Lamb v RPS AAP Consulting Pty Ltd - [2022] FedCFamC2G 255

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lamb v RPS AAP Consulting Pty Ltd [2022] FedCFamC2G 255

File number(s): SYG 1911 of 2020

Judgment of: JUDGE HUMPHREYS

Date of judgment: 11 April 2022

Catchwords: INDUSTRIAL LAW – FAIR WORK – Fair Work Act 2009 (Cth) – whether the applicant made a complaint – whether adverse action was taken – adverse action made out – order for declaration of contravention and compensation.

Legislation: Fair Work Act 2009 (Cth) ss 340 341, 342, 351, 361, 545, 546, 570

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

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

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

Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307

Division: Division 2 General Federal Law

Number of paragraphs: 243

Date of last submission/s: 3 March 2022

Date of hearing: 28 February – 3 March 2022

Place: Parramatta

Solicitor for the Applicant: Mr Gorval

Solicitor for the Applicant: Mr Pratt
ORDERS

SYG 1911 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
SIOBHAN LAMB

Applicant

AND:
RPA AAP CONSULTING PTY LTD ACN 117 883 173

Respondent

ORDER MADE BY:

JUDGE HUMPHRES

DATE OF ORDER:

11 APRIL 2022

THE COURT ORDERS THAT:
1.A declaration that the respondent contravened s 340 of the Fair Work Act 2009 (Cth) (“the Act”).
2.That the respondent pay compensation to be determined pursuant to s 545 of the Act for the pain, injury, loss and damage as a result of the adverse action.
3.An order pursuant to s 545 of the Act that the respondent pay compensation to be determined to the applicant for past and future loss of remuneration which the applicant would have earned had she remained employed by the respondent.
4.An order pursuant to s 546 of the Act imposing a pecuniary penalty to be determined, upon the respondent as a consequence of the adverse action.
5.An order pursuant to s 546 of the Act that all pecuniary penalties be paid to the applicant.
6.Interest is calculated in relation to the amounts payable to be ordered by the court.
7.Costs are reserved. Any application for costs should be made by way of an application in a proceeding noting the limiting provisions of s 570 of the Act in relation to costs orders.
8.The matter be listed for Directions at 9:30am on 29 April 2022, noting that the parties are expected to provide to the Court consent orders as to timetabling.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
Friendship is constant in all other things -Save in the office and affairs of love (William Shakespeare – Much Ado About Nothing Act 2 Scene 1 line [122])

The respondent, RPS AAP Consulting Pty Ltd, is a large consulting firm that assists government in relation to infrastructure and other projects. Siobhan Lamb (“the applicant”) commenced full-time employment with the respondent on 6 November 2017 in the position of Practice Leader- Project Development. The applicant worked out of the respondent’s Sydney based office.
In around January or February 2019 the respondent acquired the assets of Corview Group Pty Ltd, another consulting firm. An integration process was undertaken during 2019. Included in the senior staff of Corview who transferred over to RPS were Mr Sheldon Sherman and Mr Arthur Stamatoudis.
On 1 August 2019, the applicant was promoted to the position of National Lead – Strategy and Transformation with a base salary of $272,500 plus superannuation of $25,887.50. The applicant reported to Mr Stamatoudis. Mr Sherman worked out of the Brisbane office of the respondent.
In Ms Lamb’s first meeting with Mr Stamatoudis at a work-related function, the applicant claims that he asked her if she was married. The applicant claims that this inquiry made her feel very uncomfortable. The applicant left the conversation shortly thereafter.
In around mid-August 2019, the applicant entered into a consensual, intimate relationship with Mr Sherman. In the applicant’s mind it was a casual, non-exclusive relationship. A term that might be used for such a relationship is “friends with benefits”. The applicant claims that, against her wishes, Mr Sheldon disclosed their relationship to Mr Stamatoudis, who by this time, was the applicant’s supervisor.
The applicant claims that Mr Stamatoudis then made repeated unwelcomed inquiries of the applicant as to the state of her relationship with Mr Sherman. Mr Stamatoudis claims that he did so on the basis of a concern as to conflict of interest issues.
The applicant claims that she ended, from her point of view, the relationship with Mr Sheldon in very late December 2019 after an incident when the two of them travelled to Dubai. It appears that Mr Sheldon did not accept this and continued to pursue the applicant during January and February 2020.
At the beginning of January 2020, as part of an annual performance review, Mr Stamatoudis met with the applicant. As well as discussing her work performance, Mr Stamatoudis discussed with the applicant issues relating to her relationship with Mr Sheldon.
The applicant subsequently flew to London to undertake a course of study she had enrolled in, she claims with the support of Ms Sullivan, who was the supervisor of Mr Stamatoudis. While in London, the applicant claims that she made a complaint in an email about the further unwelcome intrusion by Mr Stamatoudis into her personal affairs.
The applicant then claims that she had a meeting with senior staff from the respondent company, including Mr Stamatoudis. The applicant claims that previously undocumented performance issues were raised with her, including her attendance at the Master of Business Administration Course in London for a week. The applicant then claims that following the meeting, she was advised in a phone call the next day that she was to be removed from her position and, in her eyes, demoted. This then forced the applicant to resign from the respondent company.
The applicant further claims that her notice period was cut short as a result of unfounded claims that she was attempting to poach clients from the respondent company.
THE APPLICANT’S CLAIMS
In an Initiating Application filed with the Court on 11 August 2020, the applicant claims that adverse action was taken against her, as a result of the inquiry she submitted, as to whether an additional performance review meeting would occur, contrary to s 341(1)(c) of the Fair Work Act 2009 (Cth) (“the Act”).
The applicant further claims that she made a complaint on 22 January 2020 regarding Mr Stamatoudis making repeated and inappropriate inquiries regarding the applicant’s personal life. At a meeting on 6 February 2020, the applicant claims that she made further complaints that she was experiencing unwanted interference in her work by Mr Stamatoudis. These complaints were a workplace right pursuant to s 341(1)(c) of the Act.
The applicant claims that she made a further complaint in an email to Ms Jodie Taylor on 9 March 2020 that a personal leave request had been submitted on behalf of the applicant for the period 23 to 27 March 2020 without her knowledge or consent.
The applicant claims that demoting her and forcing her to resign on 7 February 2020 constitutes adverse action pursuant to s 342 of the Act.
Further adverse action occurred on 13 March 2020, when the respondent terminated the applicant’s employment prior to the forced resignation taking effect.
The applicant additionally claims that during the course of her employment, as the youngest and only female member of the senior leadership team of the respondent, she was the subject of unwanted questioning about her personal life by Mr Stamatoudis. This constituted adverse action. It is claimed that the age and sex of the applicant formed the operative and substantive reason for this occurring in contravention of s 351 of the Act.
The applicant seeks the following declarations and orders:
1. A declaration that the Respondent has contravened s 340 of the Fair Work Act 2009 (Cth) (FW ACT);
2. A declaration that the Respondent has contravened a 351 of the FW Act;
3. An order for compensation pursuant to s 545 of the FW Act for the pain, injury, loss and damage suffered by the Applicant as a result of the Respondent’s contraventions of s 340 and s 351 of the FW Act;
4. an order pursuant to s 546 of the FW Act imposing a pecuniary penalty on the respondent as a consequence of its contraventions of s 340 and s 351 of the FW Act;
5.   an order that all pecuniary penalties be paid to the applicant;
6.   Interest;
7.   Costs; and
8.   Such other orders as the Court sees fit.
THE LAW
Part 3-1, Division 3 of the Act sets out various work place rights for employees. Section 340 of the Act provides as follows:
1. A person must not take adverse action against another person:
a)because the other person:
i.has a workplace right; or
ii.has, or has not, exercised a workplace right; or
iii.proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
b)to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
Section 341 of the Act relevantly defines a ‘workplace right’ to include:
1. A person has a workplace right if the person:
…
c)is able to make a complaint or inquiry
…
ii.if the person is an employee--in relation to his or her employment.
Section 342 of the Act relevantly sets out the meaning of ‘adverse action’. This includes:
Adverse action is taken by… an employer against an employee if… the employer:
a)Dismisses the employee; or…
b)Alters the position of the employee to the employees prejudice; or
c)Discriminates between the employee and other employees of the employer
The definition of s 341(1)(c)(ii) is one that might be satisfied by an employee making a complaint to their employer: (see; Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307 at [141]). There must be a relevant connection between the complaint and the employee’s employment, albeit it may be an indirect one: (see; Construction, Forestry, Mining & Eenergy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [61]-[64]).
Where an applicant alleges a contravention of s 340 of the Act, to be established they bear no burden of proving the reasons for the adverse action. Section 361 of the Act provides as follows:
Reason for action to be presumed unless proved otherwise
1. If:
a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
b)taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
This must, however, be taken in conjunction with s 360 of the Act which states as follows:
Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Thus, although under s 360 of the Act the prohibited reason need only be one of multiple reasons for acting, the prohibited reasons must be a “substantial or operative factor” in influencing the adverse action, or alternatively, an operative or immediate reason for acting: (see; Board ofBendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (“Barclay”) at [62] per French CJ and Crennan J, at [104] per Gummow and Hayne JJ, and at [140] per Heydon J).
This requires the Court, at a minimum, to conduct an enquiry the state of mind of the decision maker. Where multiple people are involved in the decision making process, such an enquiry may involve taking into account all these decision maker’s reasons: (see; Construction, Forestry, Mining & Energy Union v Clermont Coal Pty Limited [2015] FCA 1014 per Reeves J at [103]-[104]). Reeved J quotes the following from Barclay at [109]:
Generally it will be extremely difficult to displace the statutory presumptions in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.
Section 351 of the Act relevantly provides as follows:
1. An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Various exceptions to s 351 are set out in s 351(2) of the Act, however none are relevant in this matter.
THE APPLICANTS CASE
The sole witness called was the applicant. In an Affidavit affirmed 20 January 2021 the applicant deposed that she first met Mr Stamatoudis, at a meet and greet function held around March 2019. The applicant’s initial conversation with Mr Stamatoudis consisted of words to the effect:
Mr Stamatoudis:         “Hi, I‘m Arthur, it’s nice to meet you.”
The applicant:            “Likewise. Are you based in Sydney?”
Mr Stamatoudis:         “No, Brisbane. (other conversation ensured regarding where he was working). But tell me about you Siobhan, are you married?”
The applicant:            “Ah No, I’m not.”
Mr Stamatoudis:         “That’s a shame, don’t worry, you’re still young enough and you’re a good looking girl. It’ll happen.”
The applicant deposes that she felt very uncomfortable about the above conversation. The applicant states that she walked Mr Stamatoudis towards Mr Nick Johnson, introduced him to Mr Johnson and then left the conversation.
The applicant states that she met Mr Johnson shortly after the function and had the following a conversation with Mr Johnson:
Mr Johnson:               “So, how do you think the Melbourne integration session went?”
The applicant:            “I thought it was really good actually, it was great that Ross came down. Thanks for bailing me out of the conversation with Arthur though, he was just fairly inappropriate, asking me if I was married and telling me that it was okay I wasn’t, because I was still a “young and good looking girl”.”
Mr Johnson:               “That’s ok, that’s pretty terrible though, are you going to escalate this?”
The applicant:            “Probably not, he is in Queensland anyway so I don’t think I’ll have to see him very often. Let’s just see what happens.”
The applicant deposes that on 1 August 2020, she was promoted to the full-time position of National Lead, Strategy and Transformation in the newly formed RPS AAP Consulting Pty Ltd.
The applicant states that in around March 2019 she met Mr Sheldon Sherman. In around August 2019, the applicant and Mr Sherman attended a further work event in Hobart. The applicant states that Mr Sherman began to pursue her romantically.
By approximately September 2019, Mr Sherman and the applicant commenced what she describes as “an informal, casual romantic friendship.” The applicant was based in Sydney and Mr Sherman worked in the Brisbane office. They did not work in the same department nor do they live in the same state, so their paths would rarely cross in a typical work day.
The applicant deposes that as her relationship with Mr Sherman was recent and informal, she did not think it was necessary to disclose the relationship to management of her firm or colleagues as the relationship held no longevity. The applicant states she was concerned that she could be the brunt of workplace gossip.
From around September 2019, the applicant states that she noticed Mr Sherman started to travel to the Sydney office more frequently and started to bid for projects that were based in Sydney. Prior to this, Mr Sherman would rarely visit Sydney. The applicant states that on repeated occasions between September and October 2019 she told Mr Sherman that she did not want people at work to be aware of their relationship and that she did not want Mr Sherman to work in the Sydney office.
In the applicant’s mind, as the relationship was informal and casual. The applicant did not perceive it to be a conflict of interest situation, as Mr Sherman was not working in her area, nor did he have line management association with her role or her business unit.
Between August and October 2019, Mr Stamatoudis was promoted to the position of Executive General Manager of Strategy and Investment and became the line manager of the applicant. On or around 7 October 2019, the applicant states that she received an impromptu telephone call from Mr Stamatoudis in the following terms:
Mr Stamatoudis:   “I just had lunch meeting with Sheldon, he tells me you’re in a relationship together.”
The Applicant:   “Excuse me?”
Mr Stamatoudis:   “He also mentioned you’re an overachiever, I hear you received all HD’s for your exams. Sheldon told me that you are really stressed out, you need to take it easy.”
The Applicant:  “Arthur, can we please talk about it next week, I’m not in a position to discuss these matters with you at the moment.”
The applicant states that she felt very uncomfortable at being called by Mr Stamatoudis immediately after a lunch meeting with Mr Sherman to specifically ask her about her personal situation and relationship. The applicant states that she was aware that Mr Stamatoudis and Mr Sherman had worked together previously and were close friends. The applicant felt upset that Mr Sherman had disclosed the relationship without her consent to her direct Manager in blatant disregard of the repeated requests to keep their relationship a private matter.
The applicant states that she complained to Mr Sherman the next day about him disclosing their relationship to Mr Stamatoudis. The applicant deposes that following these conversations, she noticed that there was a direct change in the way in which Mr Stamatoudis began treating her. Conversations had an underlying personal tone rather than being strictly work-related. For example, engagement requests were constantly being denied by Mr Stamatoudis, where such request being made by male counterparts were being approved.
In a one-on-one meeting around 25 November 2019, the applicant deposes that she raised concerns with Mr Stamatoudis that she was being left out of significant management decisions which she felt were impacting on her ability to perform her role.
The applicant deposes the following conversation took place:
Mr Stamatoudis:   “Just write stuff down, that would be my suggestion. How’s your relationship with Sheldon going? I think you need to tell the team that the two of you are seeing each other.”
The applicant:   “No, I don’t feel comfortable with that. We are not in any serious relationship. I know Sheldon is just going through some difficulties at the moment and I was just being supportive.”
Mr Stamatoudis:   “Why, you’re not divorced are you?”
The applicant:   “Well, actually I am.”
Mr Stamatoudis:   “Well I didn’t know that I thought you were a good catholic girl. Geez you must have been young or what? Either way, you should just tell people about Sheldon.”
The applicant:   “I don’t think that’s necessary, as I said, we aren’t in a serious relationship. I’m not actually aware of any other couples that had to make such a disclosure. If the relationship becomes serious, then I’ll make that disclosure.”

