibility, it is not without significance that in a letter to a recruitment firm sent by the applicant after the termination of his employment with the respondent, the applicant untruthfully misrepresented the nature of his employment with the respondent. The applicant said as follows:
“I currently reside in Cairns where I have been working for the Carpentaria Land Council Aboriginal Corporation where in the absence of the Principal Legal Officer over 5.25 months I have been doing the in-house legal work.”
As to that statement, the evidence of both the applicant and Mr Murphy was that although Mr Murphy only spent short periods of time in Cairns, he worked for the respondent, performing in-house legal work, from his home in Brisbane. [7] To seek to characterise himself as having performed “in-house legal work” in the absence of the principal legal officer over any period of time, let alone over a period of 5.25 months, was grossly inaccurate, intentionally misleading, and untrue.
[7]           Transcript (T) p. 84 .37-.47
(f)Failure by applicant to properly plead adverse action.
(g)Objective fact not established.
11(b)   Workstation – Noise
(a)In an email sent by the applicant to Mr Murphy on 15 January 2020, the applicant asked whether he could please use his office when he had “ … a matter that requires reading and drafting (as opposed to shuffling or deploying to different tasks)”. The applicant then said as follows: [8]
[8]           CB p. 689 and [53] – [55] of applicant’s affidavit filed on 13 September 2021.
“The basis of the request is that there is a fair bit of ‘bush telephone’ in the office (noise).”
(b)The Court finds that the content of the email sent by the applicant to Mr Murphy did not constitute a complaint. The request was granted as part of what would be expected by any considerate person. The nature of the request was not framed in a way which any reasonable person would regard as an exercise of a workplace right.
(c)In any event, the making of the request played no part in any decision making process in relation to the termination of the applicant’s employment because Ms Amini-Yanner, who the Court accepted as a truthful and honest witness, was unaware that any such request had been made. [9]
[9]           Paragraphs [200] – [207] of affidavit of Ms Amini-Yanner filed on 13 October 2021.
(d)Further, the pleading that the request to move to Mr Murphy’s office “was based on the complaint that his work station in the open plan office area was too noisy and cramped for research and drafting” does not allege that any complaint was made. The allegation gives no particulars of how or when the complaint was allegedly made. Failure by applicant to properly plead adverse action. The claim is without merit.
(e)In any event, the Court finds that noise levels were only occasionally distracting, something which is common in every workplace, save except in libraries. Ms Steineck was diligent in asking employees at the Cairns office to minimise noise levels. Objective fact not established.
(f)The claim is without merit.
11(c)    Exposure to Violence
(a)At the meeting of both the Waanyi and Gangalidda Garawa (GG) PBC’s in Burketown in November 2019, Murrandoo Yanner was angry with a person called Richardson who had attended the meeting – his wanting to address the question of his possibly harvesting sandalwood on country - in circumstances where he had not first sought permission from the traditional land owners to go on country for that purpose. The Court accepts the evidence of Ms Sexton/Chalmers that Murrandoo Yanner rose to his feet and said words to the effect of “If you’re not out of here in 5 minutes your skin will be nailed to the wall.” The Court further accepts that the applicant was present at the meeting and within earshot of what was said.
(b)The Court does not accept that by his being present at the meeting, and within earshot of the nail to the wall language, the applicant was exposed to graphic threats of violence against invited speakers as pleaded. The person to whom the words were spoken by Murrandoo Yanner was not an invited speaker. Failure by applicant to properly plead adverse action.
(c)Further, the Court accepts the evidence of Ms Morgan that in the week following the Burketown trip, the applicant exhibited no sign of his having been disturbed by the words spoken by Murrandoo Yanner. [10] The Court finds, in any event, that the applicant made no complaint about such conduct either to Ms Morgan or to Mr Murphy as alleged by the applicant.
[10]          Morgan para 10.5 of affidavit filed on 13 October 2021.
(d)The Court finds it implausible that the applicant would have made any such complaint to Mr Murphy in circumstances where he had supported the words of Mr Yanner at the time of his meeting with Ms Morgan[11]
[11]          Morgan para 10.5 of affidavit filed on 13 October 2021 (SAME AS ABOVE FOOTNOTE)
(e)Objective fact not established. The claim is without merit.
11(d)   De-skilling
(a)It was alleged by the applicant that he had made a written and verbal complaint to Mr Murphy about his not being sent to visit the Waanyi PBC people regularly enough having regard to his being the appointed Waanyi PBC officer.
(b)The position description document forwarded to the applicant prior to the commencement of his employment, and executed by him, recorded that the applicant would be required to undertake extensive remote travel, but it did not specify how frequently such travel would be required. [12]
[12]          CB pp. 335-337.
(c)The letter of offer document also executed by the applicant recorded that the applicant would be required to attend and assist with PBC board meetings and Native Title holder meetings, but again the document did not specify the frequency with which such meetings would be required to be attended on county. [13]
[13]          CB pp. 339-343.
(d)Annexure TTT to the applicant’s affidavit filed on 13 September 2021 was a file note from the applicant to Ms Amini-Yanner and Mr Murphy dated 30 April 2020 which allegedly recorded what was said to the applicant in a telephone call between him and a person named Alec Domadgee. [14] Nowhere in such file note does the applicant make any complaint about his not being sent regularly on country.
[14]          CB pp. 911-913.
(e)Any travel by the applicant to Waanyi lands after November 2019 would have been prevented, in any event, by the onset of the wet season between November and March [15] when such visits would have been impossible. The Carpentaria Shire Council Road Condition Report of 24 February 2020 and the Burke Shire Council Road Condition Report of 25 February 2020 (each annexed to the affidavit of Ms Steineck filed on 19 October 2021) indicated that there was extensive flooding within those shires on those dates. [16]
[15]          T P. 185.20
[16]          CB pp. 2234-2236.
(f)In cross-examination, the applicant conceded that there was no Waanyi board meeting held between 21 November 2019 and 1 May 2020. The applicant further acknowledged that from around 16 March 2020, most CLAC concern centred around the prevalence of Covid and its possible impact. [17] The applicant also conceded that although Doomadgee was situated on Waanyi land, and was accessible by flights from Cairns, such flights were halted from around mid-March 2020 because that and other remote Aboriginal titled lands had been locked down to external travellers with a view to preventing the spread of Covid within the communities there. [18]
[17]          T p. 183 - .20 - .44
[18]          T p.186 – .15 - .35.
(g)The applicant failed to establish that there was any need for him to travel to Waanyi lands after 21 November 2019.
(h)Objective fact not established. There is no merit to such claim.
(i)In any event, the applicants pleading was embarrassing in that it failed to define what “de-skilling” meant, or how he had complained to Mr Murphy about his lack of travel to Waanyi lands (when such allegation was denied by Mr Murphy), and where the applicant had failed to establish that he had made any such complaint to either Mr Murphy or anyone else. Indeed, during the course of cross-examination the applicant withdrew his allegation that he had made a written complaint to Mr Murphy.
(j)Failure by applicant to properly plead adverse action.
(k)There is no merit to such claim.
11(e)    Out of Eye Shot Attack by DCEO
(a)The applicant claimed that he was spoken to in a threatening manner by Ms Steineck, but the applicant failed to plead particulars of what was asserted to be “extremely caustic and violent tempered language and demeanour. No particulars were given as to the alleged time of such conduct. The applicant failed to plead how whatever he alleged constituted extremely caustic and violent tempered language could also amount to extremely caustic and violent tempered demeanour.
(b)Failure by applicant to properly plead adverse action. There is no merit to such claim.
(c)The applicant conceded that he had made no written complaint to anyone about such alleged conduct. Each of Mr Murphy and Ms Morgan have denied that any such complaint was made to them. The Court accepts the evidence of Mr Murphy and Ms Morgan in that regard. The Court finds that no such complaint was made.
(d)Objective fact not established. There is no merit to such claim.
11(f)    2^nd Out of Eye Shot Attack by DCEO
(a)The applicant claimed that in a conversation with Ms Steineck before the commencement of the 2019 Christmas party at a Cairns restaurant called Dundees, Ms Steineck again spoke to him “using extremely caustic and violent toned language and demeanour”. The applicant conceded that there was no written complaint in respect of such alleged language.
(b)The applicant did not provide particulars of the time of the alleged conversation, nor what was alleged to have been said by Ms Steineck in such conversation. Further, the applicant failed to identify how any such alleged comment occurred in a work context, or how any alleged complaint in respect of such alleged comment constituted the exercise by him of a workplace right.
(c)Failure by applicant to properly plead adverse action.
(d)The applicant alleged that he had complained about that conversation to Ms Morgan about a month later in late January 2020, as well as to Mr Murphy in April 2020. Each of Ms Morgan and Mr Murphy denied that any such complaint was made. Ms Steineck denied that she had made any such comment to the applicant. The Court accepts the evidence of Ms Steineck, Ms Morgan and Mr Murphy in that regard.
(e)Objective fact not established.
(f)There is no merit to such claim.
11(g)    Electronic Surveillance Without Consent
(a)The applicant alleged that in early January 2020, Mr Murphy had telephoned him to warn him that Ms Steineck was “watching him electronically”. The applicant further claimed that he had “complained by responding with an extended silence in this telephone call …” with Mr Murphy.
(b)In his cross-examination the applicant conceded that he had made no written or verbal complaint to anyone about the fact that Ms Steineck had allegedly been monitoring the office log-in and log-out times for the Cairns office staff of the respondent. The relevant cross-examination was as follows: [19]
[19]          T pp. 222.45 – 224.44.
“MS MOODY:   Well, again – well, you – returning to your conversation with Mr Murphy when he telephoned you I suggest to you that he said to you words to the effect of, in a clearly joking voice ‑ ‑ ‑?‑‑‑No.
‑ ‑ ‑ “You have been observed coming into the office early and leaving late”?‑‑‑No. He said it in this sort of resigned – I think I may have put it there, but it was like, you know, he did that on the 26^th when she was chasing me too, but ‑ ‑ ‑
You said words to the effect of, “What do you mean”?‑‑‑He said it in this, sort of, he was resigned to just accepting but he knew it was a bad tone. I could hear it. It was ‑ ‑ ‑
You said, “What do you mean”?‑‑‑Yes. And then I – then I pulled myself up.
And then Mr Conradsen said words – Mr Murphy said words to the effect of and, again, in a clearly joking fashion, “We’re spying on you”?‑‑‑No, he didn’t say it in a joking fashion. He said it in this resigned like, you know, God, you know.
Mr Murphy ‑ ‑ ‑?‑‑‑He – I think he was embarrassed.
I suggest to you Mr Murphy then said to you, “Look, I just had a chat with Trish and she says she has noticed you coming into the office early and leaving late. She’s ‑ ‑ ‑?‑‑‑Hang on is this when he – sorry – pardon me. Is this ‑ ‑ ‑
HIS HONOUR:   This is what Ms Moody is putting to you?‑‑‑Yes, but ‑ ‑ ‑
Let her finish the question?‑‑‑ ‑ ‑ ‑ I don’t know when.
Mr Conradsen ‑ ‑ ‑?‑‑‑All right. Sorry.
‑ ‑ ‑ let her finish the question?‑‑‑Sorry.
MS MOODY:   He continued, “She’s concerned you’re doing too many hours. It’s a workplace health and safety issue. She asked me if I’m requiring you to put in long days. I said, no. So, please, keep to regular office hours”?‑‑‑So this is ‑ ‑ ‑
HIS HONOUR:   Do you accept that or not?‑‑‑No. He just said, “Some people have time to look at lists.” He said, “Look, apparently you’ve been coming in early and leaving late”, and that was it. He said – it’s exactly there, “I nearly forgot to mention”, and I was about to say something and then I went, hang on, I will look like I’m rocking the boat, so I just went dead quiet and I was listening to him breathing and I thought, you know, this is – I’ve got to be careful here, and I just went, “Okay. Yes. Okay”, but I was – I can tell you it put the wind up me. Like, I could feel my nerve ends in my arms. I just thought, you know, I’m being – I’m being hounded. I just thought, wow, you know. It was – it was awful.
MS MOODY:   Mr Conradsen, I suggest that in reply to Mr Murphy you said that you would do so, that you would keep your – to regular office hours?‑‑‑Yes. I know. “ I said, “Okay. Yes. Yes. Okay.”
And I suggest to you that there was no extended silence at all?‑‑‑Well, there absolutely was because I knew – I thought a little bit of a test here. Am I on – am I on side with, you know, being the right fit or whatever.
