[2018] FWC 3094

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Dr Neil Stringfellow
v
Commonwealth Scientific and Industrial Research Organisation T/A CSIRO
(U2018/671)

DEPUTY PRESIDENT BEAUMONT

PERTH, 30 MAY 2018

Application for unfair dismissal remedy.

[1] Dr Neil Stringfellow (Dr Stringfellow) resigned from his employment with the Commonwealth Scientific and Industrial Research Organisation T/A CSIRO (CSIRO) on 23 January 2018 and on that same day lodged an application for an unfair dismissal remedy (Application).

[2] Since 15 April 2013, Dr Stringfellow had held the appointment of Executive Director of the Pawsey Supercomputing Centre (Pawsey), known previously as iVEC. Pawsey is an unincorporated collaborative joint venture comprising five separate and independent bodies corporate. They include the CSIRO, Curtin University of Technology (Curtin), The University of Western Australia (UWA), Murdoch University (Murdoch) and Edith Cowan University (ECU). Whilst Pawsey appointed Dr Stringfellow as an Executive Director, his employment was with the CSIRO as a Facilities Program Director at a banding of CSOF8.2.

[3] On 27 July 2017, the Board of Pawsey (the Board) reached a unanimous decision to remove Dr Stringfellow from the role of Executive Director and appoint someone else. That decision was communicated to Dr Stringfellow but nevertheless he had reservations about there being a unanimous decision and at his request the Board convened a closed session on 11 October 2017. The purpose of the session was to enable Dr Stringfellow to hear from each Board Member that they had lost confidence in him.

[4] Although removed from the role of Executive Director, the CSIRO advanced that Dr Stringfellow continued to be a Facilities Program Director on an indefinite basis. Because of this, the CSIRO sought to assist Dr Stringfellow to move into an alternative position.

[5] It would perhaps be minimising the matter at hand to say that Dr Stringfellow was dissatisfied with his removal from the Executive Director role. It was clear from his evidence that Dr Stringfellow felt humiliated, stressed and anxious about the turn of events. The CSIRO advanced that Dr Stringfellow demonstrated no interest in moving to an alternative position and Dr Stringfellow confirmed this was the case at Hearing. In his view the alternative position simply did not match that of Executive Director and by mid-October 2017 Dr Stringfellow commenced negotiations for a financial settlement with the CSIRO.

[6] Notwithstanding a concerted effort to reach a financial settlement with Dr Stringfellow, by 9 January 2018 the CSIRO had not achieved this, and by 12 January 2018 Dr Stringfellow insisted that the CSIRO reinstate him into the position of Executive Director of Pawsey.

[7] Dr Stringfellow’s direction to reinstate him into the Executive Director role was again reiterated in his email to the CSIRO dated 23 January 2018. In the email Dr Stringfellow informed the CSIRO that he would be submitting his cessation request, noting that the request had been forced upon him by the disgraceful conduct of the CSIRO and that he would shortly thereafter be making a claim to the Fair Work Commission, which he did.

[8] The CSIRO objected to the Application on the basis that it was beyond the jurisdiction of the Commission because Dr Stringfellow was neither effectively instructed to resign in the face of a threatened or impending dismissal, nor was he forced to resign or given no reasonable choice but to resign.

[9] I informed the parties at hearing that I would initially determine the matter whether the Application was beyond the jurisdiction of the Commission. If it was not, I would then turn my attention to whether the dismissal was unfair. Having considered whether Dr Stringfellow was dismissed, as that term is understood under ss.386(1) of the Fair Work Act 2009 (Cth) (the Act), I have found that he was not. It follows the Application is beyond the jurisdiction of the Commission and is therefore dismissed. My reasons follow.

Background

The Board, governance, the Centre Agent and key executives

[10] As observed, Pawsey is an unincorporated collaborative joint venture comprising five separate and independent bodies corporate 1. Each of the independent bodies corporate is considered to be a Core Member and while State and Federal governments primarily provide funding, contributions are made by the Core Members2.

[11] Pawsey operates under the terms of the Pawsey Members Agreement dated 21 December 2016, as amended by a Variation Agreement signed in or about November 2017 by the Core Members (PMA) 3. The PMA sets out Pawsey’s general rules and procedures.

[12] Pawsey has a separate Management Committee, or Board, established under clause 6.1 of the PMA comprising of the Independent Chairperson, a Member Representative of each Core Member, at least one independent Board Member and the Executive Director, whose appointment to the Board is ex-officio.
[13] Strategic and operational governance of Pawsey is exercised through the Pawsey Board who provide leadership and oversight of Pawsey’s activities 4. In providing this leadership and direction, the Board worked with the Executive Director in engaging stakeholders and overseeing Pawsey operations in delivering against the agreed strategic outcomes5.

[14] Decisions were made collectively by the Pawsey Board and the Board was required to unanimously support the appointment of a ‘Centre Agent’, which had to be a Core Member 6. The CSIRO was the relevant Centre Agent and its role was set out under the PMA7. In short, the Centre Agent implemented Board decisions using its own organisational processes and procedures8. If a conflict were to arise between the Board decision and that of the Centre Agent’s processes, the Pawsey Board ultimately determined the way forward9.

[15] The requirement for the Centre Agent to act on the directions of the Board was set out in clause 10.4 of the PMA, which stated:

(a) The Centre Agent must act in accordance with the directions of the Board, except where a direction is contrary to the Centre Agent’s governing legislation, constitution, adopted policies, in which case the Centre Agent must advise the Board of that conflict.

(b) If the conflict cannot be resolved by other means, the Centre Agent and the Board must refer the matter to the Members for resolution.

(c) Where CSIRO is Centre Agent, it will not be obliged to do or refrain from doing anything which is contrary to CSIRO’s governing legislation or adopted policies even if it is directed by the Board to do so 10.

[16] Due to its status as an unincorporated joint venture, Pawsey was unable to directly employ any person or enter any contracts. Consequently, Pawsey ‘employees’ were employed by one of the Core Members.

[17] The recruitment of Dr Stringfellow was said to have followed an open and competitive process 11. At the time of his recruitment Dr Stringfellow was not an employee of a Core Member therefore the CSIRO employed him as a senior executive in order to take on the role of Executive Director of Pawsey at that time12.

[18] Dr Stringfellow commenced his employment with the CSIRO on 15 April 2013 under an employment contract dated 13 February 2013 (the First Contract) 13. The position stated in the First Contract was ‘iVEC Executive Director’ with remuneration set at ‘Senior CSOF 7-8 Appointments Only’14. The First Contract was for a fixed term of 5 years with a view to appointing Dr Stringfellow in a permanent position on attaining residency within Australia.

[19] Come March 2017, Dr Stringfellow had been granted permanent residency and the CSIRO confirmed Dr Stringfellow’s conversion to indefinite tenure under an employment contract of 9 March 2017 (the Second Contract) 15. Under the Second Contract the position stated was ‘Facilities Program Director’ with remuneration set at ‘CSOF8.216. The duties of a Facilities Program Director were set out as follows:

Your duties will be as per your current arrangement and/or subsequently such duties as the Chief Executive, or a person who has the appropriate authority, may allocate from time to time 17.

[20] As an employee of the CSIRO, Dr Stringfellow reported to Mr Brendan Dalton, Chief Information Officer (Mr Dalton) 18. At the relevant time, Mr Dalton led the CSIRO’s Information Management and Technology (IMT) Business Unit holding responsibility for 300 staff, significant science data and information technology facilities, and an annual budget of $100 million19. Although based in Canberra, Mr Dalton was Dr Stringfellow’s manager and supervisor, and maintained contact with Dr Stringfellow through phone or video conference once a week and via face to face meetings on average every 6 to 8 weeks20.

[21] Within the organisational structure of the CSIRO, Mr Dalton found himself reporting to the Executive Director, Digital, National Facilities and Collections, a Dr David Williams (Dr Williams).

[22] Dr Williams had been a member of the CSIRO senior executive team for some two and a half years having joined the CSIRO in November 2012 as a Group Executive. Previously, Mr Williams created the UK Space Agency, of which he was the CEO, and chaired the European Space Agency. Dr Williams looked after core functions in his role including Data61, IMT and National Facilities which included the Australian Animal Health Laboratory, National Collections, Marine National Facility, Astronomy and Space Science and Pawsey. Further to these responsibilities, Dr Williams had been the CSIRO’s Member Representative on the Pawsey Board since 14 August 2014.

[23] As a Member Representative, Dr Williams said he was required to, and did, act in the best interests of Pawsey and did not advocate the position of the CSIRO.

Position of Executive Director

[24] The Executive Director was accountable to the Board for Pawsey’s performance but was subject to the terms and conditions of employment of his or her employing Core Member 21, in this case the CSIRO.

