Dimitropoulos v South Eastern Melbourne Primary Health Network Ltd - [2025] FedCFamC2G 1633

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dimitropoulos v South Eastern Melbourne Primary Health Network Ltd [2025] FedCFamC2G 1633

File number: MLG 1356 of 2022

Judgment of: JUDGE SYMONS

Date of judgment: 8 October 2025

Catchwords:
INDUSTRIAL LAW – general protections – adverse action – workplace rights – whether employee exercised workplace rights by making a bullying complaint – whether employer took adverse action against employee – factual dispute as to character of the decision taken about the employee’s position – decision to make position redundant constituted adverse action within the meaning of s 342 of the Fair Work Act 2009 (Cth) (FW Act) – whether adverse action taken because of the exercise of workplace rights – reverse onus of proof under s 361(1) of the FW Act- evidence of decision maker as to reasons for taking adverse action accepted – where satisfied that the adverse action was not taken because of the exercise of the established workplace right – reverse onus discharged – general protections claim dismissed

INDUSTRIAL LAW – alleged contraventions of s 50 of the FW act for contravening terms of the Dandenong Casey General Practice Association Certified Agreement 2009-2019 – whether employer failed to consult about major change – whether employer failed to take all reasonably practicable steps to provide a working environment that is safe and without risks to health – contraventions established – declarations made and compensation awarded – the question of penalty to be determined at a separate hearing

Legislation:
Fair Work Act 2009 (Cth), ss 50, 340, 341, 342, 360, 361, 545, 789FD

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Sch 7

Workplace Relations Act 1996 (Cth), s 298K

Dandenong Casey General Practice Association Certified Agreement 2009-2012, cls 17, 20

Cases cited:
Alam v National Australia Bank Limited (2021) 288 FCR 301; [2021] FCAFC 178

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 92 ALJR 291; [2018] HCA 6

Community and Public Sector Union v Telstra Corporation Limited (2001) 107 FCR 93; [2001] FCA 267

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FCA 1431

Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328

Haeusler v ACT [2023] FCA 1304

Heal v Sydney Flames Basketball Pty Ltd [2024] FCA 401

Kutlu v Director of Professional Services Review (2011) 197 FCR 177; [2011] FCAFC 94

Tomvald v Toll Transport Pty Ltd [2017] FCA 1208

Qantas Airways Limited v Transport Workers Union of Australia (2023) 278 CLR 571; [2023] HCA 27

Division: Division 2 General Federal Law

Number of paragraphs: 278

Date of last submissions: 7 February 2024

Date of hearing: 5-7 February 2024

Place: Melbourne

Counsel for the applicant: Mr A White

Solicitor for the applicant: Maurice Blackburn Lawyers

Counsel for the respondent: Ms K Grinberg

Solicitor for the respondent: Wotton Kearney

ORDERS

MLG 1356 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ARTHUR DIMITROPOULOS

Applicant

AND:
SOUTH EASTERN MELBOURNE PRIMARY HEALTH NETWORK LTD

Respondent

ORDER MADE BY:

JUDGE SYMONS

DATE OF ORDER:

8 OCTOBER 2025

THE COURT DECLARES THAT:
1.The respondent contravened s 50 of the Fair Work Act 2009 (Cth) (FW Act) by contravening clause 20 of the Dandenong Casey General Practice Association Certified Agreement 2009-2019 (Enterprise Agreement), which required it to take all reasonably practicable steps to provide a working environment that is safe and without risks to health.
2.The respondent contravened s 50 of the FW Act by contravening clause 17.2.1 of the Enterprise Agreement, which required it to consult affected employees before a definite decision was made to introduce changes that were likely to have a “significant effect” (as defined in clause 17.2.2 of the Enterprise Agreement) on the employee.

THE COURT ORDERS THAT:
1.The respondent pay the applicant compensation, pursuant to s 545(2)(b) of the FW Act, in the amount of $35,000 for its contraventions of s 50 of the FW Act the subject of declarations 1 and 2 above.
2.The parties confer and seek to reach agreement by 4:00pm on 22 October 2025 on a proposed set of orders for a timetable for the provision of submissions and any further evidence on penalty with respect to the contraventions of s 50 of the FW Act, with a provisional penalty hearing date of 28 November 2025 at 10:00am.
3.If the parties are unable to reach agreement on a set of orders and notify the chambers of Judge Symons by 4:00pm on 22 October 2025, the matter will be listed for case management hearing on a date to be advised.
4.In other respects, the applicant’s originating application and amended statement of claim is 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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS
A. INTRODUCTION

The applicant, Mr Arthur Dimitropoulos, commenced employment with the respondent, South Eastern Melbourne Primary Health Network (SEMPHN) on 25 November 2019 in the role of Performance Reporting Specialist. On 31 May 2022, Mr Dimitropoulos took personal leave and has not returned to work at SEMPHN since that time.
This proceeding focuses on events and decisions made in the six months prior to Mr Dimitropoulos leaving his employment which happened to be a period of transition and leadership change for SEMPHN. The proceeding directs particular attention to the decisions and discussions that were taking place with respect to the future of Mr Dimitropoulos’ role and how such decisions should be characterised. It also asks questions about the treatment that was afforded to Mr Dimitropoulos in the leadup to him leaving the workplace and whether it constituted a form of bullying from which he should have been protected.
The claims that Mr Dimitropoulos advances against SEMPHN in these proceedings are:
(a)a general protections claim under the Fair Work Act 2009 (Cth) (FW Act) that SEMPHN took adverse action against him because of, or for reasons including, that Mr Dimitropoulos had or exercised workplace rights prior to decisions being made about the future of his employment;
(b)a claim under s 50 of the FW Act that SEMPHN failed to consult with Mr Dimitropoulos prior to establishing its Business Intelligence Directorate, as it was required to do under cl 17.2.1 of the Dandenong Casey General Practice Association Certified Agreement 2009-2012 (Enterprise Agreement);
(c)a claim under s 50 of the FW Act that SEMPHN failed to consult with Mr Dimitropoulos before making a decision to make his role redundant as it was required to do under cl 17.2.1 of the Enterprise Agreement; and
(d)a claim under s 50 of the FW Act that SEMPHN failed to provide Mr Dimitropoulos with a safe working environment as it was required to do under cl 20 of the Enterprise Agreement.
SEMPHN denies each of these claims and in particular disputes that:
(a)Mr Dimitropoulos exercised a workplace right within the meaning of s 341(1)(c) of the FW Act. SEMPHN challenges the factual account given by Mr Dimitropoulos and how it should be characterised;
(b)SEMPHN took adverse action against Mr Dimitropoulos. While Mr Dimitropoulos contends that a decision was made to make his position redundant, SEMPHN instead says that it was a proposal only and subject to further consultation so that it could not constitute any species of adverse action, including a threat to dismiss; and
(c)SEMPHN failed to provide a safe working environment. It contends instead that the matters identified by Mr Dimitropoulos as involving examples of workplace bullying fall well short of the required threshold.
For the reasons that follow, I have concluded that Mr Dimitropoulos’ general protections claim and one of his Enterprise Agreement claims should be dismissed. I have found that Mr Dimitropoulos has been successful on the Enterprise Agreement claims involving a failure to consult and a failure to provide a safe working environment.
B. FACTUAL BACKGROUND
B.1 The parties
Mr Dimitropoulos is a performance reporting expert who has been working in accounting and analytics since 1990 in a variety of roles. He obtained a Master of Business Administration in 2002 and holds several accreditations and certifications. Prior to commencing employment with SEMPHN, Mr Dimitropoulos was employed as the Chief Financial Officer for Global Speech Networks.
Mr Dimitropoulos is father to a son, Anastos, who is terminally ill and has significant disabilities. When Mr Dimitropoulos negotiated his contract of employment with SEMPHN his carer responsibilities were accommodated and reflected in an arrangement whereby Mr Dimitropoulos worked four days per week, with a start time of 10 am. This arrangement continued throughout his employment.
SEMPHN is one of six Primary Health Networks in Victoria and receives funding from the federal government to assist residents in its catchment to procure the health services that they need. At relevant times, its organisational structure included a Business Intelligence Directorate (BID) that was established in the first quarter of 2021. At relevant times, SEMPHN:
(a)existed to ensure Victorians in southeast Melbourne had access to health services which were effective and integrated across primary, acute and aged care;
(b)commissioned out of hospital services, locally;
(c)partnered with local care providers to make quality care more accessible and integrated and easier to navigate;
(d)influenced government policy on primary health care reform;
(e)provided general practitioners and clinics with access to Population Level Analysis and Reporting software; and
(f)provided reporting to the federal government on health outcomes in its catchment.
B.2 Key dates
While the detail and characterisation of events were not universally agreed, the following key dates are not in dispute.
On 25 November 2019, Mr Dimitropoulos commenced employment with SEMPHN pursuant to an agreement dated 24 October 2019. At all material times, Mr Dimitropoulos reported to the Chief Executive Officer of SEMPHN. The person holding this position between October 2019 and 25 August 2021 was Ms Elizabeth Deveny.
In January 2021, SEMPHN established the BID. This resulted from the amalgamation of two former work departments known as System Outcomes and Digital Health. The purpose of this amalgamation was to bring data analysis and reporting into one business unit.
In September 2021, Mr Simon Wrigley was appointed Chief Operating Officer of SEMPHN.
On 9 December 2021, the interim Chief Executive Officer, Mr Michael Beres, sent an email to Mr Tony James, Executive General Manager Human Resources, in which he said (in reference to Mr Dimitropoulos) “I do not think Arthur’s role is required. Would like to know options & costs etc…”.[1] In his response sent the same day, Mr James advised “…as Arthur is employed on an ongoing basis, the role is potentially redundant. If we made the decision to declare the position redundant, we would have to commence the consultation process and start exploring redeployment options in the first instance”.[2]
[1] Annexure TJ-4 to the affidavit of Mr James filed on 22 January 2024 (second James affidavit); CB 612-613.
[2] Annexure TJ-5 to the second James affidavit; CB 614-616.
In January 2022, Mr Quinn Pawson was appointed Chief Executive Officer of SEMPHN.
On 27 February 2022, Mr James sent Mr Pawson an email which attached a letter in draft form addressed to Mr Dimitropoulos and which bore the subject “Consultation Regarding Major Workplace Change”.[3] The letter noted, among other things, that SEMPHN proposed that the tasks of the Performance Reporting Specialist move to the BID to be undertaken by various staff members from the BID and because of these changes, SEMPHN proposed to make the Performance Reporting position redundant. In his cover email, Mr James noted that no discussions had occurred with Mr Dimitropoulos in relation to the attached letter.
[3] Annexure QP-2 to the affidavit of Mr Pawson filed on 22 January 2024 (second Pawson affidavit); CB 562-566.
On 27 February 2022, Mr Pawson replied to Mr James in an email that read:[4]
Hey thanx Tony
Of course very happy to discuss and logic informing the decision is consistent with questions I have had about the role i.e. why is in the CEO office and not in the (sic) Dectorate. Having said this it appears that there is not a deep understanding of what the role has achieved etc. I might have this wrong suffice to say I have asked Arthur to pull together all of the reports and the information he has done over the past couple of years and then walk Simon and I through this.
Anyway lets meet to discuss
…
[4] Annexure QP-3 to the second Pawson affidavit; CB 567-569.
On 11 March 2022, Mr Dimitropoulos met with Mr Wrigley and Mr Pawson to discuss reporting at SEMPHN. Prior to the meeting he was asked to provide a copy of the reports he had been producing over the past couple of years.
On 27 April 2022 at 8.26 am, Mr James sent Mr Pawson an email which attached a further draft letter to Mr Dimitropoulos which referred again to the proposal to move the duties undertaken by the Performance Reporting Specialist to the BID.[5] The letter referred to potential redeployment but noted that if termination of employment due to redundancy was to proceed, SEMPHN proposed this would be effective no later than 27 May 2022. The cover email read:
Hi Quinn
Copy as discussed.
The letter would be issued after our initial meeting with Arthur.
Proposed exit date of 27 May 2022 might be a little ambitious – this will depend upon how soon our initial meeting with AD is held.
…
[5] Annexure PS-3 to the affidavit of Mr Sutton filed on 18 January 2024; CB 530-534.
On 27 April 2022 at approximately 4.00pm, Mr Dimitropoulos had a meeting with Mr Pawson via Microsoft Teams. Mr Dimitropoulos alleges that it was during this meeting he made a complaint or inquiry about his employment. Mr Dimitropoulos further alleges that on or around this date Mr Pawson decided to dismiss him from employment and/or decided to make his role redundant. SEMPHN denies this.
On 23 May 2022, Mr Dimitropoulos participated in a meeting with Mr Pawson and Mr James. Mr Dimitropoulos alleges that it was during this meeting that he was told that a decision had been made to make his role redundant and there would be no opportunities for redeployment. SEMPHN denies this and says instead that the meeting marked the commencement of a consultation process about potential redeployment or potential redundancy.
Following the meeting, Mr James sent Mr Dimitropoulos an email that attached a letter that was attributed to and signed by Mr Pawson and which Mr James described as “outlining our discussion”. The letter read:[6]
[6] Annexure AD-51 to the affidavit of Mr Dimitropoulos filed on 31 May 2023 (first Dimitropoulos affidavit); CB 383-385.
Dear Arthur
Consultation Regarding Major Workplace Change
Further to our meeting today also involving Tony James, Executive General Manager, Human Resources.
The Performance and Reporting Specialist role was created in late 2019 primarily to establish SEMPHN’s Strategic Goals & Business Plan Performance reporting, with a focus on SEMPHN Board reporting with accompany performance dashboards. The performance dashboards have been successfully developed.
Since the establishment of the Business Intelligence Directorate (first quarter of 2021), we have progressively sought to have our Business Intelligence Directorate have ownership and responsibility for all SEMPHN’s data, performance and reporting activities including but not limited to management of SEMPHN’s databases and metadata; extensible data acquisition and integration solutions development; development of analytical reporting products; standardisation, quality and automation of SEMPHN’s commissioned programs; various ad-hoc reporting; and the development of related policies and protocols.
These have been important developments for SEMPHN as our Data Governance Framework and Performance Monitoring and Reporting Framework require us to ensure the safe, accurate and consistent use of data and reporting across the business.
SEMPHN now proposes that the duties undertaken by the Performance Reporting Specialist will move to the Business Intelligence Directorate and that these job functions will now be undertaken by, and shared amongst other staff members, within the Business Intelligence Directorate.
Potential redeployment
As was further discussed, SEMPHN’s proposal to make the Performance and Reporting Specialist position redundant has the following potential outcomes for you:
1.you may be redeployed to another role within SEMPHN
2.your employment is terminated due to redundancy or
3.any other options you can identify (for which SEMPHN would consider.
SEMPHN will explore redeployment options into another suitable role for you and, to restate, will consider any other options you raise. If it is not possible to continue your employment, then your position will be made redundant, and your employment will be terminated due to redundancy.
We would like to continue to discuss with you the impact of this decision on you, along with anything we may be able to do to lessen the impact that this decision will have on your employment with us.
We will schedule further individual meetings with you for these discussions to take place.
Potential redundancy
If termination of employment due to redundancy was to proceed, SEMPHN propose this is effective no later than Friday 17 June 2022.
Severance & other associated payments
To provide you with all relevant information for your consideration, if your employment is terminated due to redundancy, based on your start date with SEMPHN of 25 November 2019 this would equate to a severance payment of six weeks’ pay.
You would also be paid salary in lieu of notice as you will not be required to serve out your notice period. This equates to a further payment of two weeks in salary in lieu of notice.
…
Next steps
As mentioned, we will schedule further meetings with you to continue with the consultation process.
…
On 24 May 2022 at 10.12 am, Mr Dimitropoulos sent a lengthy email to the Board of SEMPHN (and copied to Mr Pawson and Mr James), part of which read:[7]
…
Over the course of this calendar year, for unknown reasons to me, there have been many occasions that have become the norm for me to be ostracized and ignored by SEMPHN’s CEO Quinn and COO Simon (Noting that Quinn and Simon had a prior working relationship to SEMPHN). This has taken the form of being refused access to data to prepare reports, including for the Board on Strategy and Business Plan progress. Additionally, I have sent numerous emails to the CEO and COO that have gone unanswered, unbeknown to me at the time instructions were being given to staff to not provide me with the required data for me to perform my duties. These also include and not limited to being excluded from multiple meetings involving work that I had solely developed for review. I do not know if these behaviours are due to biases towards me or due to Elizabeth’s departure and myself having been employed by her. These behaviours have been humiliating and hurtful especially given their relentless consistency that I can only interpreted as an attempt to force me to resign due to the ongoing silence and undermining I was receiving.
I thought things were about to change for the better when two weeks ago Quinn asked me to urgently do work for the BI Directorate who were unable to perform the work given the tight time frames, this involved myself working in the evening and over the weekend. I thought things were going to get back to normal and that I was no longer going to be ostracized and was being brought back into the team and us starting to work together. Unfortunately, this was not the case as Quinn rang me yesterday just after 1.00 pm to organise a meeting with him and Tony for 3.30 pm yesterday. During this meeting Quinn informed me that I was being made redundant, including an end date of employment and I was also told that there were no roles within SEMPHN for me and that I was still required to follow a consultation process even though no roles exist. As you can imagine I was shocked by these actions and the manner this redundancy has been engineered over the course of this calendar year for a predetermined and engineered outcome by the CEO when opportunities existed for this not to be the case if SEMPHN’s values were being practiced and this proposed redundancy could have been avoided.
[7] Annexure AD-52 to the first Dimitropoulos affidavit; CB 386-390.