And at no time did you say to Mr Murphy that you considered that you were so overburdened with work tasks that you needed to be in the office outside ordinary hours to perform your work duties? You never said that?‑‑‑No, I didn’t. I mean, you don’t want to – you’re in your probation and, look, I was compensating for the fact that I was in a new place. I was trying to find a place to live. As I said yesterday the rental accommodation market is incredibly low. I was living in, you know, in some pretty dodgy places and moving around. So, you know, I had to get the work done I think, yes, so.
And insofar as you’re asserting that you made a “complaint” for the purposes of section 341 of the Fair Work Act you’re relying upon what you describe as your silence. Is that not correct?‑‑‑Well, I think it was pretty much agreed between – that conversation he knew it was wrong and I just went ..... so he knew it was wrong, but it – the whole arrangement there suited him, suited others, and it’s, like, don’t rock the boat.
HIS HONOUR:   Mr Conradsen, do you assert that the only indication that you gave to Mr Murphy ‑ ‑ ‑?‑‑‑Is that I went deadly quiet.
‑ ‑ ‑ of anything adverse in relation to his having told you that there was some electronic monitoring of you was your silence?‑‑‑Yes. Yes. I mean ‑ ‑ ‑
You didn’t say anything to him?‑‑‑No, but he would have thought something ‑ ‑ ‑
Please, let me finish ‑ ‑ ‑?‑‑‑Sorry. Yes.
‑ ‑ ‑ Mr Conradsen?‑‑‑Sorry.
You didn’t say anything to him and you didn’t write anything to him?‑‑‑No, I didn’t.
Or anyone else?‑‑‑There would have been conversation about – in the office about is she spying on people. Simone Arnol would but ‑ ‑ ‑
No, but in relation to this event ‑ ‑ ‑?‑‑‑Yes, no.
‑ ‑ ‑ you made no complaint. Sorry. You made no verbal or written complaint to anyone?‑‑‑No. I don’t – I can’t remember talking to HR about it.
Right?‑‑‑But HR – so I can’t remember. HR just – you could say anything to her because she said anything herself so not that I followed suit with her but ‑ ‑ ‑ “
(c)The applicant failed to plead how silence in the circumstances could constitute the making of a complaint by him. The applicant failed to establish that he exercised any workplace right.
(d)Failure by applicant to properly plead adverse action.
(e)There was no conduct on the part of either Ms Steineck or Mr Murphy which could reasonably be regarded as either intrusive vis a vis the applicant’s privacy, or otherwise disruptive to the applicant’s work routine. Further, the Court finds that nothing which the applicant said or did could constitute the making of a complaint as pleaded.
(f)Objective fact not established.
(g)There is no merit to such claim.
11(h)   Unprovoked Confrontation
(a)The applicant alleged that Ms Steineck had approached him in December 2019, in front of witnesses, and that she advised the applicant that he was not to use the respondent’s office vehicle for private purposes, whether associated with his attempt to obtain private accommodation in Cairns or otherwise.
(b)The applicant failed to plead exactly what was allegedly said which gave rise to the making of any alleged complaint.
(c)Failure by applicant to properly plead adverse action.
(d)The applicant alleged that Ms Morgan witnessed such conversation. Ms Morgan denies that she witnessed any such conversation taking place between the applicant and Ms Steineck. She did agree that she lent the applicant her car so that he could make some accommodation inspections, and she agreed that the applicant had told her that Ms Steineck had told him that he was not to use the office car for such purpose. Ms Morgan gave evidence, however, that she did not consider that the applicant was making any complaint. She believed that he was merely recording the fact that he couldn’t use the office car for private purposes.
(e)The Court accepts the evidence of Ms Morgan to the effect that had she considered that the applicant was making a complaint she would have approached the matter entirely differently, stating that the respondent has a strict car policy whereby the office car was only meant to be used for office purposes. [20]
[20]          Ms Morgan’s affidavit filed on 13 October 2021 at [6.7] – [6.20].
(f)Mr Murphy also denied that the applicant had made any such complaint to him. The Court accepts the evidence of Ms Morgan and Mr Murphy in that regard. The Court further finds that there was never any basis for it being claimed by the applicant that the request by the applicant to use the office car gave rise to any fact, matter, or circumstance which could justify the making of a complaint based upon the alleged exercise of a workplace right.The Court does not accept that any complaint was made by the applicant as alleged in the SOC. The Court has had regard to the applicant’s misrepresentation about the nature work performed by him for the respondent when assessing the applicant’s credibility as a whole.
(g)Objective fact not established.
(h)The claim is without merit.
11(i)     Unfounded Criticism Re House Style
(a)The applicant claimed that he was being undermined and bullied by Ms Steineck’s correspondence directed toward him and others concerning the preferred use in emails of the approved style for the respondent’s logo, and associated art work and stationery. One such email was sent by Ms Steineck on 6 March 2020. [21] In response to that email, the applicant sent a response to Ms Steineck some 30 minutes later which was as follows:
[21]          CB pp. 705-706.
“Thanks Trish
I read the manual in November and I recall the house style section. Though I don’t recall seeing ‘brush stroke’. I’m curious though.
I noticed this morning that my email font had changed. I don’t know how that happened. I put it back.
Kind Regards
Kimm Conradsen”
(b)The applicant gave evidence that he believed he was the subject of constant unjustified criticism, but did not plead particulars going to such allegation. Additionally, there was no logical connection between the content of email correspondence sent by Ms Steineck concerning house style, and the alleged persecution of the applicant. No rational basis for any such connection was ever pleaded.
(c)Failure by applicant to properly plead adverse action.
(d)Further, Ms Steineck denied that it was ever her intention to be other than efficient when pointing out to staff that email font and layout was to be in line with the respondent’s accepted and established protocols. Such an approach by Ms Steineck was designed to achieve conformity within the respondent’s operations, and was entirely reasonable. It was not personally directed in any way toward the applicant.
(e)Objective fact not established.
(f)There is no merit to such claim.
11(j)    Workstation – Noise # 2
(a)The applicant alleged that his workstation at the CLAC Cairns office was “pantry sized and located in a thoroughfare in the central open plan office”. It was alleged that noise primarily originated from Ms Morgan’s office as a result of Ms Morgan yelling into the phone with her door open. The applicant claimed that he had complained about excessive noise and stressful working conditions to Mr Murphy, Ms Amini-Yanner, Ms Steineck and Ms Morgan. Each of those persons denied that the applicant had made any such complaints to them.
(b)The applicant referred to a number of items of correspondence. As to his email to Mr Murphy dated 28 February 2020, [22] such email was primarily directed to what the applicant considered to be an ineffective air-conditioning system. Though the applicant did say in such email that “staff are restless and noisy” that was said in the context of what he purported to be a hot office of a morning. Such email did not constitute a complaint about noise. There was no evidence that the applicant’s draft email to Mr Murphy was ever sent. [23] In such circumstances, it could not be considered as the making of a complaint about noise.
[22]          CB - pp. 671-673.
[23]          CB – pp. 679-680.
(c)The applicant’s email of 15 January 2020 sent to Mr Murphy referred to there having been a fair bit of “bush telephone” in the office when referring to noise. Again, the Court finds that such email was neither specific enough, nor of such a nature as to constitute a complaint about noise. The unusual and undefined reference to bush telephone was non-specific. No particulars were pleaded as to the extent or nature of noise alleged to be excessive, the dates on which noise was said to be excessive, or how such noise was stressful and not conducive to work.
(d)Failure by applicant to properly plead adverse action.
(e)The Court accepts the evidence of Tui Ale who the Court finds was an honest and logical witness. Mr Ale said that though Ms Morgan had a loud laugh and a loud voice, he did not agree that Ms Morgan was loud all the time, or that the noise coming from her office was inappropriate or so loud as to be out of the ordinary. [24]
[24]          Tui Ale affidavit filed on 13 October 2021 at [97] – [100].
(f)Ms Steineck denied that she had ever heard Ms Morgan use offensive language, or that she had ever received a complaint from Ms Sexton about Ms Morgan’s language or noise levels. Mr Murphy conceded that in an open office there was noise from other work stations, but he said that in his experience it was just the usual office noise to be expected in such circumstances. Mr Murphy confirmed that the applicant had never made a formal complaint to him about noise, and that to the extent that the applicant made mention of noise in the office, he did so in a conversational way. He confirmed that the applicant had not asked him, in his capacity as the applicant’s line manager, to take any step on his behalf with a view to lessening or eradicating noise within the Cairns office. Mr Murphy confirmed that Ms Steineck would regularly remind people that they should keep the noise levels down in the office. [25]
[25]          Murphy affidavit filed on 15 October 2021 at [175] - [178].
(g)Ms Amini-Yanner denied that the applicant ever made any complaint to her, let alone a complaint relating to noise levels. [26]
[26]          Amini-Yanner affidavit filed on 13 October 2021 at [197] – [207]
(h)During the course of the applicant’s cross-examination, it was put to him that the only time that he mentioned noise to Mr Murphy was in early January 2020 when he said to Mr Murphy in a conversational way that he found his work station to be noisy. The applicant went on to say that he didn’t want to confront people about the noise. The relevant passage was as follows: [27]
[27]          T - 244.40 – 245.5.
“Right. Mr Conradsen, you describe making a complaint, in your language. You say you made a complaint to Kevin Murphy. I put to you that the only time you mentioned noise to Mr Murphy in an oral conversation was in the early part of 2020 in around January when Mr Murphy came to the office, and you said in a conversational way that you found your workstation noisy, which was why you liked to use the spare office when he was out of town?‑‑‑No. Because there’s an email there where I say, “Shirley Bassey,” because I’m trying to do something with a bit of humour. Right. Because you don’t want to confront people about the noise, you know.
No.
HIS HONOUR:   Is that annexure F?‑‑‑No. I can try and find it, your Honour, but I refer to her as Shirley Bassey because – and I said that ‑ ‑ ‑
Just bear with me for a moment?‑‑‑Sorry.
What’s annexure – where is annexure F?‑‑‑So it’s just a diarisation to myself, annexure F.
Well ‑ ‑ ‑?‑‑‑And it’s in the email. I put it in – so it’s at bundle 679. It’s in the email program Outlook, of the – of the respondent email service.
Where was this email sent? It was ‑ ‑ ‑?‑‑‑No. It was just to me, your Honour. That’s notes that I was taking.
How did you print this out? You just printed it out, did you?‑‑‑Yes.
It doesn’t have a date?‑‑‑It’s forwarded on from the 25^th, which was the date where I resolved that I was going to do something about it. So it’s abutted to the 25 March email of 12.34. The Shirley Bassey email, I will have to look for, but I can come back to you on it because I’m sure it’s in there.
MS MOODY:   And indeed ‑ ‑ ‑?‑‑‑I – I didn’t know to put an index on – on affidavits previously. I only learnt that after receiving some from the respondent. Yes. Sorry.
Now, I suggest to you that insofar as you say you made – yes. Well, you agree that you didn’t want to be seen as openly criticising any individual ‑ ‑ ‑?‑‑‑No.
‑ ‑ ‑ including HR. That’s correct?‑‑‑Well ‑ ‑ ‑
And so insofar as you say that you commented about Bronwyn Morgan, it was only to the extent that you described her as having a Shirley Bassey operatic voice; that’s correct?‑‑‑That’s HR.
Yes?‑‑‑Yes. That’s – that’s a nice way of – I mean, considering the profanities that were coming out of there.
And that was one of the comments you say you made to Bronwyn Morgan, wasn’t it, that she had – that you considered that she had a Shirley Bassey-style voice?‑‑‑No. I said the Shirley Bassey delivery on the telephone, but I didn’t say that for a long while. And – because I had to build up to it, but it just kept going. So – and it was friendly. I had friendly relations with her.”
(i)In such circumstances, the Court does not accept the applicant’s evidence that whatever he said to anyone about noise constituted the making of a complaint. The applicant was averse to any one on one contact which might give rise to conflict. The Court finds that the applicant’s concerns about noise were either kept by the applicant to himself, or mentioned in an off-hand or conversational way, but not by means of the making of a complaint. His emails did not evidence any written complaint, merely a reference to the fact that there was noise. So much is unremarkable in any open plan office environment. The Court further finds that the applicant has failed to establish that any noise which was generated within the office was such as to give rise to stress, or such as to unreasonably cause the applicant to be unproductive.
(j)Objective fact not established.
(k)There is no merit to such claim.
11(k) De-skilling Re Work Below Role Description
(a)The applicant alleged that “ … without authority from the line manager …” Ms Steineck asked the applicant to provide some advice which was asserted to be “ … below the applicant’s role description … ”. Advice was sought from the applicant by Ms Steineck in respect of what was referred to as the digit configuration of the new year date 2020.
