Morton v Commonwealth Scientific and Industrial Research Organisation (No 2)

[2019] FCA 1754

FEDERAL COURT OF AUSTRALIA

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

File number:

QUD 234 of 2017

Judge:

RANGIAH J

Date of judgment:

29 October 2019

Catchwords:

INDUSTRIAL ACTION – adverse action – where applicant alleges adverse action taken against her because of sex or sexual orientation – where applicant alleges to have exercised or proposed to exercise workplace rights – where applicant alleges adverse action taken or threatened with intent to coerce her not to exercise workplace rights – interaction between Fair Work Act 2009 (Cth) and Sex Discrimination Act 1984 (Cth) – vicarious liability of respondent for acts committed by employees

PRACTICE AND PROCEDURE – application to withdraw an admission made in amended defence – where application made in closing address – leave to withdraw not freely granted – application refused

Legislation:

Disability Discrimination Act 1992 (Cth) ss 15(2) and 16.02

Evidence Act 1995 (Cth) s 140

Fair Work Act 2009 (Cth) ss 340(1), 341(1), 342(1), 343(1), 345, 346, 351, 351(1), 351(2), 351(3), 360, 361(1), 545, 793(1)

Safety Rehabilitation and Compensation Act 1988 (Cth)

Science and Industry Research Act1949 (Cth) s 8(2)

Sex Discrimination Act 1984 (Cth) ss 5, 14(2), 28A, 28B and 106

Federal Court Rules 2011 (Cth) r 16.02(3)

Cases cited:

Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175

Auimatagi v Australian Building and Construction Commissioner (2018) 363 ALR 246; [2018] FCAFC 191

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 350 ALR 190; [2018] HCA 3

Australian Building and Construction Commissioner v Hall (2018) 277 IR 75; [2018] FCAFC 83

Australian Building and Construction Commissioner v Upton (The Gorgon Construction Case) (2017) 270 IR 190; [2017] FCA 847

Australian Licensed Aircraft Engineers Association v International Aviation Services Pty Ltd (2011) 193 FCR 526

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

Briginshaw v Briginshaw (1938) 60 CLR 336

Cigarette & Gift Warehouse v Whelan [2019] FCAFC 16

Commonwealth Bank of Australia v Finance Sector Union of Australia (2006) 154 IR 467; [2006] FCA 1048

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466

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

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243

Dafallah v Fair Work Commission (2014) 225 FCR 559

Drabsch v Switzerland General Insurance Co Ltd (unreported, Supreme Court of New South Wales, 16 October 1996)

Esso Australia Pty Ltd v The Australian Workers’ Union (2016) 245 FCR 39

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Hutchinson Ports Appeal) [2019] FCAFC 69

Hollis v Vabu Pty Ltd (2001) 207 CLR 21

Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327; [2003] FCAFC 309

Kakavas v Crown Melbourne (2013) 250 CLR 392

Maritime Union Authority v Geraldton Port Authority (1999) 93 FCR 34

Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120

National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114

New South Wales v Lepore (2003) 212 CLR 511

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1

Prince Alfred College Inc v ADC (2016) 258 CLR 134

Qantas Airways Ltd v Australian Licenced Aircraft Engineers Association (2012) 202 FCR 244

RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424

Sayed v Construction, Forestry, Mining and Energy Union (2015) 149 ALD 88; [2015] FCA 27

Seven Network (Operations) Ltd v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378

Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1; [2014] FCA 271

Squires v Flight Stewards Association of Australia (1982) IR 155

State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441; [2014] FCAFC 184

Tattsbet Ltd v Morrow (2015) 233 FCR 46

Transport Workers Union of Australia v No Fuss Liquid Waste Pty Ltd (2011) FCA 982

Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181

Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285; [2017] FCA 1534

Salmond JW, Law of Torts, (Stevens and Haynes, 1907)

Date of hearing:

8–12, 15–19, 22–26, 29–30 October 2018
1–2 November 2018

Registry:

Queensland

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

666

Counsel for the Applicant:

Ms L Willson

Solicitor for the Applicant:

Parker Simmonds

Counsel for the Respondent:

Mr J Bourke QC with Ms R Sweet

Solicitor for the Respondent:

King & Wood Mallesons

ORDERS

QUD 234 of 2017

BETWEEN:

KATHERINE MARILLA MORTON

Applicant

AND:

COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION

Respondent

JUDGE:	RANGIAH J
DATE OF ORDER:	29 OCTOBER 2019

THE COURT DECLARES THAT:

1.The respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) by the action of its employee, Heather Campbell, on about 3 August 2015, in failing to comply with the requirements of the Grievance Procedures under the CSIRO Enterprise Agreement 2011–2014 to perform her duties with professionalism when dealing with a complaint made by the applicant against Gavin Drury.

THE COURT ORDERS THAT:

2.The respondent pay the applicant $1,000 by way of compensation for its contravention of s 340(1) of the Fair Work Act.

3.The parties provide written submissions upon the questions of any penalty, other orders and costs on dates to be fixed.

4.The proceeding is otherwise dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
TABLE OF CONTENTS

THE POSITIONS OF DR MORTON AND THE RELEVANT CSIRO EMPLOYEES	[6]
SUMMARY OF DR MORTON’S CLAIMS	[21]
Claim 1A	[22]
Dr Glencross	[22]
Dr Preston	[22]
Dr Cook	[22]
Claim 1	[22]
Claim 2	[22]
Claim 3	[22]
Claim 4	[22]
Claim 5	[22]
Claim 6	[22]
Claim 7	[22]
Claim 8	[22]
Claim 9	[22]
THE LEGISLATION	[22]
THE PRINCIPLES	[31]
Section 340(1) of the FW Act	[31]
Workplace rights	[33]
Adverse action	[37]
Adverse action taken because the person has exercised, or proposed to exercise, a workplace right	[45]
Section 343 of the FW Act	[49]
Section 351 of the FW Act	[58]
Section 793 of the FW Act and vicarious liability	[73]
Section 140 of the Evidence Act 1995 (Cth)	[80]
The evidence	[82]
ASSESSMENT OF THE WITNESSES	[85]
Assessment of Dr Morton’s evidence	[86]
Discrepancies between Dr Morton’s reporting of her level of functioning and her presentation in the witness box	[89]
Discrepancies between Dr Morton’s reporting of her level of functioning and the level of revealed through other sources	[100]
Dr Morton’s failure to make timely complaints about Dr Glencross, Dr Preston and Dr Cook	[117]
Various other discrepancies, implausibilities and inconsistencies	[144]
Assessment of Mr Croft’s evidence	[153]
Assessment of Dr Rees’ evidence	[162]
Assessment of Dr Mathew’s evidence	[173]
Assessment of Dr Glencross’ evidence	[178]
The application to withdraw an admission made in CSIRO’s amended defence	[189]
Assessment of Dr Cook’s evidence	[201]
Assessment of Dr Preston’s evidence	[205]
Assessment of the evidence of Ms Habilay, Ms Trenkner and Mr Blyth	[208]
Assessment of Mr Drury’s evidence	[214]
Assessment of Ms Campbell’s evidence	[219]
Assessment of Ms Walsh’s evidence	[222]
Assessment of Dr Manners’ evidence	[225]
Other witnesses	[228]
Conclusions upon the conflicts between Dr Morton’s evidence and the evidence of other witnesses	[229]
CONSIDERATION OF CLAIM 1A	[231]
The allegations against Dr Glencross	[236]
Whether the events involving Dr Glencross happened as alleged by Dr Morton	[237]
Asking Dr Morton what her sexual preference was	[237]
The prostitute comment	[240]
The crows-feet comment	[247]
The riding-crop incident and the dominatrix comment	[254]
The cleavage comment	[273]
Whether any action taken by Dr Glencross was adverse action	[285]
The allegations against Dr Preston	[293]
The allegations against Dr Cook	[300]
Whether the events happened as alleged by Dr Morton	[301]
The dizzy blonde allegation	[301]
The scantily dressed woman email	[308]
The half-naked man and woman email	[311]
The candidates for a post-doctorate position email	[320]
The take a blonde to Tasmania comment	[323]
Whether Dr Cook’s emails amounted to “adverse action”	[328]
Dr Morton’s allegations considered under the Sex Discrimination Act	[339]
Liability of CSIRO for acts of its employees	[350]