On 26 May 2022, Chair of the Board, Ms Sue Renkin, wrote to Mr Dimitropoulos and advised him that SEMPHN had engaged an external investigator to carry out an investigation into the matters raised in Mr Dimitropoulos’ email referred to above. Ms Renkin also advised Mr Dimitropoulos that the consultation process would continue.
On 26 May 2022, Mr James sent Mr Dimitropoulos a Microsoft Teams invitation for a meeting scheduled on 31 May 2022 which Mr James explained was “a further consultation meeting relating to the SEMPHN proposal to make the Performance and Reporting Specialist role redundant”.[8] The meeting did not ultimately proceed.
[8] Annexure TJ-2 to the second James affidavit; CB 417-418.
On 31 May 2022, Mr Dimitropoulos wrote to Mr James and advised him of his intention to take sick leave under cover of a medical certificate that certified Mr Dimitropoulos as unfit for work from 31 May to 14 June 2022.[9] Mr Dimitropoulos took leave as and from this date and did not return to work.
[9] Annexure QP-1 to the affidavit of Mr Pawson filed on 4 September 2023 (first Pawson affidavit); CB 407-408.
On 31 May 2022, Mr James wrote to Mr Dimitropoulos and advised him that SEMPHN had engaged an external investigator to carry out the foreshadowed investigation. He inquired whether Mr Dimitropoulos was fit to participate in the investigation in circumstances where the medical certificate had stated he was unfit for work.
On 1 June 2022, Mr Dimitropoulos’ lawyers wrote to Mr James and advised that he was unable to participate in the investigation given his medical condition.
On 1 June 2022, Mr James wrote to Mr Dimitropoulos’ lawyers and advised that the consultation process and investigation were being put on hold.
C. WITNESSES
C.1 Mr Dimitropoulos
Mr Dimitropoulos relied solely on his own evidence. In that respect he adopted as his evidence in chief his affidavit filed on 31 May 2023 and his reply affidavit filed on 2 October 2023.
Mr Dimitropoulos was cross-examined.
SEMPHN submitted that on the topic of the meeting that took place on 27 April 2022 with Mr Pawson, Mr Dimitropoulos’ evidence was prone to exaggeration and untruthfulness and the account of Mr Pawson should be preferred. The submission was also made that Mr Dimitropoulos’ evidence directed at the allegation of workplace bullying demonstrated a propensity to mischaracterise events to support his claim and betrayed an unreasonable expectation of how he should be treated at work. These submissions will be addressed when I come to resolving the factual controversies that underpin the adverse action and bullying claims.
C.2 SEMPHN witnesses
SEMPHN relied on the evidence of four witnesses.
Mr Pawson adopted as his evidence in chief his affidavit filed on 4 September 2023 and his affidavit filed on 22 January 2024.
Mr Pawson was cross-examined.
While there was no challenge made by Mr Dimitropoulos to Mr Pawson’s credit per se, observations were made about his inability to recall evidence about several matters, including the meeting held on 27 April 2022 which was said to have implications for the reliability of his evidence. These matters are considered when I come to resolve factual contests.
Mr Wrigley adopted as his evidence in chief his affidavit filed on 13 September 2022 (Wrigley affidavit). Mr Wrigley was cross-examined.
Mr James adopted as his evidence in chief his affidavit filed on 5 September 2023 and his affidavit filed on 22 January 2024.
Mr James was cross-examined.
Mr Dimitropoulos made similar observations about the inability of Mr James to recall the detail of the meeting that took place on 23 May 2022. I will deal with this at the appropriate time.
Ms Galina Daraganova was at relevant times the Executive General Manager Business Intelligence at SEMPHN. She commenced in that role on 6 April 2021. Ms Daraganova adopted as her evidence in chief her affidavit filed on 5 September 2023 (Daraganova affidavit). I granted leave for SEMPHN to adduce oral evidence in chief on a discrete topic that arose after the filing of the Daraganova affidavit.
Ms Daraganova was cross-examined.
There was no challenge to the evidence of Mr Wrigley and Ms Daraganova and I accept that both were giving evidence truthfully to the best of their recollection.
D.       GENERAL PROTECTIONS CLAIM
D.1     Statutory provisions and legal principles
D.1.1   Workplace rights statutory provisions
Section 340(1) of the FW Act provides:
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).
Section 341(1) of the FW Act provides:
341     Meaning of workplace right
(1)      A person has a workplace right if the person:
…
(c)       is able to make a complaint or inquiry:
…
(ii)if the person is an employee – in relation to his or her employment.
D.1.2   Adverse action statutory provisions
Section 342(1) of the FW Act sets out in table form the circumstance in which a person is taken to have engaged in adverse action against an employee. Item 1 in s 342(1) provides that adverse action is taken by an employer against an employee if the employer (a) dismisses the employee, (b) injures the employee in his or her employment, (c) alters the position of the employee to the employee’s prejudice, or (d) discriminates between the employee and other employees of the employer.
It is sufficient that a proscribed reason is one of multiple reasons for adverse action taken against a person: s 360 of the FW Act.
Section 361(1) of the FW Act reverses the normal onus in civil proceedings, and provides:
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part:
it is presumed that the action was, or is being, taken for that reason or with that intent unless the person proves otherwise.
D.1.3 Meaning of workplace right
Mr Dimitropoulos contends that the matters communicated by him to Mr Pawson during the meeting held on 27 April 2022 involved the making of a complaint or inquiry in relation to his employment.
As far as legal principle is concerned, I adopt the following summary taken from the judgment of Halley J in Heal v Sydney Flames Basketball Pty Ltd [2024] FCA 401 where at [84]-[87] his Honour explained:
84. In the context of s 341(c)(ii) of the FW Act, a “complaint” is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation”, and (b) the “grievance, finding of fault, or accusation must be genuinely held or considered valid by the complainant”: Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [29] (Dodds-Streeton J); Serpanos v Commonwealth of Australia [2022] FCA 1226 at [84] (Snaden J): PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225; [2020] FCAFC 15 at [137] (Snaden J), [26] (Rangiah and Charlesworth JJ); Alam v National Australia Bank Ltd (2021) 288 FCR 301; [2021] FCAFC 178 at [59] (White, O’Callaghan and Colvin JJ). Further, the term “complaint” has been said to connote “an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved”: Alam at [59]; Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421; [2020] FCAFC 204 at [13] (Bromberg J).
85.A person has, and therefore may exercise, a right to complain or inquire in relation to their employment if the complaint or inquiry is one that they are “able to make” under s 341(1)(c) of the FW Act. In Shea, Dodds-Streeton J considered the meaning of “able to make” in s 341(1)(c) at [625]:
[T]he requirement that the complaint be one that the employee is “able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it is underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.
86.In Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677, Snaden J said the following in relation to the statutory meaning of being “able to make” in s 341(1)(c) at [150]:
I am bound in any event by what successive full courts have now made clear; in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire.
87.A complaint is “in relation to…employment” if the subject matter about which a complaint is made concerns an aspect of employment: Serpanos at [89]. There must be a relationship between the subject matter of the complaint and the complainant’s employment: Alam at [74]; Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534 at [33]-[34] (Collier J). A complaint can be directly or indirectly related to its maker’s employment: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [64] (Katzmann J); Shea at [631]. A connection between a complaint and employment will likely exist in circumstances “where the subject matter of the complaint raises an issue with potential implications for the complainant’s employment”: Walsh v Greater Metropolitan Cemeteries Trust (No 2) (2014) 243 IR 468; [2014] FCA 456 at [42] (Bromberg J).
D.1.4 Determining whether adverse action has been taken because of a proscribed reason
There was broad agreement by the parties as to the principles that apply when making this determination having regard to the operation of s 361 of the FW Act. In Alam v National Australia Bank Limited (2021) 288 FCR 301; [2021] FCAFC 178 at [14], a Full Court of the Federal Court identified a number of matters which inform the assessment:
(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: Tattsbett 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 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 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 reasons 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 to 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 Tertiary 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 circumstances 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).
D.2 Determination of general protection claim
There was agreement by the parties that resolution of the general protection claim would require a determination of the following issues.
First, whether Mr Dimitropoulos raised a complaint for the purposes of s 341(1)(c) of the FW Act on 27 April 2022? This question requires the Court to determine the controversy about what was said by Mr Dimitropoulos during the meeting on this date and what legal character (if any) should be ascribed to the communication.
Second, whether Mr Dimitropoulos was subjected to adverse action within the meaning of item 1 of s 342(1) of the FW Act? This question requires the Court to determine what (if any) decision was taken by Mr Pawson with respect to Mr Dimitropoulos’ employment at SEMPHN and whether any such decision satisfied the definition of adverse action.
Third, whether the adverse action was taken because Mr Dimitropoulos exercised a workplace right to make a complaint about his employment? This question involves a study of the reasons offered by Mr Pawson for taking (any) adverse action and whether such reasons should be accepted, including as evaluated against the objective circumstances established in the case.
D.2.1 What was said by Mr Dimitropoulos during the meeting of 27 April 2022?
Mr Dimitropoulos alleges in the first Dimitropoulos affidavit that during a conversation with Mr Pawson on 27 April 2022 that was conducted via Microsoft Teams he said to Mr Pawson:
(a)words to the effect of “I do not know if it is intentional or unintentional to treat me like a mushroom by not providing me the data I require”;
(b)that he was concerned that Mr Wrigley had ulterior motives for not providing him (Mr Dimitropoulos) with the necessary data; and that,
(c)over his 30-year career he had never experienced behaviour where information was being withheld after multiple requests.
Mr Dimitropoulos alleges that Mr Pawson did not respond to these comments which prompted him to repeat his “mushroom” comment again. Mr Pawson was said to have then asked Mr Dimitropoulos “do you want me to ask him (Mr Wrigley) to give you the data”?
Mr Dimitropoulos alleges that he then said words to the effect of:
(a)my motivation in making the comments was that I wanted to make you (Mr Pawson) aware of the situation and that I was concerned that Mr Wrigley was not providing me with the data I required to perform my job including that I did not want to get caught unprepared should the Board request these reports;
(b)that I did not want Mr Pawson to ask Mr Wrigley to provide the data because I was concerned about “causing friction” that may impact my employment given my age and the difficulty I would face in finding comparable employment; and that,
(c)I was concerned that I would not be able to do my job of providing reporting to the Board if required as I was no longer aware of what data was being captured.
According to Mr Dimitropoulos, he then said to Mr Pawson words to the effect of, “I’ve sent you all these emails and you haven’t even acknowledged them by reply. Are you deliberately ignoring me?”. Mr Dimitropoulos says that Mr Pawson replied with words to the effect of, “Sorry, I know I haven’t responded”.
Mr Dimitropoulos was cross-examined about his account of the meeting. He maintained that he had raised concerns with Mr Pawson about not being provided with information and stated, in the context of being asked about Mr Pawson’s response, that he had repeated the “mushroom” comment at which point Mr Pawson had snapped at him and thrown it back to Mr Dimitropoulos with “Do you want me to contact Mr Wrigley?”. Mr Dimitropoulos explained that he had then backed off out of “self-preservation”.
Mr Dimitropoulos was challenged as to why he had not mentioned anything about Mr Pawson’s demeanour in either of his affidavits. Mr Dimitropoulos gave what I considered to be a credible response being that he had not been focused on the emotions when he was preparing the affidavit but that his evidence about Mr Pawson’s conduct was consistent with and explained why he had (as described in the first Dimitropoulos affidavit) told Mr Pawson not to worry about providing the data.