(b)The applicant alleged that he complained to Mr Murphy by telephone as well as “ … by putting him in the cc response to the DCEO.” During the course of cross-examination, the applicant withdrew the allegation that he had made any written complaint to Mr Murphy by cc’ing him into an email directed to Ms Steineck. Such concession ran contrary to direct affidavit evidence of the applicant asserting that he had informed the line manager by email about his being asked to perform tasks that he considered were beneath him.
(c)The Court finds that Mr Murphy was legitimately untroubled by the applicant being asked to provide such advice. The applicant was legally qualified, and the respondent had paid for the transfer of his practicing certificate from NSW to QLD after the applicant had asked Mr Murphy whether that could be done. It will be noted that in the Position Description document executed by the applicant under the heading “Essential”, one of the requirements of the applicant’s position was “ Excellent research and written communication skills.” [28] In the same document under the heading “General Administration”, one of the requirements was to “Assist in the development of work procedures as directed.” The Court finds that providing the advice sought by Ms Steineck fell within either such category of work. The applicant has failed to demonstrate that what he was asked to do was outside the reasonable scope of tasks required to be carried out by him.
[28]          CB – p. 335
(d)Objective fact not established.
(e)In any event, the applicant failed to establish that he had complained to anyone about performing the work. The applicant failed to plead or prove that he had exercised a workplace right. Nowhere in the applicant’s email responses sent to Ms Steineck was there the slightest indication that the applicant was upset about providing the advice sought. [29] The Court accepts Mr Murphy’s denial that the applicant had made any complaint to him.
[29]          See emails of 17 January 2020 re Fraud Risk at CB – pp. 2147-2150.
(f)Failure by applicant to properly plead adverse action.
(g)There is no merit to such claim.
11(l)     DCEO Bullying
(a)The applicant has failed to plead any particulars of how, where, or when he allegedly made any complaint about any staff member being bullied by Ms Steineck, or of the circumstances of such alleged bullying. The only affidavit evidence about this did not constitute particulars of any alleged complaint made by the applicant. [30]
[30]          Paragraph [165] of applicant’s affidavit filed on 13 September 2021.
(b)Failure by applicant to properly plead adverse action.
(c)There is no merit to such claim.
(d)The Court further finds that none of the evidence establishes that any complaint was made as pleaded. The Court accepts the evidence of Mr Murphy to the effect that no complaint was made.
(e)Neither was there any probative evidence of such bullying, either in relation to the applicant, Ms Sexton/Chalmers, or anyone else.
(f)Objective fact not established.
(g)There is no merit to such claim.
11(m) Grooming # 1
(a)During the course of the applicant’s cross-examination, the Court asked the applicant what he meant by using the word “grooming” as pleaded. In a bizarre, illogical and nonsensical response, the applicant said as follows: [31]
[31]          T – p. 256.15 – .36
“HIS HONOUR: This is grooming. 176 to 181. When you have pleaded grooming, what do you mean grooming? Is it set out in your affidavit?‑‑‑It’s – your Honour, it means you had to be a fit and be in lock step that – there was an expression there, “He’s one of us,” or “He’s not the right fit,” or “He is the right fit”. There was – it was a dysfunctional culture there. And, you know, they were smelling you and sussing you out: would you be a joiner? There has been different labels for it over time, I’m aware, because people have rung me up. But by grooming, I had to think exactly like he did. So there’s another stage where some pretty bizarre things are said, but the line manager thought the Native Title Act was racist because it gave Aboriginal people in Brisbane things that non-Aboriginals couldn’t get. He wouldn’t read – there’s a – there’s a test case called Timber Creek, and it’s about – and you will see it in the affidavit. It’s about the second wave of native title after Mabo. There has been 25 years of native title determinations. Now, the next thing is that any alienation of land post the Racial Discrimination Act in 1975 will result in compensation. It’s a very big thing, but the line manager doesn’t really agree with it. He ‑ ‑ ‑
But not – sorry, Mr Conradsen?‑‑‑It ‑ ‑ ‑
I asked you what you meant by the term “grooming”?‑‑‑I have to think like he does on a political level, on everything.”
(b)Mr Murphy denied that the applicant had made any complaint to him. The applicant has failed to plead particulars of how what he alleged transpired constituted a complaint.
(c)Failure by applicant to properly plead adverse action.
(d)The Court finds that none of the applicant’s evidence, either affidavit or oral, constituted the making of a complaint.
(e)Further, the Court finds that the grooming allegation was so vague and imprecise as to be embarrassing. The evidence did not disclose any improper conduct on the part of Mr Murphy, or anyone else, which might have constituted an attempt to inveigle the applicant into being compliant with the wishes of any other person within CLAC.
(f)Objective fact not established.
(g)There is no merit to such claim.
11(n) Compromising Applicant’s Professionalism
(a)The applicant alleged that in or about mid-January 2020, Ms Morgan asked him to provide advice, and to assist, in relation to matters affecting the respondent which arose out of a motor vehicle accident which occurred when one of the respondent’s cars being driven by Ms Amini-Yanner was involved in a collision with a bush pig. Ms Amini-Yanner’s son was a passenger in the vehicle at the time, and he sustained injuries as a result of the impact between the car and the pig.
(b)In an email sent by the applicant to Ms Morgan on 22 January 2020, the applicant, in paragraph 1 of such email, first sought to exonerate himself from any possible Qld Law Society action being taken against him on the basis that the giving of any such advice should be channelled through Mr Murphy. Notwithstanding that, the applicant then proceeded to provide the advice without copying Mr Murphy into such correspondence (the email was subsequently forwarded on to Mr Murphy some 35 minutes later). [32]
[32]          CB – pp. 714-715.
(c)It is clear that the applicant was providing advice as to whether or not public liability indemnity insurance held by the GG PBC would be called upon to pay for any personal injuries claim which might be instituted, or whether the compulsory third party insurer would be called upon to pay. The Court has taken judicial notice of the fact that insurance premiums often increase in circumstances where an insured makes a claim. In relation to a possible claim for personal injuries being commenced against the respondent, it was reasonable for the respondent to seek advice from the applicant as to how it could be adversely affected as a result of the making of such claim.
(d)In no email correspondence concerning this issue did the applicant make any complaint about providing such advice. The Court accepts Mr Murphy’s evidence that no complaint was made to him by the applicant. The Court further finds that there was no factual basis for the applicant’s assertion that by being asked to provide such advice, the applicant’s professionalism was somehow being compromised.
(e)Objective fact not established. [33]
[33]          CB – pp. 717-719.
(f)Further, the Court finds that nothing pleaded by the applicant was sufficiently particularised so as to constitute an allegation that the applicant’s professionalism had been compromised, or that a complaint had been made by the applicant as a result.
(g)Failure by applicant to properly plead adverse action.
(h)There is no merit to such claim.
11(o) Withholding Resources Causing Hardship
(a)The applicant failed to plead any particulars of what resources were withheld from him, or how he allegedly became stressed by what was said to be bullying on the part of Ms Steineck.
(b)Failure by applicant to properly plead adverse action.
(c)Further, it was a special condition of the applicant’s employment, as set out in the Position Description document, [34] that out of hours and weekend work would be required, as well as some intra and interstate travel. The applicant’s evidence was to the effect that he was subjected to hardship by him having to fly on pre-dawn and overnight flights to a conference in Perth. As to that, it is of note that Ms Steineck was responsible for the applicant being paid a day’s pay by reason of the inconvenience experienced by the applicant.
[34]          CB – p. 337.
(d)The Court accepts Ms Morgan’s evidence that the applicant was booked on a late night return flight from Perth to Cairns by Simone Arnol because the applicant had asked to be booked on a flight that would get him into Cairns at the earliest possible time. Such schedule satisfied the applicant’s request. Further, Ms Morgan explained that there was always a stopover on flights from Cairns to Perth, and visa versa. [35]
[35]          Ms Morgan’s affidavit filed on 13 October 2021 – 6.41 - 6.52.
(e)Each of Ms Steineck and Ms Morgan gave evidence that there were sufficient funds in the budget to allow the applicant to attend the Perth conference, but that economy flights were to be booked where possible. [36] Mr Murphy denied that any complaint had been made to him by the applicant.
[36]          Email from Ms Steineck to Mr Murphy and Ms Arnol of 21 January 2020 – CB p. 2156
(f)The Court finds that the applicant did not make any complaint about his flight scheduling. The Court further finds that there was no withholding of resources by the respondent in respect of the applicant’s attendance at the Perth conference.
(g)Objective fact not established.
(h)There is no merit to such claim.
11(p)   Refusal to Mitigate (Heat in Office) by Use of a Timer
(a)The applicant’s allegations about a hot office environment of a morning were as follows:
“Refusal to mitigate by use of a timer
From January to March 2020 the office air conditioning malfunctioned. The DCEO refused to activate a timer to mitigate the problems. She refused to install or communicate about a timer. The suffering and inefficiency the Applicant witnessed and experienced caused the Applicant to make written and verbal complaints to the Line Manager and, complaints to the DCEO and HR. The February email complaint to the Line Manager included the words: ‘agitated atmosphere could lead to a FWC action; temperatures in the high 40’s; losing the morning mojo; single parents having dropped children at school suffering in morning office heat; a Norman Gunston event’.”
(b)By an email dated 28 February 2020 sent by the applicant to Mr Murphy (part of which made bizarre references such as ‘The toilets are always hot so you don’t want to go in there and get a Norman (Dunstan) first thing in the morning. A Norman Gunstan is defined as an accident involving toilet paper.’), the Court finds that the applicant complained about a hot office environment. He suggested various solutions in such email. [37]
[37]          Email from applicant to Mr Murphy dated 28 February 2020 – CB pp. 671 – 672.
(c)In cross-examination, Mr Murphy conceded that the applicant was complaining about the temperature in the Cairns office. [38] Mr Murphy said that he contacted Ms Steineck about the issue and expected that action would be taken. Ms Steineck made contact with the respondent’s landlord and ultimately it was discovered that the exterior wall outside Emily Sexton’s office had been painted a dark colour which was causing the offices at the eastern end of the building to heat up. Ms Steineck pointed out that the applicant’s work station was in the centre of the building, and that it was therefore not affected by the heat issue impacting on the offices at the eastern end of the building. Ms Steineck had arranged for external air conditioning personnel to attend at the office to check the system, and she sent an email to all staff about the trialling of different temperature settings. [39] The applicant admitted that he was not threatening to bring any Fair Work action against the respondent. [40]
[38]          T – pp. 797.42 - .44.
[39]          Email from Ms Steineck to all staff dated 20 January 2020 – CB p. 2152.
[40]          T – p. 276.10 - .14
(d)From the actions taken by Ms Steineck and Mr Murphy, the Court finds that appropriate regard was had to the content of the complaint made by the applicant about high temperatures in the Cairns office. As was acknowledged in Ms Steineck’s email to staff, some staff were being affected by high temperatures. Ms Steineck’s email was as follows:
“Hi Team
To ensure the comfort of all staff, over the next few months while we are experiencing hot weather conditions, the air conditioners are to remain on 23 degrees maximum, with the fans set to high. Please don't adjust the settings. The offices on the Eastern end of the building are experiencing higher than usual temperatures and this is having a significant effect on staff in those offices. If this doesn't alleviate the issue the air conditioners will be trialled at a lower temperature. For those who occupy an office space where coldness tends to be an issue, please bring in a jacket so you can layer up during times when it gets a bit cool.
Kind Regards
Trish Steineck
Deputy Chief Executive Officer/ Corporate Services Manager”
(e)Ms Amini-Yanner denied ever having received any complaint about temperature issues in the Cairns office, or about any other issue. The Court accepts the evidence of Ms Amini-Yanner to the effect that she was unaware of the making of any complaint about temperature in the Cairns office by Mr Conradsen at the time that she decided to terminate the applicant’s employment. In such circumstances, the Court finds that there was no real and substantial causal link between the fact of the making of the complaint about temperature by the applicant, and his later dismissal.
11(q)   Noise and Intrusion of HR
(a)It was asserted by the applicant that Ms Morgan “was continually coming up next to the Applicant while he was working to pry at the work the Applicant was doing on his computer.” The applicant alleged that he had complained to Ms Morgan and to Mr Murphy. Mr Murphy and Ms Morgan each denied that any complaint had been made to them by the applicant.
(b)The applicant has failed to properly particularise the allegations against Ms Morgan, or of the time or place of the making of any complaint to her or to Mr Murphy.