The applicant claims the following is a discussion, in a telephone call with Mr Sheldon she asked him if he was ever asked questions about their relationship and work meetings. He replied “No, never, why?
Around 6 January 2020, the applicant states that she was accepted into an Executive Masters of Business Administration (“EMBA”) course at Oxford University in England. The following day, she requested a meeting with Ms Meegan Sullivan, the RPS Executive Director, to discuss a number of matters including a “personal development opportunity”. Prior to the meeting, the applicant deposes that she emailed a running sheet to Ms Sullivan which outlined the content of the course. At the bottom of the running sheet, which is attached to her Affidavit as SL7, the following appears “the support I ask for is the time allowance of the 7/8 weeks per year and where global UK/Euro business opportunities stack up to support the travel costs”.
The applicant deposes that during the conversation with Ms Sullivan, she confirmed that the course would require face-to-face classes in the United Kingdom for eight weeks per year but stated that she be able to work remotely from Oxford during her study time, but also from RPS London offices. The applicant confirmed, that if she started in January 2020, she would need to be away in the UK for the second to last week of January. The applicant states that she told Ms Sullivan that she could work remotely for the duration of the trip to deliver her billable client materials. Towards the conclusion of the meeting, the applicant recalls asking Ms Sullivan “okay, so just to be clear and confirm then, am I okay to book flights and make payment for the course in January then”. Ms Sullivan replied “yes that’s fine”.
Following this meeting, the applicant deposes she took out a $160,000.00 bank loan to enable her to pay for the EMBA. The applicant also paid a generally non-refundable deposit of approximately $34,000.00 towards the tuition fees.
On 17 January 2020, the applicant met with Mr Stamatoudis in order for her annual performance review to be conducted. At that meeting, the applicant alleges that Mr Stamatoudis again enquired of her “how are things going with Sheldon”. The applicant deposes she responded, “I don’t think that’s an appropriate question”. The applicant alleges that an unfair performance assessment was made of her in relation to the timeliness of the submission of her timesheets. The applicant alleges that a new timesheet system was introduced in November 2019 which had significant difficulties, causing her, along with others, to be unable to enter their timesheet data. The applicant claimed that she explained this to Mr Stamatoudis.
Towards the middle of the meeting, the applicant alleges that she told Mr Stamatoudis about the EMBA course and advised him that she would be away from the second to the last week of January. The applicant recalls Mr Stamatoudis making notes of that conversation.
A further conversation ensued in which the applicant alleges that Mr Stamatoudis told the applicant that people were gossiping about her in the office. Mr Stamatoudis further stated “I like your jacket by the way. Aren’t you hot?” The applicant states that she felt very uncomfortable by this conduct and that her personal life again became the subject of a discussion on a one-on-one annual performance review meeting. The applicant states that she intended to make a complaint about his conduct, but wanted to wait until her performance review was finalised before making the complaint.
The applicant then flew to London to commence the first module of her EMBA. Whilst there, on 21 January 2020, the applicant received an email from Mr Stamatoudis regarding the finalisation of her performance review as he had now added his comments. The applicant states that ~~his~~ Mr Stamatoudis’ comments did not reflect the responses that she had provided during her performance review meeting and that she was unable to amend or add detail to the document as Mr Stamatoudis had signed off before she had had the opportunity to review the comments. The applicant deposes that she then sent an email to him raising her concerns about the manner in which the performance review was conducted and requested a further meeting to take place to discuss the review.
The applicant deposes that she then received as telephone call from Mr Stamatoudis in which he sounded angry. Mr Stamatoudis stated “Why did you not tell me you were in the UK. As your manager, I didn’t approve this”
In an email (Annexure SL10 to the applicant’s Affidavit) Mr Stamatoudis states that “I am also a little disappointed you didn’t notify me as your manager of your leave for this week for your studies in London”
On 22 January 2020, the applicant sent Mr Stamatoudis an email that included the following:
I do also have concerns I would like to discuss with you regarding the continual raising and enquiring into personal matters that bear no relevance to my work in every single meeting we have. Rightly or wrongly, I feel this takes precedent in our meetings and affects their quality. My personal life is something I don’t want raised at every meeting. I am more than happy to share personal effects (sic), should I volunteer to do so, but not in the context of work meetings, or a performance review.
I expect that if gossip like behaviours surface on our office floor that these are not condoned. Hopefully we can get together and discuss in person. Open to hear your views on this.
The applicant alleges that following sending this email, she called Mr Sherman. The applicant advised Mr Sherman that she had sent an email “to Arthur about his ongoing conduct”. When asked about what conduct she was complaining about she told Mr Sherman:
“The fact that he is continually asking me about us, pressuring me to disclose our relationship and generally asking me about my personal life all the time. His conduct is so inappropriate that I’ve had to email him a written complaint.”
The applicant alleges that on around 29 January 2020 she received a telephone call from Mr Sherman where he said “I’ve had a conversation with Arthur, and we have agreed that we won’t talk about you between ourselves anymore’.
After the applicant returned to Australia, she alleges that she was belittled by Mr Stamatoudis in a leadership meeting held on 6 February. The applicant states that she was also previously concerned after a video conference meeting was held that included Mr Stamatoudis and his Executive Assistant, Ms Carr to discuss the workplace maternity leave policy.
The applicant alleges the following conversation took place:
The applicant deposes that the comment by Ms Carr was followed by laughter from almost everyone from the Brisbane office at the meeting. The applicant states that she felt publicly embarrassed and ridiculed by the comment.
On 6 February 2020, the applicant met with Mr Stamatoudis and Ms Diane Christensen, a Human Resources executive with the respondent. The applicant states she thought the meeting was to discuss her complaints. The meeting request (annexed as SL12) indicated that the meeting was to discuss “your studies for 2020 and leave options along with other HR matters as per emails last week”. However, she deposes that Mr Stamatoudis began raising new allegations of underperformance that had not been raised in the previous performance review two weeks earlier. This included going to the UK without his approval. Further, Mr Stamatoudis raised concerns as to the applicant being able to manage her studies and her service line role. The applicant alleges that Mr Stamatoudis stated that the applicant would need to step out of her role until she graduated. The applicant states that she then told Mr Stamatoudis that Ms Sullivan had approved her attendance at the course. Mr Stamatoudis is alleged to have then said to Ms Christensen the following: “See what I mean, I was hoping we wouldn’t need to have to go there but it seems I will have to”. The applicant alleges that Mr Stamatoudis then raised new concerns as to the applicant’s work performance which included Mr Sherman being involved in a bid for certain work.
The applicant alleges she said to Ms Christensen the following:
We aren’t meant to be discussing Sheldon. I am uncomfortable with this continual probing and interference into personal matters at almost every work-related meeting and event. My personal life is brought up in almost every conversation Arthur and I have. It’s getting to the point where I feel distressed every time we have to meet.
Following this statement, Ms Christensen then left the meeting. Following her departure the applicant alleges Mr Stamatoudis said “it’s your fault that employees continue gossiping about you rather than focusing on their work. Again, it’s embarrassing”. When the applicant left the meeting, the applicant states that she was surprised to find Mr Sherman waiting in the lobby of the office. Later that day, Mr Stamatoudis sent an email to the applicant and Christensen (Annexure SL13) summarising the meeting that had occurred. The applicant notes that included in the email was reference to some personal and sensitive things that were discussed but which were not for the email. The second last dot point referenced two options moving forward which included the applicant stepping out of her role while training or a watching brief in February to see how things go. The next step was a further meeting to include Ms Sullivan and agree on which option
The applicant states that she responded to this email making additional clarifications to her recollection of what was discussed.
Mr Stamatoudis sent a further email on 7 February 2020 at 8.33 am (Also part of Annexure SL 13) raising numerous performance issues that had allegedly arisen since the 17 January performance review.
The following day at around midday, the applicant deposes that she received a telephone call from Mr Stamatoudis in which the following was said:
Mr Stamatoudis: “Siobhan, I’m just calling because I want to tell you that I have decided to demote you from your role. There won’t be any further meetings with Meagan happening okay?”
The applicant was told that she would receive letters from the Human Resources department about the change in her employment conditions.
Following this meeting, at around 12:35 PM, the applicant tendered her resignation from the respondent effective immediately. The applicant states that she felt that she had no alternative other than to resign. The respondent notes that at no point does there appear to have been any action in relation to her complaints in respect of the allegations against Mr Stamatoudis.
Notwithstanding that the applicant was under a contractual obligation to provide a four weeks’ notice, it is common ground that by agreement, her period of notice was extended by an additional four weeks.
The applicant further complains that on 9 March 2020 she realised that someone had submitted an annual leave request on her behalf for the period 20 to 27 March 2020. The applicant states that she had no intention to take annual leave for this period and did not give consent for such a request to be submitted on her behalf. The applicant deposes that she was advised by the respondent that the leave application had been submitted as the applicant would be overseas studying during that period. The applicant states that she did not make such a request for leave as the EMBA program was not holding a session in March 2020.
The applicant complains that during the period of 27 February 2020, after she told Mr Sherman their relationship was over, to 11 March 2020, she was harassed by Mr Sherman. This included threats to inform Oxford University that she had fraudulently applied for enrolment and attending her home uninvited.
The applicant further complains that she was excluded from a meeting held on 12 March with a Mr Smith from the Department of Communities and Justice. On 13 March 2020, the applicant was advised that her employment would be terminated effective 13 March 2020 notwithstanding her notice period having been previously extended to 3 April (Annexure SL 19). No payment was received in lieu of notice for the early termination.
The applicant affirmed a further Affidavit on 26 March 2021. This Affidavit is in reply to the material filed by the respondent. The applicant corrected some material filed in her first Affidavit. Further, the applicant notes that the respondent did not have any written policies in place to deal with relationships between staff of the respondent.
The applicant deposed that in relation to a bid for a contract with the Department of Transport and Main Roads she told Mr Stamatoudis that she and the team did not have process mapping skills. The applicant does not recall a deadline being imposed to provide materials for the bid. Further, the applicant denies receiving any telephone calls from Mr Stamatoudis on 6 December 2019.
The applicant stated that she told Mr Stamatoudis in a meeting on 10 January 2020 that she would be in the UK for her EMBA course in the second to last week of January. The applicant recalls Mr Stamatoudis taking notes during the meeting.
In relation to a meeting held by Mr Stamatoudis on 22 January, the applicant states that it was her intention to attend the meeting, but did not do so as she was instructed by Mr Stamatoudis to get some sleep.
In relation to the RPS education assistance policy, the applicant states that she was not aware of the policy. Had it been bought to the applicant’s attention, she would have used the options open to her, to seek study support.
Annexed as SL-32 are a series of emails covering the period 22 November 2019 which indicate that the applicant was having difficulty entering time sheet data. These issues did not appear to have been resolved completely as at mid-January 2020.
The applicant was the subject of considerable cross examination. The applicant’s answers on the cross examination tended to be very long-winded and self-justifying. The applicant needed to be reminded on multiple occasions of the need to listen to the question and answer it and not to add in material that was not responsive to the question that was put to her.
The applicant denied that she struggled with the respondent’s processes and methodologies. In relation to her performance review, the applicant said that she was unable to complete it after it had been signed off by Mr Stamatoudis and this prevented her from putting in further commentary. In her performance review, the applicant agreed that Mr Stamatoudis had raised issues as to the timely completion of timesheets.
When asked about her relationship with Mr Sherman, the applicant described it as a casual relationship and did not wish to disclose it as it was a personal matter. The applicant stated that from her view, the relationship ended in December 2019 after she travelled to Dubai with Mr Sherman where she alleged he committed an act of domestic violence upon her. The applicant agreed however, that she travelled with Mr Sherman to Adelaide in early February 2020, but suggested that she was manipulated into doing so.
The applicant agreed that after the meeting of the 6 February 2020, it was clear that Mr Stamatoudis was not sure that the applicant’s proposed course of study would work with her working full-time. The applicant denied that Mr Stamatoudis explained to her that the course was the equivalent of 19% of all full-time work. The applicant agreed that she had not finished her performance management appraisal. The applicant stated that she was of the view that Mr Stamatoudis had agreed to escalate the issue of her study to Ms Sullivan.
The applicant agreed that she had read the email of 7 February 2020 prior to submitting her resignation. The applicant agreed that she had paid a non-refundable deposit amount and $24,888.67 on 14 January in relation to her study. The applicant said that this occurred immediately after her meeting with Ms Sullivan.
In answer to a question as to why the applicant would resign, she stated that she was unable to escalate the issue and she was facing harassment from Mr Sherman. The applicant felt that Human Resources were not supportive and did not deal with the complaint, indeed she was simply presented with a list of issues without a right to reply.
THE RESPONDENT’S CASE
EVIDENCE OF MR STAMATOUDIS.
Mr Stamatoudis swore an Affidavit dated 26 February 2021. Mr Stamatoudis is a civil engineer by training and has been previously employed in managerial roles in the Department of Transport and Main roads, Queensland Rail and KPMG. From October 2017 until July 2019 Mr Stamatoudis was employed by a company “Corview’ as a Director. In February 2019, it was announced that Corview was to be acquired by RPS, the respondent company. On 1 August 2019, Mr Stamatoudis took on the role of Executive General Manager for the Strategy and Investment business unit of the respondent. In that role, Mr Stamatoudis reported to Ms Meegan Sullivan.
Around the same time, the applicant was appointed to the position of National service Lead – Strategy and Transformation and became a direct report to Mr Stamatoudis.
Mr Stamatoudis denies making any enquiry during function in March 2019 of the applicant in relation to her marital status or making a comment that she was “a good-looking girl”.
Mr Stamatoudis deposes that he found out in around August 2019 that a personal relationship had begun between Mr Sherman and the applicant. Mr Stamatoudis cannot recall if he was told about the relationship initially by Mr Sherman or by his executive assistant Ms Carr.
Mr Stamatoudis recalls having a conversation with Mr Sherman about potential conflicts of interest in situations where employees had a personal relationship. Mr Stamatoudis denies that his relationship and conduct towards the applicant changed because of her having a personal relationship with Mr Sherman.
Mr Stamatoudis confirms that Ms Carr did make a very inappropriate comment to the applicant during a meeting about the respondent’s parental leave policy in September 2019. Mr Stamatoudis denies that people laughed after the comment. Mr Stamatoudis deposes that he directed Ms Carr to check with the applicant and make sure that she was okay about what she said in the meeting, as he was concerned that the applicant might feel uncomfortable about the comments made by Ms Carr.
Mr Stamatoudis recalls mentioning Mr Sherman briefly at a meeting with the applicant on 25 November 2019. Mr Stamatoudis states “I asked Ms Lamb about how things were going with Mr Sherman and whether she had thought about telling people in the team about their relationship. Ms Lamb said that she did not want to tell people”.
Mr Stamatoudis recalls the applicant volunteering that she was divorced. Mr Stamatoudis states that he asked the applicant about Mr Sherman because he thought there might be a potential for conflict and that he had heard chatter amongst the team about her and Mr Sherman. Mr Stamatoudis denies asking the applicant about the relationship because she was female. Mr Stamatoudis denies saying anything to her about being “a good Catholic girl” or making any comment about her age.
Mr Stamatoudis recalls feedback that one of the reasons the respondent missed out on a contract with the Queensland Department of Transport and Main roads was that the process mapping skills that the applicant had included in her curriculum vitae were not as great as the successful tenderer.
Mr Stamatoudis recalls being copied into an email from the applicant to Ms Sullivan requesting a meeting to discuss the following items:
1.service line strategy advice;
2.personal development opportunity; and
3.external mentor advice.
Mr Stamatoudis confirms that he met with the applicant for a one-on-one meeting on 10 January 2020. During the meeting, the subject of study overseas was raised, however Mr Stamatoudis told the applicant she should speak to the Sullivan about the matter. Mr Stamatoudis denies that the applicant told him she been accepted in the course. Following the meeting, there was an email exchange between Ms Sullivan and Mr Stamatoudis. This exchange indicated Mr Stamatoudis’ understanding was that the applicant wished to undertake her EMBA course in the UK while still trying to manage her National Service Lead role.