[25] The governance of the interrelationship between Pawsey, the Board and the Core Member, which in this case was the CSIRO, was set out in the relevant provisions of the PMA. Without being exhaustive the PMA included the following provisions:

a) Cl 1.1(p) - the Executive Director is the person appointed by the Board;

b) Cl 6.1(a) – Pawsey is managed by the Board which is ultimately responsible for the operation and management of Pawsey and Pawsey Funds which are funds held and received by Pawsey’s Centre Agent for the purpose of Pawsey’s activities;

c) Cl 6.2(a) – the functions of the Board including appointing the Executive Director, assessing his performance and determining his remuneration in consultation with the Executive Director’s employer Member;

d) Cl 6.8(a)(ii) – the person appointed as Executive Director will remain an ex-officio Board Member unless removed from such position pursuant to cl6.9(j) or his employment is terminated pursuant to cl 9.2;

e) Cl 6.9(j) – the appointment and removal of the Executive Director requires the unanimous approval of all Board Members;

f) Cl 9.1 – the Executive Director is to be appointed by a unanimous resolution of the Board;

g) Cl 9.2 – the Executive Director must be an employee of one of the Core Members but may not act as that Core Member’s Member Representative;

h) Cl 9.3 – the Executive Director will be expected to provide strategic advice to the Board and to act in accordance with the Board’s directions 22.

[26] The Executive Director role was unique because it was answerable to the Pawsey Board and the CSIRO, and this had, according to Mr Dalton, led to some tension 23.

[27] Mr Dalton gave evidence that Dr Stringfellow had informed him that he could not direct him on matters, including staffing at Pawsey, and that the majority of his annual performance plan should be agreed with the Board and not with Mr Dalton, his CSIRO manager 24. As a result of the discussion, it was decided that Mr John Langoulant, Pawsey Board Chairperson (the Chair) would approve the content of Dr Stringfellow’s Annual Performance Assessment (APA) with Mr Dalton25.

Background leading to decision to remove Dr Stringfellow as Executive Director

[28] Dr Williams wrote to Dr Stringfellow in March 2015 advising him that he had not complied with three important aspects of his terms and conditions of employment as a CSIRO staff member 26. The concerns raised included non-completion of annual performance appraisal forms, not undertaking mandatory organisation training within the CSIRO and not having processed a security clearance27; all were resolved28.

[29] In late 2016, Mr Dalton investigated a complaint of misconduct against Dr Stringfellow by a Mr Dart. Mr Dalton read email communications between the two men and had discussions with both that provided him with insight into the workings of Pawsey. It led Mr Dalton to question the professionalism of Dr Stringfellow’s management 29. As a consequence, Mr Dalton travelled to Perth more frequently than previously to have face to face meetings with Dr Stringfellow30. The issue between Mr Dart and Dr Stringfellow had seemingly resolved.

[30] In late 2016, Mr Dalton said he was provided with a human resource update in which it was identified that Dr Stringfellow had not ensured all of his direct reports and several other CSIRO staff at Pawsey had an APA in place 31. This was, said Mr Dalton, a fundamental performance requirement32.

[31] By way of background, when Pawsey was first established as iVEC the individual staff working for Pawsey were employed and managed by their own employer 33. The Board did not appoint staff or play a role in staff performance management with the exception of the Executive Director34. However, in 2017 the CSIRO took on responsibility for all staff at the request of the Board. The CSIRO was required to manage all staff under CSIRO processes.

[32] In light of the issues that had emanated from the investigation arising from Mr Dart’s complaint against Dr Stringfellow (in which it should be said that Dr Stringfellow was exonerated) and having observed that Dr Stringfellow was missing generous deadlines for the delivery of tasks for the CSIRO and not organising catch-ups with him, Mr Dalton assessed that Dr Stringfellow was underperforming as a senior CSIRO Executive 35.

[33] A formal process of managing Dr Stringfellow’s underperformance was initiated. Dr Stringfellow had previously highlighted to Mr Dalton his reporting arrangements to the Board and Pawsey. It followed that Dr Stringfellow, the Chair and Mr Dalton agreed that the APA would be determined between the three of them and subsequently Mr Dalton regularly caught up with the Chair to discuss Pawsey and Dr Stringfellow’s performance.

[34] From the discussions he had with the Chair, Mr Dalton understood that the Chair had provided Dr Stringfellow with feedback on the Board’s expectation regarding a number of issues 36.

[35] In February 2017, the Board had held a closed session to discuss the performance of Dr Stringfellow 37. All Board Members were said to have agreed that his performance was not in line with expectations38.

[36] Mr William’s evidence was that the Board’s concerns regarding Dr Stringfellow were around his:

a) internal leadership;

b) inability to work constructively with major stakeholders (e.g. Astronomy) and the sister NCI in Canberra;

c) poor presentation of financial information;

d) poor management of management structure; and

e) a lack of transparency and late papers to the Board 39.

[37] Mr Dalton drafted a letter setting out the performance issues of Dr Stringfellow. Mr Dalton said the Chair asked if he could see and edit the letter to include those items in the underperformance process that the Board was concerned about 40.

[38] Following the collaboration of Mr Dalton and the Chair on the letter, it was provided to Dr Stringfellow on or around 2 March 2017 and detailed for him the performance concerns of the CSIRO and the Board (Performance Letter) 41. Those concerns included:

● Annual Performance agreements

○ 2016/2017 Stage 1 APA still outstanding

○ Time taken to complete 2015/2016 APA

○ Failed to complete 2015/2016 APAs for direct reports and

○ Failed to ensure that APAs were in place for other Pawsey staff in 2015/16

● Lack of timely follow up with me as your direct line manager on multiple issues

● Failure to implement agreed actions e.g. provision of formal feedback to direct reports as part of the 360 degree review process

● Lack of communication with me regarding serious workplace issues that required escalation

● Lack of appropriate communication with direct reports

● Refusal to progress recommendations following a Misconduct Procedure requiring directives from me as delegate in the matter

● Failure to advise the Board of a serious HR Matter potentially involving ComCare.

The Board has also asked me to work with you to assist in building effective strategic partnership relationships for Pawsey with:

● National Computing Infrastructure Centre and

● The radio astronomy community as key users of the Pawsey Centre…

If you do not attend the required level by 31 May 2017, then action such as a transfer to other duties, a reduction in classification or termination of your employment with CSIRO may result 42.

[39] In response to the Performance Letter, Dr Stringfellow informed Mr Dalton via email on 20 March 2017 that the Management of Underperformance Procedure (MUP) referred to in the Performance Letter, was, among other things:

…an act of intimidation during the current activities related to looking to transition Pawsey staff to CSIRO:

● This MUP commenced after I issued Board papers demonstrating that I would not be dictated to by CSIRO for those areas of my job that are the responsibility of the Pawsey joint venture to control

● The organisational expectations that you refer to in the letter are CSIRO’s expectation that the Pawsey Executive Director does not act independently under the direction of the Pawsey Board, but acts under direction of CSIRO in issues that are the responsibility of the Pawsey Board and Pawsey Management

● This current action has commenced due to my refusal to allow CSIRO to dictate Pawsey strategic and operational direction

Furthermore, there are 2 specific items in this statement of claims that meet the definition of bullying of me by the CSIRO through the actions of yourself and others:

● You Brendan Dalton sent my 2016/17 APA back to me for further discussion, and then put in this set of statements of underperformance that I had not completed my APA. This is a deliberate act on your part to manufacture a claim for the purposes of instigating the MUP.

● The CSIRO has withheld information from me that is essential to do my job, and specifically you Brendan Dalton are one of the people who have withheld this information. The statement that I did not report a matter involving Comcare to the Pawsey Board indicates that the CSIRO knows of information in the confidential ComCare claim that I need in order to be able to report this to the Board. By not providing me with this information – and denying it to me when I have asked for it – the CSIRO is engaged in an act of bullying. I state for the record that this includes you Brendan Dalton as one of the people who had not provided me with this information and who has denied me access to this information

I consider that manufacturing a set of claims so that this MUP can be placed on my record is an act of intimidation during the current staff transition process. I will consider a continuation of this MUP to be intended to move forward with the prosecution of this process of intimidation 43.

[40] Having received Dr Stringfellow’s email dated 20 March 2017, Mr Dalton responded to Dr Stringfellow informing him that his theory was incorrect and while the Performance Letter had come from him on the CSIRO letterhead, its wording had been redrafted and approved by the Chair 44. Dr Stringfellow gave evidence that in his discussions with Mr Dalton there was no indication that anything regarding his performance had been discussed with the Board and he knew this because he was on the Board45.

[41] Following the provision of the Performance Letter to Dr Stringfellow, Mr Dalton said that he met with Dr Stringfellow weekly for three months where performance and the activities of Pawsey were discussed 46. Mr Dalton considered the process undertaken proceeded satisfactorily, that he and Dr Stringfellow worked together very well and the performance issues highlighted in the letter of 2 March 2017 had been addressed47.

[42] In contrast, Dr Stringfellow held the strong view that no performance management had been conducted given his complaint in response to the letter of 2 March 2017 48. The evidence of Dr Stringfellow was that while weekly meetings were held for about two years, weekly performance management meetings were not the same49. In any event, Dr Stringfellow said that he had objected to the basis of the meetings and at the first meeting took a support person50, but thereafter considered the performance management process had been completely ignored51.

Executive Review

[43] In May 2017, Dr Williams said the Chair proposed an executive review of Dr Stringfellow’s performance by an external consultant 52. Mr Dalton said he understood from his discussions with the Chair that the CSIRO’s role in the executive review was to arrange for it to happen; which he subsequently did.

[44] By letter of 15 May 2017, the external consultant wrote to Mr Dalton setting out, among other matters, the following:

I understand that Dr Stringfellow is nearing his third anniversary in his role as Executive Director and as such, it is an appropriate time to conduct a comprehensive appraisal of leadership performance to date, of which this review will constitute an important component.