(c)Failure by applicant to properly plead adverse action.
(d)Ms Morgan admitted touching the applicant’s computer screen on two occasions only. Ms Morgan gave evidence that she was asked by the applicant not to do that, and that she complied with such request. The Court accepts the affidavit evidence of Ms Morgan in that regard. [41] Ms Morgan, Ms Steineck and Mr Murphy each denied that any complaint had been made to them. The Court prefers the evidence of the respondent’s witnesses on this issue, and finds that there was no complaint ever made by the applicant as alleged by him.
[41]          Paragraphs 8.3 – 8.10 of affidavit of Ms Morgan filed on 13 October 2021.
(e)Objective fact not established.
(f)There is no merit to such claim.
11(r)    Perth Complaint # 1
(a)The applicant has failed to provide particulars of facts giving rise to the making of a complaint in relation to the alleged abruptness of Ms Steineck.
(b)Failure by applicant to properly plead adverse action.
(c)Mr Murphy denied that the applicant had ever made any complaint to him, and that the only words that the applicant said to him at the Perth conference were to the effect that Ms Steineck was abrupt. Such general conversation without more, the Court finds, cannot constitute the making of a complaint. The Court accepts the evidence of Mr Murphy to the extent that it is at odds with the evidence of the applicant.
(d)Objective fact not established.
(e)There is no merit to such claim.
11(s)    Perth Complaint # 2
(a)The applicant claimed that he had made another complaint about Ms Steineck. The applicant failed to particularise the nature of any such complaint, or what was said by him to constitute such complaint. The pleading was embarrassing.
(b)Failure by applicant to properly plead adverse action.
(c)The making of any complaint was denied by Mr Murphy. The Court accepts the evidence of Mr Murphy to the extent that it was at odds with the evidence of the applicant because the Court considered Mr Murphy to be an honest, logical and plausible witness, attributes which the Court finds the applicant did not have. The Court did not consider the applicant to be either reliable, honest, logical or plausible. The Court finds that nothing said by the applicant constituted the making of a complaint.
(d)Objective fact not established.
(e)There is no merit to such claim.
11(t)    DCEO Attacks the Applicant in front of Witness
(a)This claim was multi-factorial. The Court finds that the applicant failed to properly plead facts which constituted the making of a complaint in respect of either cubical partition heights, excessive noise, cramped workspaces, age or band width of the phone system, or in respect of an allegedly malfunctioning air conditioning system.
(b)Failure by applicant to properly plead adverse action.
(c)In her affidavit, Ms Sexton’s only evidence about the applicant referring to partition height was as follows:
“The DCEO came by and the discussion turned to the noise in the office and the partition height as a potential factor. I recall Kimm making comment about the height of the partitions being higher than usual in an open plan office and that this might be contributing to the elevated noise as staff projected their voices above the partitions. A lower partition height was my experience in other workplaces and I agreed with Kimm, thinking his assessment had merit.” [42]
[42]          Affidavit of Ms Sexton filed on 13 September 2021 at paragraph [70] – CB p. 507.
That evidence of Ms Sexton was not corroborative of any complaint having been made by the applicant.
(d)There was no admission by any of the respondent’s witnesses that any complaint had been made to them.
(e)Objective fact not established.
(f)There is no merit to such claim.
11(u) Interference with Personal Effects
(a)The applicant has failed to plead how the alleged movement of items on the applicant’s desk and work station constituted harassment or workplace bullying. The applicant did not provide any particulars of the making of any alleged complaint to Mr Murphy, Ms Morgan or Ms Amini-Yanner.
(b)Failure by applicant to properly plead adverse action.
(c)Ms Steineck gave a simple explanation about her having innocently moved some files from the top of a filing cabinet at the applicant’s workstation onto the applicant’s desk. She also gave evidence about putting books on top of the applicant’s filing cabinet so that they could be accessible to all within the office. The Court accepts that Ms Steineck’s actions did not constitute an interference with the applicant’s personal effects, and that she was merely trying to tidy up and otherwise improve office tidiness and efficiency. The Court further does not accept that the actions of Ms Steineck were designed to intimidate or bully the applicant. This allegation is another example of the applicant being illogically sensitive and accusatorial toward Ms Steineck when there was no reasonable objective basis for him to have so reacted.
(d)The applicant did not plead with any particularity the facts which might give rise to the making of a complaint by him concerning the alleged movement of items in his workstation area.
(e)Further, there was no evidence of any complaint having been made to anyone. The diary note allegedly prepared by the applicant recording his version of events was marked confidential and not to be actioned. [43] The Court accepts the evidence of Mr Murphy, Ms Morgan and Ms Steineck that no complaint had been made by the applicant to them.
[43]          CB pp. 679 – 680.
(f)Objective fact not established.
(g)There is no merit to such claim.
11(v)    Lost Filing Cabinet
(a)The applicant failed to plead any particulars which would constitute the making of a complaint in respect of this particular matter. What was pleaded constituted an allegation that Ms Steineck had allegedly acted in an aggressive manner toward the applicant. Such allegation did not constitute a complaint. Mr Murphy, Ms Steineck and Ms Morgan denied that any such complaint had been made toward them.
(b)The Court accepts the evidence of Ms Steineck as to the circumstances in which she asked the applicant whether he knew where the filing cabinet was. [44] The Court finds that this was another example of how the applicant unreasonably and illogically believed that he was being targeted by Ms Steineck when there was no reasonable objective basis for him so thinking. The applicant did not make any complaint in writing, and nothing in his language or conduct otherwise constituted the making of a complaint.
[44]          Affidavit of Ms Steineck filed on 19 October 2021. Paragraphs 427 – 433 inclusive.
(c)Objective fact not established.
(d)There is no merit to such claim.
11(w)   Noise in the Office
(a)The applicant has not pleaded with particularity the facts necessary to establish that any conduct on the part of Ms Steineck or any other person resulted in there being an excessive noise level in the office.
(b)Failure by applicant to properly plead adverse action.
(c)There was no plausible evidence that the applicant made any complaint to anyone about the noise issue. This was another example of how the applicant, without justification, construed the most minor of interactions with Ms Steineck as constituting a veiled threat by her to him. The applicant was illogically obsessive in claiming that Ms Steineck had a grudge against him, something the Court accepts she did not have.
(d)Objective fact not established.
(e)The Court finds that though on occasions Ms Morgan was noisy and sometimes used crude language, no complaint was ever made by the applicant to anyone about such conduct. The Court accepts the evidence of Ms Arnold who was called to give evidence on behalf of the applicant. In her examination in chief, when questioned by the applicant about noise levels in the office, Ms Arnold relevantly said as follows: [45]
[45]          T – p. 403.30 - .40
“MR CONRADSEN:   Yes.
And you’re in an office. What – was it noisy? Could you tell us about the noise in the office? Was there any particular individual that was noisy?‑‑‑Probably at some stage we were all noisy if we laugh or be a bit silly for a second or two. It’s not – I’ve heard everyone be noisy at some stage. It’s ‑ ‑ ‑
Right?‑‑‑But it’s not a noisy office. We – we’re very professional in there. It’s not constant noise ever. It might be for a few seconds when someone laughs loudly, but I don’t think anyone can laugh all day.”
(f)Objective fact not established.
(g)There is no merit to such claim.
11(x) Withholding Resources
(a)The applicant asserted that Ms Steineck denied the applicant use of the corner office which was used by Mr Murphy whenever he was working from the Cairns office. The applicant failed to plead with any particularity any fact which would give rise to a basis for the making of a complaint by the applicant. The applicant did not plead with particularity when he alleged that he had made a complaint to Mr Murphy.
(b)Failure by applicant to properly plead adverse action.
(c)Mr Murphy denied that any such complaint had ever been made to him. The Court accepts the evidence of Mr Murphy to the extent that it was in conflict with the evidence of the applicant, as it has found that Mr Murphy was, unlike the applicant, a credible witness. The Court further finds that it was disingenuous, and also inconsistent, for the applicant on the one hand to complain that the offices at the eastern end of the building were unfit for purpose because they were so hot, but on the other hand seek to occupy the office used by Mr Murphy, which was situated at that very same eastern end of the Cairns office. [46]
[46]          Exhibit 9 – Diagram of Cairns office layout.
(d)Objective fact not established.
(e)There is no merit to such claim.
11(y)   DCEO Abuses Power to Vex Whole Office
(a)The applicant failed to plead with any particularity the facts said to constitute how Ms Steineck abused power so as to vex the whole office. The pleading was embarrassing.
(b)Failure by applicant to properly plead adverse action.
(c)The applicant alleged that Ms Steineck had become fixated toward him, as exemplified by what the applicant perceived to be a singling out of him about the height of an office partition. The Court accepts the evidence of Ms Steineck that her gathering together of staff on such a simple trick of the eye issue was “a bit of fun in the office.” [47] The Court finds that even for the applicant to have raised the matter as a serious issue of contention evidenced a skewed view of events in the mind of the applicant concerning Ms Steineck.
[47]          Affidavit of Ms Steineck filed on 19 October 2021. Paragraphs 439 – 445.
(d)The Court further finds that the applicant made no complaint to anyone about such alleged conduct in any event. The Court accepts the evidence of Mr Murphy and Ms Morgan that no such complaint was ever made to them.
(e)Objective fact not established.
(f)There is no merit to such claim.
11(z)    Practicing Certificate
(a)The applicant claimed that Ms Steineck had sought to block the transfer of the applicant’s NSW legal practicing certificate to Qld, and that that evidenced that he was being targeted in a workplace bullying context.
(b)The applicant failed to plead with particularity the facts necessary to establish that the applicant was attempting to exercise any workplace right, or that any complaint was made.
(c)Failure by applicant to properly plead adverse action.
(d)Mr Murphy and Ms Morgan denied that the applicant had made any complaint to them about the matter. The Court finds, in any event, that Ms Steineck approved the payment of necessary transfer costs associated with the practicing certificate upon the recommendation of Mr Murphy. The Court finds that it is implausible that the applicant would make a complaint about the alleged conduct of Ms Steineck when Ms Steineck facilitated the transfer.
(e)Objective fact not established.
(f)There is no merit to such claim.
11(aa) Noisy Workstation # 3
(a)The applicant alleged that he had complained to Mr Murphy and Ms Morgan about “ … the noise and obscenities made by HR (Ms Morgan) with her door open. He did this by using gentle humour and referring to HR’s single ‘Shirley Bassey’ operatic style on the phone”.
(b)The evidence on point in relation to this allegation is a further demonstration of how the applicant failed to appreciate the distinction between what constituted the making of a complaint, as opposed to what constituted the making of a vague comment, often theatrically phrased, which only the applicant could understand. At [63] of his affidavit, the applicant swore as follows: [48]
[48]          Affidavit of applicant filed on 13 September 2021.
“The disrespect and disregard shown by HR's actions caused me discomfort at the time for the following reasons.
a.HR knew she was using pressure on me to assist. Otherwise she would have made the request according to work design controls. This would require HR to have had the request authorised through the Line Manager. That would have resulted in the request being refused.
b.Given the informal way the request was made and the daily unprofessional manner in which HR conducted herself I knew that HR would use the occasion of my not assisting to spread rumour and innuendo that I was not helpful and not a team player.
c.HR was dumping work on me for speculative gain in currying favour with the CEO. This was in the same vein that she disrupted the office throughout the day promoting at the top of her voice what she was doing.
d.Jeopardised my professional standing with a matter that clearly was against organisational guidelines. It put the organisation at risk of loss and put me in a position of being blamed. If I advised and gave the wrong advice or the injured person did not follow what I said then there was exposure and damage.
e.HR was being exploitative and opportunistic and distracting me from the job I had Chosen to be employed in. She was doing this at a time that I was subject to a probation period.
f.The risk posed to the enormous investment I had put into my legal education and career.
g.I had accepted a low rate of pay in lieu of developing a skill set in community development work The DCEO was seeking to de skill me by giving me tasks below my abilities
h.HR was an officer that was supposed to create a supportive workplace and she was not following rules and doing quite the opposite.
Annexed marked ‘P’ is a copy of an email from Kimm Conradsen to the Line Manager, entitled Side Tracked today’ re another personal injury matter dating back to 3/08/2014, dated 20/01/2020 5:41 PM”
(c)The applicant failed to provide particulars of what noise he alleged had occurred, or as to what obscenities were allegedly spoken by Ms Morgan.
(d)Failure by applicant to properly plead adverse action.
(e)The Court has already found that save for the odd occasion, there was generally little noise in the Cairns office, as was adverted to by Ms Arnold in her evidence, and in the evidence of Ms Steineck and Ms Morgan.