On Friday, 17 January 2020, Mr Stamatoudis met with the applicant in relation to her annual performance review. Mr Stamatoudis alleges that the applicant had copied and pasted examples that were set out in the template Pro forma into the performance review rather than inserting specific examples relevant to her work. Mr Stamatoudis raised with the applicant issues relating to complaints from Ms Carr that the applicant had to be constantly chased in relation to her timesheets. Mr Stamatoudis claims he told the applicant that he was disappointed with the delivery and quality of her work in relation to the Department of Transport and Main Roads bid. Mr Stamatoudis confirms that towards the end of the meeting the applicant mentioned the EMBA course in London but said that she was still working through the approvals. Mr Stamatoudis suggested that the applicant speak with Ms Sullivan about the matter. Mr Stamatoudis recalls her mentioning that she may be travelling overseas at the end of January to study commitments, but does not recall the applicant stating that she would be travelling to London in the second to last week of January. No specific dates were given to him.
Mr Stamatoudis deposes that he later found out that the applicant had recorded her time in London as a “training overhead” for that week. Mr Stamatoudis states that the applicant did not seek his approval to take leave or make any arrangements with him to manage her commitments during any period of absence.
Mr Stamatoudis denies enquiring of the applicant as to how things were going with Sheldon or stating that people were gossiping about her in the office. Mr Stamatoudis denies spending time at the meeting asking the applicant about her personal life although he did say “have you thought about what you are going to do about managing the potential Sheldon conflict”. Mr Stamatoudis states that he made this enquiry because he was concerned that there was a potential for conflict of interest to arise in impact on work. Mr Stamatoudis admits saying to the applicant that the jacket she was wearing was “a nice jacket”, though he denies suggesting that she take it off because she must have been hot.
On 21 January 2020, Mr Stamatoudis deposes that he rang the applicant and was surprised to find out that she was in London. After this telephone call, Mr Stamatoudis deposes that he rang Ms Sullivan and asked her if she had approved the applicant going to London. Ms Sullivan said that she had not approve that. An email exchange then took place which included the paragraph relied upon by the applicant as a complaint.
Mr Stamatoudis forwarded the email chain to Ms Christensen and subsequently Ms Sullivan. Mr Stamatoudis states that he was concerned that the applicant could not see a potential workplace conflict arising from a relationship with Mr Sherman and because she was wrongly claiming that he was consistently talk about her personal matters.
Mr Stamatoudis confirmed that a meeting took place with the applicant and Ms Christensen on 6 February 2020. Mr Stamatoudis states that he was concerned that the applicant would be away from her work 7 to 8 weeks per year. Mr Stamatoudis confirms that in preparing for the meeting, he sent an email to Ms Christensen and Ms Sullivan indicating a number of areas where he felt the applicant had failed to perform. These were by way of examples and they made Mr Stamatoudis question the applicant’s capacity to take on further commitments.
Mr Stamatoudis provides further information in relation to each of the examples given in that email. Mr Stamatoudis also provides commentary on what he regards as an unsatisfactory meeting in which the applicant’s presentation appeared to be underprepared.
Mr Stamatoudis deposes that the purpose of the meeting of six February 2020 was to discuss options for managing the applicant study and work commitments. Mr Stamatoudis recalls using the words to the effect of “I’m concerned you’re going to get burnt out. This is a health and well-being issue. It’s not just the time, it’s the lead up and time and follow up work. I really think the best option for you is to step out of the National Role.” The applicant replied that she wanted to have a meeting with Ms Sullivan to discuss the options. Mr Stamatoudis denies that Mr Sherman was mentioned in the meeting other than his concerns about her missing the DTMR bid. Mr Stamatoudis confirms that following this meeting, he sent an email to the applicant which outlined what took place, including the words “also there were some personal and sensitive the things discussed that are not for email”. Mr Stamatoudis deposes that this was a reference to the applicant talking about her ending her relationship with Mr Sherman.
Mr Stamatoudis confirms that he telephoned the applicant on the morning of 7 February 2020 where he use words to the effect of “Megan and Diane met this morning and they have decided to proceed with option one, where you temporarily step out of the Service Line Lead Role into a Director’s role in the team, to give you time to do your studies.” Mr Stamatoudis does not recall mentioning specifically that there would be no change in the applicant’s salary, however recalls that it was put to the applicant that it was part of the options discussed with her the day before.
Mr Stamatoudis confirms that shortly after this conversation he received an email from the applicant advising of her immediate resignation. Interestingly, Mr Stamatoudis deposes that he had a conversation with Mr Sherman three days after the applicant submitted her resignation. Mr Sherman said “Siobhan has made a mistake about the resignation. She is regretting it and wants to catch up. Can we arrange a chat and reverse it”.
Mr Stamatoudis confirms that a leave application was submitted in relation to the applicant for the period from 23 to 27 March 2020 without her knowledge on the basis that the respondent understood the applicant would be on leave attending to her studies during this period of time.
Mr Stamatoudis confirms that concerns were brought to his attention by Mr Sherman and Mr Johnson that the applicant was “white anting” both the respondent and Mr Smith, the point of contact with the Department of Justice. In a meeting with Mr Johnson and Ms Christensen, it was determined that the applicant’s employment with the respondent should be terminated immediately on the basis that Ms Christensen’s view was that as the applicant had already served out her four week notice period, they are under no obligation to continue her employment beyond that date.
Mr Stamatoudis denies that he made enquiries about her personal life because she was female and because of her age. Mr Stamatoudis claims he never wanted the applicant to resign. Mr Stamatoudis confirms at the meeting of six February 2020, the applicant made a complaint to both he and Ms Christensen regarding his alleged continual unwonted interference into personal matters at work-related meetings despite repeated requests not to do so, that this was causing the applicant emotional distress and that the applicant was experiencing “unwanted interference” from Mr Sherman in and around her workplace that was causing great distress.
Mr Stamatoudis deposes that the reason for the decision that the applicant step out of or step back from her national role related to a demonstrated difficulties regarding time management and that he thought she would burn out as she continued in the national role while studying overseas. Mr Stamatoudis claims the contents of the email of 22 January 2020 and the alleged 6 February 2020 complaint played no part in his decision-making process. Mr Stamatoudis also denies that the complaints played any part in the decision to submit a leave application on her behalf or to terminate her employment earlier than was originally agreed to.
The Court notes at this point of time at paragraph 298, Mr Stamatoudis make specific reference to “my decision-making process” when referring to the decision for the applicant to step out of the national role. This directly points to Mr Stamatoudis being a relevant decision-maker in relation to the outcome conveyed to the applicant in his telephone call of 7 February 2020.
Mr Stamatoudis was extensively cross examined. Mr Stamatoudis could not recall at their initial meeting in March 2019 if he asked the applicant if she was married. Mr Stamatoudis denied that he was attracted to the applicant. Mr Stamatoudis was unable to recall if he subsequently told Mr Johnson that the applicant was “a good looking girl”.
Mr Stamatoudis agreed that it was appropriate to ask a fellow worker about their marital status. Mr Stamatoudis agreed that he held the applicant personally responsible for losing a bid for work with the Department of Transport and Main Roads for process mapping work. Mr Stamatoudis agreed that at a meeting on 17 January 2020 the applicant told him that in January 2020 she would be out of the country, but was unsure as to a specific date. Mr Stamatoudis agreed that they spoke about London and the course. Mr Stamatoudis agreed that he asked the applicant about her relationship with Mr Sherman at the end of the meeting briefly. At the time, he considered himself a close friend of Mr Sherman. Mr Stamatoudis agreed that after he found out about the relationship in October 2019, he did ask the applicant questions about her relationship and disclosed what he was told to Ms Sullivan.
Mr Stamatoudis agreed that in the email of 22 January the applicant did raise a grievance. As a result, Mr Stamatoudis referred the matter to Ms Sullivan. Mr Stamatoudis agreed that he recognised that he was in a conflict situation himself but could not remember whether he told Ms Sullivan that he felt he was. Mr Stamatoudis agreed that as at 22 January 2020, there had been no previous mention of any performance issues with the applicant. Mr Stamatoudis responded that he was only concerned about the applicant’s capacity to be able to undertake her role into the future. Mr Stamatoudis agreed that he did not raise any issue as to his own perception of there being a conflict.