….

The final report will present the aggregated results of the interviews conducted including representative comments from the interviewees (presented anonymously) exemplifying leadership strengths and areas for development. It will also present key insights and conclusions about Dr Stringfellow’s leadership style and behaviour in the form of emergent leadership themes. A natural corollary of such themes will be recommendations for next steps for Dr Stringfellow’s future leadership development.

[45] The evidence of Dr Stringfellow was that he understood that the executive review was conducted as part of enabling the external consultant to initiate a program of professional development 53.

[46] Twenty seven participants were interviewed for the purpose of the executive review by the external consultant. On its completion a document titled ‘Executive Review by Interview’ dated 12 July 2017 (the Executive Review) was provided to the Chair, Board and Mr Dalton. The author of the Executive Review concluded:

The overwhelming conclusion to be drawn from the feedback received is that Dr Stringfellow is a highly regarded supercomputing expert at PSC, and that he has added great value to the centre over his tenure. However, the nature of the demands on the role now and into the future have outgrown Dr Stringfellow’s capabilities and that an alternative leadership model is required if PSC is to maintain its current high standing in the supercomputing community, justify its future funding and fulfil its potential.

[47] The Executive Review proposed three possible paths forward for the resolution of the leadership issues raised. In simple terms the paths included the retention of Dr Stringfellow accompanied by an investment in significant coaching and related leadership development support, or the appointment of a Co-Director to work closely with Dr Stringfellow and manage the accountabilities where Dr Stringfellow was currently underperforming; or the replacement of Dr Stringfellow with someone more suited to the now greater leadership demands of Pawsey 54.

Board meeting 27 July 2012 and 11 October 2017

[48] The Board met by teleconference on 27 July 2012. A full complement of members were present with the exception of Dr Stringfellow 55. A unanimous decision was reached to remove Dr Stringfellow and appoint someone else as Executive Director56. Dr Williams said that he was aware that the Chair spoke with Dr Stringfellow to formally inform him of the Board’s decision57 and Dr Stringfellow confirmed that on the morning of 10 August 2017, the Chair had communicated his removal from the post58.

[49] While the Chair had communicated to Dr Stringfellow that there was a unanimous decision to remove him from the role of Executive Director, Dr Stringfellow said that after holding some conversations with Board Members he was not convinced the Board had taken this decision 59. Dr Stringfellow wrote to the Board on 16 August 2017 outlining a number of issues including his perception that there had been a deception regarding the Executive Review, there was non-compliance with the Board’s governance processes, the Board was unable to make such a decision given Dr Stringfellow was a Member of the Board in an ex-officio capacity and no meeting had been called or a vote held with him present60.

[50] On 11 October 2017, Dr Stringfellow attended the Board meeting and following the Board meeting there was a closed session where each Board Member individually confirmed to Dr Stringfellow that they agreed with the decision to remove him from the role of Executive Director.

Dr Stringfellow’s and the CSIRO’s response to the Board’s decision

[51] Mr Dalton met with Dr Stringfellow on 11 August 2017 to discuss the next steps following the Board decision 61. Ms Anthea White, the CSIRO’s HR Manager (Ms White), was party to the discussion by way of phone. Ms White outlined possible options for Dr Stringfellow to consider including transferring to another role in CSIRO62. Mr Dalton said that he informed Dr Stringfellow that he wanted to support him personally as much as he could.

[52] Dr Stringfellow continued in the Executive Director position while he thought things over and then took some leave from 23 August until 1 September 2017 63. A further meeting was held between Dr Stringfellow and Mr Dalton on 7 September 2017, but at this time Dr Stringfellow communicated he wanted to talk to the Chair before focusing on any other issues64.

[53] A subsequent meeting was held between Dr Stringfellow and Mr Dalton on 11 October 2017 65. It was Mr Dalton’s evidence that Dr Stringfellow again expressed his unhappiness about his removal66. Mr Dalton said he emphasised that Dr Stringfellow continued to be employed by the CSIRO and that he would be looking for another ongoing role for him67. At this meeting Dr Stringfellow is said to have committed to talking to the Chair about his date for leaving the Executive Director position68. Mr Dalton said that Dr Stringfellow noted that his intention was not to stay around too long and that March, or a bit earlier, perhaps January, was the timeframe he was working to69. It was also at this meeting, said Mr Dalton, that Dr Stringfellow mentioned the option of reaching a financial settlement70. Mr Dalton said that he asked Dr Stringfellow to follow this up with Ms White, which Dr Stringfellow did not do71.

[54] On 6 November 2017, there was an exchange of emails between Mr Dalton and Dr Stringfellow about the wording of an announcement about Dr Stringfellow’s removal from the role. In his email of 6 November 2017 time stamped 10:40am, Dr Stringfellow stated among other matters:

Note that this is a straightforward dismissal on the part of the CSIRO. There is no separation between the decision to remove me from the post of Executive Director of the Pawsey Supercomputing Centre and my employment status with the CSIRO, they are one and the same thing. I came to Australia to become the Executive Director of the Pawsey Supercomputing Centre, and the employing agent for this role is the CSIRO. I did not come to Australia so that I could work for the CSIRO, with the suitable role available that the CSIRO could find at that time being the one I currently occupy 72.

[55] Mr Dalton replied to the email of Dr Stringfellow stating the ‘CSIRO is not dismissing you’ 73.

[56] On 7 November 2017 the Chair attended a Pawsey team meeting with Mr Dalton and Dr Stringfellow 74. At the meeting the Chair communicated to the Pawsey Team that a decision had been made to replace Dr Stringfellow75.

[57] A meeting was held between Dr Stringfellow, Mr Dalton and Mr Ugo Varetto, Acting Executive Director (Mr Varetto), on 22 November 2017 76. Mr Dalton had been asked by the Board to make recommendations for a possible Acting Executive Director and to run a process as per the CSIRO policy; Mr Dalton recommended Mr Varetto for the position77. The recommendation was accepted by the Board78.

[58] After discussing matters with Mr Varetto and Dr Stringfellow, Dr Stringfellow agreed to work with Mr Varetto and together they agreed on a work plan and tasks up until Christmas when Dr Stringfellow would be taking leave 79. Dr Stringfellow was said to have agreed to report into Mr Varetto on handover and completion tasks80.

Alternative positions for Dr Stringfellow

[59] Mr Dalton stated that he sought to discuss alternative positions with Dr Stringfellow over the course of 21 and 22 November 2017 81. It was said that the CSIRO offered Dr Stringfellow a position of leading the development and implementation of a new technology and data platform between the UK Met Office, the Australian Bureau of Meteorology and the CSIRO for the purposes of weather prediction and climate modelling82. The position was only discussed at a high level as Dr Stringfellow advised Mr Dalton he was not interested in it83.

Negotiation regarding exit from the CSIRO

[60] On 22 November 2017, Dr Stringfellow again asked for a negotiated settlement and Mr Dalton said that he informed Dr Stringfellow to discuss this with Ms White 84. It was Mr Dalton’s evidence that Dr Stringfellow wanted a year’s salary and a MBA fully paid for by the CSIRO in advance85.

[61] On 23 November 2017, Dr Stringfellow is said to have informed Ms White that he wanted a year’s salary to which Ms White responded that the amount would be difficult to pay under the CSIRO policy as the CSIRO had not terminated Dr Stringfellow’s employment 86. Ms White continued that the only avenue to make a lump sum severance payment would be via a redundancy or a deed of release and one year’s salary was in excess of a redundancy payment87.

[62] Ms White informed Dr Stringfellow that she would explore what avenues might be available to the CSIRO to pay the amount sought by Dr Stringfellow 88.

[63] While Ms White was exploring avenues, by 11 December 2017, Dr Stringfellow emailed Ms White stating:

…

In order to move forward with this as rapidly as possible, after our conversation a couple of weeks ago it appears as though the only sensible way forward to allow this to be dealt with quickly and efficiently internally within CSIRO is for CSIRO to offer me a package which I would be willing to accept as a settlement for voluntary redundancy 89.

[64] Dr Stringfellow continued ‘I therefore need the following package in order to proceed rapidly to a conclusion in the best interest of everyone, and allowing CSIRO to deal with these issues internally rather than necessitating me making claims in other arenas’ 90. Dr Stringfellow thereafter set out that he required one year’s salary, one year’s contribution to superannuation, a vehicle allowance at the current rate for one year, a professional development package amounting to the equivalent of the fees being paid at a minimum of the level of an MBA from a leading university (vicinity of $90,000)91. Dr Stringfellow noted that on the acceptance of the package he would book and consume recreation leave to conclude his contract with his final day being the last day of recreational leave92.

[65] On 18 December 2017, Dr Stringfellow emailed Ms White to check on the status of his request for a severance package stating ‘I’m just checking how the meeting went on Friday, and whether CSIRO is willing to agree to the package’ 93. Dr Stringfellow continued:

I’m sorry to rush you, but I do need to have an answer today given that CSIRO has now advertised my job and has issued the advertisement with an incredibly short deadline for applications…

Given the pressing timelines, if CSIRO can’t let me know today that they will agree to this package, then later this afternoon I will have to make my claim for unfair dismissal to the Fair Work Commission so that they can quickly move to a determination around ordering reinstatement, which is the Commission’s preferred remedy in these circumstances 94.