Mr Pawson gave a less detailed account of the meeting in the second Pawson affidavit. He acknowledged that Mr Dimitropoulos had raised concerns that he had not been receiving information he believed he required to perform his role and recalled that Mr Dimitropoulos was frustrated about this. Mr Pawson deposed to having acknowledged Mr Dimitropoulos’ concerns and suggested that they work towards obtaining the information he required to perform his role. Mr Pawson did not recall Mr Dimitropoulos ever expressing that he felt he was being bullied or isolated or that his concerns regarding information not being available to him were bullying related.
Mr Pawson described Mr Dimitropoulos’ concerns as being limited to operational issues and hurdles he believed he faced in performing his role, relating to difficulties in obtaining the data he required. At no point during or after the meeting, did he believe that Mr Dimitropoulos had made a bullying complaint to him.
Mr Pawson was also cross-examined about his account of the meeting. He could not recall whether Mr Dimitropoulos had mentioned Mr Wrigley in connection with his concerns about the receipt of information and neither could he recall whether Mr Dimitropoulos had referred to “being treated like a mushroom”. He could not recall the specific words used but acknowledged that Mr Dimitropoulos could have said that information was being “withheld” from him.
Mr Pawson agreed that there was a conversation around Mr Dimitropoulos asking him if he (Mr Pawson) was ignoring Mr Dimitropoulos. Mr Pawson explained that he had made it clear to Mr Dimitropoulos that he was not ignoring him.
In the end I accept the submission of Mr Dimitropoulos that there is little separating the detailed account given by him about what was said during the meeting and the evidence of Mr Pawson, as supplemented by his answers given in cross-examination. To the extent that Mr Pawson was unable to recall the precise words used by Mr Dimitropoulos during the meeting, that is not surprising. The meeting was no doubt of far greater significance to Mr Dimitropoulos then to Mr Pawson who was of course in the role of CEO and was conducting multiple meetings with staff who reported to him as well as with other employees, members of the executive leadership team, and stakeholders of the respondent.
I do not accept the submission that Mr Dimitropoulos’ evidence should be treated with caution because he failed to mention the demeanour of Mr Pawson in his affidavit material. Even if I was to accept that this involved a form of embellishment provided at trial, which I do not, it would not detract from the veracity of the evidence given by Mr Dimitropoulos as to what was said during the meeting, and it is that evidence (and account) that on Mr Dimitropoulos’ case involves the making of a complaint in relation to his employment. I turn now to consider its character.
D.2.2 Did Mr Dimitropoulos make a complaint about bullying during the meeting of 27 April 2022?
Mr Dimitropoulos’ pleaded case is that, on his version of what was communicated by him during the meeting of 27 April 2022 (which I have found to be true), he made a complaint or inquiry about his employment within the meaning of s 341(1)(c) of the FW Act.
In written submissions filed ahead of the final hearing, Mr Dimitropoulos characterised the complaint as one concerned with bullying. This submission was maintained in closing argument.
Mr Dimitropoulos submitted that when evaluating the character of the complaint it was irrelevant how it was in fact perceived by Mr Pawson. He submitted that although he had not used the word “bullying”, he used other language and concepts that conveyed active and deliberate mistreatment, analogous to bullying. Mr Dimitropoulos emphasised the use of the word “withheld” in connection with the data and that he had been treated like a mushroom, by which he intended to convey that he had been “kept in the dark”. Mr Dimitropoulos submitted that his bullying complaint was made pursuant to a right to complain about compliance with the obligation contained in cl 20 of the Enterprise Agreement that the employer take all reasonably practicable steps to provide a working environment that is safe and without risks to health.
SEMPHN submitted that even on Mr Dimitropoulos’ account of events, what he communicated fell short of a complaint about bullying. Instead, Mr Dimitropoulos should be understood as having expressed frustration about his inability to obtain information for the purposes of his job and nothing more.
Having regard to the statements of principle recorded at [49] above, I make the following findings.
First, I am satisfied that through the combination of statements made by Mr Dimitropoulos during the meeting on 27 April 2024 that he, as a matter of substance, conveyed both a grievance and a finding of fault or accusation which unquestionably, was genuinely held.
The grievance concerned the withholding of data that Mr Dimitropoulos considered he required for the performance of his role. The finding of fault or accusation was two-fold. First, there was a clear accusation directed at Mr Wrigley that he had withheld data from Mr Dimitropoulos despite multiple requests and in a manner that distinguished itself (adversely) in the context of Mr Dimitropoulos’ lengthy experience in the work force. Second, Mr Dimitropoulos made an accusation directed at Mr Pawson that he had failed to acknowledge “all of these” emails.
Furthermore, I consider that the matters communicated by Mr Dimitropoulos about the withholding of data plainly constituted an expression of discontent which sought a form of redress or relief. This is evident from the response provided by Mr Pawson which was to make overtures about asking Mr Wrigley to provide the data.
The second question that requires resolution in the context of the claim advanced by Mr Dimitropoulos is whether this complaint was one concerned, in substance if not form, with bullying. I am satisfied that it was. This is because the language used by Mr Dimitropoulos involved concepts of exclusion (especially the “mushroom” comment) and obstruction. Furthermore, it alleged conduct that was repeated and which was unreasonable, both in the context of Mr Dimitropoulos’ current workplace and job responsibilities but more broadly, based on Mr Dimitropoulos’ extensive experience of the workforce. It was a complaint that at its core was concerned with harmful behaviours engaged in by the two most senior office holders at SEMPHN.
Having found that the complaint made by Mr Dimitropoulos on 27 April 2022 was concerned with bullying, the next question, which is more readily resolved, is whether it was a complaint that Mr Dimitropoulos was able to make about his employment. In this respect, I did not understand SEMPHN to take issue with the proposition that a complaint about bullying would be one underpinned by the entitlement of Mr Dimitropoulos to insist that his employer take all reasonably practicable steps to provide a working environment that is safe and without risks to health. The complaint was also concerned with the ability of Mr Dimitropoulos to perform his duties under the employment agreement. Mr Dimitropoulos stressed on at least two occasions, that his inability to access data would impair his ability to perform reporting functions, which undisputably constituted an inherent part of his role.
Having regard to each of these findings, it follows that Mr Dimitropoulos made a complaint on 27 April 2022 that involved the exercise of a workplace right for the purposes of s 341(1)(c) of the FW Act.
D.2.3 Was Mr Dimitropoulos subjected to adverse action within the meaning of item 1 of s 342(1) of the FW Act?
Mr Dimitropoulos contends that he was subjected to adverse action that took the form of either: (a) a decision that was akin to dismissal; or (b) a decision that fell short of dismissal, but which had the effect of both injuring him in his employment and altering his position to his prejudice. A claim of threat to dismiss was not ultimately prosecuted. SEMPHN denies that any decision taken by it in relation to Mr Dimitropoulos’ employment involved any form of adverse action. In short, it submits that any decision made was neither conclusive nor permanent and merely a decision to commence a process whose outcome was never determined.
D.2.3.1 What decision did Mr Pawson make concerning Mr Dimitropoulos’ employment?
Plainly, the first matter to contend with is resolution of the factual question as to what, if any, decision was made by Mr Pawson concerning Mr Dimitropoulos’ employment.
In the first Pawson affidavit, Mr Pawson explained that after joining SEMPHN in late January 2022, he took the time to meet with Executive Team Members and staff members who reported to him, including Mr Dimitropoulos, to understand the business and the nature of the work that these individuals were performing. In the case of Mr Dimitropoulos, this involved an understanding of the type of reports that he had been asked to generate during his time at SEMPHN. During this exercise, Mr Pawson came to appreciate that Mr Dimitropoulos had prepared work at the request of the former CEO, Ms Deveny, which had not been shared with the broader business of SEMPHN. Mr Pawson also explained that a view had been communicated to him by both Mr Wrigley and Ms Daraganova, that it was unclear why the key responsibilities of Mr Dimitropoulos’ role were sitting outside the BID, and instead reporting to the CEO.
Mr Pawson said that early in his tenure as CEO of SEMPHN and upon review of the existing organisational structure, he also formed a view that it was not an optimal structure to have the key responsibilities of Mr Dimitropoulos’ role reporting directly to the CEO. Mr Pawson explained that his concern was not with the work output or quality of Mr Dimitropoulos but instead reflected his desire to consolidate functionality in the belief that the key responsibilities of the role were well suited and closely aligned to the core functions of the BID.
Mr Pawson said that he arranged a meeting with Mr Dimitropoulos and Mr James on 23 May 2022 and that the letter provided to Mr Dimitropoulos on that date accurately reflected his reasoning and recollection of that meeting. Mr Pawson said that the purpose of the meeting that had been scheduled for 31 May 2022 would have been to seek Mr Dimitropoulos’ views and discuss redeployment opportunities. However, the meeting did not go ahead.
In cross-examination, Mr Pawson agreed that the first time he came to understand that there was a proposal to make Mr Dimitropoulos’ position redundant was on 27 February 2022, when he received a draft letter of redundancy from Mr James. He explained that when he received the second draft redundancy letter on 27 April 2022, he understood the proposed date of termination that it identified as being “subject to the consultation process required in a proposed redundancy” meaning that it “may or may not have occurred”.
Mr Pawson agreed that by early April 2022, Mr Dimitropoulos’ duties of providing the strategic plan report and the business plan report were no longer required by SEMPHN and that he (Mr Pawson) was not providing Mr Dimitropoulos with any new requests for ad hoc reports. He refuted the suggestion however that Mr Dimitropoulos was doing very little for the respondent at this time, offering the explanation that Mr Dimitropoulos was continuing to meet the requests that he provide information to allow Mr Pawson to get across the reports that he (Mr Dimitropoulos) was producing.
Mr Pawson agreed that by late April or early May 2022, he had seen enough to know that the respondent did not require a Performance Reporting Specialist to report to the CEO. He was however keen to point out that the reasoning reflected a decision based on reporting structures within the organisation, rather than a fixation on the role performed by Mr Dimitropoulos and whether it continued to be required at all.
Mr Pawson was asked about his evidence at [19] of the first Pawson affidavit and at [16] of the second Pawson affidavit which, respectively, read:
19.I want to emphasise that the decision I made was to make the role of Performance Reporting Specialist redundant and transfer the key responsibilities of that role into the BI Directorate. I did not make a decision to ask or require Mr Dimitropoulos to leave SEMPHN and that was not my intention.
16.At paragraph 19 of my previous affidavit dated 4 September 2023 I refer to the decision I made to make the role of Performance Reporting Specialist redundant, it is more accurate to refer to the decision as a decision to propose to make the role redundant.
It was Mr Pawson’s evidence that the new paragraph was intended to make it clear that the decision made was for a proposed redundancy.
Mr Pawson acknowledged that at relevant times he was receiving advice from Mr James on human resources matters and that this extended to the respondent’s obligations under the Enterprise Agreement. He agreed that he followed Mr James’ advice on such things. In this context, Mr Pawson was asked whether he had been given advice by Mr James in April 2022 to the effect that redeployment prospects for Mr Dimitropoulos would be “remote”. Mr Pawson could not recall receiving this advice and explained that “the way I looked at this process going into this – it might not be the same role as Arthur was in then, you know, in terms of reporting to me, but there could be other options in which he’s interested in, and so you can enter into the consultation process in good faith to explore that with an individual and, in this case, with Arthur”.
Mr Pawson was questioned as to his understanding of the word “redundancy”, which produced the following exchange:[10]
[10] T119, lines 4-18.
Mr White:When you say that you were proposing to make the role of performance reporting specialist redundant and not that you had made it redundant, is that because Mr Dimitropoulos had not yet been terminated and that he may yet have been redeployed?
Mr Pawson: Yes. Yes. That’s correct. But the – the potential redeployment takes into consideration those three areas.
Mr White: Yes?
Mr Pawson:And you begin the process, and then, following that, there is a consultation process, and any of those options are on the table during that consultation process.
Mr White: Yes. But you had already decided that the position of performance reporting specialist was no longer required?
Mr Pawson: That, I agree with. Yes.
In cross-examination, Mr Pawson confirmed that it was on 3 May 2022, when he met with Mr James, that he made the decision to start the consultation process concerning the Performance Reporting Specialist role. However, he disagreed with the suggestion that this decision was made in the knowledge that Mr Dimitropoulos would not be redeployed within SEMPHN or in the knowledge that the process would end in Mr Dimitropoulos’ employment being terminated. Mr Pawson maintained that the three options referred in the letter of 23 May 2022 (reproduced at [21] above) were each potential outcomes.
Mr Pawson was criticised in cross-examination for having called the meeting on 23 May 2022 with Mr Dimitropoulos on two hours’ notice and with no offer to bring a support person. Mr Pawson defended this decision on the basis that the meeting was designed to outline the thinking, as per the letter given to Mr Dimitropoulos on that day, and the process with the beginning of the consultation.
As to what was discussed during the meeting on 23 May 2022 the parties had differing accounts which it will be necessary to reconcile given the emphasis each side placed on what was (or was not) communicated as exposing the true character of the decision made by Mr Pawson. The starting point is the evidence of Mr Dimitropoulos which is contained primarily in the first Dimitropoulos affidavit. It reads:[11]
[11] Paragraph 100 of the first Dimitropoulos affidavit; CB 88.
100. On 23 May 2022 at around 3.30 pm, I met with Mr Pawson and Mr James. During that meeting:
(a)       Mr James told me that:
(i) my role was being made redundant effective from 17 June 2022;
(ii) there was no need for me to continue working past 23 May 2022 and that my notice would be paid out;
(iii) the decision to make my role redundant flowed from the Strategy Refresh;
(iv) there were no roles in    SEMPHN for me given the size of the organisation, and given this, that I should “manage my expectations during the redundant consultation”; and that
(v)       he and Mr Pawson wanted to keep the matter “between us”.
(b) I asked Mr James what the point of having a consultation process was given that the decision had already been made for my role to be made redundant. Mr James did not respond;
(c) I told Mr Pawson that I did not think his and Mr Wrigley’s behaviour had been aligned with SEMPHN’s values and had caused me to feel ostracised;
(d) I told Mr Pawson that I felt like he had been trying to force me to resign by ostracising me, and because I hadn’t resigned he was now trying to get rid of me by way of redundancy. Mr Pawson said words to the effect of “that’s not the case at all, I’m sorry you feel that way”;
(e) I told Mr Pawson that I could not understand why I had not been provided with more notice of the redundancy or an opportunity to apply for the multiple roles in the BID which I was capable of performing, and indeed were roles of the kind that I had been performing for the past 21 years. Mr Pawson did not respond.
Mr Dimitropoulos was questioned about this account. Although he acknowledged that he had been told at the meeting that it marked the beginning of a consultation process and further meetings were foreshadowed, he did not resile from his evidence about the statements attributed to Mr James and Mr Pawson. He insisted that he had been told that the role had been made redundant and as far as he was concerned, any consultation process was “a farce”.
In the second James affidavit, Mr James explained that it had been agreed with Mr Pawson that he (Mr Pawson) would discuss the operational reasons for the proposed redundancy with Mr Dimitropoulos while Mr James would focus on the HR implications and outcomes for the proposed redundancy. Mr James denied that during the meeting he had given a direction to Mr Dimitropoulos to stop work immediately and that his notice period would be paid out. He also denied that he made a statement to the effect that there were no redeployment options available. Instead, Mr James relied upon a set of handwritten notes taken during the meeting and which had later been transcribed, as accurately recording the matters discussed during the meeting.[12] The notes as transcribed (and corrected) read:
[12] Annexure TJ-7 to the second James affidavit; CB 624-628.
Meeting with Arthur D 23 May 2022
·Proposal to declare role redundant
·Consultation process
·Feeling ostracised. No input into strategy refresh.
·No engagement with QP. Ostracised from.
·Are we a value based organisation
·Feels professionally ignored. Emails unresponded from QP and SW
·Feels engineered out of the role
·Feels pushed aside – AD feels the writing on the wall
·AD very disheartening (AD feels strong bias)
·QP not about performance or quality of work
oBest structure that suits the Directorate/Business
·Capability not there in BI team
·Works after hours to get the job done
·Not responded to email invitation
·QP apologetic for not responding to some of AD’s emails
·Next steps:-
oRedeployment options
oAD how to mitigate redundancy
oWelcome the opportunity to follow up meeting
·Avoid a Thursday for our next meeting