Mr Stamatoudis agreed that in his email of 29 January 2020, he formulated the performance issues contained within the email. Mr Stamatoudis agreed that he told the applicant in a telephone conversation not to attend a meeting, which he subsequently raised that she had missed. It was put to Mr Stamatoudis that he made the suggestion for the applicant to be demoted. Mr Stamatoudis’ reply was yes, that he pushed for that option. Mr Stamatoudis agreed that stepping out of the role was a demotion and that it constituted adverse action.
Mr Stamatoudis agreed that in his meeting invitation for the meeting of 6 February 2020, he did not raise in the agenda items performance issues.
Mr Stamatoudis disagreed that he was one of the decision-makers at the 6 February 2020 meeting for the applicant to step out of her role, instead suggesting that the decision-makers were only Ms Sullivan and Ms Christensen. Mr Stamatoudis agreed, however, that he was a decision-maker in relation to the early termination decision. Again, Mr Stamatoudis denied that there was any conflict of interest in relation to his own position.
Mr Stamatoudis claimed that the change in the applicant’s role was only while she was studying. Mr Stamatoudis agreed that the respondent did not pursue the other option after seeing how things went in February 2020. Mr Stamatoudis agreed that his reference to personal and sensitive matters, related to the applicant’s disclosure to him that she was going to break up with Mr Sherman.
In many ways, Mr Stamatoudis was a defensive and evasive witness in relation to his answers. Many of his answers were in conflict to the positions articulated by Ms Sullivan and Ms Christensen.
EVIDENCE MS SULLIVAN
Ms Sullivan also affirmed an Affidavit on 26 February 2021. To a large extent, it confirms various material that is already before the Court in relation to her contact with the applicant, Mr Stamatoudis and Ms Christensen. Ms Sullivan deposes that from her experience of working with the applicant, the applicant was very good at client engagement strategic thinking but did not meet expected standards in terms of meeting project management, time management and administrative responsibilities. Ms Sullivan provide various examples in relation to these concerns.
Ms Sullivan agrees that she met with the applicant on 14 January 2020 in which the applicant sought approval to do an EMBA course. The applicant advised that she had been accepted into a course in Oxford starting in late January and that she was not seeking any support or financial contribution from the respondent. The applicant stated that she could start later in the year but that there be a financial penalty for deferring until then. The applicant stated that she would like to start the course later that month. Given that the applicant was not asking the respondent for any financial support, Ms Sullivan states that she assumed the applicant would apply for annual leave or unpaid leave. Ms Sullivan was not aware that the applicant would be leaving the country in five days’ time. Ms Sullivan states that she raised concerns as to the capacity of the applicant to both study and deliver in relation to her projects.
Ms Sullivan states that in around late October 2019 she was made aware that the applicant and Mr Sherman were in a relationship. In a performance review held on 21 January 2020, Mr Sherman volunteered information that he was in a relationship with the applicant. Ms Sullivan states that Mr Sherman, was reminded of the need to maintain appropriate standards of professionalism and separation in day-to-day work.
Ms Sullivan confirms various emails and interactions that took place between the applicant and Mr Stamatoudis during the period of January 2020 and that she was copied in two of the communications. Ms Sullivan deposes that she did not approve the applicant logging the time spent in the UK on her EMBA courses as “training overhead”.
Ms Sullivan agrees that following the applicant’s meeting with Mr Stamatoudis and Ms Christensen, a discussion took place between herself, Mr Stamatoudis and Ms Christensen. Ms Sullivan did not think that there was anything to be gained from having another meeting with the applicant. It was agreed between all three that the applicant would step back from her role if she wanted to continue with the studies, but would continue to receive the same salary. Ms Sullivan directed Mr Stamatoudis to call the applicant and advise her of the decision.
Ms Sullivan states, given the wording of the resignation letter, she did not understand that the applicant was intending to return to work from 7 February 2020. Ms Sullivan was not involved in the decision to terminate her employment with the respondent on 13 March 2020.
In cross examination, Ms Sullivan was taken to her Affidavit where she stated that prior to her meeting with Ms Lamb, she had reviewed the performance appraisal completed by Mr Stamatoudis. It was put to Ms Sullivan that this was not possible as the document had not been completed as at the date of the meeting and the material did not exist.
Ms Sullivan was unable to recall whether or not Mr Johnson spoke to her in 2019 about an incident at a meet and greet function in March 2019 where he raised concerns about Mr Stamatoudis conduct towards the applicant. Ms Sullivan was unable to recall whether her response was that the conduct complained about was inconsistent with her experience of Mr Stamatoudis.
Ms Sullivan accepted that the applicant’s email to Mr Samatoudis contained a grievance, but was not prepared to acknowledge that it was a complaint. With the benefit of hindsight, Ms Sullivan agreed that the appropriate procedures in dealing with a grievance had not been followed. Ms Sullivan stated that it did not cross her mind that Mr Stamatoudis should not be involved in any decision-making process regarding the applicant as the decision-making was around her study and not the grievance. Ms Sullivan agreed that Mr Stamatoudis, along with Ms Christensen and herself, were the decision-makers in relation to the decision that the applicant step back from her role. Ms Sullivan denied that this decision was a demotion of the applicant.
Ms Sullivan agreed that she never sought to have the grievances raised by the applicant investigated and sought to justify the decision on the basis that she was concerned as to the applicant’s welfare.
EVIDENCE MS CHRISTENSEN
Ms Christensen also affirmed an Affidavit dated 26 February 2021. At the relevant time, Ms Christensen was employed with the respondent in the position of People Director. Prior to the events that are the subject of this litigation, Ms Christensen had had little to do with the applicant. In January 2020, Ms Christensen was asked by Ms Sullivan to provide some input into how they could manage a study commitment of 16 weeks for the applicant in relation to her EMBA course at Oxford. Ms Christensen confirms that she received an email from Mr Stamatoudis which was part of an email chain whereby the applicant raised her complaint in relation to the conduct of Mr Stamatoudis. Ms Christensen confirms that on 22 January 2020, she received an email from him indicating that he did not support the applicant taking 16 weeks leave over 22 months as a training overhead. Ms Christensen provided certain advice to Mr Stamatoudis.
Ms Christensen confirmed that she was present at a meeting with the applicant on 6 February 2020, but stated that she did not stay for the full extent of the meeting. Ms Christensen confirms that in late January or early February of 2020, but prior to the meeting with Ms Lamb on 6 February 2020, Mr Sherman disclosed to her that he was in a relationship with the applicant.
In terms of the meeting of 6 February 2020, Ms Christensen states that the applicant pushed back at the matters raised with her by Mr Stamatoudis. Ms Christensen denies that the applicant, during the course of the meeting, referred to constant interference by Mr Stamatoudis into her personal life. Ms Christensen denies that the respondent ignored her complaint. Ms Christensen was present at the meeting in which it was determined that the applicant should step back from her role.
Ms Christensen agrees that the original date for the applicant to leave the company was originally 3 April 2020, but that this was revised to 13 March 2020 after concerns were raised regarding the applicant “white anting a client”. Ms Christensen confirms that Mr Sherman attended the meeting but did not participate in the discussion or the decision to terminate the applicant on 13 March 2020.
Ms Christensen denies that the decision for the applicant to step out of the national role was in any way related to the complaint she made in relation to Mr Stamatoudis.
In cross examination, an email-chain from the applicant and Mr Stamatoudis in which the applicant first raised her concerns was put to Ms Christensen. Ms Christensen agreed that she made no efforts to find out whether or not the concerns raised in the email were true. Ms Christensen did not see the concerns raised as being a pressing issue.
On being shown the Grievance Resolution Guideline that was applicable for the respondent at the time, Ms Christensen agreed that the guideline was not followed on the basis that the applicant had raised an enquiry. Ms Christensen agreed that at no time was the applicant placed on a performance improvement program notwithstanding considerable concerns being raised as to her performance. Ms Christensen denied that the action taken by the respondent was a demotion for the applicant. Ms Christensen agreed that part-time work while the applicant stayed in her role was not offered to the applicant even though another national lead was working part-time. Ms Christensen denied that the applicant had raised Mr Sherman’s interference with her work during the course of the meeting 6 February 2020 when she was present.