The allegation that CSIRO failed to address, or adequately address, Dr Glencross’ behaviour in a timely manner	[358]
The allegation that CSIRO afforded Dr Morton less favourable conditions of employment than would be experienced by a male	[385]
CONSIDERATION OF CLAIM 1	[390]
The allegation that CSIRO failed to address Dr Morton’s complaints about Dr Glencross’ behaviours towards her in a timely manner	[394]
The allegation that CSIRO removed Dr Morton as a team leader	[426]
The allegation that CSIRO decreased Dr Morton’s allocation to the Huon project	[442]
The allegation that CSIRO dismissed Dr Morton from her employment by making her position redundant in circumstances where there was no genuine redundancy	[461]
CONSIDERATION OF CLAIM 2	[503]
CONSIDERATION OF CLAIM 3	[520]
The pleaded allegations	[520]
Dr Morton’s evidence	[526]
Mr Drury’s evidence	[532]
Consideration of the evidence	[539]
Consideration of coercion allegations	[542]
The requirements of s 343(1) of the FW Act	[542]
The allegation that Mr Drury said, “Three months off would not do your career any good”	[548]
The allegation that Mr Drury represented that he was a clinician	[550]
The allegation that, despite medical advice, Mr Drury said he was going to begin to plan her return to work “within the next couple of weeks”	[551]
The allegation that Mr Drury contacted Dr Morton in early March 2015 before an investigator had been appointed	[556]
The allegation that Mr Drury told Dr Morton that if she did not file a Comcare claim, he would ensure that CSIRO would cover the treatment she needed	[557]
The allegations that CSIRO engaged in coercive conduct by removing Dr Morton as team leader, decreasing her allocation to the Huon project, and dismissing her from her employment by making her position redundant	[559]
Consideration of adverse action allegations	[561]
The allegation that Mr Drury said “Three months off would not do your career any good”	[561]
The allegation that Mr Drury represented that he was a clinician	[562]
The allegation that, despite medical advice, Mr Drury said he was going to begin to plan her return to work “within the next couple of weeks”	[563]
The allegation that Mr Drury contacted Dr Morton in early March 2015 before an investigator had been appointed	[565]
The allegation that Mr Drury told Dr Morton that if she did not file a Comcare claim, he would ensure that CSIRO would cover the treatment she needed	[566]
The allegations that CSIRO engaged in adverse action by removing Dr Morton as team leader, decreasing her allocation to the Huon project and dismissing her from her employment by making her position redundant	[567]
CONSIDERATION OF CLAIM 4	[569]
The pleaded allegations	[569]
The evidence	[572]
Whether Ms Campbell complied with the Grievance Procedures	[581]
Whether there was a contravention of s 340(1) of the FW Act	[591]
Vicarious liability	[594]
Other matters	[597]
CONSIDERATION OF CLAIM 5	[600]
CONSIDERATION OF CLAIM 6	[606]
CONSIDERATION OF CLAIM 7	[618]
CONSIDERATION OF CLAIM 8	[619]
CONSIDERATION OF CLAIM 9	[626]
CONSIDERATION OF COMPENSATION	[651]
CONCLUSION	[663]

RANGIAH J:

1. The applicant, Dr Katherine Morton (Dr Morton) seeks compensation and other relief against the respondent, Commonwealth Scientific and Industrial Research Organisation (CSIRO). Dr Morton was employed by CSIRO as a scientist between 2012 and 2016.

2. Dr Morton alleges that during the period of her employment, CSIRO:

   (1)contravened s 351(1) of the Fair Work Act 2009 (Cth) (the FW Act), by taking adverse action against her because of her sex or sexual orientation;

   (2)contravened s 340(1) of the FW Act, by taking adverse action against her because she exercised or proposed to exercise workplace rights; and

   (3)contravened s 343(1) of the FW Act, by taking or threatening to take action against her with intent to coerce her to not exercise workplace rights.