(f)Objective fact not established.
(g)There is no merit to such claim.
11(bb) De-Skilling
(a)The applicant was granted leave at trial to amend this allegation such that HR (Ms Morgan) was to be substituted for DCEO (Ms Steineck) in respect of the alleged de-skilling of the applicant by reason of his having been asked to provide advice about the responsibilities of someone driving one of the respondent’s cars whilst using a mobile phone. The request was made by Ms Morgan to the applicant in an email of 3 February 2020 which was copied to Mr Murphy. [49]
[49]          CB – p. 1289 in affidavit of Ms Morgan filed on 13 October 2021.
(b)The applicant has failed to plead particulars of those facts which identified the date on which such request was allegedly made, the reasons why the advice was being sought, or the nature of the advice sought. The applicant alleged that he had complained to Mr Murphy by telephone, and by cc’ing him into an email response to Ms Steineck, but contrary to such allegation, there was no evidence that Mr Murphy had ever been copied into any email sent to Ms Steineck.
(c)Failure by applicant to properly plead adverse action.
(d)Mr Murphy denied that the applicant had ever made a complaint to him, and the Court accepts such evidence. Neither the applicant’s email of 4 February 2020 [50] or the applicant’s email of 6 February 2020 (referred to by the applicant as having been sent by the applicant to Mr Murphy, Ms Amini-Yanner and Ms Steineck) in any respect contained any complaint that he had been improperly asked to prepare such advice, or that he considered that by doing so he was being asked to perform work outside of, and below, his position statement obligations. [51] There is no merit to the applicant’s claim. The Court finds that the request for the provision of information which was to be of assistance to employees of the respondent was clearly within his positon statement duties. Under the heading “General Administration” in the Letter of Offer sent to the applicant, one of the applicant’s roles was to “Assist in the development of work procedures as directed”. The Court finds that a request for the applicant to assist the respondent in formulating policies relating to mobile phone use by CLAC employees while driving one of the respondent’s cars fell within that work procedure role.
[50]          CB – p. 1303.
[51]          Annexure S to applicant’s affidavit at CB – pp. 723-726.
(e)Ms Steineck subsequently forwarded a helpful note relating to the issue to employees with her email of 2 March 2020. [52]
[52]          See Steineck email at CB p. 728 and memo at CB pp. 1290-1291.
(f)Objective fact not established.
(g)There is no merit to such claim.
11(cc) De-skilling / Width or Corridors and Wheelchairs
(a)The applicant did not adduce any evidence in relation to this alleged de-skilling allegation. Counsel for the respondent did not cross-examine the applicant about that issue. [53] The Court finds that the applicant has failed to plead any facts supportive of the allegation of de-skilling and that the pleading was embarrassing in that regard. Failure by applicant to properly plead adverse action.
[53]          T – p. 319.7 - .24.
(b)The Court further finds that the applicant did not adduce any probative evidence in relation to the claim.
(c)Objective fact not established.
(d)There is no merit to such claim.
11(dd) No Communication Re Working Outside Position Description
(a)The applicant acknowledged that his evidence at p. 155-161 of his affidavit filed on 13 September 2021 ought to be treated as evidence for both 11(dd) and 11(jj) of his pleading.
(b)The applicant failed to plead particulars of the number of occasions on which, and the dates on which, he allegedly complained to Mr Murphy, allegedly by email and face-to-face, about not doing the job he was employed to do. The applicant failed to plead the subject matter of each of his complaints, or why he was complaining.
(c)Failure by applicant to properly plead adverse action.
(d)Mr Murphy and Ms Steineck denied that any complaint had ever been made to either of them, and the Court accepts their evidence in that regard. The applicant failed to adduce any evidence of his having made any complaint.
(e)Objective fact not established.
(f)There is no merit to such claim.
11(ee) Refusal to Mitigate With a Timer
(a)At Transcript p. 322.7 - .27, the applicant agreed that this claim concerning the air conditioning timer should be dismissed on the basis that the allegation had already been dealt with in 11(p).
11(ff)   Grooming # 2
(a)The applicant claimed that Mr Murphy had made some political statements to him on or about 8 March 2020. The applicant pleaded that he “ … protested by saying nothing and appearing very shocked.” The Applicant has failed to plead what the title “Grooming” in context was meant to convey. The applicant also failed to plead how any conversation in which political views were expressed could give rise to hurt or humiliation on the part of the applicant.
(b)Failure by applicant to properly plead adverse action.
(c)There was no evidence adduced by the applicant that he ever made any complaint to anyone about the alleged statements made by Mr Murphy. The Court accepts the evidence of Mr Murphy to the effect that he never made the statements attributed to him by the applicant. The Court has found that Mr Murphy is a credible witness and the Court has preferred the evidence of Mr Murphy in all respects where such evidence was at odds with the evidence of the applicant.
(d)The Court finds that, in any event, there was no evidence adduced by or on behalf of the applicant that he had ever made a complaint.
(e)Objective fact not established.
(f)There is no merit to such claim.
11(gg) Offensive Comment
(a)The applicant failed to plead that anything allegedly said by Mr Murphy to him concerning the reading of books had caused him any hurt or humiliation. The applicant did not plead facts which constituted the alleged making of a slur against the applicant. Failure by applicant to properly plead adverse action.
(b)The applicant failed to adduce any evidence that he made any complaint to anyone about the comments allegedly made by Mr Murphy. The Court finds that the applicant’s alleged comment made in response to Mr Murphy’s alleged comment, namely “There’s no harm in literature, each to their own.” did not constitute the making of a complaint.
(c)Objective fact not established.
(d)There is no merit to such claim.
11(hh) Withholding Resources and Personal Hardship
(a)This claim was withdrawn by the applicant and is dismissed.
11(ii)    Disregard of HR Re Noise # 3
(a)The Court has already found that the Cairns office was not a noisy workplace.
(b)Objective fact not established.
(c)The applicant in any event failed to plead facts which constituted the basis for any finding that any noise made by Ms Morgan caused the applicant to buy headphones.
(d)Failure by applicant to properly plead adverse action.
(e)The Court further finds that to the extent that the applicant said in his 28 February 2020 email to Mr Murphy that staff were restless and noisy, [54] such comment was made in the context of a hot work environment. Lacking as it did any particulars as to how staff were restless and noisy, the Court finds that such comment was not a separate and distinct complaint.
[54]          CB p. 672.
(f)There is no merit to such claim.
11(jj)   Not Doing the Job Employed to Do

(a)It was conceded by the applicant that this claim fell into the same category as the claim made in 11(dd) which the Court has already dealt with.
(b)Objective fact not established.
(c)There is no merit to such claim.
11(kk) Work Design Controls – Not Doing the Job Employed to Do
(a)The applicant conceded that this claim was withdrawn on the basis that it mirrored the claim made in 11(d). [55]
[55]          T p. 337.1 - .14.
11(ll)    DCEO’s Inappropriate Poster in Tearoom
(a)In March 2020, a poster showing a photograph of a dark-skinned male person was put up in the tearoom at the Cairns office by Ms Steineck. [56] The applicant alleged that such poster was inappropriate as it was “… about masturbation & hand washing. The poster featured a man wearing very bright clothing. The applicant was shocked at this abuse of authority and complained to HR.”
[56]          See poster photograph at CB p. 748 and [482] – [486] of Steineck affidavit at CB p. 2082.
(b)When cross-examined about the purpose for the putting up of the poster, the following exchange occurred:
“MS MOODY: So you knew that it was put up because the reminder was – it was there to remind people to wash their hands because of Covid? – Yes, that’s correct.
That was the purpose? – Yes”.
(c)Annexure X to the applicant’s affidavit filed on 13 September 2021 showed the poster and where it was situated in the tearoom. [57] The Court finds that there was nothing offensive about the poster or the fact that it had been put up in the tearoom. It merely served as a timely reminder for people to wash their hands when community anxiety surrounding the Covid pandemic was widespread.
[57]          CB p. 750.
(d)Objective fact not established.
(e)The Court further accepts the evidence of Ms Morgan that the applicant never made any complaint to her about the poster being put up in the tearoom because she is a witness of credit and her evidence was preferred to that of the applicant where there was a conflict. [58]
[58]          Paragraphs 6.107 – 6.112 of Morgan Affidavit filed on 13 October 2021 – CB pp. 1134-1135.
11(mm) Direct Written Threat to Employment # 1
(a)The applicant received an email from Ms Steineck at 8.29am on 25 March 2020 concerning the sending out of email correspondence by the applicant without it having been first cleared by her. [59] The applicant responded to such email, copying in Mr Murphy and Ms Amini-Yanner. [60]
[59]          See email of 25 March 2020 from Ms Steineck sent at 8.29am to the applicant. CB pp. 765-766.
[60]          CB p. 765.
(b)Nowhere in the evidence did the applicant make any written complaint about his having received that email from Ms Steineck. In fact, the applicant apologised “… for the double up.” in an email sent by him to Ms Steineck (copying in Mr Murphy and Ms Amini-Yanner) at 12.34pm on 25 March 2020. [61]
[61]          CB p. 2353.
(c)The Court accepts the evidence of Mr Murphy and Ms Amini-Yanner to the effect that neither of them had received any complaint from the applicant.
(d)The Court finds, contrary to what was pleaded by the applicant, that there was never any direct written threat to his employment contained in the email sent by Ms Steineck to him on 25 March 2020. Mere criticism contained in an email does not constitute a threat to one’s employment.
(e)Objective fact not established.
(f)There is no merit to such claim.
11(nn) Hard Copy Documents
(a)On 25 March 2020, it was directed by Ms Steineck and Ms Amini-Yanner at a staff meeting that all staff would work from home. The Court takes judicial notice of the fact that there was great community uncertainty at that time about how the Coronavirus ought best avoided being contracted, and that there was general uncertainty about what appropriate procedures ought to be put in place, both in a work and home environment context.
(b)At the meeting held on 25 March 2020, Ms Steineck said that no hard copy records were to be taken out of the office, and that any alternative arrangements in that regard should be worked out with each employee’s line manager.
(c)The applicant nonetheless sought and obtained approval from Mr Murphy to go back to the Cairns office on 26 March 2020 for the purpose of his picking up a list of document types and some office hardware. Shortly after the applicant arrived at the office, Ms Steineck sent an email to all of the respondent’s staff advising them that all staff members could not enter the office after the commencement of work from home.[62] The applicant claimed that he was stressed “… about potential surveillance presented by the coincidence of entering the office and the DCEO’s new rules emailed at 3.06 pm”. The applicant pleaded that the applicant interpreted the 3.06 pm email as being intended to spread rumour and innuendo against the applicant. The Court finds that this was another example of how the applicant illogically, and without any reasonable basis, considered that he was being persecuted by Ms Steineck.
[62]          CB p. 1399.
(d)The Applicant did not plead that he had made any complaint about what he perceived to be workplace bullying on the part of Ms Steineck. The Court accepts the affidavit evidence of Ms Morgan where she swore that when she saw the applicant at the office on 26 March 2020, she advised him that he wasn’t supposed to be there, and that he should go home. Ms Morgan said that she telephoned Ms Steineck to advise her that the applicant had been into the office. In response to that telephone call, Ms Steineck sent out the general email confirming that no employee was to enter the Cairns office until further notice. The Court accordingly finds that there was no substance to the applicant’s allegation that he was being kept under some sort of surveillance by Ms Steineck.
(e)The Court further finds that there was no basis for the applicant believing that any general email correspondence sent out to employees of the respondent was designed to “… spread rumour and innuendo against the applicant.” The Court finds such allegation to be unrealistic and fanciful.
(f)Objective fact not established.
(g)There is no merit to such claim.
11(oo) Comprehensive Complaint Over the Phone
(a)The applicant did not make any complaint in relation to the claim that Ms Steineck had bullied him in the workplace with the result that his health and his work were being adversely affected. The applicant’s affidavit evidence on point was as follows: [63]
[63]          Paragraphs 293 – 300 of applicant affidavit filed on 13 September 2021. CB pp. 640-642
“(oo) 1 April 2020 – Robust complaint to the Line Manager about the DCEO’s workplace bullying
293)The basis for making this complaint was formed by the bullying on 25/03/2020. On 25/03/2021 the DCEO had threatened my employment in an email. The Line Manager and CEO had been in cc' in my reply and the DCEO had not been formally pulled up, the CEO only made excuses for the DCEO saying that covid was placing stress on people. By that point I had ongoing distress caused by the DCEO relentless bullying including the hoarsely yelling at me through clenched teeth out of the line of sight of others, withholding resources and information and, making repeated unfounded criticisms. My sleep was suffering, I had headaches, my hair was oily and my hands had shaken so badly I could not type.