Ms Christensen agrees that she was involved in the decision of the early termination of the applicant. Ms Christensen agreed that the allegations were not investigated prior to the decision being made for early termination. Ms Christensen stated that did cross her mind that the allegations were being made by Mr Sherman who had been in a relationship with the applicant.
EVIDENCE MR NICHOLAS JOHNSON
Nicholas Johnson affirmed an Affidavit on 26 February 2021. Mr Johnson is employed by the respondent as the General Manager Strategy and Investment in NSW. Mr Johnson worked with the applicant from August 2019 in the same area. Both Mr Johnson and the applicant reported to Mr Stamatoudis.
Mr Johnson does not recall that following the March 2019 function the applicant complaining that Mr Stamatoudis had asked the applicant if she was married or had called her a “young good-looking girl”. Mr Johnson deposes, however, that he did get the impression that the applicant thought that Mr Stamatoudis had ‘hit’ on her. Mr Johnson recalls saying to the applicant words the effect “Do you want to do something about this? I’m sure you would get support from the business”.
In a coffee meeting held on 14 May 2019, Mr Johnson recalls telling the applicant that they were both going to be in the same team reporting to Mr Stamatoudis. Mr Johnson recalls saying words to the effect of “are you okay with that?”, to which the applicant replied “yes” and “we will see how it goes”.
Mr Johnson recalls a meeting that he participated in with the applicant and Ms Sullivan on 27 November 2019. There was a mix-up and the applicant was in Melbourne for a meeting that was supposed to occur in Sydney. Mr Johnson recalls Ms Sullivan talking about the need to be mindful about costs on projects and how the applicant interacted with other parts of the business.
Mr Johnson was present at the service line strategy meeting on 6 February 2020. The applicant was late for the meeting. Mr Johnson does not recall Mr Stamatoudis rolling his eyes or shaking his head during the applicant’s presentation at the meeting.
Mr Johnson became aware of the applicant’s resignation on the day she submitted it, being 7 February 2020. Mr Johnson later called a Mr Chris Smith, of the Department of Justice, and advised that Ms Lamb would be leaving the respondent. Mr Johnson sought to assure Mr Smith that it would be a smooth transition and that the respondent was able to continue to carry out the project. Mr Johnson denies saying to the applicant that Mr Smith said that he didn’t want anyone else from the respondent company to do the work.
Mr Johnson deposes that he made multiple attempts to organise a meeting with Mr Smith and the applicant in order to facilitate a handover, however, it was not possible to do so. Various reasons were put forward as to the applicant’s inability. Mr Johnson stated that he was disappointed that the meeting could not be organised. Mr Johnson agrees that a mutually agreed end date of 3 April 2020 was negotiated with the applicant.
On 10 March 2020, Mr Johnson states that he was approached by Mr Sherman who raised issues about the applicant’s involvement in the Justice contract. A meeting took place with Mr Stamatoudis. Mr Sherman alleged that he believed the applicant had set up a company and was looking to work directly with the Department of Justice through that company.
Mr Johnson formed a view that the difficulties he was having in getting the applicant to arrange a meeting with Justice looked as though she was deliberately attempting to do so. Mr Smith also told Mr Johnson that Ms Lamb was “undermining him” and was trying to secure a position with the Department at his expense. Mr Johnson recalls telling Mr Stamatoudis and Ms Christensen words to the effect of “Chris (Mr Smith) told me that Siobhan is undermining him and it could cost him his job”.
In a meeting with Mr Johnson and Mr Smith on 12 March 2020, Mr Smith again said that he was being “undermined” by the applicant. Following that meeting, Mr Johnson arranged a meeting with Mr Stamatoudis and Ms Christensen. Mr Sherman was also invited to attend that meeting. Mr Johnson believes that Mr Sherman may have met with Mr Stamatoudis and himself just prior to the meeting but he was not in the actual meeting when the issue of Ms Lamb’s end date was discussed. Mr Sherman was not a party to the decision.
Ms Christensen advised that the applicant had already served her four weeks’ notice period and that it was okay to bring that notice period forward. All three agreed that the applicant’s end date should be 12 March, being that day. Ms Christensen undertook to advise the applicant. Mr Johnson deposes the reason that the applicant’s end date was brought forward was she had delayed meetings with Mr Smith and was acting in her own interests rather than that of the respondent.
In cross examination, Mr Johnson agreed that he had a good relationship with the applicant. Mr Johnson agreed that he had no reason to disbelieve the applicant when she stated that Mr Stamatoudis had “hit” on her at the Melbourne function. Mr Johnson confirmed that he had spoken to Ms Sullivan that the applicant had raised a concern in relation to Mr Stamatoudis’ inappropriate conduct, but that the applicant was not prepared to formalise the complaint.
Mr Johnson recalled Ms Sullivan saying that the allegation was surprising, as it was not in line with her experience in relation to Mr Stamatoudis, but that there was not much that could be done about it as it had not been formally raised. Mr Johnson agreed that he felt concerned for the applicant’s welfare when it became clear that Mr Stamatoudis would be supervising both he and Ms Lamb. In terms of the meeting with Ms Sullivan to discuss the team’s interaction with other business lines, he agreed that it was not exclusively about the applicant.
Mr Johnson agreed that there did not appear to be any delays on the Department of Justice project up until the time of the applicant’s resignation, though he disagreed that Mr Smith had informed him that he did not wish to continue working with RPS following the applicant leaving. Mr Johnson agreed that at no point did the applicant say to him that she was not arranging a meeting on purpose. Mr Johnson agreed that he had no basis for the suspicion that the applicant was seeking to put her own interests above those of the company. In any event, Mr Johnson agreed that his concerns regarding the handover were not substantial. Mr Johnson agreed that at the meeting with Mr Stamatoudis and Mr Sherman, both of them put it to him that the applicant was engaging in improper conduct. By this stage, Mr Johnson was aware that the applicant’s relationship with Mr Sherman had ended. Mr Johnson admitted that he was concerned that Mr Sherman might make untrue allegations against the applicant. Mr Johnson also agreed that the allegations were never discussed with the applicant prior to the decision having been made to terminate her early.
In relation to the issue of problems with the timesheets, Mr Johnson agreed that the applicant was not the only person having problems entering data onto the new time recording system.
Mr Johnson impressed as a witness who is genuinely trying to tell the truth and found himself in a difficult position caught between his professional relationship with the applicant and his loyalty to the company. Where his evidence differed from other witnesses, the Court preferred his evidence to that of Mr Stamatoudis, Ms Christensen and Ms Sullivan.
EVIDENCE OF MS LAURA (ELLE) CARR
Ms Carr is currently employed as the Executive Assistant to Mr Stamatoudis. Ms Carr has held this position since June 2019.
Ms Carr deposes that she had to chase the applicant in relation to her time sheets, but denied that there were continuing issues with the time recording system. Ms Carr admits making a very insensitive, unprofessional and hurtful comment to the applicant in a meeting about the respondent’s maternity leave policy, but not in the words alleged by the applicant. Ms Carr denies the comment caused laughter in the meeting. Ms Carr was present at the 6 February 2020 meeting.
In cross examination, Ms Carr agreed that she had a close professional relationship with Mr Stamatoudis. Ms Carr agreed that Mr Stamatoudis did regularly ask questions of employees about their personal lives and agreed that it was part of his nature.
Ms Carr disagreed that her comments to the applicant during the maternity leave meeting were prompted by her knowledge of the relationship between the applicant and Mr Sherman. Ms Carr disagreed that she participated or initiated gossip about the applicant relationship with Mr Sherman. When it was put to Ms Carr that other employees experienced difficulties with the time sheet system, she disagreed.
Ms Carr was a very defensive witness in cross examination. Ms Carr’s evidence lacked credibility, especially in relation to the time sheet system problems and the claim that she did not gossip about the applicant. It was clear that Ms Carr’s loyalty lay exclusively with Mr Stamatoudis.
EVIDENCE OF MR WILLIAM THOMPSON
Mr Thompson swore an Affidavit on 25 February 2021. At the time, Mr Thompson was the CEO of RPS Australia Asia Pacific. Mr Thompson was briefed about the current litigation but has no personal knowledge. Mr Thompson does not recall being asked to bring forward or change the applicant’s end date with the respondent. Mr Thompson was not briefed as to any complaints made by the applicant in relation to Mr Stamatoudis. Mr Thompson was not required for cross examination.
EVIDENCE OF MR LUKE FRANZMANN
Mr Franzmann swore an Affidavit dated 26 February 2021. Mr Franzmann is employed by the respondent as an Executive Advisor. Mr Franzmann’s role included the coordination and oversight of the preparation of a strategic plan for each Advisory division. This included the one headed by the applicant. Mr Franzmann received a draft Service Line Strategy 2020-2022 from the applicant on 18 December 2019. On 30 January 2020, Mr Franzmann provided feedback to the applicant on the strategy she had prepared. Mr Franzmann did not attend a meeting held on 6 February 2020. Mr Franzmann was not required for cross examination
EVIDENCE OF MR TIMOTHY CRANE
Mr Crane was a colleague and friend of both Mr Stamatoudids and Mr Sherman. Mr Crane has worked with both of them for many years.
Mr Crane attended a meeting of various people within the group supervised by Mr Stamatoudis on 6 February 2020. Mr Crane recalls the applicant being late for the meeting. In Mr Crane’s opinion, the applicant’s presentation was underprepared. Mr Crane then makes various statements in support of Mr Stamatoudis.
In cross examination, Mr Crane described himself as a close friend of Mr Sherman. Mr Crane stated that he was not aware of other people in the office talking about the relationship between the applicant and Mr Sherman. Mr Crane did not recall Mr Stamatoudis shutting down the applicant in the 6 February 2020 meeting.
THE APPLICANT’S SUBMISSIONS
On behalf of the applicant, it was submitted that the email of 22 January 2022 from the applicant to Mr Stamatoudis regarding his continual enquiries into her personal life, and her verbal complaint on 6 February 2020 about Mr Stamatoudis and Mr Sherman constituted a complaint in relation to her employment and the exercise of a workplace right for the purposes of s 340 of the Act.
Following the applicant’s 22 January 2020 complaint, it was submitted that senior members of the respondent, namely Mr Stamatoudis, Ms Christensen and Ms Sullivan all strategized together as a group and with the aim of removing the applicant from her position.
Prior to 22 January 2020, it was submitted that Mr Stamatoudis and Mr Johnson had no concerns as to the applicant’s performance, and she achieved a three out of four rating in her performance review in January 2020. Following the complaint, it was submitted that ‘a target’ was placed on the applicant. This is evident from numerous “brainstorming” sessions and email chains produced in evidence between the three members of the management team in the week prior to meeting with the applicant.
Further, the respondent failed to follow its own published grievance policy nor was any fair process when dealing with the applicant’s grievances followed, including failing to speak with the applicant regarding any of her grievances.
Between 22 and 29 January 2020, Mr Stamatoudis, Ms Sullivan and Ms Christensen altered their perspective from dealing with the applicant’s complaints to a performance related discussion regarding the applicant’s alleged shortcomings, despite the significant performance concerns not being raised before then.
The decision-makers did not warn or even disclose to the applicant in the meeting of