[66] Ms White called Dr Stringfellow on 22 December 2017 reiterating that the CSIRO had not terminated Dr Stringfellow’s employment, the Board had removed Dr Stringfellow from the Executive Director position, but there was a sincere desire to work with him to reach a financial settlement that he was comfortable with 95. Ms White noted that she expected to receive approval from the Board for an amount of $180,000 (gross) and would need to confirm how such payment could be processed within the CSIRO96. During the Christmas period the CSIRO was closed and Ms White had a period of leave.

[67] On 9 January 2018, Dr Stringfellow emailed Mr Dalton requesting an update on whether the CSIRO had accepted to pay the settlement 97. Mr Dalton responded that Ms White and several other people involved in the matter were on leave, as was Dr Stringfellow, therefore Mr Dalton had planned to update Dr Stringfellow later in January98.

[68] On 12 January 2018, Dr Stringfellow emailed Mr Dalton:

…

I have given CSIRO an opportunity to present a settlement instead of pressing through with my rights and this was supposed to be agreed in the first days after the new year. I appreciate that you are just the messenger in this Brendan, but it is clear from the statement that you made that CSIRO has not resolved to conclude this in a timely fashion …

Therefore as CSIRO has shown that it is not interested in my proposal for a settlement, then I have to say that neither am I any longer.

I now insist that CSIRO reinstate me to the post of Executive Director of the Pawsey Supercomputing Centre with immediate effect….

If CSIRO is unable to carry out this reinstatement, I shall have no option but to consider this an unfair dismissal (constructive dismissal) and apply to the Fair Work Commission for reinstatement, with the unfortunate bad publicity that this will bring on all of us 99.

[69] Mr Dalton emailed Dr Stringfellow on 16 January, 19 January and 22 January 2018 to inform him that there was progress on the matter, and in addition advised Dr Stringfellow that he remained an indefinite officer of the CSIRO 100.

[70] On 22 January 2018, Ms White called Dr Stringfellow to discuss the figures of the settlement but the call was left answered so Ms White left a voicemail 101. Dr Stringfellow did not return the call102.

[71] Ms White received an email from Dr Stringfellow on 23 January 2018 it commenced with:

Thanks for your phone message, and for trying to assist CSIRO in obtaining a way forward. Your message indicated that you had some figures, however that implies that CSIRO is still intending to have me dismissed form[sic] post and try to make a settlement.

I had made it clear in previous emails that the time for such an opportunity has passed, and that I need to be returned to post…

I therefore apologise if I appear rude by not answering your call just now, but I have no interest in discussing this any further. The only message I am interested in now is the formal notification that I am returned to post, that any attempt at recruitment to fill my position is terminated and that CSIRO will deal with the flagrant breaches of process that led to this situation…

I will therefore be submitting my cessation request (note that this is not a “request” but has been forced upon my by the disgraceful conduct of CSIRO) within the next few minutes, and I will then shortly afterwards make my claim to the Fair Work Commission 103.

[72] It was uncontested that the CSIRO Enterprise Agreement 2017-2020 104 (CSIRO Agreement) applied to Dr Stringfellow. Schedule 1 of the CSIRO Agreement set out the MUP, which included a requirement that any notes or records of counselling and training that were to be placed on an officer’s file, to be sighted by the officer and to afford the officer an opportunity to record comments105.

Submissions of the CSIRO

[73] The CSIRO submitted that the Fair Work Commission (the Commission) is without jurisdiction under the Act to grant any relief in respect of the Application because Dr Stringfellow was not dismissed within the meaning of ss.386(1) of the Act. It advanced that Dr Stringfellow was not constructively dismissed or forced to resign by the conduct, or a course of conduct, by the CSIRO.

[74] According to the CSIRO, Dr Stringfellow clearly had an alternative to resigning namely, to discuss the financial settlement options or explore alternative roles with the CSIRO, which he chose not to do. The resignation was not forced because at no stage, said the CSIRO, did it indicate it would terminate Dr Stringfellow’s employment if he did not accept the settlement proposal.

[75] Dr Stringfellow was the one that impressed an ultimatum to reinstate him into a position over which the CSIRO had no control, and the CSIRO had been diligently and genuinely trying to obtain the necessary approvals from five Core Members to provide a substantial and generous severance payment to Dr Stringfellow. Having had annual leave approved for the period up until 29 January 2018 there was no sense of urgency or need for Dr Stringfellow to resign on 23 January 2018.

[76] The CSIRO said that Dr Stringfellow made his decision to resign based on his perceptions and his subjective response to the lawful actions of the CSIRO. It follows that on an objective analysis the conduct of Dr Stringfellow can only lead to the conclusion that his resignation was not at the initiative of the CSIRO and was therefore not a constructive dismissal. The CSIRO submit that the evidence supports the contention that Dr Stringfellow was not instructed to resign in the face of a threatened or impending dismissal, nor faced to resign, nor given no reasonable choice but to resign.

Submissions of Dr Stringfellow

[77] In advancing his case Dr Stringfellow helpfully used headings to frame what he purported to be the CSIRO’s actions which led to his forced resignation. I similarly have in part adopted those headings, but have for ease of reading condensed the content while still giving effect to what it is Dr Stringfellow contended.

CSIRO Breach of confidentiality and abuse of performance management procedure

[78] CSIRO’s Member Representative, Dr Williams visited the Pawsey Centre on 2 February 2017 and discussed with Dr Stringfellow transitioning university staff to CSIRO employees, and the reporting of the same to the Pawsey Board. Dr Williams was said to have advised Dr Stringfellow that a one page document was all that was required noting no significant issues. Dr Stringfellow informed Dr Williams that a detailed paper would be forthcoming and he intended to proceed with a staff survey that had been requested by the Board.

[79] On 3 February 2017, it was said that Dr Williams reiterated again to Dr Stringfellow that it was agreed that the Board paper would be short, and additionally informed Dr Stringfellow that the survey would not proceed. Dr Stringfellow submitted that the actions of Dr Williams were clearly an attempt to intimidate him to provide a 1 page paper. Subsequently, on 24 February 2017, Dr Stringfellow submitted a 10 page paper on the transition to the Board.

[80] Dr Stringfellow said that on 15 February 2017, Ms White and Ms Jill Andrews asked him questions concerning a ComCare claim. To satisfy himself whether he should notify the Board of the claim, Dr Stringfellow asked whether the claim was against Pawsey or himself and the implications of the claim. Dr Stringfellow was content that the claim did not require elevation to the Board.

[81] Before a Board meeting on 24 February 2017, Dr Stringfellow asserted that he was informed that a request had been made for the Representative Members to have an in-camera session absent his attendance. Mr Stringfellow said that he learned that the in-camera session involved the CSIRO informing the Board that they had initiated performance management procedures against him, and that he had not informed the Board about the ComCare claim.

[82] Dr Stringfellow submitted that the initiation of the performance management procedure served to undermine him in the eyes of the Board and deflected attention away from the transition process and staff welfare, while redirecting attention to the point that his statements could not be relied upon. It was the case said Dr Stringfellow that the performance management procedure was intended to bully him to no longer look after the interests of Pawsey and he was under threat of serious sanctions should he decide to prioritize the interests of Pawsey and its staff over the demands of the CSIRO.

Concerns of universities and CSIRO accusations against me

[83] On 17 March 2017, Dr Stringfellow said the Pawsey Partner Liaisons met and expressed they were disgruntled with the CSIRO’s approach to the transition. The Pawsey Partner Liaisons consisted of representatives of the Core Members and line managers of Pawsey staff within the universities. Dr Stringfellow noted that he informed Mr Dalton of the issues that had surfaced and suggested that Mr Dalton obtain an update from the CSIRO representative at the meeting.

[84] On 22 March 2017, the Pawsey Partner Liaisons wrote to the Chair raising the aforementioned concerns about the transition regarding communication processes, clarity for staff and concern for staff welfare.

[85] Dr Stringfellow submitted that notwithstanding the widespread concern of the universities concerning the transition, the CSIRO continued to insist that he was causing trouble and was against the transition process. Further, there were concerns at Board level that Dr Stringfellow was not taking the lead on the issues arising from the transition.

[86] On this point, Dr Stringfellow submitted that it was unclear to him whether it was the genuine opinion of the Board regarding him not taking the lead, or simply an attempt by the CSIRO to intimidate him before the Board meeting on 18 April 2017. Dr Stringfellow advanced that if the Board did have concerns then it would have only come to pass from the CSIRO passing on such suggestions to cover up for its own deficiencies.

Professional development and an act of pure deception

[87] Dr Stringfellow submitted that the Board offered an opportunity for him to engage in professional development via a 360-degree review. Dr Stringfellow understood that a consultant would be engaged to conduct interviews with peers, Board Members and stakeholders, and would then work with Dr Stringfellow to develop a professional development program based on the findings which would be discussed with him and the Chairperson.

[88] Dr Stringfellow submitted that the offer of this professional development opportunity was an act of pure unmitigated deception. He opened himself up, made himself vulnerable by encouraging staff to be critical of him in order to assist him to understand areas for development. He said that the reality of the situation was that the CSIRO had deceived him and encouraged others to offer up highest levels of criticism so that the CSIRO could formulate justification for getting rid of him.

[89] Dr Stringfellow submitted that on 10 August 2017 the Chairperson informed him that the Board had discussed the contents of the Executive Review and had decided to remove Dr Stringfellow from the role of Executive Director 106.