294)Before making the complaint I had to First give priority to the Covid work-from-home relocation to be running smoothly. The Covid move for the SSPO team had been on the afternoon of 25 March 2020, the same day on the morning of which the DCEO threatened my employment. On 1 April 2020 four days after work-from-home relocation I made the time to speak to my Line Manager very frankly about the DCEO.

295)My Line Manager will remember the telephone call because I used distinctive language and related things to him with words to the effect:
•The workplace "was like a cruise liner infected with Covidl9 where all the passengers are walking around with forced smiles but really they are scared out of their wits....... It's like Dante's Inferno"
•That the DCEO's conduct brought to mind: "You know what Bob Hogg, the old head of the Labour Party said of Mark Latham: 'He sees scorpions and demons everywhere but he's looking in the mirror"'
296)i) Making the complaint with colourful expressions made it easier for me to keep going and tell the whole story of the bullying of the DCEO. I covered most topics about the DCEO including how her attacks and criticisms were baseless and that paradoxically if blame was the game then what the DCEO was using as a launch pad for her attacks could be traced back to errors of the DCEO herself.
297)I told my direct report with words to the effect that "initially I thought she [the DCEO] was just disrespectful of staff, but I think now that she actually disdains them!"
298)At the time I thought that perhaps I should have covered a little bit more of the details of the DCEO acting bizarrely, as opposed to bizarrely and viciously because this would demonstrate what the bu11ying was doing to my head.
299)I offered the suggestion of «perhaps when an accountant gets appointed there will be less for the DCEO to be involved in and she will calm down?". This appeared to be a novel notion to my direct report; he said "Oh yeah!?!" The DCEO does not have tertiary qualifications or accreditation to sign off on finance documents, so an accountant was going to be employed. The Line Manager forgot that I raised this with him at a Conference in Perth.
300)In response to this complaint the Line Manager said "What do you want me to do? Do you want to make a complaint?" I was scared and thinking a complaint might cause a very loud explosion and end my employment, I was vulnerable with the Line Manager in Brisbane and the DCEO able to continue to bully me. I answered the Line Manager: "No, not at this stage I just want you to know and keep an eye out, monitor it".”
(b)Mr Murphy’s affidavit evidence on point was as follows: [64]
[64]          Paragraphs 82 – 84 of Mr Murphy’s affidavit filed on 15 October 2021. CB pp. 1781-1782
“Early April
82. On or around early April, I had a telephone conversation with Mr Conradsen that lasted about 10 minutes. We discussed the work he had on, but during our conversation he also raised a number of issues of concern. To the best of my recollection, our discussion about these matters was to the following effect:
a.   Mr Conradsen said he needed to take hard copy files home to work, and he said it was unfair that Trish would not allow him to do so. He said he thought Trish was mean about this.
b.   Mr Conradsen complained about emails he had received from Trish on (I believe) 25 and 26 March 2020 (I can't recall what he said except that he thought they were unfair and that the language was harsh);
c.   he said he wondered how Trish had known that he was in the office on 26 March 2020; he said he thought her group email that afternoon had been prompted by him coming into the office; and he said he wondered if Trish was surveilling him;
d.   Mr Conradsen said he thought he and the other staff working from home shouldn't be required to submit timesheets;
e.   I said, "Do you want me to act formally on this? Do you want me to take it up formally as a complaint?"; and
f.    Mr Conradsen replied, "No, I just want this to be kept confidential between you and me. I don't want to take it any further. "
83. Because Mr Conradsen did not want to make a complaint, and because he asked that our conversation be confidential, I did not tell anyone about the fact or content of our discussion. I also thought as time went on that these issues had been resolved. For example, Mr Conradsen did work without hard copy files, and he did submit timesheets
84. Had Mr Conradsen wanted to make a complaint, I would have asked him to put the complaint in writing.”
(c)In circumstances where the applicant declined to make any complaint, there was no basis for the applicant’s claim that his dismissal as an employee was related to his having made any complaint in the exercise of a workplace right.
(d)Objective fact not established.
(e)There is no merit to such claim.
11(pp) COVID, Work From Home, Flexible Hours
(a)The applicant sent an email to Mr Murphy at 6.58am on 3 April 2020 which had a subject matter of “Re signing into your computer outside 7.30am and 6.30pm.” the email was copied to Emily Sexton/Chalmers and Rachel Arnold. The email on its face does not include any complaint about working from home arrangements.
(b)The pleading does not allege that any complaint was made. There was no evidence of the applicant having made any relevant complaint.
(c)Failure by applicant to properly plead adverse action.
(d)In circumstances where the applicant declined to make any complaint, there was no basis for the applicant’s claim that his dismissal as an employee was related to his having made any complaint in the exercise of a workplace right.
(e)Objective fact not established.
(f)The Court finds, in any event, that even if a complaint had been made, it was relevantly not in relation to the applicant’s employment, but rather the employment of Ms Sexton/Chalmers and Ms Arnold.
(g)There is no merit to such claim.
11(qq) Withholding Resources for Covid Work From Home
(a)The applicant sent two emails to Mr Murphy requesting be provided with office equipment for use by him whilst he was working from home – one email was sent on 15 April 2020 [65] and one was sent on 16 April 2020, [66] the second having a heading “Please accept the following flummery fragments.”
[65]          CB pp. 839-840
[66]          CB p. 846.
(b)The applicant’s requests were fulfilled. There is no evidence that the applicant made any complaint. What comment he did make was in the email of 16 April 2020, where he wrote “ It is a good sign for accounts/corporate services in industry to meet responses with ‘NO’, in fact some might say that.”
(c)When asked by the Court whether the applicant had got everything that he asked for, the applicant replied “Ultimately, yes”. [67] The applicant also conceded that because of Covid it took longer for him to get what was required.
[67]          T p. 560.5 - . 17
(d)In circumstances where the applicant declined to make any complaint, there was no basis for the applicant’s claim that his dismissal as an employee was related to his having made any complaint in the exercise of a workplace right.
(e)Objective fact not established.
(f)There is no merit to such claim.
11(rr) Complaint about HR
(a)It was pleaded by the applicant that he had told Mr Murphy that it was a lot quieter working from home, and that it had the potential to be more productive because there was less workplace bullying and none of the direct noise and interference from Ms Morgan, but the applicant adduced no evidence to that effect.
(b)There was no evidence of the applicant affirming that he had made any oral or written complaint to Mr Murphy or anybody else about the claim. Mr Murphy denies that any complaint was ever made to him.
(c)In circumstances where the applicant declined to make any complaint, there was no basis for the applicant’s claim that his dismissal as an employee was related to his having made any complaint in the exercise of a workplace right.
(d)Objective fact not established.
(e)There is no merit to such claim.
11(ss)   Threatens Employment
(a)On 17 April 2020, the applicant had a number of Microsoft Teams conversations with Ms Morgan, some of which had Mr Murphy copied in. Those MS Teams conversations commenced at about 8.46am and concluded at about 9.34am.
(b)Ms Steineck was advised by Ms Morgan at about 9.00am that she had received an MS Teams message from the applicant saying that he may have come into contact with a person who had Covid. [68] At 9.18am on 17 April 2020, Ms Steineck sent an email to all Cairns office staff and to all Gulf staff in which she directed that inter-office communication should be by way of Outlook email rather than MS Teams conversations. [69]
[68]          See evidence of Ms Steineck at [281] – [306] of Steineck affidavit filed on 19 October 2021.
[69]          CB p. 858.
(c)At 9.54am on 17 April 2020, the applicant formally responded to Ms Steineck about his Covid status by way of an email which included copies of the MS Teams conversations of earlier that day. [70]
[70]          CB pp. 860-861.
(d)On 21 April 2020, the applicant sent an email to Mr Murphy making comment about the alleged personal and direct behaviour of Ms Steineck toward him. [71] That email also included comments marked in bold on a copy email which had been sent by Ms Steineck to the applicant and Mr Murphy at 9.54am on 17 April 2020. [72]
[71]          CB p. 1963.
[72]          CB pp. 1963-1964.
(e)Mr Murphy, at [117] – [127] of his affidavit filed of 15 October 2021, said as follows:
“21-April 2020
117. On 21 April 2020, Mr Conradsen sent me an email about the Pandemic Plan: see page [153] of Annexure KM-1.
118. This email contained within it a complaint about the DCEO, Trish Steineck.
119. In the body of his email, Mr Conradsen stated that Trish's "personal and direct behaviour" towards him was "outside of the parameters of socialized behaviour" and that her language suggested she was "always building a case ".
120. The email also contained a forwarded email from Trish to Mr Conradsen sent at 9.54am on 17 April 2020 in which Mr Conradsen had embedded his own comments.
121. I read Trish's email. It seemed like a fairly reasonable email to Mr Conradsen about his failure to communicate with her in a timely fashion an issue of his potential Covid- 19 exposure, which had resulted in another staff member, Tui Ale, having to be sent home from work to quarantine.
122. Mr Conradsen's comments (embedded within Trish's email) did not seem to me to be very reasonable.
123. Where Trish had stated, "I have been made aware of communications " Mr Conradsen had written the words "ominous police language".
124. Where Trish had stated "Please note as I am the Appointed Incident Manager ... " he had written "yes you are in that role, but substantively a co-ordinator not first contact- notwithstanding the non clarity of the Plan".
125. Where Trish had written "I'm sure you can appreciate ... " Mr Conradsen had written, "Linguistically this is saying the opposite and that I am negligent" and "wow that is strong".
126. I thought that Mr Conradsen's complaints about Trish's email of 17 April 2020 were not well founded and were even a bit irrational, particularly the comment about ''police language".
127. I didn't follow up with Mr Conradsen at all after I received his email. I had already made the decision to recommend that his probationary period not be confirmed, so there seemed to be no point asking him whether he wanted to make a formal complaint of any sort.”
(f)Mr Murphy recognised that the email sent by the applicant to him was a complaint about Ms Steineck. He reasonably explained that he took no action to refer the complaint to HR because Mr Murphy had already decided to recommend that the applicant’s probationary period of employment not be confirmed.
(g)Ms Amini-Yanner gave clear evidence that at the time she made her dismissal decision she did not have in mind, or in any way rely upon, any matter of grievance which may have been raised by the applicant with other people, about anything, because she was unaware of any such grievance.
(h)The Court finds that the applicant was unreasonably preoccupied with the unjustified notion that Ms Steineck had intended to bully and intimidate the applicant from almost the time of the start of his employment with the respondent. There was no reasonable basis for the applicant believing that Ms Steineck’s correspondence, sent as it was for the general information of all employees was somehow intended to specifically target and humiliate him.
(i)As to the applicant’s Covid status, the applicant could have said to Ms Steineck that he couldn’t give her details of his possible Covid exposure because he had been told by health professionals not to do so, but he didn’t. That would have been a simple way of clarifying the issue at hand.
(j)Objective fact not established.
(k)There is no merit to such claim.
11(tt) Covid Direction s. 362H Public Health Act (Qld)
(a)On 20 April 2020, the applicant sent an email to Mr Murphy and Ms Steineck in relation to what he asserted was a quarantine order/direction which affected him. [73] The quarantine direction related to a flatmate/housemate, and the name of that person was redacted by the applicant for what he claimed were privacy reasons.
[73]          CB pp. 897-899.
(b)Nowhere in the email was there a written complaint about anything.
(c)The applicant’s evidence led in support of this claim was at the re-numbered paragraphs [311] – [354] of the applicant’s affidavit filed on (13 September 2021. The extent of the applicant’s evidence on this issue demonstrated how Covid related issues had a significant impact upon the applicant’s work and life focus. The Court finds that the applicant became over-sensitive to the receipt of reasonable, well-meaning queries about possible Covid contact, by the applicant, without any good reason. Ms Steineck was merely doing her job. The suggestion at paragraph 326(b) of the applicant’s affidavit that he suspected that Ms Steineck was seeking to entrap, or otherwise subject the applicant to duress, and otherwise put him through the ringer, was ludicrous, and without any rational foundation. So too was the applicant’s suspicion about ‘foul play in respect of directives about MS Teams being made up on the run’, as claimed in paragraph 326(d) of the affidavit.
(d)None of the emails referred to in the applicant’s affidavit as having been sent to either Mr Murphy or Ms Steineck contained any complaint about the making of requests by Ms Steineck for the applicant to set out details of who he may have come into contact with in a Covid transmission context. There was simply no basis for the applicant to feel aggrieved about anything which came from Ms Steineck about Covid response issues.