Mr James was cross-examined about his recollection of the meeting and events that preceded it. It was his evidence that there had been discussions by some staff members of the business for about six months about the redundancy of Mr Dimitropoulos’ role and that he had been involved in these discussions for around six months, coinciding with the email exchanged with Mr Beres in December 2021 (referred to at [13] above). Mr James acknowledged that over this period he had given thought to whether there would be redeployment options and that in that context had discussions with Ms Daraganova about the capacity of the BID to absorb Mr Dimitropoulos. He agreed that by 8 April 2022 he had formed the opinion that redeployment options would be remote on the basis that Mr Dimitropoulos wanted to report to the CEO in his role and did not wish to become part of the BID.
As far as the meeting of 23 May 2022 was concerned, Mr James agreed that he had not referred to a specific position that might form part of a redeployment opportunity and he accepted that he had not suggested to Mr Dimitropoulos that a new position would be created for him within the BID. However, he disagreed with the suggestion that by the time of the meeting, he knew that there would be no redeployment options and denied that he said this, including by reference to the size of the organisation.
Mr James agreed that the idea communicated in the meeting and the letter provided to Mr Dimitropoulos after its conclusion, was that upon redundancy being confirmed, Mr Dimitropoulos would be paid out notice and wouldn’t be required to continue working. However, Mr James denied that during the meeting he had told Mr Dimitropoulos that there was (in the immediate context) no need for him to continue working and his notice would be paid out.
Mr James was asked about his notes of the meeting and acknowledged that they were not an exhaustive record of everything that had been said. He denied that the reference to “how to mitigate redundancy”, being one of the three identified “next steps” was a reference to how to mitigate the effects of the redundancy. He said instead that it was intended to mean “is there anything that we can do that you’ve thought of to mitigate the redundancy, meaning that the redundancy would not proceed”. Mr James did however agree that he had not told Mr Dimitropoulos during the meeting that a possible outcome of the process could be that he would continue in the role of Performance Reporting Specialist, reporting to the CEO. He denied that this was because a decision had already been made about the future of this role.
Mr James was taken to the email sent by Mr Dimitropoulos to members of the SEMPHN Board on 24 May 2022. He acknowledged having read the email. In the context of being reminded of the account given by Mr Dimitropoulos of the meeting of 23 May 2024, he agreed that he had not sent anything to the Board disputing the accuracy of that account.
Mr Pawson was also cross-examined about the meeting of 23 May 2024. He acknowledged that he did not have an independent recollection of exactly what had been said at the meeting and in this context, accepted that he could not positively refute the evidence of Mr Dimitropoulos that he had been told by Mr James that there were no roles available to him at SEMPHN and that he should cease work immediately.
Mr Pawson was asked whether he recalled apologising to Mr Dimitropoulos during the meeting about not responding to emails. He said that he did not recall this specifically, but accepted, based on Mr James’ notes, that this had occurred. Mr Pawson did not consider he had done anything wrong but nonetheless acknowledged there had been an “impact” on Mr Dimitropoulos.
Mr Pawson acknowledged having read the email sent by Mr Dimitropoulos to the SEMPHN Board on 24 May 2024. He defended his decision not to controvert Mr Dimitropoulos’ account of what had occurred at the meeting the day prior on the basis that he didn’t see a need in circumstances where there was a complaint that needed to be formalised, and it would be unhelpful to respond to any of the specifics before the process had commenced.
Not surprisingly, the parties invited the Court to view this evidence through different lens.
Mr Dimitropoulos submitted that, despite not recognising it as such, what Mr Pawson described through his evidence was a final decision to make Mr Dimitropoulos’ position redundant. Mr Dimitropoulos placed particular emphasis on Mr Pawson’s acknowledgement that what he had been describing as a “proposed redundancy” reflected the situation that Mr Dimitropoulos had not yet been terminated and had not yet had an opportunity to consider redeployment options.
Mr Dimitropoulos submitted that there was however a basis for the Court to go further and to find that the evidence reflected the reality that by the time of the decision to make Mr Dimitropoulos’ position redundant, Mr Pawson knew that there would be no redeployment opportunities so that the decision, albeit characterised as one involving redundancy, was in effect a decision to terminate Mr Dimitropoulos’ employment.
Mr Dimitropoulos acknowledged that Mr Pawson had denied that his decision possessed this character but submitted that there were two reasons why his denial should be doubted. The first was that the Executive Leadership Team had been considering Mr Dimitropoulos’ position and his potential redundancy, since at least December 2021. Furthermore, Mr James had offered the opinion in an email to Ms Daraganova that he regarded redeployment prospects as remote. It was also the case that in an organisation of approximately 90 employees (so not particularly large) it was highly improbable that if any redeployment option was available, Mr Pawson would not have already been aware of it.
The second reason offered by Mr Dimitropoulos was that Mr Pawson’s denial was said to be inconsistent with what, on Mr Dimitropoulos’ account, transpired during the meeting of 23 May 2022. In this regard, Mr Dimitropoulos invited the Court to find that Mr James had told him that, due to the size of the organisation, there would be no redeployment opportunities at SEMPHN and that he had said to him that he (Mr Dimitropoulos) would not have to work past 23 May 2022, being the date of the meeting.
Mr Dimitropoulos challenged the respondent’s reliance on the letter that was provided to him on 23 May 2022 as an accurate account of the meeting. This was because, as the evidence revealed, the letter was the latest version of a letter that had first been written in February and had since undergone revisions. It was said to be significant that Mr James had accepted in cross-examination that he had finalised the letter before the meeting with Mr Dimitropoulos was even conducted. The status of the letter as a contemporaneous record of the meeting was tenuous.
Where there was a direct contest between the evidence of Mr Dimitropoulos and Mr James, and where the evidence of Mr Pawson (who could not recall what was said during the meeting) had no corroborative value, Mr Dimitropoulos submitted that his account should be preferred. This was because Mr James had relied substantially on his handwritten notes of the meeting (which were not exhaustive) and had been unable to recall whether the meeting had been held in person or online. His independent recall of the meeting was questionable.
Mr Dimitropoulos’ account on the other hand, was supported by a contemporaneous written record in the form of the email sent to the SEMPHN Board on 24 May 2022 and which he had prepared the night of the meeting. It was said to be significant that neither Mr James nor Mr Pawson sought to correct the account that it contained. Mr Dimitropoulos had otherwise demonstrated a clear recollection of the meeting and communication of key messages, being that he was being made redundant, there would be no redeployment opportunities for him, he was given an end date, and there was no need to work out his notice period. His evidence, if accepted, was strongly suggestive of a redundancy process that had been predetermined.
SEMPHN submitted that the evidence revealed that the only decision made by Mr Pawson was one that involved a proposal to make the Performance Reporting Specialist role redundant and to have an initial meeting to start the process of consultation in relation to that proposal.
SEMPHN submitted that both Mr Pawson and Mr James were clear in their evidence that they had entered into this consultation process in good faith, and both maintained that it involved a proposal to make the role redundant, rather than a final decision about its future. They had both asserted that they were open to other options, including those identified by Mr Dimitropoulos, which were not limited in any way. Mr Dimitropoulos had chosen not to participate in the consultation process and had not identified any options for redeployment or as an alternative to redundancy. However, just because the process had stalled did not justify a finding that the redundancy of his position was a fait accompli.
I consider that the decision made by Mr Pawson was to make the position of Performance Reporting Specialist, held by Mr Dimitropoulos, redundant.
I have arrived at this conclusion for the following reasons which together paint a compelling picture that the fate of the Performance Reporting Specialist Role had been determined decisively by at least the time that Mr Dimitropoulos participated in the meeting on 23 May 2022.
First, I accept the account provided by Mr Dimitropoulos as to what was communicated to him during this meeting. Although there is evidence before the Court, which I will explore in greater detail later in these reasons, that Mr Dimitropoulos had a distorted view of his treatment at SEMPHN, by which he sought to transform benign or unremarkable events into those that possessed a more sinister character, I do not consider that this propensity to view events in a particular light casts doubt on the credibility and reliability of Mr Dimitropoulos as a narrator or historian.
To the contrary, I accept that his evidence as to the key messages communicated during the meeting – including that he would not be required to continue working and would be paid out his notice period – was clear and unwavering and corroborated by the email that he composed on the evening that the meeting took place. While the language and tone of this email betrayed a level of distress in Mr Dimitropoulos, I do not consider that this provides a reason to impeach his record of what occurred. To the contrary, the distress was a likely reaction to what he heard and understood from the meeting.
While I accept that Mr James’ notes were an accurate record of what occurred, as far as they went, it was the case that they were not exhaustive of all matters discussed. It is entirely plausible that things were said, including comments that were made “off script”, that did not make their way into these notes.
Second, Mr Pawson had difficulty maintaining the distinction between a proposal to make the Performance Reporting Specialist position redundant and a decision to make the role redundant which difficulty I consider reflected the reality of the situation, being that the decision was a final one. In this respect, Mr Pawson on a number of occasions, including in the first Pawson affidavit, identified the decision as one involving redundancy, and it is also the case that when confronted with the proposition, he readily agreed that the redundancy was to occur, subject only to the consultation process which, on the advice of Mr James, he understood was a necessary pre-requisite to it taking effect. The evidence of Mr Pawson overwhelmingly was to the effect that he saw no future for the Performance Reporting Specialist role in SEMPHN, including because, as he had come to appreciate in the first few months of his tenure, it did not align with contemporary thinking around the reporting structure for the organisation.
Third, the redundancy decision analysis is also consistent with the evidence of Mr James to the effect that he had never suggested that an outcome of the consultation process would involve maintenance of the status quo or absorption of the Performance Reporting Specialist role in the BID. I infer this is because such a prospect was not being entertained by the respondent.
D.2.3.2 Did the redundancy decision involve adverse action?
I did not understand SEMPHN to argue that a decision to make Mr Dimitropoulos’ role redundant would not constitute a species of adverse action, whether characterised as involving an injury to Mr Dimitropoulos in his employment or an alteration to his position to his prejudice. Plainly a decision to make a person’s role redundant has a profound impact on the security of that individual’s employment and legal entitlements which underscore it and comfortably satisfies both category of adverse action.[13] It follows therefore that the decision taken by Mr Pawson, which can be attributed to SEMPHN by virtue of the deeming provisions in the FW Act, subjected Mr Dimitropoulos to adverse action.
[13] That redundancy involves a form of adverse action has been recognised in numerous decisions including in Qantas Airways Limited v Transport Workers Union of Australia (2023) 278 CLR 571 at [89] per Steward J.
While I have not ultimately accepted the submission of Mr Dimitropoulos that the decision taken by Mr Pawson could be assimilated to a dismissal decision, I consider that the argument had much force. However, I accept the evidence of Mr Pawson that he had not altogether discounted the possibility that Mr Dimitropoulos might yet be accommodated in a different part of the respondent’s business. Mr Pawson’s evidence on this point was clear and consistent and I accept his evidence that he had been quarantined from comments expressed by others within the organisation that prospects of redeployment were remote.
I wish also to record that if I am wrong about the character of the decision taken by Mr Pawson and it should instead be understood as a decision to propose to make the role of Performance Reporting Specialist redundant that I would nonetheless have found this to involve the taking of adverse action against Mr Dimitropoulos.
Mr Dimitropoulos submitted that a decision of this kind would involve an alteration to Mr Dimitropoulos’ position to his prejudice and in support of this contention relied on the decision of a Full Court of the Federal Court in Community and Public Sector Union v Telstra Corporation Limited (2001) 107 FCR 93 where at [17] the Full Court (Black CJ, Ryan and Merkel JJ) said, by reference to the former s 298K(1)(c) of the Workplace Relations Act 1996 (Cth):
17.The question is whether by sending the e-mail to its recipients, Telstra had altered the position of any of its employees to the employee’s prejudice within the meaning of s 298K(1)(c). In Patrick Stevedores (CLR at 18) the majority of the High Court held that the sub-section covers “not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. The majority also observed (at 20) that the reorganisation of companies within the Patrick Group resulted in the security of the employer companies’ businesses being “extremely tenuous” with the “security of the employees’ employment [being] consequentially altered to their prejudice”. The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure. Although this issue was in dispute, the majority appears to have had no difficulty in accepting reduced security of future employment as falling within s 298K(1)(c) because it brought about an adverse affection of, or a deterioration in, the advantages enjoyed by the employees before the reorganisation.
Mr Dimitropoulos submitted that on an analogous basis, a decision to propose to make his position redundant left his employment less secure, notwithstanding the decision had not yet crystallised in a definite outcome. In this respect, because the proposal had advanced to the stage where notice had been given to Mr Dimitropoulos and a consultation process commenced, it had transformed from an alteration that was merely “possible or hypothetical” to one that was “real and substantial” (relying on the distinction identified at [18] of Community and Public Sector Union v Telstra).
SEMPHN resisted the contention that a decision to propose to make a position redundant could involve a form of adverse action. This was because it was not a final decision and was properly described as hypothetical in quality where the respondent remained open to other options that Mr Dimitropoulos could identify.
I accept that a decision to propose to make a position redundant will not universally involve a form of adverse action. Much will depend on the environment in which the decision is made and the circumstances which attend the decision. In this case, the evidence before the Court reveals not only that redundancy was and had been on the table for at least six months, but that senior office holders held the view that redeployment was remote as a possibility and that no alternatives to redundancy had been identified or promoted by the respondent. A decision to propose to make the position of Performance Reporting Specialist redundant in these circumstances reduced the security of Mr Dimitropoulos’ employment in a way that was real and meaningful and involved adverse action within the meaning of the FW Act.
D.2.4 Was the adverse action taken because Mr Dimitropoulos exercised a workplace right to make a complaint about his employment?
No issue was taken in this proceeding as to the identity of the relevant decision maker, who was at all times identified as Mr Pawson. Furthermore, I can discern nothing in the evidence before the Court that would suggest that there were other employees or office holders of SEMPHN who made a material contribution to the redundancy decision, such as would warrant an inquiry as to their reasons and motivations for making that contribution. The focus must therefore be on divining the reasons for the decision through an interrogation of the reasons offered by Mr Pawson as assessed against the established objective circumstances.
Because the case advanced by SEMPHN involved the contention that the decision was one to propose a redundancy, the evidence of Mr Pawson reflected this. For example, in the second Pawson affidavit he deposed that the decision to begin the consultation process regarding the proposed redundancy was based on his consideration of the most effective and logical business structure and whether there were multiple roles in the business performing the same or similar roles. He stated that there was no connection between the issue raised by Mr Dimitropoulos regarding access to information and his decision regarding the proposed redundancy.
Mr Pawson was cross-examined about his reasoning process and the business case for the redundancy. This produced the following responses:[14]
[14] T125 line 23 to T126 line 17.
Mr White: Is it a fair characterisation to say that your business case – the business case that you’ve put forward in this paragraph for the redundancy, was that Mr Dimitropoulos’ role overlapped with the work of the BID?
Mr Pawson:      Yes, it did.
Mr White: Would you agree that one of the functions of Mr Dimitropoulos’ role was to report on the progress of – or it had been – one of the functions of his role had been to report on the progress of SEMPHN’s individual divisions?
Mr Pawson:That was unclear to me. Through the process, there were a number of differing reports going on across the organisation including the ones developed by Arthur.
Mr White:Would you agree that it was necessary that somebody provide reports on the progress of the individual divisions of SEMPHN?
Mr Pawson: Yes, that’s exactly why I was looking at the function of reporting in the organisation and the fact that it was split across a number of areas, and it wasn’t working.
Mr White: So at a more general level, would you agree that there could be a potential conflict of interest if the Building Intelligence Directorate were to prepare reports on its own performance?
Mr Pawson:No I don’t. It’s like asking, is it – the finance department prepares the finance reports, that reflect the finance position of the organisation, which includes its own performance. So of course not. HR prepares HR reports which includes its own performance and the wider HR function across the organisation. So that would be normal standard practice in the organisation I’ve been involved in.
Mr White: I referred earlier to the business case and the summary of the business case put forward in paragraph 15. You’ve not put forward any separate planning or strategy document setting out the business case for Mr Dimitropoulos’ redundancy, have you?
Mr Pawson:     No. I haven’t.
Mr White:       And that’s because none exists?
Mr Pawson: I didn’t think it was required. At that stage we were still working through the strategy due to Arthur’s lack of experience in health. We needed people with significant experience in health to be involved in strategy, and I didn’t think it needed to be a part of the business case.
Mr White: And I suggest to you, Mr Pawson, that the business case for Mr Dimitropoulos’ redundancy was not strong?
Mr Pawson:     I would disagree with you. Most definitely.
Mr White: I suggest to you that the true reason for your decision, made in early May, was that Mr Dimitropoulos had complained to you about being ignored during the meeting on 27 April 2022?
Mr Pawson:I totally disagree with you on that. It was a considered position over a number of months, and it wasn’t about Arthur. It was about the best function for reporting in the organisation, and how best to organise reporting in the organisation.