[90] Dr Stringfellow advanced that given the whole Board had made this decision it followed that the CSIRO Member Representative had made a positive deliberate decision to remove Dr Stringfellow from his post in direct contravention of the provisions of the CSIRO Agreement. It was the case, said Dr Stringfellow, that having attempted to abuse the performance management process in the CSIRO Agreement to harass him and having reached the conclusion that this approach was ineffective, the CSIRO had now simply ignored the provisions of the CSIRO Agreement to force him out of his role.

No internal route of objection

[91] Dr Stringfellow says that on 1 August 2017 he met with Mr Dalton and Ms White to discuss the announcement of his removal from his role. Dr Stringfellow submitted that Mr Dalton, Ms White and Dr Williams were aware of the obligations under the CSIRO Agreement of addressing performance matters under the MUP. Dr Stringfellow submitted that this was the route to assess and transfer an employee to other duties if they were deemed as underperforming after being given due notice of expectation of their performance.

[92] However, in his case the decision to remove him from his role had been taken at the highest level of the organisation and that given a CSIRO leadership team member and senior human resources representative had been dispatched to discuss the decision with him there was not mechanism of appeal to anyone in the CSIRO. Dr Stringfellow submitted that the Chief Executive Officer of the CSIRO understood that this was part of a quiet takeover of Pawsey to enable it to be run by the CSIRO people.

Dilemma of risking funding

[93] During August 2017, Dr Stringfellow said that Pawsey submitted its investment requirements to the Department of Education and Training, and the Department of Industry, Innovation and Science. Dr Stringfellow noted that with the possibility of the government departments securing an announcement of funding in December 2017 it was vital not to generate adverse publicity. It followed, said Dr Stringfellow that he had no option to pursue objections about his treatment outside of the CSIRO as that would have had potentially negative implications for a much wider range of stakeholders.

Confirmation of decision and refusal to engage with funding stakeholders

[94] After expressing concern whether there was a unanimous vote to remove him from the role of Executive Director, Dr Stringfellow requested a meeting with the Board to allow for any Members to express their objection to his removal. The decision remained and the Board, submitted Dr Stringfellow, strongly suggested that he announce that it was his decision. Dr Stringfellow objected to this suggestion for various reasons, and he submitted that the Board and the CSIRO reiterated again that it would be in his interest to resign.

[95] Dr Stringfellow advanced that the action of removing him from the Executive Director role, in addition, amounted to a breach of the funding agreement with the Department and Education and Training. This was because that agreement named him as a ‘specified person’ and therefore, Dr Stringfellow submitted, he could not be removed from his post without the consent of the Department of Education and Training.

Harassment and intimidation to resign

[96] According to Dr Stringfellow, Mr Dalton informed him that Dr Williams had asked Mr Dalton to prepare a statement on behalf of Dr Stringfellow announcing Dr Stringfellow’s resignation from the post. Dr Stringfellow submitted that on 26 October 2017, the Chairperson sent an email to him intimidating him to agree to issue the statement setting out that he was stepping down. It was apparent, according to Dr Stringfellow that the CSIRO were doubly failing in their duties as they were both harassing Dr Stringfellow to resign and were not protecting him from further intimidation. Further, Dr Stringfellow submitted that the decision to press forward with the statement would be a straightforward decision by the CSIRO to dismiss him.

Campaign of timed humiliation

[97] Dr Stringfellow submitted that the decision to announce his stepping down as Executive Director was deliberately timed to precede the Supercomputing Conference in the United States and the Council of Economic Development for Australia luncheon. This served to maximise stress, humiliation and damage to his reputation on a global, national and local scale.

CSIRO’s proposal for demotion

[98] In addition to a campaign of timed humiliation, Dr Stringfellow said the CSIRO then sought to demote him by offering him a role in which the duties were not similar to those that he was previously responsible for. Dr Stringfellow submitted that the role proposed by Mr Dalton did not include being responsible for critical national research infrastructure, managing 40-50 staff, managing an operational budget of $13 million a year with expected additional capital investments of at least $70 million every 4 years and representing Pawsey to State and Federal Ministers and the Prime Minister. Dr Stringfellow added that he informed Mr Dalton he was not interested in the role and did not accept the demotion. He did not vacate the office assigned to the Executive Director until 22 December 2017 by which time Mr Varetto was the Acting Executive Director.

Reaction to stress and my suggestion that I be offered a voluntary redundancy

[99] With regard to a financial settlement offer, Dr Stringfellow submitted that it was he who suggested it to Ms White on 23 November 2017. He said that he understood the CSIRO were not positioned to make such an offer otherwise it would appear that they were trying to force him out of the CSIRO.

[100] Dr Stringfellow advanced that he did not wish to pursue this option but had no choice.

The legislation

[101] Subsection 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which relevantly concerns Unfair Dismissal. That subsection provides:

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[102] Under ss.386(2) of the Act there are exceptions regarding when a person has been dismissed. However, those exceptions are not relevant to this case.

[103] The definition of dismissal in ss.386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct.

[104] In the decision of Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli 107 (Bupa) the Full Bench dealt with ss.386(1) of the Act and sought to clarify the operation of the two elements.

[105] Regarding the first element, it considered the unanimous decision of Industrial Relations Court in Mohazab v Dick Smith Electronics Pty Ltd 108(Mohazab), in which the principles applicable to determine whether in particular circumstances there has been a termination at the initiative were accurately stated:

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd ("David Graphics"), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation of an employee who resigned because "he felt he had no other option". His Honour described those circumstances as:-

‘... a termination of employment at the instance [of] the employer rather than of the employee’.

and at 5:-

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’ 109

[106] It is the case then that a termination of employment ‘at the initiative of the employer’ may be treated as a termination in which the action of the employer is the principal contributing factor 110. The resignation is said to be ‘forced’111, a concept adopted in Mohazab and later followed in decisions made in respect of various iterations of the termination of employment scheme in the Workplace Relations Act (1996) (Cth)112.

[107] O’Meara v Stanley Works Pty Ltd 113 was one such decision. In this case the Full Bench of the Australian Industrial Relations Commission said:

[23]… It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result of that the appellant had no effective or real choice but to resign.

[108] The question is not merely whether the act of the employer, which must be a principal contributing factor 114, resulted directly or consequentially in the termination of employment, but whether on an objective analysis of the employer’s conduct the employee’s effective or real choice was so negated that resignation was inevitably the only recourse.

[109] Often it will be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign from employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer 115. The Full Bench of the Australian Industrial Relations Commission cautioned ‘but narrow though it be, it is important that the line be closely drawn and rigorously observed’, the Bench continued:

Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination 116…

[110] Preceding the Fair Work Bill 2008 a ‘forced’ resignation could constitute a dismissal ‘at the initiative of the employer’ as is clearly evinced from the case law traversed. However, in 2009 the legislature brought into operation ss.386(1)(b) 117. It observed that ss.386(1)(a) was intended to capture the case law relating to the meaning of ‘termination at the initiative of the employer’ as that phrase was understood in Mohazab, while the second limb of ss.386(1) would cover the circumstances where a person resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer (constructive dismissal)118.

[111] One might be forgiven for assuming that the meaning afforded to ‘termination at the initiative of the employer’ had already covered what ss.386(1)(b) sought to address. But, now with ss.386(1)(b) in play it was perhaps unclear what the role of the two limbs were when it came to defining ‘dismissal’ under the Act.

[112] In Bupa, the Full Bench accurately observed that while a ‘forced’ resignation could constitute a termination of employment at the initiative of the employer, the legislature in ss.386(1) chose to define dismissal in a way that retained the ‘termination at the initiative of the employer’ formulation but separately provided for ‘forced’ resignation 119. It was therefore concluded by the Full Bench that ss.386(1)(b) reflected the statutory form of the test developed in Mohazab and thereafter summarized in O’Meara120.

[113] The work then of ss.386(1)(a) was left to be considered. According to the Full Bench in Bupa, it operates in the context of those circumstances in which an ostensible indication of an intention to resign on part of an employee may not be effective to terminate the employment on the employee’s initiative because it cannot reasonably be regarded as voluntary 121. Reference to ‘context’ and ‘circumstances’ extends to the concept of ‘special circumstances’ which are such that they render an apparent indication of resignation on the part of the employee ineffective unless perhaps confirmation is obtained by the employer of the intent to resign after a reasonable period122.

[114] The Full Bench summarized the operation of ss.386(1)(a) in the following terms:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterized as a termination of the employment at the initiative of the employer.

[115] However, while it was the case that Dr Stringfellow purported to be suffering from an extremely stressed state 123 it was clear from his submissions that he considered he was forced to resign due to the conduct of the CSIRO124. Subsection 386(1)(b) in this respect is germane and conveniently the Full Bench summarized that:

(2) [A] resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably [sic] result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.

Agreed matters

[116] Before turning to an objective analysis of the conduct of the CSIRO it is necessary first to traverse those matters that are agreed upon. It is not in contest and I am satisfied on the evidence that:

(a) Dr Stringfellow is a person protected from unfair dismissal because, at the time of his dismissal, he had completed a period of employment with the CSIRO of at least the minimum employment period and an enterprise agreement applied to him in relation to his employment 125;

(b) the CSIRO was not a ‘small business employer’ as defined in s.23 of the Act, so the Small Business Fair Dismissal Code was inapplicable 126;

(d) Dr Stringfellow’s Application was made within the period required 128.