(e)Objective fact not established.
(f)The Court accepts the evidence of Mr Murphy and Ms Steineck that the applicant never made a complaint to them about this issue.
(g)There is no merit to such claim.
11(uu) Not Doing the Job Employed to do
(a)In his affidavit evidence in support of this de-skilling claim, the applicant referred to annexure TTT to his affidavit. [74] There was nothing in that email that constituted a complaint. The fact that the applicant did not visit Waanyi lands was largely because of the effects of the wet season, as well as the effects of Covid. Those issues have earlier been dealt with in this judgment.
[74]          CB pp. 911-913.
(b)Objective fact not established.
(c)The Court further accepts the evidence of Mr Murphy and Ms Steineck that the applicant never made a complaint to them about this issue.
(d)There is no merit to such claim.
11(vv) Outside of Parameters of Socialised Behaviour
(a)The applicant placed reliance upon the contents of his email of 21 April 2020, sent by him to Mr Murphy, in support of this claim. [75] Such reliance was already apparent in the applicant’s claim at 11(ss).
[75]          CB p. 901.
(b)The Court has already dealt with this issue in respect of the 11(ss) claim, and accordingly, it is unnecessary to further deal with the applicant’s allegations.
(c)Objective fact not established.
(d)There is no merit to such claim.
11(ww) Request for DCEO to Soften Language
(a)In cross-examination, the applicant acknowledged that he had not sent an email to Mr Murphy, as he claimed, at 3.24pm on 21 April 2020. [76] The applicant then sought to identify an email of 16 April 2020, sent by him to Mr Murphy, as being his complaint about Ms Steineck. The email did not contain any such complaint. It was in the following terms: [77]
[76]          T p. 626.10 - .30
[77]          CB p. 846.
“Thanks Kevin.
Please accept the fallowing flummery fragments
•Distracting you from just getting on with your work
•As said during the bushfires and now the pandemic “now is not the time•
•Good things will come of everybody having had to rapidly shift to the new working environments. It has laid bare where we can improve. It is in fact very positive
•It is a good sign for accounts/ corporate services in industry- to meet responses with 'NO', in fact some might say that.
I had previously asked Tui for the coloured dividers and it was criticised/ knocked back. That is why I put the many bullet points to you in the email below.
(b)The applicant did not address this issue in his affidavit material. However, an example of the muddled and confused way in which the applicant gave his evidence about this issue, and the email of 16 April 2020, was during his cross-examination as follows: [78]
[78]          T pp. 627.7 – 628.5.
“HIS HONOUR: But, again, the heading of the email is a request for stationery?---I know, because I’m trying to keep my job and complain at the same time.
But what are you complaining about?---Well, what the other - - -
I don’t understand what - - -?---It - - -
- - - “flummery fragments” means, Mr Conradsen?---Well, flummeries are just like little polite things. Like, I got in trouble on the 25^th because I said, “Sorry – sorry we haven’t got back to you because the information was” – 25 March, at 8.20 something, about there, I got – I sent that email. Kevin gave me the draft. And I had to apologise to Chalk & Behrendt for them – they kept sending emails for a – for a month. And at the top, you just put a little fluff or a little puff or whatever you call it. It just means a polite thing and so I said, “Sorry. We’ve been a bit distracted” because with, you know, COVID and whatnot. So it’s just a puff. I don’t know. There was certainly none of that in the communication from the Deputy CEO.
MS MOODY: Mr Conradsen - - -?---I didn’t want to just say, “She’s a blunt, charging rhinoceros.” I mean, how do you word these complaints? How do you word a complaint without disrupting the workplace? You love your – you want your job. You want to keep your job, but you don’t want to start an inferno.
Mr Conradsen, now, this is something that you did – in terms of your – as you described in this email, putting a little bit of fluff at the beginning of something - - -?---Yes, a puff. A puff, a puff.
So here we see, at the bottom of the email, there’s a request for stationery but there’s this “flummery”, as you call it, before?---Yes.
Yes. You would agree that that was something that you did quite a lot in your emails to Kevin Murphy and even Rachel Amini-Yanner?---No.
And sometimes Trish Steineck?---No, the - - -
You often would put some little flummery, as you call it, some tidbit of some irrelevant detail before you got to the nub of the email, the request for the information, the task, whatever?---I’ve seen that in the pleadings, but there was no water cooler conversation. We – we – one – Kevin was 1700 kilometres away. He when he came up, he would sit across the road doing a crossword.
I’m just asking you - - -?---He loves words.
- - - whether you agree that you did that as a habitual way of sending emails to people?---Well, it’s just being polite. It’s just social lubricant.”
(c)The Court accepts the evidence of Mr Murphy that he did not respond to any issue about Ms Steineck raised by the applicant at that time because he had already decided to recommend that the applicant’s probationary period not be extended.
(d)The Court finds, in any event, that the applicant never made a complaint about this issue. No complaint was ever pleaded.
(e)Failure by applicant to properly plead adverse action.
(f)Objective fact not established.
(g)There is no merit to such claim.
11(xx) CEO and Bullied Staff Member
(a)The applicant did not plead the making of any complaint in relation to this issue.
(b)Failure by applicant to properly plead adverse action.
(c)The applicant was asked to check the work of another employee, namely Ms Arnold. Ms Amini-Yanner had sent an email to the applicant making such request. She did not copy in Ms Arnold to that email. When the applicant sent his material back to Ms Amini-Yanner, he copied in Ms Arnold. The applicant said that Ms Amini-Yanner reprimanded him for doing that. The Court finds that Ms Amini-Yanner was justified in doing so. There was no basis on which the applicant ought to have copied in Ms Arnold.
(d)The Court finds that there was no basis for the making of any complaint. The actions of Ms Amini-Yanner were reasonable.
(e)The Court accepts the evidence of Ms Amini-Yanner on this issue. [79]
[79]          Paragraphs 124 – 127 of affidavit of Ms Amini-Yanner filed on 13 October 2021 – CB pp. 1598-1599
(f)Objective fact not established.
(g)There is no merit to such claim.
11(yy) Fettered Discretion – Withholding Resources
(a)This claim was withdrawn by the applicant. The claim is accordingly dismissed. [80]
[80]          T p. 633.30 - .37.
11(zz) Likely to Result in DCEO Attack
(a)The applicant has failed to plead that he exercised a workplace right.
(b)Failure by applicant to properly plead adverse action.
(c)There was no probative evidence led by the applicant concerning this claim.
(d)The Court accepts the evidence of Mr Murphy that the applicant made no complaint to him about any issue involving a possible computer network security risk. The Court finds that this claim was another example of the applicant attempting to characterise general work communication as a form of complaint in circumstances where no complaint had been articulated, and where no reasonable person would accept that a complaint had been made. The applicant again failed to appreciate the distinction between him feeling aggrieved about something, and his positively enunciating his grievance in complaint form. There was simply nothing in any communication with Mr Murphy which would have warranted Mr Murphy taking action to record that a complaint had been made.
(e)Objective fact not established.
(f)There is no merit to such claim.
11(aaa) Complaint Re Probation Period Undermined
(a)This claim was withdrawn by the applicant. The claim is accordingly dismissed. [81]
[81]          T p. 636.5 - .12
The Decision to Terminate

Prior to the receipt by her of Mr Murphy’s briefing note, Ms Amini-Yanner had already expressed her concerns to Mr Murphy about the appropriateness of the applicant’s communication style. She did that having regard to the requirement that the Waanyi PBC stakeholders had to understand the issues that might affect them from time to time. The role of the applicant, as the relevant Waanyi PBC support officer, was to effectively communicate with the stakeholders, and facilitate their understanding of the issues which might so arise, such that thereafter, they would be able to make informed decisions concerning their future welfare.
Ms Amini-Yanner impressed the Court as being a logical, thoughtful and intelligent witness of credit. The Court accepts her evidence at [156] of her affidavit that she had a conversation with Mr Murphy on the morning of 23 April 2020 as deposed to in her affidavit filed on 13 October 2021. The evidence of such conversation was as follows:
“[156] On the morning of Thursday, 23 April 2020, I had a telephone discussion with Kevin Murphy about Mr Conradsen's probationary period which was to the following effect:
a)   Kevin said that he had received a reminder from HR that Mr Conradsen's probationary period was due to expire on 20 May 2020. He said he hadn't given it any thought at all until he received Bronwyn's reminder, so the fact it was up so soon had taken him by surprise.
b)   Kevin said he had some serious concerns about Mr Conradsen' s suitability for the role. He said he'd known when Mr Conradsen had first been employed that he hadn't had any native title experience, but in the 5 months since then Mr Conradsen's proficiency in the area hadn't noticeably improved.
c)   Kevin said that Mr Conradsen often spent too long on simple tasks, and then would submit something to him which was too long and/or not on point so that Kevin would have to spend considerable time working on it to have a useable product.
d)   Kevin said words to the effect that the fault probably lay with him because with him being in Brisbane and Mr Conradsen being in Cairns, and with all of the uncertainties of Covid which had prevented him from travelling to Cairns very much, he hadn't spent nearly as much time as he should have mentoring Mr Conradsen.
e)   Kevin said he thought Mr Conradsen lacked focus in his work. He said he often went off task, was unable to effectively prioritise, took too long to do things, and required excessive supervision.
f)   Kevin said words to the effect of, "/don't think he has good communication skills. I often can't understand what he writes, and I have serious concerns about him communicating effectively with indigenous stakeholders. "
g)   I said words to the effect of, "I've noticed that too. I've given him some tasks and I've found he takes considerably more time to do the job than I would have thought necessary. His communication style is all over the place, he uses lots of words I think the mob in our region wouldn't understand. He also lacks focus, in my discussions with him and the emails I get from him he will talk about a Greek dish or something else that's completely irrelevant to the work task. "
h)   I said there were a few things that had happened recently I wasn't happy with. I talked about the newsletter fact-checking task I had given to Mr Conradsen, and how I thought he spent too much time on it. I said, "His time management just isn't there. If you look at the number of emails he sent me, and the length of them, he would have spent so much time just fact checking that one paragraph. "
i)    I said, "If you gave him a task that required more research, can you imagine the time it would take him? Can you imagine how many emails you would have to deal with?”
j)   Kevin agreed. He said he'd had the same experience with tasks he had given to Mr Conradsen.
k)   I said I didn't think he was fit for the role.
l)    I said to Kevin, "Send me a briefing note with the reasons why you think Kimm 's probationary period shouldn't be confirmed and I will use that to write my letter terminating his employment. "”
The Court further accepts that Ms Amini-Yanner agreed with the adverse comments about the applicant as contained in Mr Murphy’s briefing note. Ms Amini-Yanner’s evidence about her concerns about the applicant were succinctly set out at [164] – [171] of her affidavit as follows:
“[164] While we are a small organization, and in many ways quite informal, I was nevertheless taken a bit back by Mr Conradsen's way of communicating with me, which I thought inappropriately informal at times.
[165]My other concern with Mr Conradsen's communication style was that he would frequently use very odd expressions and uncommon words. It was as if he wanted you to know he was very intelligent and could use big words and foreign words with lots of literary and historical references. I thought he seemed incapable of saying most things clearly or concisely. I found this made understanding Mr Conradsen to be at times difficult, as well as arduous.
[166] I thought that if Mr Conradsen spoke like that to our indigenous stakeholders they would not like it at all, and that would not be productive of a good relationship. I needed someone in the role who could build a good relationship with the Waanyi PBC and offer them the support they needed. Although I hadn't spoken to Alec Doomadgee at the time of my dismissal decision, I knew Alec pretty well and I was very confident he would not like Mr Conradsen at all. I did not want to upset Alec.
[167]In my view, Mr Conradsen's style of communicating was not appropriate for a PBC Support Officer who was required to frequently communicate with indigenous people, some of whom live in remote communities.
[168]Another matter I took into consideration, though it weighted upon my mind to a much smaller degree than the other factors I have described above, was Mr Conradsen's attitude. There were a few occasions when I thought it seemed like he was playing off Kevin against Trish (like the Chalk and Behrendt email, and his coming into the office on 26 March 2020 contrary to Trish's earlier direction). But, ultimately, had I thought he was the right person for the role, those concerns would not have been so great that I would have dismissed Mr Conradsen based on them alone.
[169]I agreed with Kevin's recommendation that Mr Conradsen's employment should not be confirmed past his probationary period.