Mr Dimitropoulos submitted that there were sound reasons to reject Mr Pawson’s explanations and denials about the redundancy decision.
The first reason identified concerned the timing of the decision. The bullying complaint was made on 27 April 2022 and Mr Pawson’s evidence was that he had made a decision to commence the consultation process no later than 3 May 2022, being a period of just three business days after the communication of the complaint. This timing supported an inference that the decision followed from the complaint.
The second reason identified was that the business case for the redundancy was “practically non-existent”, including because it was not supported by any documentation or analysis that was prepared by the respondent. Mr Dimitropoulos noted that the only documents that were relied upon by SEMPHN to support the redundancy proposal were communications between Mr Pawson and Mr James concerning HR matters and that Mr Pawson had conceded that no planning document setting out the business case had been prepared.
Mr Dimitropoulos submitted that in the absence of a rational countervailing reason for making his position redundant, the Court should not accept, on the balance of probabilities, that the business case was the reason for the decision. Further, in circumstances where no other reason had been advanced by SEMPHN as a reason for the redundancy, the Court should find that SEMPHN had not discharged its evidentiary burden.
SEMPHN submitted that it was abundantly clear from the evidence that the meeting of 27 April 2022 was not a reason that Mr Pawson decided to propose to make Mr Dimitropoulos’ role redundant.
SEMPHN submitted it to be significant that conversations around the redundancy of the Performance Reporting Specialist role had been going on well before the April meeting and well before Mr Pawson joined the respondent. Evidence of this could be found in the email from Mr Beres to Mr James (referred to at [13] above) as well as the unchallenged evidence of Ms Daraganova that an action point for a meeting of the Executive Leadership Team held in August 2021, had been that Mr Dimitropoulos’ role would report into the BID, instead of directly to the CEO.
SEMPHN submitted that the documentary evidence corroborated Mr Pawson’s explanation that he wanted to take his time to get to know the business and its requirements before reaching a view about whether or not the Performance Reporting Specialist role should be made redundant. It was also significant that the unchallenged evidence of Mr Pawson was that he did not understand the matters communicated during the meeting of 27 April 2022 to be a bullying complaint. SEMPHN submitted that the fact that Mr Pawson did not understand the matters communicated to possess the character ascribed to them, was a complete defence to Mr Dimitropoulos’ case. If there was no bullying complaint in Mr Pawson’s mind, it would follow logically that it could not have affected his decision.
Having reflected on all the evidence in this case and applying the principles identified in Alam at [14] I am satisfied that SEPMHN has discharged its burden to disprove that it made the redundancy decision for the reason that Mr Dimitropoulos had exercised a workplace right when he made the bullying complaint.
While I accept that SEMPHN produced no evidence of a planning or strategy document around the redundancy, it is clear that there had been consistent discussion in the business around the prospect of a redundancy of the Performance Reporting Specialist role and that these discussions had commenced at least by the second half of 2021 and carried forward into Mr Pawson’s tenure as CEO. The narrative around the role was also consistently focused on the reporting structure within the organisation and the view taken that the reporting functions inherent in the role performed by Mr Dimitropoulos were best suited to the BID, rather than in a role that reported into the office of the CEO.
While Mr Pawson took the time to independently assure himself that the proposed realignment should be given effect, the information before the Court suggests that there was a sense of inevitability that the role would be made redundant. This was illustrated by the fact that the drafting process of a letter that eventually crystallised in the letter given to Mr Dimitropoulos on 23 May 2022 commenced in February 2022.
Furthermore, I accept the evidence of Mr Pawson that when he came to make the redundancy decision, he was not influenced in any way by the bullying complaint. Mr Pawson was firm in his denial that anything said in the meeting of 27 April 2022 had a bearing on the decision that he later made to commence the redundancy consultation process. While the decision was made within a few days of the meeting, I do not consider this to be consequential in this case because of the observations I have made about the inevitability of that decision.
However, there are further reasons for this conclusion. In the first place, the asserted link between the bullying complaint and the redundancy decision is tenuous. While Mr Pawson might be criticised for not appreciating the nature and gravity of the matters communicated by Mr Dimitropoulos during this meeting, especially given his position as CEO and the training on bullying that he had received, I accept his evidence that he did not appreciate that Mr Dimitropoulos had raised in that forum matters in the nature of a bullying complaint. The meeting indeed appears to have had little impact on him.
While I accept that it is not necessary for a decision maker to understand that the making of a complaint possesses the character of a workplace right, I do consider it necessary for the decision-maker to at least have an appreciation that qualitatively it has the characteristics of a complaint about bullying. The lack of this appreciation means that the making of the complaint could not have operated in the mind of Mr Pawson when he came to make the redundancy decision. While less decisive, it is also the case that the criticisms raised by Mr Dimitropoulos were primarily directed at Mr Wrigley, rather than at Mr Pawson, which enhances the prospect that he (Mr Pawson) would be actuated by them.
I find that the making of the bullying complaint did not contribute in a substantial or operative way to the redundancy decision and for that reason Mr Dimitropoulos’ case based on a breach of s 340(1) of the FW Act cannot succeed.
E. ALLEGED CONTRAVENTIONS OF ENTERPRISE AGREEMENT
E.1 Introductory matters
Mr Dimitropoulos alleges that SEMPHN engaged in three contraventions of the Enterprise Agreement constituted by its failure to consult with him before making a decision to make his role redundant and prior to deciding to expand the BID and by its failure to provide Mr Dimitropoulos with a safe working environment. Mr Dimitropoulos seeks declarations of contravention, as well as orders for compensation and civil penalties.
It is for Mr Dimitropoulos to establish these alleged contraventions in law and in fact and he must do so to the civil standard of proof on the balance of probabilities, calibrated to take into account that this is a penalty proceeding with the attendant gravity and consequence if a contravention is proved.
The Enterprise Agreement was made and approved during the transition period to the FW Act pursuant to the provisions of Pt 2-4 of the FW Act as modified by Schedule 7 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
Section 50 of the FW Act provides that “[a] person must not contravene a term of an enterprise agreement”. It is common ground that the Enterprise Agreement is an “enterprise agreement” within the meaning of s 50 of the FW Act and it applied to Mr Dimitropoulos’ employment with SEMPHN.
E.2 The obligation to consult
Clause 17 of the Enterprise Agreement provides as follows:
17       INTRODUCTION OF MAJOR CHANGE
17.1     Preamble
The parties agree to co-operate in the management of workplace change to maximize mutual benefits. They will consult as early as possible about any proposed change which is likely to have a significant effect on Division employees.
17.2     Duty to Consult
17.2.1Prior to making a definite decision to introduce major changes in program organisation, structure or technology, production or such other changes that are likely to have significant effects on employees, the Division will consult with the employees who may be affected by the envisaged changes and the employees’ chosen representative(s).
17.2.2 “Significant effects” referred to in clause 17.1 include
(a)       Termination of employment;
(b) Major changes in the composition, operation, or size of the Division’s workforce, or in skills required;
(c) Elimination or diminution of job opportunities, promotion opportunities or job tenure;
(d)       Alteration of hours of work;
(e)Need for retraining or transfer of employees to other work or locations; and
(f)       The restructuring of jobs.
17.2.3If the Division decides to proceed with the change proposal, it will consult with the employee(s) affected and their nominated representative(s), and endeavour to reach an agreement about how the change will be implemented and how detrimental outcomes for affected employees can be avoided or mitigated.
17.2.4Fort the purposes of such consultation and discussion, the Division shall provide in writing to the employees concerned and their representative(s), all relevant information about the changes, including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees, provided that the Division will not be required to disclose confidential information, the disclosure of which would be detrimental to the Division’s interests.
It has been recognised that “[w]here there is a requirement to consult, the requirement is of fundamental importance and is “no empty term” and is “never to be treated perfunctorily or as a mere formality”.[15]
E.3 Did SEMPHN fail to consult in relation to a major workplace change?
[15] Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 at [211] citing Kutlu v Director of Professional Services Review (2011) 197 FCR 177 at 198 per Flick J.
E.3.1 The case advanced by Mr Dimitropoulos
Mr Dimitropoulos contends that SEMPHN had an obligation to consult with him as an employee who might be affected, in respect of two “major changes”. The first was identified as the creation of the BID. The second was described as the decision to restructure the organisational chart to remove from it the role of Performance Reporting Specialist performed by Mr Dimitropoulos.
Mr Dimitropoulos submitted that in respect of the creation of the BID, the question devolved to whether he was an employee who may be affected by the envisaged change (referring to the language of cl 17.2.1). Mr Dimitropoulos placed emphasis on the provisional “may” and submitted that this invited an inquiry as to whether the objective observer, at the time of the decision, could have foreseen that the employee may have been affected by the decision.
Mr Dimitropoulos submitted that there were several factors which suggested he came within the group of affected employees.
The first identified was that he was in fact affected by the change. This was said to be the case because the letter given to him on 23 May 2022 (reproduced at [21] above) explicitly identified the reason for the redundancy as being the creation of the BID and the consolidation of data and reporting functions into a single directorate.
The second (related to the first) was that in circumstances where Mr Dimitropoulos’ position had always been about business reporting and analytics and where the BID had been established to achieve similar objectives, it should have been apparent at the time of its creation that questions might be asked about whether the overlap might create inefficiencies in the business which might later be redressed in a way that would impact on Mr Dimitropoulos’ role. In other words, it was reasonably foreseeable that Mr Dimitropoulos’ role might have been affected by the creation of the BID.
As to the failure to consult in relation to the change that precipitated the redundancy, being the removal of Mr Dimitropoulos’ position from the organisation chart, the case rested principally on the Court finding that as at early May 2022, Mr Pawson had made a decision that the Performance Reporting Specialist role was no longer required and that a final decision had been made at around that time to make the position redundant.
If that factual premise was established, it followed on the uncontroverted evidence that no consultation had been done with Mr Dimitropoulos before that date – indeed Mr Pawson agreed in cross-examination that Mr Dimitropoulos had not been made aware of the proposal to make his position redundant before the 23 May 2022 meeting – that the Court should be satisfied that there was a failure to consult in relation to that second example of workplace change.
E.3.2 The case advanced by SEMPHN
SEMPHN characterised Mr Dimitropoulos’ claim as one that involved reverse engineering and submitted that Mr Dimitropoulos had failed to establish that he was a person who was likely, or was potentially, going to be affected by the creation of the BID. This submission was said to reflect Mr James’ unchallenged evidence that at the time of the creation of the BID, the organisational thinking was that Mr Dimitropoulos’ role was to stay the same, including that he would remain in the CEO division, with the same reporting structure and that the creation of the BID was the amalgamation of two previously existing reporting units. Mr James gave evidence that this structure had been confirmed to him by the (then) CEO, Ms Deveny, and that he had no reason to consider that the role of Mr Dimitropoulos was susceptible to change.
SEMPHN submitted that it strained the language and the workability of the consultation provision to expect it to accommodate a level of hypothetical thinking that might encompass projections about what a new CEO might do about the reporting structure some twelve months after the creation of the BID. The provision when applied at the time that the BID decision was made (being December 2020) did not create any obligation in respect of Mr Dimitropoulos because at that time, there was no indication that his role would change.
SEMPHN’s submissions around the obligation to consult with Mr Dimitropoulos concerning the organisational change that led to a final decision to make his role redundant were compromised by its insistence that there was no final decision made about the future of his role. The case put forward by Mr Dimitropoulos was not resisted on any other basis. It was said simply that because Mr Pawson had not yet made up his mind about the Performance Reporting Specialist role as at early May 2022, there was no obligation to consult engaged prior to this date. To the extent that an obligation to consult was subsequently engaged, SEMPHN lawfully commenced this process as of 23 May 2022 when it invited Mr Dimitropoulos to a meeting and attempted to commence the consultation process. SEMPHN could not be criticised because Mr Dimitropoulos chose not to participate in that process.
E.3.3 Consideration
Mr James and Mr Dimitropoulos were the only two witnesses in a position to give direct evidence about the establishment of the BID, although I accept that Mr James was closer to these events given his role within the organisation.
Mr James deposed that effective from 4 January 2021, the BID of SEMPHN was established and although he did not make this decision, he was involved in consulting and meeting with relevant staff. It was his evidence that prior to the establishment of the BID, SEMPHN had two separate departments known as Systems Outcomes and Digital Health and these two departments were amalgamated to form the BID.
Mr James described the purpose of the amalgamation as being to bring data analysis and reporting into one business unit. He explained that the core functions of the BID were to collect, analyse and report on data in order to evaluate the performance of health services.
Mr James deposed that on 22 December 2020, he attended a meeting with staff members working in System Outcomes and Digital Health at which the planned creation of the BID was communicated and explained. All staff members of these two departments were offered a role in the newly established BID with the same salary, job title, work location, and hours of work. There were no proposed redundancies because of this amalgamation.
It was Mr James’ evidence that Mr Dimitropoulos was not involved in this process because he did not work in Systems Outcomes or Digital Health. Instead, at the relevant time he reported to the CEO, Ms Deveny, and this reporting line was not changed by the establishment of the BID.
None of Mr James’ evidence on this topic was challenged and I accept it to be accurate and reliable.
Mr Dimitropoulos’ evidence on the topic of the BID was limited to the following:
First, that he became aware of the establishment of the BID when he received an email from Mr James to all staff which contained the announcement.
Second, that the BID’s function was to perform reporting related to community needs assessments which function differed from Mr Dimitropoulos’ reporting duties, which were instead focused on reporting on the Board and the organisation’s capabilities and progress towards it strategic goals.
Third, that Mr Dimitropoulos was not aware of any consultation that took place before the BID was established, and he was not invited to participate in any meeting or other process in which he was given an opportunity to comment on the establishment of the BID.
In all other respects, Mr Dimitropoulos’ evidence largely aligned with that of Mr James. I note that while Mr James’ affidavit included reference to a conversation he had with Ms Deveny in which she purportedly told Mr James that she had consulted with Mr Dimitropoulos about the creation of the BID, SEMPHN did not ultimately rely on this evidence as part of its defence. This is possibly because of its hearsay character (to which objection was taken) and because Mr James was equivocal in cross-examination as to when this conversation was said to have occurred. He could not be sure that it had occurred before the establishment of the BID.
I am not satisfied that Mr Dimitropoulos has made out a case of breach of the obligation to consult him concerning the creation of the BID because I do not accept that at the time the decision was being made, he was a person who may be affected by the envisaged changes, even taking a beneficial view of this provision.
While I accept that ultimately the creation of the BID had a relationship to the security of Mr Dimitropoulos’ employment given that it was identified as a reason for the consolidation of the reporting functions of his role, there is no evidence that this relationship (and consequent impact) was reasonably foreseeable at the time that decisions about the creation of the BID were being made. In this respect, while there is an attractive logic to the submission of Mr Dimitropoulos that there was always a degree of symmetry between the core functions of his role and those which were reposed in the BID, which meant that there was an inevitability to him being impacted, the submission ignores the reality of the evidence that is before the Court. That evidence makes plain that at the relevant time, there was nothing to suggest that Mr Dimitropoulos’ role would be affected by the creation of the BID, especially where it involved the amalgamation of two pre-existing divisions that went on to employ the same cohort of staff, rather than the addition of an entirely new directorate. I note that Mr Dimitropoulos himself identified a difference in the function performed by the BID and the reporting duties that were integral to his role. This rather suggests that there was a proper basis for the maintenance of a view that the absorption of Mr Dimitropoulos’ role in the BID was not an inevitability and instead reflected shifting preferences that emerged after the decision about the creation of the BID was made.