Matter in dispute – was there a dismissal

[117] Quite clearly initial matters must be determined before the merits. In this case the pressing issue to be addressed from the outset is whether Dr Stringfellow was dismissed in circumstances where he resigned.

[118] Dr Stringfellow submitted that his cessation request, namely his resignation, had been forced upon him by the disgraceful conduct of the CSIRO. In contrast the CSIRO submitted that Dr Stringfellow clearly had an alternative to resigning namely, to discuss the financial settlement options or explore alternative roles with the CSIRO, which he chose not to do. The resignation was not forced because at no stage, said the CSIRO, did it indicate it would terminate Dr Stringfellow’s employment if he did not accept the settlement proposal.

Consideration

The framework of Dr Stringfellow’s employment and the appointment of Executive Director

[119] The circumstances of this matter are perhaps unusual given that Dr Stringfellow was an employee of one organisation but his appointment as an Executive Director meant that he had accountabilities to another, namely Pawsey and its Board.

[120] The relationship between Pawsey, the CSIRO and Dr Stringfellow was governed by the PMA. Under the PMA, the intention of the Parties, namely the CSIRO, Curtin, UWA, Murdoch and ECU, was articulated as seeking to continue the unincorporated collaborative venture for the term, which was up until 22 March 2022 129. The Centre Agent, in this case, the CSIRO130, was to act as agent for the Members.

[121] The role of the Centre Agent included an obligation to act in accordance with the directions of the Board. However, that obligation was not unqualified. There was provision for the Centre Agent to advise the Board if there was a direction that was contrary to the Centre Agent’s governing legislation, constitution or adopted policies. If there was an unresolved conflict between the Board’s direction and the aforementioned regulatory scheme of the Centre Agent then the matter was to be referred to the Members for resolution. It was that case that the CSIRO was not obliged to do or refrain from doing anything which was contrary to its regulatory scheme 131.

[122] There was further provision within the PMA to appoint an Executive Director, assess the performance of the same and determine remuneration in consultation with the Executive Director’s employer Member 132. Appointment and removal of the Executive Director required unanimous approval by all Board Members133, and the duties of the Executive Director were set out in cl. 9.4 with a requirement at cl 9.4(b) of the PMA that the Central Agent employing the Executive Director ensure that the Executive Director’s contract of employment reflect the duties134.

[123] The employment contract of Dr Stringfellow provided that his duties were as per his ‘current arrangement and/or subsequently such duties as the Chief Executive, or a person who has the appropriate authority, may allocate from time to time’ 135. And, while appointed as Executive Director of Pawsey, as an employee of the CSIRO his position was that of ‘Facilities Program Director’. As a CSIRO employee the CSIRO Agreement applied to Dr Stringfellow in his employment. It set out a procedure for managing underperformance at Schedule 1. Step 6 of the MUP outlined that if a Senior Manager was to implement an action other than termination of employment in response to underperformance, the officer had a right to request an independent review136.

[124] The perception of Dr Stringfellow was that there was no separation between the decision to remove him from the post of Executive Director and his employment status with the CSIRO 137. Dr Stringfellow asserted that his being both the Executive Director of Pawsey and his employment status with the CSIRO, were one and the same thing138. I do not agree with this proposition.

[125] Under the PMA, the eligibility, role and duties of the Executive Director were clearly outlined. While there was a requirement that the Executive Director’s employment contract reflect the duties of the Executive Director there was no suggestion within the employment contract of Dr Stringfellow of 9 March 2014, or any other material before me, that Dr Stringfellow’s post of Executive Director and employment with the CSIRO were one and the same thing. Clearly the PMA authorised the Board to take actions that were otherwise not mirrored in Dr Stringfellow’s employment contract.

[126] The PMA explicitly set out the rules around the appointment and the removal of the Executive Director. It did not traverse performance management but provided the Board with the power to remove the Executive Director on unanimous vote approval. Unlike the CSIRO Agreement, the PMA outlined that the Board’s functions included assessing the Executive Director’s performance but it was silent within the body of the document on any aspect of, or requirement to, embark upon a performance management procedure as articulated in the MUP.

[127] There is no evidence to suggest that Dr Stringfellow did not know or was unfamiliar with the terms of the PMA. As an ex-officio Board Member one can only but safely assume that Dr Stringfellow was conversant with the terms of the PMA that regulated his appointment. He had accepted the appointment of Executive Director knowing that he could at any time be removed by the Board should it unanimously vote to do so, and that Pawsey was not his employer.

[128] The employment contract of 13 February 2013 stated that Dr Stringfellow’s position was iVEC Executive Director with a start date of 15 April 2013 and an end date of 14 April 2018 139. This First Contract set out duties regarding the appointment with iVEC. However, in 2017, Dr Stringfellow signed the Second Contract the duration of which was set as ‘indefinite’ in the position of Facilities Program Director. The Second Contract provided for duties as per the current arrangement and, or, subsequently such duties as the Chief Executive, or person who has the appropriate authority, may allocate from time to time.

[129] The PMA required the Central Agent to be an employee of the Core Member and stated that the Executive Director’s appointment as an Executive Director would be subject to the terms and conditions of employment of his or her employing Core Member. As observed, the terms and conditions of the Second Contract contemplated that the Chief Executive had authority to allocate further or other duties in addition to the position of Dr Stringfellow being that of Facilities Program Director.

[130] Dr Stringfellow held the firm view that the CSIRO was aware of its obligations under the CSIRO Agreement and that the route to assess and transfer an employee to other duties when underperforming was through the MUP. The removal of Dr Stringfellow from the Board was contrary, said Dr Stringfellow, to the provisions of the MUP.

[131] Clearly, the CSIRO was obliged to manage any underperformance of Dr Stringfellow in accordance with the CSIRO Agreement Schedule 1. And so it was the case that when Mr Dalton identified that there were issues with Dr Stringfellow’s performance he sought to address them through identifying those issues and regularly meeting with Dr Stringfellow over the period of three months to discuss performance and the activities of Pawsey 140. Because Dr Stringfellow considered the process undertaken defective and the basis for such performance management groundless, Dr Stringfellow disputed that performance management occurred in this context. Mr Dalton presented as a credible witness who presented consistent evidence in a respectful manner and appeared disinclined to engage in emotive parlance. I am inclined to believe his evidence in this respect and understand from what he had to say that the performance issues he had identified were remedied by Dr Stringfellow.

[132] The Board similarly had concerns about the performance of Dr Stringfellow. It initially chose to ventilate those concerns with Dr Stringfellow in the Performance Letter, which was said by Mr Dalton to have been reviewed and redrafted by the Chair. The Performance Letter set out:

The aim of the Management of Underperformance process is for you to meet the expectations outlined above. I have determined that 3 months is a reasonable period for this process. This should give you sufficient time to improve your performance and attain the required level.

We will have weekly meetings to discuss activities and to provide feedback to you. Please advise if there is any other support you require to enable you to improve and maintain your performance at the required level.

At the completion of the assessment period, a report will be prepared and provided to Dr Dave Williams – Executive Director, Digital National Facilities &Collections, which will outline whether you have achieved the specified standard of performance. You will be provided with a copy of the report and invited to comment in writing. If Dr Williams determines you have obtained and sustained efficiency at the required level during that period, he will advise you in writing.

If you do not attain the required level by 31 May 2017, then action such as a transfer to other duties, a reduction in classification or termination of your employment with CSIRO may result.

[133] While the Chair had reviewed and redrafted parts of the Performance Letter, it included no reference to ongoing management of performance by the Board and made no mention of any action to be taken under the PMA by the Board.

[134] The Centre Agent was obliged to act in accordance with the directions of the Board, if a direction was contrary to the Centre Agent’s governing legislation, constitution or adopted policies then it could advise the Board. Ultimately the CSIRO was not obliged to do or refrain from doing anything which was contrary to its regulatory scheme 141. There was in my view clear delineation between the purpose, roles and responsibilities of the Board and the Centre Agent, all of which was addressed in the PMA.

[135] There was little, if any evidence, before me regarding the CSIRO’s governing legislation, constitution or adopted policies. It follows that it is difficult to discern what documents are encompassed within such regulatory scheme. However, I am satisfied on the evidence before me that the Board did not at any time provide direction concerning Dr Stringfellow that was contrary to the regulatory scheme of the CSIRO.

[136] Dr Stringfellow asserted that the Board was obliged to follow the MUP under the CSIRO Agreement. I do not consider that to be the case given that the scope of such Agreement did not extend to Pawsey or its Board. Further, there was no evidence before me to suggest that the CSIRO Agreement constituted part of the governing legislation, constitution or adopted policies of Pawsey. In any event, there was no direction from the Board to the CSIRO to terminate the employment of Dr Stringfellow or to otherwise demote him. It was always open to the Board to remove Dr Stringfellow from his appointment in accordance with the terms of the PMA.

[137] Ultimately, it was the CSIRO who conducted the performance management process under the MUP, and it was the CSIRO who considered that Dr Stringfellow had successfully addressed performance expectations. As the employer of Dr Stringfellow, the CSIRO sought to retain him in service notwithstanding his removal from the Executive Director appointment. While Dr Stringfellow advanced that the CSIRO tried to abuse the MUP contained in the CSIRO Agreement to harass him, it is not open on the evidence to arrive at that conclusion. Clearly, Mr Dalton respected Dr Stringfellow, considered that they worked well together and was satisfied that any issue with underperformance had been addressed to the satisfaction of the CSIRO.