[170]At the time I made my dismissal decision, I did not have in my mind, nor did I rely on, any matter of grievance raised by Mr Conradsen about his employment, because I wasn't aware of any.
[171]I decided that I would dismiss Mr Conradsen immediately and pay him a weeks' pay in lieu of notice.”
An example of the applicant’s unusual communication style, as referred to by Ms Amini-Yanner at [94] of her affidavit, was an email sent by the applicant on 11 February to Ms Amini-Yanner, the subject of such email being “The Qld Gov’ts idea of what “immersion tourism” looks like”. That email was as follows:
“Hi Rachel
The Qld Gov’ts idea of what ‘immersion tourism’ looks like
The discussion around culture as ‘static’ of ‘set in aspic’ come to mind.
IN sociology I read Edward Said’s ‘Orientalism’
I am not giving an opinion either way. I do like traditional costumes and visual splendour. But can see how it can be constricting in different contexts
[Article link omitted]
Kind Regards.
Kimm Conradsen
Native Title and PBC Support Services Project Officer”
The Court also found it unusual that an unsolicited email sent by the applicant to his CEO concerning a non-work related issue would include a reference to the concept of “Orientalism” – something promoted by a Professor of Literature at Colombia University as being “the representation of Asia in a stereotyped way that is regarded as embodying a colonialist attitude”. [82] There were many other instances where email communications sent by the applicant were focussed not on the issue at hand, but rather were focussed either on the applicant’s own interpretation of events, or the applicant’s unilateral expression of his own thoughts in a self-obsessed way.
[82] Google Reference to Edward Said – Shortform.
The Court finds that in using the language that he did, the applicant was endeavouring to demonstrate how much more learned and intelligent he was as compared to those he was working with. Such an unusual example was the reference to Mr Murphy in an email sent by the applicant to Ms Amini-Yanner on 15 April 2020. Mr Murphy was referred to by the applicant in the following terms – “I also have the amiable pedagogically inclined walking almanac of Native Title, Kevin Murphy”. [83] There was simply no need for the applicant to communicate in such an unnecessary and unusual way. The Court finds that it was not surprising that Ms Amini-Yanner and Mr Murphy would be confused and discomforted by such conduct, and that they each had become concerned about the applicant’s ability to effectively communicate with Waanyi PBC stakeholders.
[83] CB 1698
Ms Arnold was an indigenous person employed by the respondent who was experienced in dealing with Aboriginal people on country . In the cross-examination of Ms Arnold, Ms Arnold spoke of her experiences with Aboriginal people, and how it was important for them to be listened to. She was also asked about the applicant’s communication style. The relevant evidence was as follows: [84]
[84]          T p. 428.34 – 432.30.
“MS MOODY:   Now, Ms Arnold, as the PBC support officer for GRAC, it’s the case, isn’t it, that it was an essential requirement of your role to have written and oral discussions with the Aboriginal stakeholders?   For sure.
Yes. The board member of the GRAC board of directors and other members of the board, the chairperson and board members?   Yes.
As well as members of the GRAC community?   Yes. In meetings, yes.
And you would agree with me, wouldn’t you, that each of the PBC support officers, that is, Emily Chalmers and Mr Conradsen, would perform or were required to perform similar duties, to your knowledge     ?   Yes.
---- in relation to their PBCs?   Yes, for sure.
Such that it was a common requirement of each of the three PBC roles that they had a component of having to communicate with Aboriginal stakeholders?   Yes.
And it was an important part of the job, wasn’t it, to be able to communicate effectively with the Aboriginal stakeholders?   It was a massive part. If – you couldn’t – you couldn’t really do the job. Yes.
Now, your evidence was that, I think, you joined the respondent organisation in about     ?   When I started?
Yes, 2018?   Yes, 27 September, I think.
And prior to that, what was your experience in dealing with Aboriginal groups or Aboriginal people?   I’ve been working with Aboriginal people since year 2000 in – mostly in the Territory, a little bit in Queensland before that but I’m not sure I would even count that. It’s only small amounts. But every day, seven days a week, basically, for eight to 10 months of the year in the Territory, working with really – “bush people” they would call themselves, but very traditional indigenous people.
In your experience, which, if you’ve been doing that since the year 2000, is that roughly 20 to 21 years experience working with Aboriginal people?   That’s right. Yes.
Do you consider yourself as being experienced in communicating with Aboriginal people?   For sure. And in the Territory I was an interpretation ranger. That was one of my positions. So I worked alongside traditional owners to give speeches and workshops and slideshows, that sort of thing, to tourists. So there might be 100 tourists and we would present different things, yes.
Is communicating with an Aboriginal person different to communicating with a non-Aboriginal person?   Yes, vastly.
In what way?   Well – well, many ways. You have to have a really good understanding of the culture and their ways, to fit in with that. You have to listen way more than you talk, and then you learn much faster and
Why is that? Why do you have to listen more than you talk?   Just so you can pick up on what the people really want because sometimes they say “yes” but they really don’t want to do what you’ve suggested. And sometimes you don’t understand that they’re – they’re just trying to please you by saying “yes” but actually they don’t want to work with that other person or in that place. It’s too close to a dreaming site or something, and they will say “yes” but then you will see little ways – it’s all subtlety. It’s subtle signs, subtle gestures or subtle words that someone who wasn’t experienced would miss and they would say, “Okay. Well, let’s just do that” and
Is it also a cultural - - -
HIS HONOUR:   Ms Moody, how much do you need to go into this?
MS MOODY:   Not very much more. I will get to the point very shortly.
In your evidence that you need to be able to listen and talk less, is that because there is a cultural reticence among Aboriginal people in terms of talking rather than – well, in talking and putting themselves forward?   Could you say that again. Sorry.
Yes. You said in your evidence that an important part of communicating with an Aboriginal person is in listening more and talking less. And I asked you if that was because of a cultural issue in relation to, I suppose, the reticence of Aboriginal people to express themselves?   Yes. They – they also talk less than they listen. They’re always listening to their elders more and not saying their – their opinions. Something white people could learn as well. But also a lot of Aboriginal people don’t want to hear too much from white people because already they feel like they’re being told what to do all the time. So
In the time that you worked with Mr Conradsen, did you have the opportunity to observe his oral communication style?   With our Carpentaria Land Council staff, yes.
And what did you observe of the way in which he
HIS HONOUR:   I’m sorry.
You just said “in relation to our Land Council Aboriginal staff”?   With
Is that what you said?   Well, with
No?   Just
What did you just say?   In regards to Carpentaria Land Council staff.
Yes. That’s what you said?   Yes.
In relation to     ?   Not – not community people that I have
Yes. All right. So you’re confining your – you were about to say something about Carpentaria Land Council Aboriginal staff; is that right?   No, just
Or “staff”? - - - “staff” full stop.
All right? - - - Yes.
That’s right.
MS MOODY:   So how did you find Mr Conradsen’s communication style? What were your observations of his communication style?
HIS HONOUR:   In relation to staff, fellow staff.
MS MOODY:   In relation to how he dealt with you and your observations of him dealing with others in the Cairns office?   Well, he was kind of flamboyant and quirky, a bit eccentric with his ways, which could be funny, but I was – I did question whether community mobs would take that as funny or whether they would take that as a bit different. I was
Are you saying you held a concern about whether or not he could effectively communicate with Aboriginal stakeholders?   Yes, for sure.
Why? Why particularly did you hold that concern?   Because he did talk a lot. He – it’s hard when he’s in the room, isn’t it?
I’m happy for you to address your remarks to his Honour if you find it disconcerting looking at Mr Conradsen, but     ?   I think it’s more – he is a quirky character, and the more traditional a person is, I think it’s – they have less tolerance for that sort of thing. I find indigenous people have a good sense of humour, but they want you to be very grounded. And I think that they get a lot more from your interactions and you get more from your interactions when you speak from a very grounded, humble position, and I – I’m not sure Kimm is very grounded and humble. He’s – to us anyway, our – the staff. He was sort of loud and flamboyant. I don’t know if that’s the right word, but
HIS HONOUR:   What was your words? You didn’t think he was grounded and humble? Is that right?   Yes.
MS MOODY:   Let’s deal with both of those. They’re different things. Is it necessary
HIS HONOUR:   Do you need to go further than that, Ms Moody?
MS MOODY:   Yes.
Is it necessary, when talking to an Aboriginal person, to use plain language?   For sure.
Was it your observation that Mr Conradsen used plain language in the office?   No, not really. I think – I think Mr Conradsen is an intelligent man and he – I think he liked to show that with big words or quotes quite often. And I didn’t usually know where the quotes had come from because I may be not as well-read, but I did wonder – I was hoping he wouldn’t sort of speak like that when he was out on community.
If he did speak to Aboriginal stakeholders in the way he spoke to you and others in the Cairns office, what is your view about how that would be received by Aboriginal stakeholders?   I think they wouldn’t have understood him very well.
HIS HONOUR:   Is there any direct evidence as to how others saw him interacting with people on country?
MS MOODY:   No.
HIS HONOUR:   Well, she can’t speculate, then, about how he might have been received because
MS MOODY:   Very good.
HIS HONOUR:        he might have acted differently on country.
MS MOODY:   Returning, then, to his behaviour in the Cairns office, you mentioned that you did not think that Mr Conradsen was – and I quote – “very humble”. Can you give the judge some examples of how he would behave that made you think that?   Well, just interesting kind of conversations. I recall walking up to Tui’s desk – he was our admin officer at the time – and Mr Conradsen came up on my left side and we started talking – Tui and I were talking about our kids. We both have four kids and we were both comparing notes on something or other. And Kimm did say, “At what stage did you realise you had made a mistake?” Like, “How far along were you?” And we didn’t understand what he meant, but he meant parenting, like, having children: when did we realise we shouldn’t have done it. And, I mean, I’ve had four children and none of them were mistakes or surprises. So – and Tui, definitely – I mean, it just was not something you would ask any parent in the world. It’s just not a normal question because you never – even if they are a surprise, they’re still the best surprise ever.”
Ms Amini-Yanner clearly did not believe that the applicant had the capacity to effectively communicate with the Waanyi stakeholders, and the Court finds that that was the reason why she terminated the applicant’s employment. She was unaware of the making of any complaints by the applicant, but even if she had been, the Court finds that the making of any such complaint would not have constituted a substantial and operative reason for her to terminate the applicant’s employment.
The Court further finds that the making of the found complaints to Mr Murphy by the applicant did not constitute the substantial and operative reason for Mr Murphy’s recommendation to Ms Amini-Yanner that the applicant’s employment be terminated. Mr Murphy impressed the Court as being a down to earth person who was unimpressed by the applicant’s confusing use of language and obtuse manner in the context of even the simplest of communications. The Court finds that Mr Murphy had the respondent’s and the Waanyi stakeholders’ best interests in mind when making his recommendation to Ms Amini-Yanner to terminate the applicant’s employment.
The Court finds that the decision to terminate the applicant’s employment was not made for any prohibited reason. The respondent has rebutted the s. 361 statutory implication to the contrary.
All of the applicant’s claims are without merit, and are dismissed.
NOTATION
Prior to the handing down of this judgment, Judge’s Chambers confirmed with each of the parties that they were satisfied that all interlocutory applications filed in the proceeding had been dealt with at the hearing before the Court.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.
Associate:
Dated: 18 August 2022

File number(s):	BRG 6 of 2021
Judgment of:	JUDGE EGAN
Date of judgment:	19 August 2022
Catchwords:	INDUSTRIAL LAW – Adverse action claim – multiple confusing allegations – failure to properly plead case – lack of evidentiary basis for the making of most claims – finding that decision to terminate the applicant’s employment not made for any prohibited reason – application dismissed.
Legislation:	Fair Work Act 2009 ss. 340(1)(a)(ii), 341(1)(a)(ii), 341(1)(b), 342(1) Item 1, 360, 361, 539, 540(1), 544, 545, 546, 550, 557a
Cases cited:	Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740 CFMEU v Clermont Coal Pty Ltd [2015] FCA 1014 Alam v National Australia Bank Ltd [2021] FCAFC 178
Division:	Division 2 General Federal Law
Number of paragraphs:	42
Date of last submission/s:	2 June 2022
Date of hearing:	16 – 25 November 2021
Place:	Cairns
The Applicant:	Self-represented Litigant
Counsel for the Respondent:	Ms S Moody
Solicitor for the Respondents:	Thynne Macartney

BRG 6 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	KIMM OLE CONRADSEN Applicant
AND:	CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION ABN 99 121 997 933. Respondent

order made by:	JUDGE EGAN
DATE OF ORDER:	19 August 2022