I have reached a different conclusion as concerns the failure to consult with Mr Dimitropoulos about the redundancy of the Performance Reporting Specialist role.
In circumstances where I have earlier found that Mr Pawson made a decision to make the position held by Mr Dimitropoulos redundant and this decision had been made by at least the time that Mr Dimitropoulos participated in the meeting on 23 May 2022, the breach is self-evident.
The obligation created by cl 17.2 is clear in its terms. It requires consultation with an affected employee to occur prior to making a definite decision to introduce major changes that are likely to have significant effects on employees. “Significant effects” are defined inclusively but include termination of employment and elimination or diminution of job opportunities, promotion opportunities or job tenure. I consider that the effect of the redundancy decision raised as a genuine possibility, the prospect of Mr Dimitropoulos suffering each of these consequences.
Furthermore, there is no question that he was not consulted in advance of the redundancy decision. Instead, the consultancy process was to commence after the final decision had been made, notwithstanding efforts by SEMPHN to ascribe to it a different character.
E.4 The obligation to provide a safe working environment
Clause 20 of the Enterprise Agreement provides as follows:
20       SAFETY PROCEDURES
The parties are committed to adhering to their obligations under the Occupational Health and Safety Act 2004 (Vic). The employees agree that they will comply with the employer’s safety precautions and procedures, including the wearing of safety and protective clothing when and as required. The employer agrees that it will take all reasonably practicable steps to provide a working environment that is safe and without risks to health.
E.5     Did SEMPHN fail to provide a safe working environment?
E.5.1   The case advanced by Mr Dimitropoulos
Mr Dimitropoulos alleged that SEMPHN failed to provide him with a working environment that was safe and without risk to health because he was bullied at work by Mr Pawson and Mr Wrigley. Mr Dimitropoulos identified 18 separate instances of conduct which he said operated cumulatively to have a bullying effect on him. These instances of conduct were organised into one of four categories.
Mr Dimitropoulos described the first category as involving decisions made by Mr Pawson and Mr Wrigley that had the effect of stripping him of his core duties to the point that by May 2022, Mr Dimitropoulos was not performing any of his core functions at all.
The first of these decisions was a decision made by Mr Pawson to strip Mr Dimitropoulos of the duty to prepare the strategic plan report. Mr Dimitropoulos said that this decision was made in March 2022.
The second of these decisions was a decision made by Mr Wrigley to direct his assistant, Ms Leah Newton, to stop populating the operations plan. Mr Dimitropoulos said that this decision was significant because it was made in the knowledge that he required the data from the operations plan to prepare the business plan report. Mr Dimitropoulos alleged that this decision was made without any reference to him and had the effect of leaving him unable to perform his duties.
Mr Dimitropoulos submitted that when evaluating these decisions and their impact, the Court should not simply defer to the business justification for them having been made but should also take account of the surrounding context. Mr Dimitropoulos submitted that the effect of the decisions was to strip him of his remaining substantive duties, which had the further effect of freezing him out from his role and from the organisation. Mr Dimitropoulos submitted that the fact that both decisions were made without consultation or even forewarning and had been discovered by Mr Dimitropoulos only after he made his own inquiries, aggravated their impact. A further compounding feature of the decisions was that they had been communicated to Mr Dimitropoulos’ colleagues before they were communicated to him. This conduct exposed Mr Dimitropoulos to humiliation, in circumstances where he was continuing to try to gather data to perform his work from people who already knew that he was no longer required to perform that work. Mr Dimitropoulos submitted that both decisions were “gratuitous” and made him feel stressed and deeply disillusioned.
Mr Dimitropoulos identified as a third example of a decision made that affected his duties the decision of Mr Pawson not to involve him in the preparation of the new strategic plan in 2022. This decision was said to be lacking in justification in circumstances where Mr Dimitropoulos had been involved in preparing earlier iterations of the strategic plan and had a background in strategic planning through his work at SEMPHN.
The second category of conduct identified by Mr Dimitropoulos was described as the deliberate withholding of data from him, which he attributed principally to Mr Wrigley, and which was reflected in a series of emails exchanged between the two of them between 23 March 2022 and 8 April 2022. Mr Dimitropoulos submitted that throughout these emails, Mr Wrigley had either ignored or avoided his express requests for access to the program health data which was contained in a spreadsheet. Mr Dimitropoulos submitted that the justification provided by Mr Wrigley for this conduct, namely, that Mr Dimitropoulos was no longer preparing the business plan report, did not address the fact that Mr Dimitropoulos’ request reflected a more general need to obtain a line of sight over data produced by SEMPHN.
The third category of conduct identified by Mr Dimitropoulos was said to be constituted by 11 emails which were sent by him to either Mr Pawson or Mr Wrigley, between 25 March 2022 and 3 May 2022, and to which he had received no response. There was overlap between some of these emails that concerned the request for data. However, Mr Dimitropoulos relied on them on this independent basis.
The fourth category of conduct identified by Mr Dimitropoulos was described as his treatment in the course of the redundancy. Mr Dimitropoulos placed emphasis on what he alleged were procedural irregularities, including the convening of the 23 May 2022 meeting on two hours’ notice and without the offer of or ability to organise a support person and the decision to make his role redundant without consultation.
Mr Dimitropoulos submitted that each instance of conduct identified fit within an overall narrative of exclusion and ostracism that understandably caused him to believe that he was being forced out of employment, and which manifest in psychological symptoms. The conduct was described by Mr Dimitropoulos as unreasonable and injurious to his health and was left entirely unmitigated by SEMPHN, there being no evidence that it took any action in response to the bullying conduct.
E.5.2 The case advanced by SEMPHN
SEMPHN’s overall submission about Mr Dimitropoulos’ case of alleged workplace bullying was that it involved the application by Mr Dimitropoulos of inconsistent and unrealistic standards of conduct, and a lack of appreciation for the exigencies of a workplace undergoing a leadership transition.
As far as the first category of conduct was concerned, SEMPHN submitted that Mr Dimitropoulos had created a false narrative that the creation of the business plan report and the strategic plan report were his last remaining tasks so that to remove them, left him bereft of any work. Instead, Mr Dimitropoulos’ own evidence suggested that he remained busy at the time that he was exchanging emails with Mr Wrigley and Mr Pawson and that beyond the two reports identified, he had produced many other reports for the business, responsibility for which had not evidently been taken away from him. SEMPHN noted that as recently as May 2022, Mr Pawson had requested Mr Dimitropoulos to assist Ms Daraganova with a capability assessment and that Mr Dimitropoulos apparently retained responsibility for collating and synthesising information from board minutes.
SEMPHN submitted that construed in this light, the change in requirements for two reports was not an example of Mr Dimitropoulos being “frozen out” of his job but that in any event, decisions made concerning the allocation of work and what reports were needed, did not amount to bullying generally, or in this case specifically. This was especially so given that both Mr Wrigley and Mr Pawson, as newly installed COO and CEO respectively, had been given a mandate to review the reporting structure of the business and to create a new organisational strategy.
As far as it was suggested that Mr Dimitropoulos had been excluded from the drafting process of the new strategic plan, SEMPHN submitted that this was not borne out by the evidence, which included an email that invited the applicant (and other staff) to provide comment on the strategy refresh.[16] SEMPHN noted that Mr Dimitropoulos had not made any attempt to attend the strategy meeting and that his reasons for not participating were illuminating because they suggested that he wanted involvement at an executive level, despite not having that status. SEMPHN submitted that Mr Pawson had given a valid reason for not seeking out Mr Dimitropoulos’ contribution, namely that his skillset involved the analysis of data and production of reports, whereas what was required was experience and expertise around the creation of strategy for a health network.
[16] Annexure AD-49 to the first Dimitropoulos affidavit; CB 379-380.
As far as the second category of alleged bullying conduct was concerned, SEMPHN submitted that Mr Wrigley had ultimately responded to Mr Dimitropoulos’ request for access to the program health data but had refused access for what was described as a sound reason, namely, that the data recorded in the spreadsheet did not relate to the kind of metrics and data that Mr Dimitropoulos used for his reporting but instead related to a more nuanced assessment and collection of information from account managers in relation to various risks or other issues arising from the use of funds for their programs. Furthermore, in circumstances where Mr Dimitropoulos only sought the data “for line of sight, for potential future reporting”, the fact it was not made available to him did not prevent him from performing any of the tasks associated with his role.
SEMPHN reserved particular criticism for the third category of alleged bullying conduct, being the emails sent by Mr Dimitropoulos to Mr Pawson and to Mr Wrigley. SEMPHN submitted that the cross-examination of Mr Dimitropoulos exposed inconsistencies in his approach to whether emails of the kind identified required a response but that in any case, none of the emails that were sent to Mr Pawson required a response, given their content.
SEMPHN invited the Court to take account of the place of the emails within their broader context, which was said to include other emails that had not been singled out for attention in this proceeding, and the meetings and phone contact that took place between Mr Pawson and Mr Dimitropoulos.
E.5.3 The evidence
E.5.3.1 The strategic plan report
Mr Dimitropoulos gave the following evidence in the first Dimitropoulos affidavit about the strategic plan report.[17]
[17] First Dimitropoulos affidavit at [83]-[91]; CB 85-86.
83. Between December 2019 and 2020, I had worked on preparing reports to the CEO and Board on SEMPHN’s progress against its Strategic Plan measures.
84.Part of my role is to prepare regular reports ahead of each Board Cycle for the Board based on SEMPHN’s progress in line with its Strategic Plan (the strategic plan report).
85. In about March 2022, I commenced work preparing the strategic plan report in anticipation of the April board meeting.
86. As part of preparing the strategic plan report, I had to meet with each of the members of the Executive Leadership Team. The Executive Leadership Team was comprised of Mr Pawson, Mr Wrigley and five Executive General Managers: Mr James, Mr O’Sullivan, Fotini Strongylos, Clare Escott and Dr Daraganova.
87. On 23 March 2022, I sent individual meeting invitations to all of the Executive Leadership Team to discuss the strategic plan report. Mr Pawson and Mr Wrigley did not respond to any meeting invitation, and Dr Daraganova declined the invitation.
88. On 24 March 2022, Mr Pawson sent me a meeting invitation to discuss “April’s Board meeting reporting requirements”.
89. Later, on 25 March 2022, I met with Mr Pawson. During that meeting:
(a)I told Mr Pawson that I had been surprised that Dr Daraganova had declined my meeting invitation;
(b)Mr Pawson said words to the effect that he had decided that he no longer wanted to prepare the strategic plan report; and
(c)Mr Pawson explained that Dr Daraganova had declined the meeting invitation because she was aware that Mr Pawson no longer wanted the strategic plan report prepared.
90. Based on Mr Pawson's comments, I formed the impression that had I not requested to meet with him, he would not have told me that he no longer required the strategic plan report to be prepared.
91.Following the meeting with Mr Pawson, I contacted the Executive Leadership Team to cancel the meeting invitations I had sent. I felt undermined, humiliated, hurt and embarrassed by having to do so.
Mr Pawson’s evidence about the reporting required as part of Mr Dimitropoulos’ role was unhelpful. On the one hand, he disagreed with the proposition that two of Mr Dimitropoulos’ duties were the preparation of a strategic plan report and a business plan report. However, this was said to reflect indications from the Board prior to his arrival that they wanted the reporting to be “reworked”. Mr Pawson acknowledged that he had not communicated this information to Mr Dimitropoulos. Further, it was not clear to Mr Pawson whether Mr Dimitropoulos had, until March 2022, been continuing to prepare both of these reports.
Mr Pawson agreed that it was he that had made the decision that Mr Dimitropoulos was no longer required to prepare the strategic plan report and, on that basis, it was reasonable to say that he would have communicated something to this effect during his meeting with Mr Dimitropoulos on 25 March 2022.
Mr Pawson explained that although the new strategic plan was not signed off by the Board until December 2022, the Board was satisfied that the strategic direction of the organisation was being guided by the new thinking coming through in this new plan rather than the strategic plan that had been completed at the beginning of that year. It was for this reason that the strategic plan reports were no longer required, as they were responsive to a strategic plan that was in the process of renewal. Mr Pawson agreed that he had not communicated any of this information to Mr Dimitropoulos during his meeting on 25 March 2022, stating that he did not see a need to. Likewise, Mr Pawson did not see a need to seek Mr Dimitropoulos’ feedback about the cessation of the strategic plan report. Mr Pawson agreed that he had informed members of the Executive Leadership Team of the decision to stop the strategic plan report before his meeting with Mr Dimitropoulos.
E.5.3.2 The business plan report
Mr Dimitropoulos gave largely unchallenged evidence about the business plan report. He explained that part of his role was to prepare the business plan report which, as its name suggests, was a report for the Board on SEMPHN’s performance against the targets and outcomes set by its business plan.
Mr Dimitropoulos explained that a data source for the business plan was the operations plan which took the form of an excel spreadsheet that was populated with information gathered from relevant operations managers.
It was Mr Dimitropoulos’ evidence that in March 2022, he began work on the business plan report in anticipation of the April Board meeting. On 23 March 2022, he sent an email to Ms Newton to ask that she commence collecting information from operations managers for inclusion in the operations plan. On 24 March 2022, Ms Newton sent Mr Dimitropoulos an email advising him that Mr Wrigley no longer wanted to use the operations plan and would instead be using a different document called the Program Health Data Capture File (PHDCF) as the data source for the business plan report.
On 7 April 2022, Mr Wrigley sent Mr Dimitropoulos an email advising him that the PHDCF would not be being used in the same manner as the operations plan and as such, Mr Dimitropoulos did not need to prepare the business plan report from it.
In cross-examination, Mr Wrigley acknowledged providing this explanation to Mr Dimitropoulos but denied that what it conveyed was that Mr Dimitropoulos was no longer required to prepare the business plan report, or that a decision to this effect had been made. Mr Wrigley insisted that the PHDCF was collecting very different data and there was no connection between this data and the operational plan and the business plan report. Mr Wrigley justified his decision not to consult Mr Dimitropoulos about the new data source for the same reason.
Mr Wrigley was pressed on this, which produced the following exchange:[18]
[18] T136 line 38 to T137 line 19.
Mr White:You’ve told me before that you informed Leah [Newton] to tell relevant people that it was no longer necessary to populate the operational plan document; is that right?
Mr Wrigley:     I might have. I can’t recall exact words.
Mr White:       I think that’s what you told me earlier?
Mr Wigley:      Okay.
Mr White: And you didn’t think that that would have an effect, but you also agreed that that was known – you knew at the time – that was the source of data for Mr Dimitropoulos’ business plan report?
Mr Wrigley:     Yes.
Mr White: And so you know at the time that by telling Ms Newton that that document was not to be updated and populated with data that it would affect Mr Dimitropoulos’ work preparing the business plan report?
Mr Wrigley:     No. Mr Dimitropoulos had many other reports to prepare. I wasn’t going to hang my hat on one particular report, as if that was the end of his role.
Mr White: It's not the question that I asked though, is it? I asked you did you know that by directing Mr Newton to not populate that document with data it would affect Mr Dimitropoulos’ work preparing the business plan report?
Mr Wrigley:     No, because he could have got it from other areas.
Mr White:       You knew that that was the source of data for the business plan report?
Mr Wrigley:     I knew that was the source of data, yes.
Mr White:       Yes, and you directed Ms Newton to stop populating it with data?
Mr Wrigley:     The way he was asking, yes.
…
Mr White:       And you did not involve Mr Dimitropoulos in that decision?
Mr Wrigley:     No.
E.5.3.3 Preparation of the new strategic plan
On the topic of the preparation of the strategic plan, Mr Pawson agreed that Mr Dimitropoulos had been involved in preparing the previous strategic plan (in place as the start of 2022) but maintained that there were a range of views within the organisation as to the extent of his involvement, such that he was not prepared to concede that Mr Dimitropoulos had been the one who had driven the project.
Mr Pawson did not accept the proposition that with his past experience, Mr Dimitropoulos could have provided useful input into the preparation of the new strategic plan. He explained that at this time, the focus was on health in the planning process and what the organisation needed was people with a “health lens” involved in the strategic planning rather than a person such as Mr Dimitropoulos from a reporting background.
Mr Pawson agreed that he had not asked Mr Dimitropoulos about his experience working on the previous strategic plan and did not tell him that he was working on a new one but defended these decisions for the reasons earlier cited.
E.5.3.4 Request for data