[138] While Dr Stringfellow may have held the perception or belief that there was no separation between the decision to remove him from the post of Executive Director and his employment status with the CSIRO, I am satisfied there was 142. The appointment as Executive Director of Pawsey and Dr Stringfellow’s employment status with the CSIRO, were not one and the same thing143.

Dr Williams

[139] Dr Stringfellow reasoned that the fact that the whole Board had made the decision to remove him meant in turn that Dr Williams, the Member Representative for the CSIRO, had made a deliberate positive decision to remove him from the post. According to Dr Stringfellow this constituted a direct contravention of the provisions of the CSIRO Agreement. At hearing, and quite correctly in my view, Dr Williams confirmed that which was included in his witness statement namely, as a Member of the Pawsey Board, he was required to, and did, act in the best interests of Pawsey and did not advocate a CSIRO position 144.

[140] From his submissions it appears that Dr Stringfellow considered that the handling of the ComCare claim by CSIRO, in addition to the instruction by Dr Williams to provide a ‘1-page’ memo to the Board regarding the transition of staff to CSIRO employees, had, in effect given rise, to performance concerns. Reference to the Performance Letter clearly shows that Dr Stringfellow’s management of the ComCare claim had bearing when an assessment of his performance by the CSIRO was undertaken. In short, Dr Stringfellow perceived that the CSIRO had undermined him before the Board 145.

[141] However, I am not satisfied that these issues provided the basis for Dr Stringfellow’s removal from his appointment of Executive Director. Conversely, it is open to conclude that the content of the Executive Review did contribute and while the CSIRO arranged for the Executive Review to take place it did not, in and of itself, make the decision to remove Dr Stringfellow from the appointment of Executive Director.

Executive Review and the removal of Dr Stringfellow

[142] The Executive Review was described by Dr Stringfellow as an act of deception. In my view the Executive Review had a twofold consequence. It was in part the catalyst for Dr Stringfellow’s removal by the Board and in turn it seemingly obliterated any trust Dr Stringfellow had in the CSIRO either rightly or wrongly.

[143] Dr Stringfellow expressed that the CSIRO had deceived him by encouraging others to offer up the highest levels of criticism thereby positioning the CSIRO to formulate a justification for getting rid of him. He said that he had made himself vulnerable and had opened himself up having understood that the purpose of the process was to enhance his abilities and professionally develop him.

[144] Based on information from the Chair, Mr Dalton said it was his understanding that as Dr Stringfellow was nearing his third anniversary as Executive Director the Board wanted to conduct a comprehensive appraisal of his leadership performance to date 146. The letter from the external consultant of 15 May 2017147 to Mr Dalton similarly noted that he had been asked by the Chair to conduct a review of Dr Stringfellow who was nearing his third anniversary and as such it was an appropriate time to conduct a comprehensive appraisal of leadership performance148. Mr Dalton said it was the CSIRO’s role to organise the review149.

[145] As the Central Agent, the CSIRO engaged the external consultant and facilitated the process. But, it did so under Board instruction. Dr Williams said that he considered the Executive Review provided a concise summary of the issues and confirmed the view of the Board about Dr Stringfellow 150. However, it must be remembered that Dr William’s opinion is simply that, an opinion and it must be noted that the view was a confirmation of that held by the Board, not the CSIRO.

[146] The Executive Review was completed by July 2017, and both the Board and Mr Dalton received copies. On 27 July 2017 the Board, with the exception of Dr Stringfellow, reached the unanimous conclusion to remove Dr Stringfellow 151. Dr Stringfellow harboured much upset and perhaps anger toward the CSIRO regarding these events. Nevertheless, it was not the CSIRO who determined to conduct a review of Dr Stringfellow’s performance via the engagement of an external consultant, nor was it the CSIRO who read the Executive Review and opted to remove Dr Stringfellow from his appointment. Those actions sat squarely with the Board.

Response to the Board decision

[147] From the evidence it is clear that the CSIRO sought to accommodate Dr Stringfellow to assist him into his transition into a new role within the CSIRO. While the Executive Director appointment had ended, it was not the case that Dr Stringfellow’s employment with the CSIRO had concluded. The evidence of Mr Dalton was that he emphasised to Dr Stringfellow that he continued to be employed by the CSIRO and Mr Dalton would be looking for another ongoing role for him 152.

[148] The role that Mr Dalton traversed in the hearing was that of leading the development and implementation of a new technology and data platform between the UK Met Office, the Australian Bureau of Meteorology and the CSIRO for the purposes of weather prediction and climate modelling 153. There was no evidence to suggest that the position was of lesser status than the position of Facilities Program Director as stated in the Second Employment Contract or that it attracted less remuneration. Mr Dalton stated that the alternative position was only discussed at a high level as Dr Stringfellow advised Mr Dalton he was not interested in it154.

[149] Dr Stringfellow’s disinterest in the alternative position was evident at hearing and it was clear that he considered that no position would match that which he had previously been appointed in. Therefore, from 11 October 2017 the option of a financial settlement was raised by Dr Stringfellow 155. Mr Dalton said that he asked Dr Stringfellow to follow this up with Ms White, which Dr Stringfellow did not do156.

[150] However by November, the option of a financial settlement was pursued by Dr Stringfellow to the extent that Ms White undertook operose efforts to attempt to accommodate his demands during December 2017 and January 2018. Ms White’s attempts to obtain settlement figures and authorisations continued until mid-January. And yet, having set into motion this negotiated exit, by 12 January 2018 Dr Stringfellow assumed that the CSIRO was not interested in his proposal for a settlement and therefore it appeared neither was he 157.

[151] It was then the case that on 12 January 2018, Dr Stringfellow gave the CSIRO the ultimatum of reinstating him into the position of Executive Director of Pawsey:

I now insist that CSIRO reinstate me to the post of Executive Director of the Pawsey Supercomputing Centre with immediate effect….

[152] As we know this did not occur and on 23 January 2013, Ms White received an email from Dr Stringfellow again reiterating that the only action that would satisfy him was his return to the post of Executive Director. Having not been appeased it was therefore the case that Dr Stringfellow resigned and true to his words he submitted his claim to the Commission.

Conclusion

[153] While the background to this matter is lengthy, as is the consideration aspect of this decision, it is nevertheless important. Critical to the determination of whether Dr Stringfellow was ‘dismissed’, as that term is understood in the context of ss.386(1)(b) of the Act, is an objective analysis of the CSIRO’s conduct. The analysis is required to determine whether the conduct of the employer was of such a nature that resignation was the probable result as Dr Stringfellow had no effective or real choice but to resign.

[154] The Full Bench of this Commission has said that the conduct of the employer is the essential element 159, and the employer in question in the circumstances of this matter was the CSIRO.

[155] In this case it was unmistakable that Dr Stringfellow held his employer accountable for the actions of the Board when it removed him from the Executive Director appointment. Dr Stringfellow asserted that his being both the Executive Director of Pawsey and his employment status with the CSIRO, were one and the same thing 160. I have already stated that I did not agree with this proposition and have set out my reasons why. When the Board took action to remove Dr Stringfellow from the appointment of Executive Director it was not the case that the CSIRO had engaged in that conduct.

[156] It was evident that the intent of the CSIRO was to maintain Dr Stringfellow in employment, and to provide him with a position that was commensurate to the remuneration received and responsibilities held when appointed as Executive Director. It was after all Dr Stringfellow who proposed a financial settlement and while the CSIRO unquestioningly attempted to accommodate Dr Stringfellow it was unable to do so mainly in part due to the time taken to respond to his offer. There was never any suggestion by the CSIRO that it would terminate Dr Stringfellow’s employment should he refuse a financial settlement or otherwise withdraw from such negotiation.

[157] I have considered the evidence of Dr Stringfellow and his accompanying submissions, but am not satisfied that the evidence before me makes out a case that the intent of the CSIRO was to bring the employment relationship with Dr Stringfellow to an end, whether that may have been by way of a redundancy, demotion, or forced resignation. While Dr Stringfellow had outlined numerous issues arising in the lead up to his removal I cannot help but arrive at the conclusion, a point that was advanced by the CSIRO, that Dr Stringfellow made his decision to resign based on his perceptions and his subjective response to the lawful actions of the CSIRO. I am satisfied that the circumstances were such that it was the discretion of a resigning employee, rather than that of the employer, that gave rise to the termination.

[158] I have concluded that it was not the case that Dr Stringfellow had no choice but to resign. The CSIRO had already expressed their intention to place him in an alternative role and viewed objectively its evidence left an impression of genuine intent to work cooperatively with him. Mr Dalton’s evidence was that the position existed but like other jobs it would be built. That context of the position was explained by Mr Dalton:

So as I said to you this morning, I'm in the process of developing a separate MOU with the UK MET office, potentially with the Singaporean MET office which is not about climate science per se and the existing modelling and incremental changes around the way existing modelling is being done, but is about looking at using technology, using machine learning, using artificial intelligence, using, you know, deep learning to do climate forecasting differently. So this is very much not thinking about now and next, it's thinking about the future for climate modelling. You know, at the moment we have funding for a new super computer at NCI. It's looking like the storage required for that super computer means that we need to find extra funding from somewhere. Both the UK MET office and I have had discussions about the fact that we actually need to change the way people are thinking about doing climate science, using supercomputing, big data, et cetera.