6 February 2020 that performance discussions or a demotion would be discussed. The applicant sought a meeting with Ms Sullivan which was promptly denied both in the meeting and the following day.
The applicant made a further verbal complaint in the meeting of 6 February 2020 about Mr Stamatoudis and Mr Sherman‘s unwanted interference with her work. These complaints are not relayed by Mr Stamatoudis to Ms Sullivan following the meeting nor are they included in the minutes of the two meetings’.
On 7 February 2020, the applicant was demoted without the opportunity to discuss the matters further with Ms Sullivan. The applicant then resigns almost immediately, as a result of her demotion. The respondent had significant time to investigate the applicant’s complaints, but instead it did all things necessary to force the applicant out of her employment. All of the decision-makers in this matter were senior level employees with considerable experience.
In relation to the second adverse action, the reduction in the applicant’s termination notice period, the respondent alleges that the reason for the termination of the applicant was alleged attempts by the applicant to poach clients from respondent. These allegations were brought to the attention of the respondent by Mr Sherman early in the first week of March 2020.
Evidence was provided that the applicant was attempting to end her relationship with Mr Sherman from late December 2019, however Mr Sherman continued to pursue the applicant. The applicant’s evidence is that on or around 27 February 2020, during a notice period, she unequivocally ended the relationship with Mr Sherman.
During cross examination, Mr Johnson conceded that he had no concerns regarding the applicant and her assistance in completing had the handover for the Department of Justice project until after Mr Sherman bought poaching allegations to the his attention and Mr Stamatoudis. It was submitted that, following the unequivocal ending of their relationship, Mr Sherman approached the respondent and raised inappropriate and baseless allegations. None of the decision-makers considered the possibility that Mr Sherman may have alternative reasons for levelling such allegations.
It was submitted that at no point of time did the respondent approach the applicant and seek a response to the allegations. It was submitted that the four decision-makers in relation to the decision to terminate the applicant’s employment on 13 March 2020 include Mr Sherman, Mr Johnson, Ms Christensen and Mr Stamatoudis.
Given that Mr Sherman was a witness who is actively involved in the second adverse action, the failure of the respondent not to call evidence from Mr Sherman invites the Court to make an inference that Mr Sherman’s evidence would not assist of the respondent’s case in accordance with Jones v Dunkel (1959) 101 CLR 298.
THE RESPONDENT’S SUBMISSIONS
The respondent made no concessions and sought to deny each and every issue requiring determination by the Court by reference to either the facts or by way of reliance on law in relation to limiting the applicant to those matters raised in the Statement of Claim.
THE PLEADINGS SUBMISSION
In closing submissions, the respondent claimed that the applicant failed to plead in her Statement of Claim fully the matters she relied upon. As such, the answer of the respondent is strictly defined and limited to the matters contained within the Statement of Claim. Reliance was placed on Sabapaty v Jetstar Airways [2021] FCAFC 25 where the following was found:
a.   One of the main purposes of pleadings is to define the questions for determination with sufficient clarity to enable the opposite party or parties to understand the case they have to meet and to provide them with a fair opportunity to do so. (relying upon Dare v Pulham (1982) 148 CLR 658 at 664).
b.   The Federal Circuit Court rules do not require pleadings in an application for an order relating to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the Fair Work Act 2009.
c.   When a statement of claim includes a claim for pecuniary penalties, the pleadings must be precise. In Construction Forestry Mining and Energy Union v BHP Coal Ltd [2015] FCAFC 25 at [39} the following was said:
[A] civil suit for recovery of a pecuniary penalty is a proceeding of a penal nature: Naismith v McGovern [1953] HCA 59. In this class of case, it is especially important that those accused of contravention know with some precision the case to be made against them. Procedural fairness demands no less…
Reliance was also placed on Australian Building and ConstructionCommissioner v Hall [2018] FCAFC 83 at [19]:
This means that, in a proceeding such as the present one, which was conducted on pleadings, an applicant is required to plead in his or her statement of claim all material facts concerning the contraventions alleged by the respondent.
The applicant initially filed with the Court a “Form 2 – Claim under the Fair Work Act 2009 alleging dismissal in contravention of a General Protection”, accompanied by an Application under the Fair Work Division setting out the Grounds of the Application. At a directions hearing held on 30 October 2020, the Court made the following directions:
1. The applicant is to file and serve a Statement of Claim on or before 13 November 2020.
2. The respondent is to file and serve its Defence on or before 27 November 2020.
On 13 November 2020, the applicant filed a Statement of Claim or Applicant’s Points of Claim. A fair reading of this document alleges a complaint in relation to workplace rights in the email from the applicant to Mr Stamatoudis of 22 January 2020. A second complaint was allegedly made during a meeting held between the applicant and Mr Stamatoudis and Ms Christensen. Those complaints resulted in an attempted demotion of the applicant which amounted to constructive dismissal. The Points of Claim document had detailed particulars.
The Points of Claim allege further adverse action in relation to a leave request for the period 23 to 27 March 2020 that was made on behalf of the applicant by Ms Christensen, without the knowledge or approval of the applicant.
It is further alleged that the respondent took adverse action by terminating the applicant within her notice period on 13 March 2020. Each of the above actions is alleged to be in breach of