The evidence relating to the alleged withholding of data emerges principally from the following emails exchanged between Mr Dimitropoulos and Mr Wrigley and occurs in the context of the request made by Mr Dimitropoulos to Ms Newton that she start the process of collecting information to populate the operations plan (set out above at [202] to [203]).
On 24 March 2022, Mr Dimitropoulos sent the following email to Mr Wrigley:[19]
Hi Simon,
Touching base as Leah has just informed me that your process for what was the Ops Plan has been changed to Program Health. The Ops plan had linkages to the Strategic Plan’s objectives that were used to report to the Board per their request for reporting on the process against SEMPHN’s ‘Business Plan’. Are the linkages to the Strategic Plan’s objectives still being utilised in your new Program Health as per the Ops Plan so that the report’s data source can be changed regarding reporting on our progress to the Board on our Business Plan’s progress?
Can you please email me a copy of the Program Health data capture file?
Regards,
Arthur
[19] Annexure AD-42 to the first Dimitropoulos affidavit; CB 340-341.
It is not in dispute that Mr Wrigley did not provide a response to this email.
This prompted Mr Dimitropoulos to send the following email to Mr Wrigley at 11.31 pm on 31 March 2022:[20]
Hi Simon
I am touching base on my earlier email as per below and if you can please forward or aske (sic) Leah to forward me the document/Excel file that you are now using to replace the Ops Plan with the Program Health. FYI this will allow me to become familiar with potential future data source of the Program Health data.
Cheers,
Arthur
[20] Annexure AD-43 to the first Dimitropoulos affidavit; CB 342-344.
On 6 April 2022, having not received a response from Mr Wrigley, Mr Dimitropoulos called Ms Newton and asked her to give Mr Wrigley “a prompt”.
On 7 April 2022, Mr Wrigley sent the following email to Mr Dimitropoulos:[21]
Hi Arthur, the program health spreadsheet is not being used in the same way as the operational plan so you don’t need to prepare a report from it. Thanks anyway.
Regards,
Simon Wrigley
[21] Annexure AD-44 to the first Dimitropoulos affidavit; CB 347-348.
This prompted Mr Dimitropoulos to send the following email to Mr Wrigley (and copied to Mr Pawson) on 8 April 2022:[22]
Hi Simon,
Thank you for your email.
FYI as previously discussed the original Ops Plan spreadsheet was being used as the only data source to populate the ‘Business Plan’ report and aligning it to SEMPHN’s strategy. This was instigated by the Board Chair & Deputy Chair and was being received by them in all Board meeting until ED’s departure. I do not know if the Board will still require the Business Plan performance report under Quinn’s leadership, hence please keep in the back of your mind should the Board request this Business Plan report we will not be able to provide it.
Regardless of the Board’s Business Plan reporting requirements, I kindly request if I can please get a copy of this Excel file so that I at least can have line of sight as to what information is being captured and available for future reporting requirements.
Regards,
Arthur Dimitropoulos
[22] Annexure AD-45 to the first Dimitropoulos affidavit; CB 353-354.
It is not in dispute that neither Mr Wrigley nor Mr Pawson provided a response to this email.
The attitude of Mr Wrigley to the request is recorded above. Mr Pawson when asked about the email agreed that it contained a further request for the Program Health data but did not agree that it had been copied to him so that he might assist Mr Dimitropoulos to gain access to the data. Mr Pawson said that he did not see a need to respond to the email.
E.5.3.5 The emails
Mr Dimitropoulos contends that the failure of Mr Pawson and Mr Wrigley to respond to a series of emails that he sent them across the months of April and May 2022 was a form of bullying because it had the effect of making him feel ostracized. Before reproducing these emails, I note that a disproportionate amount of time was spent at trial cross-examining Mr Dimitropoulos about this topic. However, during this process it did emerge that Mr Dimitropoulos applied a different lens to the emails that he sent and the expectation that they would illicit a response.
As a general proposition, Mr Dimitropoulos agreed that some emails sent in a workplace would require a response, while others would not. As an example of an email of the second kind, he identified an email that said simply “FYI”. However, the clarity of this response became obfuscated as the cross-examination progressed, as I will later explain.
Turning then to the emails relied upon by Mr Dimitropoulos.
The first was an email sent by him to Mr Pawson on 25 March 2022 which had the subject “CEO’s KPIs”. The email simply read (File Attached) and attached a document titled “CEO’s Key Performance Indicators”.[23]
[23] Annexure AD-33 to the first Dimitropoulos affidavit; CB 316-317.
Mr Dimitropoulos identified this email as one that in “normal business practice” would require a response, even if that response was only “thank you”.
The second email was sent by Mr Dimitropoulos to Mr Pawson later on 25 March 2022 with the subject “CEO’s Engagement & Influence Measures”. It read:[24]
Hi Quinn,
As discussed today please find attached FYI the work done regarding the CEO's engagement & influence measures and the ELT's responses on capturing data and reporting on these measures including the perceived difficulty in doing so.
Cheers,
Arthur
[24] Annexure AD-34 to the first Dimitropoulos affidavit; CB 318-319.
Mr Dimitropoulos said of this email that it required a “thank you” as a “matter of common courtesy and normal practice”.
The third email was sent by Mr Dimitropoulos to Mr Pawson on 5 April 2022. It read:[25]
Hi Quinn,
As requested per yesterday's meeting in providing you with a structured overview of our DoH's indicators I have tabulated DoH's 'Program Performance & Quality Framework' Measures/Indicators in the attached file as used to create my report.
Please note that some of the 'Performance Criteria' column's targets for SEMPHN may of changed.
Please let me know if you have any questions.
Cheers,
Arthur
[25] Annexure AD-35 to the first Dimitropoulos affidavit; CB 320-321.
Mr Dimitropoulos said of this email that even if Mr Pawson had no questions, it still demanded a response “to acknowledge the effort that occurred”.
The fourth email was one sent by Mr Dimitropoulos to Mr Pawson on 8 April 2022. It attached a template for the Performance Snapshot page and read:[26]
[26] Annexure AD-36 to the first Dimitropoulos affidavit; CB 323-324.
Hi Quinn,
Attached the CEO's Board report template. Please noe (sic) following points:
·     The Performance Snapshot page (is page 2 with the charts & have included snapshot image separately below) is actual SEMPHN data for April's Board meeting noting that the financial results are as at EOM February 2022 and provided by Clare.
·     I used the partial content of a previous CEO's Board report by ED that was a WIP for January 2021's Board meeting. Purpose of this is to provide you with a flavour of what ED was reporting and how she was wording it.
·     The contents on the cover page need to be refreshed (these are linked to the report's titles) once you have finalised the report (on the assumption you continue using this template).
Please let me know if you have any questions or require other support regarding this report.
…
Mr Dimitropoulos said that this email required at the very least a “thank you”.
The fifth email was one sent by Mr Dimitropoulos to Mr Pawson and Ms Sigrid Armstead (Mr Pawson’s executive assistant) on 12 April 2022. It attached the CEO’s Action List and read:[27]
[27] Annexure AD-37 to the first Dimitropoulos affidavit; CB 326-327.
Hi Quinn & Sigrid,
Attached is the status on all Action Items from the Board, CCC, FAR & Governance meetings.
This report includes:
· Dashboard on the status on all action items from all meetings (including ELT meeting).
· Action items that are either overdue or due within the next for four weeks for the Board, CCC, FAR & Governance meetings.
Please note the accuracy on the status of these items is based on the information provided to me.
Sigrid can you please bring the contents of the attached report to Quinn's attention especially regarding the items relating to the Board meeting on page titled '2. Action Items from Board Meetings Due Within 4 Weeks or Overdue’.
Please let me know if you have any questions.
…
Mr Dimitropoulos said about this email that although it was sent to both Ms Armstead and Mr Pawson, it only required a response from Mr Pawson, in the form of an acknowledgement. This was because Mr Pawson was the owner of the report. The response was required irrespective of whether Mr Pawson had any questions for Mr Dimitropoulos.
The sixth email was one sent by Mr Dimitropoulos to Mr Pawson and copied to Ms Armstead on 14 April 2022. It attached SEMPHN’s Individual Performance Quality Report Framework and explained:[28]
Hi Quinn,
As requested, please find attached SEMPHN's Individual Performance Quality Performance
Framework report comparing the 2019 year to 2020 including an exceptions page to providing the details that the Board most likely will be asking questions on.
[28] Annexure AD-38 to the first Dimitropoulos affidavit; CB 328-329.
In the context of being asked questions about this email, Mr Dimitropoulos acknowledged that it was responsive to a request made of him by Mr Pawson, possibly through a medium other than email, and that in fact, the majority of emails sent by him to Mr Pawson were sent upon request. Mr Dimitropoulos agreed that he was having contact with Mr Pawson outside of the emails that he identified as forming part of the bullying conduct.
The seventh email was one sent by Mr Dimitropoulos to Mr Pawson and Ms Newton on 26 April 2022 which read:[29]
Hi Quinn and Leah,
Attached is the latest updated action items status for the ELT meeting.
Please Note: Not all of the action items have been updated since April's ELT meeting. It can be assumed that this draft document includes items that have been completed but their completion status has not yet been communicated.
Cheers,
Arthur
[29] Annexure AD-39 to the first Dimitropoulos affidavit; CB 331-333.
Mr Dimitropoulos was not questioned specifically about this email but its identification as one that involved bullying suggests that it was one that in his mind required some form of a response.
The eighth email was one sent by Mr Dimitropoulos to Mr Pawson on 3 May 2022 which attached two journal articles regarding impacts of COVID-19 infection on the brain and read:[30]
Hi Quinn,
As per our meeting last week, find attached article relating to COVID-19 infection findings on the brain by the University of Oxford.
[30] Annexure AD-47 to the first Dimitropoulos affidavit; CB 368-371.
Mr Dimitropoulos agreed that he had sent these articles to Mr Pawson following a request made by him during the meeting of 27 April 2022. Despite this, Mr Dimitropoulos insisted that “out of courtesy” and reflecting the “culture of the organisation”, Mr Pawson needed to provide some form of a response.
Mr Dimitropoulos was pressed on this as follows:[31]
[31] T38 line 1 to T39 line 5.
Ms Grinberg:              I’m just going to suggest to you, Mr Dimitropoulos, that it’s unreasonable to expect the CEO of SEMPHN to respond to every email he receives from you?
Mr Dimitropoulos:       My experience has been – I’ve worked for organisations which have had thousands of employees, and the CEO always acknowledges the email that has been sent to him, even though I don’t even directly report to him.
Ms Grinberg:              And when you began this morning – when I began asking you some questions this morning, you agreed with me that there are emails in the workplace that don’t require a response?
Mr Dimitropoulos:      Correct.
Ms Grinberg:              And you agreed that an example that didn’t require a response is an email that’s just sent FYI, “for your information”?
Mr Dimitropoulos:      If it hasn’t been asked for, yes.
Ms Grinberg:              So are you changing your answer now? You say if the email – if it hasn’t been asked for, doesn’t require a response?
Mr Dimitropoulos:       It depends. You’ve lost me, as in when you say “FYI,” what’s behind the FYI? Is it – are you sending it cold or as in them not expecting it, or they’ve asked for it?
Ms Grinberg:              I’m not making a distinction between the two. What I’m saying – what I said to you earlier and what you agreed with me was that an example of an email that doesn’t require a response is an email that is sent FYI, which is a common thing in the workplace. People might say, “Just FYI,” or, “FYI”?
Mr Dimitropoulos:       If it’s cold, yes, as in no response.
Ms Grinberg:              If it’s cold? What do you mean, if it’s cold?
Mr Dimitropoulos:       I come across something in – in the media or some information, and I thought it would be useful to somebody, I – and I forward that email, then not getting a response back is acceptable at times, yes.
Ms Grinberg:              So if they haven’t asked you to send it to them, it’s acceptable to you that they don’t respond?
Mr Dimitropoulos:       In certain instances, yes.
Ms Grinberg:              In certain instances. But if they’ve asked you – if they’ve said, “Arthur, that article about COVID’s effect on the brain, can you send me the link” – if they’ve asked you to do that, then according to your evidence, that’s an email that should be responded to?
Mr Dimitropoulos:      In the majority of cases, yes.
Ms Grinberg:              And an email that simply has, in brackets, “file attached”, and nothing else, with a file attached. If the person has requested you to send that file, is it your position that that person should then respond?
Mr Dimitropoulos:       If the content has been specifically created for them, it’s common courtesy…to acknowledge the effort.
Ms Grinberg:              And what if you have got a meeting with them the next day or you have spoken to them the day before. Are they still required to respond? For instance, if you have spoken to them – if you have sent an email and you have got – and they have – you have got a meeting with them the next day or they know they’re going to see you at some point during the week to discuss how things are going. Do you still think that you should receive an acknowledgement or a thank you to each email that you send?
Mr Dimitropoulos:       In the majority of cases, yes.
Although few concessions were made during the above exchange, Mr Dimitropoulos did accept the following propositions that were put to him.
(a)He didn’t know what Mr Wrigley was doing every day and what other tasks he was attending to.
(b)He didn’t know what else was going on in Mr Wrigley’s life, outside of work and the same could be said about Mr Pawson.
(c)In early 2022, both Mr Wrigley and Mr Pawson were quite new to their roles and to the organisation and were probably very busy with many competing priorities. In that context, they might not have time to acknowledge every email that they received.
E.5.4 Consideration
Mr Dimitropoulos submits that in resolving this claim, it is not necessary for the Court to make a finding that he was bullied at work according to any particular definition of the term. Instead, he submits that the Court may take notice that commonly cited examples of workplace bullying include deliberately withholding necessary work-related information or resources and deliberately ignoring or excluding workers from their roles or workplace.
SEMPHN, on the other hand, invites the Court to apply the definition of bullying that is contained in s 789FD of the FW Act and which it notes is adopted by WorkSafe Victoria in its publication “A guide for employers: Workplace bullying”.
Section 789FD states:
When is a worker bullied at work?
(1)      A worker is bullied at work if:
(a)       while the worker is at work in a constitutionally – covered business:
(i)        an individual; or
(ii)       a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b)       that behaviour creates a risk to health and safety.
(2)To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
Whatever approach is embraced, the Court undoubtedly is required to consider the quality of the behaviour relied upon and whether the behaviour is unreasonable according to contemporary standards and expectations. It is uncontroversial that a wide range of conduct may constitute bullying behaviour including (as the WorkSafe publication recognises) behaviours of the kind identified by Mr Dimitropoulos in his submissions.
Consideration of what amounts to unreasonable behaviour requires the application of an objective test. That is unreasonable behaviour is behaviour that a reasonable person having regard to the circumstances may consider to be unreasonable.
The unreasonable behaviour must also create a risk to health and safety. Therefore, there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way.
A risk to health and safety means the possibility of danger to health and safety and is not confined to actual danger to health and safety. The ordinary meaning of “risk” is exposure to the chance of injury or loss. In the present context, the risk must also be real and not simply conceptual.
Had Mr Dimitropoulos’ claim involved only the failure to respond to emails then I would have dismissed it as falling short of the type of behaviour required to sustain what is a serious allegation of breach of the Enterprise Agreement. However, his claim is multi-faceted and requires consideration having regard to the cumulative impact of the matters identified.
At its core, Mr Dimitropoulos’ case is that he was frozen out of his role through the diminution of his responsibilities through a series of decisions that were made without his input, and which caused him to feel embarrassed, belittled, and humiliated. While the decisions might have been defensible at an organisational level and having regard to the leadership and structural changes that were occurring at SEMPHN at the time, I do not consider that they were defensible in the way they were communicated to Mr Dimitropoulos, which was plainly injurious to him.
Although SEMPHN sought to understate the significance of the strategic plan report and the business plan report to Mr Dimitropoulos’ role, suggesting that he had other important responsibilities, the evidence did not support this submission.
Mr Wrigley insisted that Mr Dimitropoulos had other reports that he used to prepare but agreed that when he met with him in March 2022 to undertake a review, Mr Dimitropoulos only had a limited number of “business as usual” duties. While he disagreed that these were limited to the preparation of the two reports for the Board, he was unable to name any other report that Mr Dimitropoulos was preparing on a regular, ongoing basis.
Mr Pawson agreed that by early April 2022, Mr Dimitropoulos was no longer required to prepare the strategic plan report or the business plan report. He also agreed that by this time, he was not providing Mr Dimitropoulos with any new requests for ad hoc reports, bearing in mind that these requests had traditionally come from the CEO. Mr Pawson ultimately accepted that by April 2022, the work that Mr Dimitropoulos was doing was limited to providing him (Mr Pawson) with historical reports to inform his knowledge of the organisation.
The lack of communication, consultation and transparency around the decision making concerning these two reports, as well as the lack of communication around the data source used to inform the business plan report, was objectively unreasonable. It occurred in circumstances where the two Board reports were plainly important features of Mr Dimitropoulos’ role and where he was plainly anxious to progress each of them, including in the case of the strategic plan report, through meetings with members of the Executive Leadership Team and in the case of the business plan report, through the gathering of data traditionally captured in the operations plan. It was foreseeable that decisions taken in this covert manner about important aspects of Mr Dimitropoulos’ role would have a prejudicial impact on his welfare.