….

You found a job. But what you've just been talking about now is, is it not, well, we might get an MOU, and we're working on this, and there's things for the future, and so on. That's not finding a job, that's talking about some remote possibilities in the future, is it not?---I don't see it as remote possibility. It's something that we have to do and genuinely it's a – it's a real job.

Okay. There's no – - -?---So, you know, there's jobs. We have to build them, you know? They're not necessarily, you know, there is this defined thing. I mean - - -

But what I'm suggesting, Mr Dalton – Brendan, I might say - - -?---Yes.

Is that it's different, it is, to say, "I've got some possibility for the future," is not, "I've found you a job"?---I disagree.

[159] At the time Dr Stringfellow resigned from his employment the above narrative had not occurred with Mr Dalton due to the conduct of Dr Stringfellow. Undoubtedly, Dr Stringfellow prematurely called a halt to discussions of alternative roles. It follows that he was ill positioned to judge whether the alternative role was that of a Facilities Program Director or akin to. There was no evidence to suggest that the refusal to discuss the alternative roles was reasonable. Having had annual leave approved for the period up until 29 January 2018, there was no sense of urgency, or for that matter compulsion for Dr Stringfellow to resign on 23 January 2018.

[160] Dr Stringfellow suggested and then pursued a financial settlement with the CSIRO only to later withdraw from the negotiations. The withdrawal occurred in a context where the CSIRO had been diligently and genuinely trying to obtain the necessary approvals from five Core Members to provide a substantial and generous severance payment and had continued to communicate with Dr Stringfellow regarding status updates on the settlement.

[161] An ultimatum to reinstate him into the appointment of Executive Director was then impressed by Dr Stringfellow in circumstances where he was cognisant that the CSIRO was absent such authority to do so.

[162] Although not words of my own, I have observed often it will be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign from employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer 161. In my view this is not a case where there is that aforementioned narrow line. I have concluded that it was quite clearly the discretion of the resigning employee, Dr Stringfellow, which gave rise to the termination. The conduct of the CSIRO was not such that there was an intention of bringing the employment to an end or that termination of the employment was the probable result of its conduct such that Dr Stringfellow had no effective or real choice but to resign. The application is therefore dismissed and an accompanying order162 is issued to this effect.

DEPUTY PRESIDENT

1 Exhibit R2 Witness Statement of Brendan Dalton [8].

2 Ibid.

3 Exhibit R1 Annexure DW-1.

4 Exhibit R2 Witness Statement of Brendan Dalton [9].

5 Ibid.

6 Exhibit R1 Witness Statement of David Williams [10] – [11].

7 Ibid [11].

8 Ibid.

9 Ibid.

10 Exhibit A1 Witness Statement of Dr Neil Stringfellow Annexure 2.

11 Exhibit R1 Witness Statement of David Williams [16].

12 Ibid.

13 Exhibit R7.

14 Ibid.

15 Exhibit R6.

16 Ibid.

17 Ibid.

18 Exhibit R2 Witness Statement of Brendan Dalton [14].

19 Ibid [4].

20 Ibid [14].

21 Exhibit R1 Witness Statement of David Williams [19].

22 Exhibit R1 Annexure DW-1.

23 Exhibit R2 Witness Statement of Brendan Dalton [16].

24 Ibid.

25 Ibid.

26 Exhibit R1 Witness Statement of David Williams [23].

27 Ibid [24].

28 Ibid.

29 Exhibit R2 Witness Statement of Brendan Dalton [22].

30 Ibid.

31 Ibid [23].

32 Ibid.

33 Exhibit R1 Witness Statement of David Williams [14].

34 Ibid [15].

35 Exhibit R2 Witness Statement of Brendan Dalton [23], [24].

36 Ibid [25].

37 Exhibit R1 Witness Statement of David Williams [25].

38 Ibid.

39 Ibid [26].

40 Exhibit R2 Witness Statement of Brendan Dalton [26].

41 Ibid Annexure BD-1.

42 Ibid.

43 Ibid BD-2.

44 Exhibit R2 Witness Statement of Brendan Dalton Annexure BD-3.

45 Transcript PN489.

46 Exhibit R2 Witness Statement of Brendan Dalton Annexure BD-1.

47 Transcript PN209, PN 210.

48 Transcript PN494.

49 Transcript PN497.

50 Transcript PN497.

51 Transcript PN500.

52 Exhibit R1 Witness Statement of David Williams [27].

53 Exhibit A1 Witness Statement of Dr Neil Stringfellow.

54 Exhibit R1 Witness Statement of David Williams Annexure DW-4.

55 Ibid [30].

56 Ibid.

57 Ibid [32].

58 Ibid [14].

59 Exhibit A1 Witness Statement of Dr Neil Stringfellow [91].

60 Ibid [92]; Exhibit R1 Witness Statement of David Williams Annexure DW-5.

61 Exhibit R2 Witness Statement of Brendan Dalton [32].

62 Ibid.

63 Ibid [35].

64 Ibid.

65 Ibid.

66 Ibid [36].

67 Ibid.

68 Ibid [37].

69 Ibid.

70 Ibid [50].

71 Ibid.

72 Ibid Annexure BD4.

73 Ibid.

74 Ibid [42].

75 Ibid.

76 Ibid [40].

77 Ibid [39].

78 Ibid.

79 Ibid [40].

80 Ibid.

81 Ibid [49].

82 Ibid [48].

83 Ibid [49].

84 Ibid [50].

85 Ibid [51].

86 Exhibit R4 Witness Statement of Anthea White [23].

87 Ibid.

88 Ibid [24].

89 Ibid Annexure AW3.

90 Ibid.

91 Ibid.

92 Ibid.

93 Ibid AnnexureAW5.

94 Ibid.

95 Ibid [40].

96 Ibid [41].

97 Ibid AnnexureAW7.

98 Ibid.

99 Ibid.

100 Exhibit R2 Witness Statement of Brendan Dalton [57] – [61].

101 Exhibit R4 Witness Statement of Anthea White [50].

102 Ibid.

103 Ibid Annexure AW9.

104 [2017] FWCA 4119.

105 Exhibit A1 Witness Statement of Dr Neil Stringfellow Exhibit 17.

106 Exhibit R1 Witness Statement of David Williams Annexure DW-4.

107 [2017] FWCFB 3941.

108 (1995) 62 IR 200.

109 [2017] FWCFB 3941 [31].

110 Mohazab v Dick Smith Electronics Pty Ltd [No 2] (1995) 62 IR 200.

111 Ibid.

112 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.

113 [2006] AIC 496.

114 A.S Doumit v ABB Engineering Construction Pty Ltd Print N6999.

115 Ibid.

116 Ibid; cited with approval in BC Stubbs v Austar Entertainment Pty Ltd, Print Q0008.

117 Fair Work Bill 2008 Explanatory Memorandum [1528].

118 Ibid [1528] - [1530].

119 [2017] FWCFB 3941 [33].

120 Ibid [34].

121 Ibid [35].

122 Ibid.

123 Dr Stringfellow’s Outline of Argument: Objections [147].

124 Dr Stringfellow’s Statement of Evidence [147].

125 s.382 of the Act; CSIRO Enterprise Agreement 2017-2020 [2017] FWCA 4119.

126 ss.385(c) of the Act.

127 ss.385(d) of the Act.

128 ss.394(2) of the Act.

129 Exhibit A1 Annexure 2 cl 21.

130 Ibid.

131 Ibid cl 10.4(c).

132 Ibid cl 6.2.

133 Ibid cl 6.9(j).

134 Exhibit A1 Annexure 2.

135 Exhibit R6.

136 Exhibit A1 Annexure 2, Schedule 1.

137 Exhibit R2 Witness Statement of Brendan Dalton Annexure BD4.

138 Ibid.

139 Exhibit R7.

140 Exhibit A1 Annexure 8.

141 Ibid Annexure 2 cl 10.4(c).

142 Exhibit R2 Witness Statement of Brendan Dalton Annexure BD4.

143 Ibid.

144 Exhibit R1 Witness Statement of David Williams [9].

145 Exhibit A1 [52].

146 Exhibit R2 Witness Statement of Brendan Dalton [29].

147 Exhibit A1 Annexure 10.

148 Ibid.

149 Exhibit R2 Witness Statement of Brendan Dalton [29].

150 Exhibit R1Witness Statement of David Williams [29].

151 Ibid [30].

152 Exhibit R2 Witness Statement of Brendan Dalton [36].

153 Ibid [48].

154 Ibid [49].

155 Ibid [50].

156 Ibid.

157 Exhibit R4 Witness Statement of Anthea White AW7.

158 Ibid.

159 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.

160 Exhibit R2 Witness Statement of Brendan Dalton Annexure BD4.

161 A.S Doumit v ABB Engineering Construction Pty Ltd Print N6999.

162 PR607599.

Printed by authority of the Commonwealth Government Printer

Dr Neil Stringfellow v Commonwealth Scientific and Industrial Research Organisation T/A CSIRO

[2018] FWC 3094

30 MAY 2018

DECISION