s 341 or s 342 of the Act.
Finally, the applicant alleges that she was discriminated against on the basis of her gender. The points of claim then set out the precise orders sought by the applicant.
The respondent filed a detailed Defence to the Points of Claim on 27 November 2020. In his closing written submissions, Counsel for the respondent did not articulate what aspect of the applicant’s case was not pleaded but run at trial.
The Court is satisfied that in the circumstances of this case, it was entirely clear to the respondent what the case was that they were required to answer as a result of the orders made by the Court and the subsequent filing of an applicant’s Points of Claim prior to the requirement for the respondent to file a Defence. In these circumstances, the complaint raised by Counsel for the respondent that they were somehow unaware of the case they were required to answer has no merit.
DID THE APPLICANT MAKE A COMPLAINT?

The applicant relies upon her email of 22 January 2020, which forms part of Exhibit 11, as constituting a complaint. The applicant stated inter alia “I do also have concerns I would like to discuss with you regarding the continual raising and enquiring into personal matters that bear no relevance to my work in every single meeting we have.… I am more than happy to share my personal effects (affairs) should I volunteer to do so but not in the context of work meetings, or a performance review. I expect that if gossip like behaviours surface on our office for that these are not condoned”.
The respondent maintains that these words do not constitute a complaint for the purposes of

s 341(1)(c)(ii) of the Act. Reliance was placed on Alam v National Australia Bank Limited [2021] FCAFC 178 (“Alam”) where it was found that a request to discuss the types of tasks allocated between employees should be characterised as a request, not as a complaint or inquiry.
In Alam at [59]-[60] White, O’Callahgan and Colvin JJ had the following to say (citations omitted):
[59] In the context of s 341(1)(c), the term “complaint” connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding a fault: Shea v TRUenergy at [626]-[627]; Cummins South Pacific at [13] per Dodds-Streeton J. Her honour continued at [626]-[627], by saying that it is unnecessary for the employee to identify expressly the communication is a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in the context as an expression of grievance and which seeks, whether expressly or implicitly, that the recipient at least take notice of and consider it. The characterisation of communication as a complaint is to be deterred determined as a matter of substance, not a form.
[60] The distinction between a complaint and a mere request for assistance has been made in early authorities: Zhang v Royal Australian Chemical Institute [2005] FCAFC 99; and Hill v Cpmpass Ten Pty Ltd [2012] FCA 761 at [48]. It is possible that some requests for assistance may be able to be characterised as “inquiries” for the purposes of s341(1)(c) (for example, an enquiry as to whether the recipient is unable to provide the requested assistance) but is was not suggested that a characterisation of that kind was appropriate in relation to any of the appellants alleged requests or enquiries.
While the words do not use the term complaint, upon a fair reading of the correspondence, the Court is satisfied that the applicant was making a complaint. The communication relied upon by the applicant was an expression of grievance. The applicant was seeking that Mr Stamatoudis take notice of it and consider it and she was seeking that the conduct complained about cease. Mr Stamatoudis agreed in cross examination that the email was a grievance. So did Ms Sullivan.
The Court is fortified in this view by the fact that Mr Stamatoudis felt it necessary to almost immediately notify Ms Sullivan with the comment that “I share with you as I am starting to get concerned that she claims all I talk about is personal matters”.
Ms Sullivan again almost immediately forwarded the correspondence from Mr Stamatoudis to Ms Christensen as the People Director of the respondent with the comment “I’ve asked Artie to seek your counsel and how we deal with this issue, as it has the potential to go awry”.
If the comments by the applicant were not a complaint, then it is difficult to imagine why Mr Stamatoudis would have felt the necessity to immediately refer the matter to his supervisor, Ms Sullivan. Further, if the words did not constitute a complaint, then it is difficult to see why Ms Sullivan would have immediately referred the matter for human resources advice, including the comment that “it has the potential to go awry”.
In these circumstances, the Court is satisfied that the words used in the email constituted a complaint.
The Court also notes that the applicant alleges that she raised the above issues in her meeting with Mr Stamatoudis and Ms Christensen. The applicant claims that this was a second complaint.
WAS THE COMPLAINT IN RELATION TO A WORKPLACE RIGHT?
In oral submissions to the Court, the respondent submitted that even if the communication was a complaint for the purposes of s 341(1)(c) of the Act, it was not in relation to any workplace right. That is, it was not in relation to an entitlement under a contract or award or workplace law or instrument (see; s 341(1)(c)(i) of the Act).
That, however does not the end of the matter. Pursuant to s 341(1)(c)(ii) of the Act, a complaint may be made if the person is an employee in relation to his or her employment. The relationship between the specific complaint or inquiry and the employee’s employment may be direct as well as indirect: (see; Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697).
There is some controversy as to how wide or narrow the parameters are in relation to the protections in s 341(1)(c)(ii) of the Act. This is discussed by the learned editors of “Fair Work Legislation 2021-22” Thomson Reuters at pp 437-440. They note at p437:
the contentious issues of interpretation revolve around whether (i) the complaint can only arise from, or needs to be underpinned by, a legal right or entitlement to complain arising from the statutory, regulatory or contractual provision, and (ii) whether the complaint needs to be made in good faith or is otherwise genuine. It appears that the majority of cases to date except that there is no such restriction but there are cases which disagree with the approach of giving a section such a wide scope and have insisted upon applying the two limitations mentioned above.
The better view, in the Court’s opinion, is that the section should be given a wide scope. However, a definitive answer to the issue is not a matter that this humble Court can provide.
Instead, the Court relies upon the respondent’s Code of Conduct, tendered as part of Exibit 10. This code applies to all employees and governs behaviour towards co-workers, clients, suppliers, company management, and the general public. Relevantly, it includes the following:
Treat clients, suppliers, co-workers, company management and the general public in a non-discriminatory manner with proper regard for the rights and dignity…
Do not engage in sexual or other unlawful harassment or bullying in the workplace.
The anti-discrimination, bullying and harassment policy of the respondent includes a responsibility for employees to not lead, encourage or participate in behaviours which could possibly lead to discrimination or harassment. This includes not discriminating against person because of marital status. The policy prohibits bullying and harassment. Clause 4.5.1 of the policy reads as follows:
Harassment is behaviour that is unwelcome and causes offence, intimidation or humiliation. It is behaviour that a reasonable person would or should have anticipated to be perceived as harassment. Generally, to be considered bullying or harassment, the behaviour would be repeated unless it is physical abuse or exceptionally cruel.
The Court is satisfied that repeated unwelcome enquiries by Mr Stamatoudis as to the relationship status of the applicant with Mr Sherman can be categorised as harassment. This was also in circumstances where Ms Carr had made a very inappropriate and pointed remark to the applicant in the meeting to discuss the maternity leave policy of the respondent.
The Court notes that under the grievance resolution guideline of RPS, “all grievances were to be treated seriously”. Further, “grievances must be raised with your HR advisor immediately, investigated properly and dealt with sensitively”.
In the context of this matter, the Court is satisfied that the communication relied upon by the applicant was in furtherance of a workplace right as set out in the respondent’s Code of Conduct guideline and its anti-discrimination, bullying and harassment policy.
It is of considerable concern, that no evidence has been placed before the court, that the grievance raised by the applicant in relation to the unwelcome enquiries by Mr Stamatoudis as to her relationship status with Mr Sherman were ever investigated or sought to be resolved. It was admitted by Ms Christensen, that the company did not follow its own grievance resolution guidelines. Rather, the only action taken was to raise performance issues in relation to the applicant, including new matters that have not been previously raised at her performance review.
DID HE RESPONDENT TAKE ADVERSE ACTION?
The scope of what constitutes adverse action is set out in the table at s 342(1) of the Act. At item 1(c), this includes action taken by an employer against an employee which “alters the position of the employee to the employees prejudice”. A dismissal of the employee is also adverse action: (See; item 1(a) in s 341(1) of the Act).
The learned authors of Fair Work Legislation 2021-22, published by Thomson Reuters, at p448 describe a wide spectrum of conduct that is covered by the term ‘adverse action’:
The decisions demonstrate that there is a wide spectrum of conduct which can be caught by the “prejudicial alteration” limb of “adverse action”. It can potentially capture almost any detriment upon the “advantages enjoyed by the employee” before the conduct in question, if it is done for one of the prohibited reasons in ss 340, 346 or 351, as long as the detriment is real or substantial. Prejudicial alteration is a broad additional category, which covers not only legal injury that any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union (1988) 195 CLR 1 at [4]; Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at [164].
Further, the learned authors note at p450-451, the prejudicial alteration of the employee’s position must be “real and substantial rather than merely possible or hypothetical”. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525, Murphy J decided that Visy took adverse action against an Occupational Health & Safety representative when it investigated his actions in response to a potential health and safety risk. His Honour was satisfied that the investigation exposed the employee to a reduction in the security of his future employment and therefore this deteriorated the advantages enjoyed by him prior to the investigation.
In an email of 29 January 2020, Mr Stamatoudis stated as follows:
Conclusion – recommend SL steps out of NSL role due to time management challenges both from the leave and demonstrate a performance perspective her
In an email of 1 February 2020, Mr Stamatoudis stated the following:
I actually believe it is in her (the applicant’s) best interest to step back into a director role in the New South Wales team to avoid burnout
Both Ms Sullivan and Ms Christensen deposed that the proposed ‘stepping back’ action was temporary in nature and did not involve any loss of salary. Yet Mr Stamatoudis agreed that the action taken, was adverse and a demotion.
The applicant claims that during the phone call of 7 February 2020, Mr Stamatoudis used the words “I have decided to demote you from your role”. Mr Stamatoudis claimed to use the following words: “Further to last night, Megan and Diane met this morning and they have decided to proceed with option one, where you temporarily step out of the service line lead role into a director’s role in the team, to give you time to do your studies”. Mr Stamatoudis further claims he made specific reference to there being no reduction in salary.
The Court is unable to determine which version of the conversations outlined above occurred. Certainly, in the management email correspondence preceding the phone call, the term “step back” and “steps out of” was used rather than the term “demotion”. It is clear that the applicant regarded the action as being a demotion. The applicant would no longer be responsible for the National Service Lead, and would be restricted instead to New South Wales duties only. In a highly competitive environment, such as that which appears to have existed in the respondent company, the Court is satisfied that both the applicant and other employees would view it as being a diminution of the applicant’s role and status within the respondent company. The use of the term “stepping back” speaks more closely to that of a demotion, irrespective of whether or not it involved a loss of salary. The Court is satisfied that it was a detriment to the advantages employed by the applicant before the conduct in question.
The Court is further comforted in this view in that Ms Christensen expressed in an email of