The same can be said of the communication around the redundancy decision, which I have found was done in breach of the requirement for consultation with Mr Dimitropoulos. The meeting held on 23 May 2022 had the quality of an ambush because it was held on two hours’ notice and in circumstances where the prospect of a redundancy had not been raised with Mr Dimitropoulos prior to the meeting.
While I am not satisfied that the failure to respond to the various emails was objectionably unreasonable as a stand-alone category of conduct, I can understand why Mr Dimitropoulos, in the context of an environment in which decisions were being made to diminish the scope of his role, developed a fixation around the lack of responsiveness to these communications. It is to be recalled, and this is part of the relevant context against which such conduct is to be assessed, that Mr Dimitropoulos was working entirely from home so that his sense of isolation, already heightened, was likely exacerbated by this physical sense of dislocation and perception that he was being sidelined.
There is no evidence that SEMPHN did anything to respond to the conduct that I have found involved bullying, despite aspects of it being raised during Mr Dimitropoulos’ meeting with Mr Pawson on 27 April 2022 and the redundancy meeting on 23 May 2022. It was only when Mr Dimitropoulos put his complaint in writing to the Board that steps were taken to investigate his concerns.
I am satisfied that Mr Dimitropoulos has made out his claim of breach by SEMPHN of its obligation under clause 20 of the Enterprise Agreement to take all reasonably practicable steps to provide a working environment that is safe and without risks to health. This in turn involved a contravention of s 50 of the FW Act.
F. RELIEF
I have found that SEMPHN engaged in two contraventions of s 50 of the FW Act by failing to consult Mr Dimitropoulos in relation to the decision to make the Performance Reporting Specialist Role redundant (an example of “major change”) and by failing to take all reasonably practicable steps to provide a working environment for Mr Dimitropoulos that is safe and without risks to health.
Mr Dimitropoulos seeks declarations of contravention which I consider can appropriately be made to mark the disapproval of the Court and in circumstances where SEMPHN made no submission against the granting of such relief.
Mr Dimitropoulos also seeks compensation pursuant to s 545 of the FW Act by reason of the loss and damage that he says he suffered by reason of both contraventions.
In a document handed up during the hearing by counsel for Mr Dimitropoulos and to which no objection was taken by SEMPHN, particulars of loss were provided reflecting success on the different claims made by Mr Dimitropoulos in this proceeding.
Turning first to the claim of failure to provide a safe working environment, Mr Dimitropoulos particularises his loss and damage as follows:
·Annual salary (before superannuation) at the time of bullying/redundancy meeting: $122,400.
·2.5% all staff pay increase on 4 July 2022 increased annual salary to $125,460 (before superannuation)

Date range

Weeks

Wages

Super Rate

Superannuation Owed

Total

1 July 2022 - 30 June 2023

52

$125,460

10.5%

$13,173.30

$138,633.30

1 July 2023 – 2 Feb 2023

31

$74,793.46

11%

$8,227.28

$83,020.74

TOTAL

83

$200,253.46

$21,400.58

$221,654.04

Claims for Damages

Economic Loss Total

$221,654

Hurt, humiliation and distress $80,000

Total $301,654

In oral submissions, counsel for Mr Dimitropoulos explained that the claim for economic loss was predicated on a finding that the predetermined redundancy, without consultation, was an instance of bullying. He submitted that in those circumstances, the loss of income was caused by SEMPHN’s failure to provide a safe working environment because it allowed the bullying which led to the functional end of Mr Dimitropoulos’ employment.
I have some difficulty with this submission.
In the first place, it was not part of Mr Dimitropoulos’ pleaded case that a predetermined redundancy was a form of workplace bullying. Instead, this is a concept that appears to have evolved during the hearing and then crystallised in closing submissions. It would be a denial of procedural fairness to the respondent to consider a claim of this character.
More fundamentally however, the concept of a predetermined redundancy is not properly explained. If what it is intended to convey is a decision about redundancy that was made without consultation, then I accept that this is what occurred. My finding of contravention of clause 17.2.1 of the Enterprise Agreement reflects this.
However, as the applicant implicitly acknowledges in his particularisation of loss and damage document, a contravention of the consultation clause does not provide the basis for an award of compensation for loss of income. This reflects the position that “the consultation obligation is not concerned with a likelihood of success of the process, only to ensure that it occurs before a decision is made to implement a proposal” and to similar effect, that affected workers have no “right of veto”.[32]
[32] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FCA 1431 at [60] (per Logan). See also Haeusler v ACT [2023] FCA 1304 at [71] where Wigney J doubted the proposition that any loss of income could be said to flow from a failure to consult.
In these circumstances, I am not persuaded that there is a proper basis to award compensation that is referable to an asserted loss of income.
As far as Mr Dimitropoulos claims non-economic loss for “hurt, humiliation and distress”, I accept that the Court has power under s 545 of the FW Act to order compensation reflecting damage of this nature.
The Court has power under s 545(1) of the FW Act to make any order that it considers appropriate if the Court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. Section 545(2)(b) provides that, without limiting s 545(1), the Court may make an order awarding compensation for loss the person has suffered because of the contravention.
Parliament gave the Court broad power under s 545, encompassing “preventative, remedial or compensatory orders”.[33] In Dafallah v Fair Work Commission (2014) 225 FCR 559 at [148] Mortimer J (as her Honour then was) observed that the language of s 545 allows “remedies which meet the circumstances of any given contravention, taking into account the range of parties who may have brought proceedings in relation to the contravention, and the actions which might in any given circumstance be required to remedy the contravention, to ensure it does not occur again”.
[33] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 92 ALJR 291 at [110].
Mr Dimitropoulos gave unchallenged evidence that after he contacted the Executive Leadership Team to cancel the meeting invitations he had sent, he felt undermined, humiliated, hurt, and embarrassed by having to do so.
He described how the thought of returning to work at SEMPHN made him feel extremely anxious and physically unwell and that the bullying conduct had undermined his confidence.
Mr Dimitropoulos described experiencing mental distress and reputational loss and having suffered symptoms including sleep difficulties, fatigue, headaches, feelings of isolation, irritability, and a reduced sex life.
Mr Dimitropoulos said that he continued to experience extreme stress related to his loss of income. He stated that he felt he had lost the “shine” from life and that he continued to experience a sense of grieving and loss and referred to his “sense of self” having been shaken.
Mr Dimitropoulos gave evidence that he noticed he had become defensive and socially disengaged and experienced a sense of isolation because he could not continue his career.
Mr Dimitropoulos also referred to his concern that the actions of SEMPHN and its employees would have a negative impact on his reputation in the broader community. He described the importance of networking in the reporting and analytics industry and that since he had ceased work, he had not been substantially engaging with his professional networks.
I am left in no doubt that as a result of the workplace bullying he experienced in his final months working at SEMPHN, Mr Dimitropoulos experienced a range of emotions and reactions including embarrassment, humiliation, distress and anxiety. I accept that while the experience of these emotions was likely most profound at and around the time that the events described were occurring, their impact was not fleeting and there has been a residual impact on Mr Dimitropoulos’ self-esteem that has made it difficult for him to pursue employment opportunities. Even at trial, some 18 months after the events had occurred, the impact on Mr Dimitropoulos was palpable.
However, even accepting such matters, the failure of Mr Dimitropoulos to produce any medical evidence of impact – whether physical or psychological – necessarily limits the amount of compensation that can properly be awarded. In the circumstances, I consider that an order that SEMPHN pay Mr Dimitropoulos $30,000 for its contravention of s 50 of the FW Act relating to the breach of cl 20 of the Enterprise Agreement is appropriate.
As far as the failure to consult contravention is concerned, Mr Dimitropoulos seeks the amount of $30,000 for hurt, humiliation and distress. It is difficult to disentangle the impact of the failure to consult from the impact of the workplace bullying and Mr Dimitropoulos’ submissions did not attempt to differentiate between the two contraventions. While I appreciate that this was a distinct contravention, I consider that much of the impact has been recognised in the award of damages already made. It is appropriate that SEMPHN pay Mr Dimitropoulos the further amount of $5,000 because of the failure to consult ahead of the redundancy decision.
Mr Dimitropoulos also seeks the imposition of pecuniary penalties. As this relief was not addressed at hearing, I will make orders requiring the parties to confer and to seek to reach agreement on a proposed set of orders for a timetable for the provision of submissions and any further evidence on penalty with respect to the contraventions of s 50 of the FW Act with a provisional penalty hearing date of 28 November 2025. If the parties are unable to agree on a form of orders, the matter will be listed for a case management conference.

I certify that the preceding two hundred and seventy-eight (278) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.
Associate:
Dated: 8 October 2025

File number:	MLG 1356 of 2022
Judgment of:	JUDGE SYMONS
Date of judgment:	8 October 2025
Catchwords:	INDUSTRIAL LAW – general protections – adverse action – workplace rights – whether employee exercised workplace rights by making a bullying complaint – whether employer took adverse action against employee – factual dispute as to character of the decision taken about the employee’s position – decision to make position redundant constituted adverse action within the meaning of s 342 of the Fair Work Act 2009 (Cth) (FW Act) – whether adverse action taken because of the exercise of workplace rights – reverse onus of proof under s 361(1) of the FW Act- evidence of decision maker as to reasons for taking adverse action accepted – where satisfied that the adverse action was not taken because of the exercise of the established workplace right – reverse onus discharged – general protections claim dismissed INDUSTRIAL LAW – alleged contraventions of s 50 of the FW act for contravening terms of the Dandenong Casey General Practice Association Certified Agreement 2009-2019 – whether employer failed to consult about major change – whether employer failed to take all reasonably practicable steps to provide a working environment that is safe and without risks to health – contraventions established – declarations made and compensation awarded – the question of penalty to be determined at a separate hearing
Legislation:	Fair Work Act 2009 (Cth), ss 50, 340, 341, 342, 360, 361, 545, 789FD Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Sch 7 Workplace Relations Act 1996 (Cth), s 298K Dandenong Casey General Practice Association Certified Agreement 2009-2012, cls 17, 20
Cases cited:	Alam v National Australia Bank Limited (2021) 288 FCR 301; [2021] FCAFC 178 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 92 ALJR 291; [2018] HCA 6 Community and Public Sector Union v Telstra Corporation Limited (2001) 107 FCR 93; [2001] FCA 267 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FCA 1431 Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328 Haeusler v ACT [2023] FCA 1304 Heal v Sydney Flames Basketball Pty Ltd [2024] FCA 401 Kutlu v Director of Professional Services Review (2011) 197 FCR 177; [2011] FCAFC 94 Tomvald v Toll Transport Pty Ltd [2017] FCA 1208 Qantas Airways Limited v Transport Workers Union of Australia (2023) 278 CLR 571; [2023] HCA 27
Division:	Division 2 General Federal Law
Number of paragraphs:	278
Date of last submissions:	7 February 2024
Date of hearing:	5-7 February 2024
Place:	Melbourne
Counsel for the applicant:	Mr A White
Solicitor for the applicant:	Maurice Blackburn Lawyers
Counsel for the respondent:	Ms K Grinberg
Solicitor for the respondent:	Wotton Kearney

MLG 1356 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ARTHUR DIMITROPOULOS Applicant
AND:	SOUTH EASTERN MELBOURNE PRIMARY HEALTH NETWORK LTD Respondent

ORDER MADE BY:	JUDGE SYMONS
DATE OF ORDER:	8 OCTOBER 2025