1 February 2020 that she was aware that another National Service Lead role was being done part-time. This option never appears to have been offered to the applicant. Ms Christensen further raised questions as to whether the applicant’s performance was so bad that “we would be putting her on a PIP (performance improvement plan) or demoting her even if she didn’t have this study commitment. Ms Christensen also asked the question of when the applicant completed the study would she go back into the National Service Lead position. No clear evidence has been provided by the respondents in answer to these particular issues.
While the respondent has argued that the applicant’s ‘stepping out’ was only temporary, and that she would revert to her previous role once she completed her studies, this does not appear to have been made clear to the applicant even on the version of the conversation deposed by Mr Stamatoudis. There was no follow up correspondence that confirmed this, possibly due to the almost immediate resignation of the applicant.
DID THE ADVERSE ACTION CONSTITUTE CONSTRUCTIVE DISMISSAL?
The applicant contends that the action detailed above forced her resignation and amounts to constructive dismissal.
The meaning of dismissed is set out in s 386 of the Act and is as follows:
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.
2. However, a person has not been dismissed if:
a)the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
b)the person was an employee:
i.to whom a training arrangement applied; and
ii.whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
c)the person was demoted in employment but:
i.the demotion does not involve a significant reduction in his or her remuneration or duties; and
ii.he or she remains employed with the employer that effected the demotion.
In this case, the Court is satisfied that the adverse action claimed did not involve a significant reduction in the remuneration of Ms Lamb. The clear evidence is that it was proposed that the applicant’s remuneration would remain unchanged.
The applicant would have remained employed with the respondent.
The proposed action involved the applicant ceasing to perform a National Service Lead role in relation to her business line and instead, to use the words of Mr Stamatoudis in his email of 1 February 2020, “stepping back into a director role in the NSW team”. This implies a significant reduction in duties. Ms Christensen used the term “demotion” in her email of 1 February 2020. This implies a significant reduction in the applicant’s duties.
As noted in Spencer v Dowling (1997) 2 VR 127 at 160 per Hayne JA (as he was then), the real question is ‘whether the conduct of the employer is such as to repudiate the contract giving rise to a right in the employee to accept the repudiation as bringing the contract to and end’.
On balance, the Court is satisfied that the action of the respondent amounted to a constructive dismissal within the meaning of s 386(1)(b) of the Act. The applicant was being forcibly removed from her National Service Lead role. The applicant’s duties were to be restricted to a NSW only. It was not made clear that this restriction was for a limited period. This restriction would have limited the applicant’s ability to participate and bid for work nationally and would have substantially decreased her profile within the respondent company.
The respondent’s submission that it is almost unheard of for an employee constructively dismissed to return to work to serve her notice period in circumstances where the employers conduct was so egregious as to procure her resignation has little weight. The applicant was contractually bound to serve out her notice period.
The respondent was very keen for a smooth hand over of the applicant’s clients and projects to take place. Indeed, the notice period was extended for this to occur. The applicant deposes that this would allow for the respondent and Ms Lamb to uphold a professional image with key stakeholders and clients.
However, as soon as it was perceived this was not occurring, the respondent terminated the employment of the applicant. This constituted adverse action.
WAS THE COMPLAINT A SUBSTANTIAL AND OPERATIVE REASON FOR THE ADVERSE ACTION?
Having found that the applicant had lodged a complaint and that adverse action was taken, the Court now needs to determine if the complaint formed a substantial and operative part of the decision to take the adverse action. This requires, first a determination of who were the relevant decision makers, and second a consideration of what was in their minds at the time of the decision. Unless the Court is satisfied that the complaint did not form part of the decision to take the adverse action, then the Court must find in favour of the applicant, pursuant to

s 361(1)(b) of the Act.
Firstly, the Court is satisfied that the relevant decision makers were Mr Stamatoudis, Ms Sullivan and Ms Christensen. Although it was put to the Court that Mr Stamatoudis was not a decision maker, it is clear from the email chain (Exhibit 11) that he was the initiator of the proposal that the applicant ‘step out of the NSL role”. Further, Mr Stamatoudis was involved in the meeting with the applicant of 6 February 2020 and advised the applicant of the respondent’s decision the next day that she step out of the role. Mr Stamatoudis provided all the material in relation to the alleged ‘poor performance’ of the applicant in his email of 29 January 2020 to Ms Christensen.
Although all three of the decision makers state that the complaint was not a substantial and operative part of the decision-making process, the Court has considerable concerns with this position.
First, the complaint was in relation to Mr Stamatoudis and his conduct. While both Ms Christensen and Ms Sullivan acknowledged that there was a conflict of interest in Mr Stamatoudis taking a lead in the process adopted, they sought to justify this on the basis that while there was a conflict of interest in relation to the complaint, this was not the case in relation to the poor performance allegations.
In the Court’s view there was a clear conflict of interest that gives rise to a reasonable apprehension of bias on Mr Stamatoudis’ part. Mr Stamatoudis was a supervisor, who had a serious allegation raised against him in relation to harassment, taking an active part in a process that led to the applicant being demoted in her eyes.

Second and possibly most importantly, no evidence was placed before the Court that the complaint made by the applicant against Mr Stamatoudis was the subject of any investigation by Ms Christensen or any other person. It was conceded by Ms Christensen that the respondent did not follow their own policy on relation to the handling of complaints and grievances.
The Legal Representative for the applicant submitted that what occurred was that following the submission of the complaint, notwithstanding the applicant had been given a generally satisfactory performance report by Mr Stamatoudis, with a 3 out of 4 rating overall, immediately after the lodgement of the complaint performance issues arose that were so serious as to justify the removal of the applicant from her position.
Given the conflict of interests issue in relation to Mr Stamatoudis, the lack of any investigation into the substance of the applicant’s complaints, and the speed of the action taken to remove her form her position, the Court cannot be satisfied on the evidence presented that the complaint was not an operative and substantial part of the adverse action taken.
In coming to this conclusion, the Court has taken into account that there were clear issues with the applicant in relation to her course of study and the time this would take. Mr Stamatoudis was clearly annoyed that he felt the applicant had gone over his head to Ms Sullivan on this issue. Mr Stamatoudis also had issues in relation to some aspects of the applicant’s performance in late January and early February 2020, but these did not result in a Performance Improvement Program being instituted. That would have been an appropriate course of action. The respondent simply, without determining the substance of the applicant’s complaints, determined to remove the applicant from her position.
IS THE CLAIM MADE OUT OF A BREACH OF SECTION 341 OF THE ACT?
Given the above findings of fact, the Court is satisfied the respondent took adverse action against the applicant, and in so doing breached s 341 of the Act.
WAS FURTHER ADVERSE ACTION TAKEN AGAINST MS LAMB IN RELATION TO THE LEAVE APPLICATION BEING SUBMITTED ON HER BEHALF AND HER TERMINATION ON 13 MARCH 2020?
The applicant claims two further instances of adverse action, the first being the submission of a leave request for the period 23 to 27 March 2020 by Ms Christensen without the knowledge or consent of the applicant. While the Court is satisfied that the leave application was indeed submitted, and that it was a management initiated leave application without the knowledge and consent of the applicant, the Court is not satisfied that this leave application is related in any way to the submission of her complaint and is not adverse action.
The leave application related to a misunderstanding in relation to whether not the applicant would be absent from her work overseas studying during the period set out above.
The second complaint of adverse action relates to the summary termination of the applicant on 13 March 2020 during her negotiated extended notice period. The Court is satisfied that the applicant and the respondent jointly negotiated an extended notice period of eight weeks as compared to the four weeks set out in the contract of employment between the applicant and the respondent.
The Court accepts the evidence of both Mr Stamatoudis, but more particularly Mr Johnson, that the early termination occurred as a result of concerns that the applicant was seeking to advantage herself at the expense of the respondent. It is concerning to the Court that Mr Sherman was apparently involved initially in raising these concerns, given by this point of time the applicant had terminated her relationship with him. Further, none of the issues that were discussed at the meeting which resulted in the summary termination of the notice period were put to the applicant, with the result that she had no right of response. The Court is unable to say on the evidence before it whether or not the material that was discussed in the meeting has any substance or not. The Court is however, satisfied that the decision to terminate the applicant’s notice period early was not as a result of the submission of a complaint against Mr Stamatoudis. Again however, the involvement of Mr Stamatoudis in the decision to terminate the applicant’s notice period earlier than what had been agreed is difficult to understand given the conflict-of-interest situation involving him that has been discussed above.
The Court is not satisfied that the action in terminating the notice period early involved adverse action or a breach of the relevant provisions of the Act. If anything, noting that the applicant was not paid beyond the period that she worked, and so forfeited the benefit of three weeks salary, this action can be best characterised as a breach of contract in relation to payment in lieu of notice.
WAS MS LAMB DISCRIMINATED AGAINST DUE TO HER GENDER IN BREACH OF S 351 OF THE ACT?
The last pleaded issue is that the applicant was discriminated against on the basis of her gender in that she was the subject of repeated enquiries by Mr Stamatoudis in relation to her personal life and her relationship with Mr Sherman and was treated differently to Mr Sherman.
Under the respondent’s code of conduct, there was no requirement for the applicant to disclose her relationship with Mr Sherman. The relationship was apparently disclosed by Mr Sherman to Mr Stamatoudis. As a result of this disclosure, Mr Stamatoudis made enquiries of the applicant about her relationship and pressured her to disclose it publicly in the workplace.
On behalf of the applicant, it is also alleged that Mr Stamatoudis made repeated jokes at the Queensland office with male colleagues about the applicant, but not Mr Sherman.
While the court considers the repeated enquiries made by Mr Stamatoudis of the applicant meet the definition of harassment as set out in the respondent’s code of conduct and other policies, the Court is not satisfied that the treatment of the applicant was based on her gender, such that it constitutes adverse action within the meaning of s 351 of the Act. The Court is unable to be satisfied that had the position been reversed, and that the applicant had made a disclosure to Mr Stamatoudis, that the repeated enquiries made of her would not have been made of Mr Sherman.
DISPOSITION
The Court makes the orders set out at the beginning of this judgment. A separate hearing will be necessary to determine the amount of any compensation and pecuniary penalties.

I certify that the preceding two hundred and forty-three (243) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.
Associate:
Dated: 11 April 2022

File number(s):	SYG 1911 of 2020
Judgment of:	JUDGE HUMPHREYS
Date of judgment:	11 April 2022
Catchwords:	INDUSTRIAL LAW – FAIR WORK – Fair Work Act 2009 (Cth) – whether the applicant made a complaint – whether adverse action was taken – adverse action made out – order for declaration of contravention and compensation.
Legislation:	Fair Work Act 2009 (Cth) ss 340 341, 342, 351, 361, 545, 546, 570
Cases cited:	Board ofBendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 Construction, Forestry, Mining & Energy Union v Clermont Coal Pty Limited [2015] FCA 1014 Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307
Division:	Division 2 General Federal Law
Number of paragraphs:	243
Date of last submission/s:	3 March 2022
Date of hearing:	28 February – 3 March 2022
Place:	Parramatta
Solicitor for the Applicant:	Mr Gorval
Solicitor for the Applicant:	Mr Pratt

SYG 1911 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	SIOBHAN LAMB Applicant
AND:	RPA AAP CONSULTING PTY LTD ACN 117 883 173 Respondent

ORDER MADE BY:	JUDGE HUMPHRES
DATE OF ORDER:	11 APRIL 2022