3. The principal focus of CSIRO’s defence is to:

   (1)deny that much of the conduct alleged by Dr Morton occurred;

   (2)deny that any conduct that did occur was “adverse action”; and

   (3)assert that if there was “adverse action”, it was not taken because Dr Morton exercised any workplace rights.

4. I will proceed by:

   ·Describing Dr Morton’s position within CSIRO, and the positions of various CSIRO staff against whom her allegations are directed.

   ·Summarising the claims made in Dr Morton’s further amended statement of claim.

   ·Setting out the relevant provisions of the FW Act.

   ·Considering the law concerning those provisions.

   ·Separately assessing the credibility and reliability of the more controversial witnesses.

   ·Considering each of the claims made in Dr Morton’s further amended statement of claim.

   ·Considering any compensation.

5. I will summarise the evidence in an Appendix to these reasons.

   THE POSITIONS OF DR MORTON AND THE RELEVANT CSIRO EMPLOYEES

6. Dr Morton’s further amended statement of claim makes allegations against a number of CSIRO employees. It is necessary to give a brief description of the positions and roles of those persons in order to give context to Dr Morton’s claims.

7. Dr Morton commenced employment with CSIRO on 5 March 2012. She was a Level 6 scientist employed within the Aquaculture area of the Agriculture Business Unit (noting that the names of the various sections or units within CSIRO have varied over time). She was based at the Ecosciences Precinct (ESP) at Woolloongabba in Brisbane, but also carried out work at CSIRO’s aquaculture facility at Bribie Island, north of Brisbane.

8. On 28 November 2014, Dr Morton made a formal complaint against two of her colleagues, Dr Brett Glencross and Dr Nigel Preston, alleging sex discrimination, bullying and other misconduct. On 6 July 2015, Dr Morton was certified unfit for work with a psychiatric illness, and did not return to work. Her employment with CSIRO ended when her position was made redundant with effect from 11 November 2016.

9. Mr William Croft is Dr Morton’s partner. They met in about November 2012. Mr Croft was employed at CSIRO until 2013.

10. Dr Glencross was a Level 8 scientist within the Aquaculture area of CSIRO. He was Dr Morton’s immediate supervisor in respect of her scientific work. They had a difficult working relationship. Dr Morton’s complaint against Dr Glencross was never formally investigated, as he left CSIRO in February 2015.

11. Dr Preston was Director of the Agriculture Business Unit until July 2015. He was the senior manager of Dr Morton’s team. Dr Morton’s formal complaint alleged that Dr Preston discriminated against her on the basis of her sex. An investigation commissioned by CSIRO found that the allegations against Dr Preston were not substantiated.

12. Dr Matthew Cook was a senior scientist in the Aquaculture area, occupying several different roles during the period when Dr Morton was employed at CSIRO. Dr Cook was Dr Morton’s administrative line manager from March 2012 to August 2013 and again from July 2014 until her position was made redundant. Dr Cook and Dr Morton had a friendly relationship for much of that time, often involving the exchange of light-hearted banter in text messages and emails. Dr Morton made no complaints about Dr Cook while she was employed at CSIRO, but has now alleged that he sexually harassed her and discriminated against her on the basis of her sex.

13. Dr John Manners is the director of what is now the Agriculture and Food Business Unit. In February 2015, he decided that Dr Morton’s complaint against Dr Preston should be investigated, and appointed Mr Trevor Van Dam, as the investigator.  Dr Manners was also one of the persons who later authorised Dr Morton’s position being made redundant.

14. Ms Julie Carroll was employed at CSIRO as a human resources (HR) advisor. Dr Morton made verbal complaints to Ms Carroll about her difficult relationship with Dr Glencross.

15. Dr Sigrid Lehnert was a scientist at CSIRO. In October 2014, Dr Morton discussed her poor relationship with Dr Glencross with Dr Lehnert.

16. Ms Alysha Davis was a HR advisor in CSIRO’s Agriculture Business Unit. In November 2014, Dr Morton made a verbal complaint about Dr Glencross and Dr Preston to Ms Davis. Ms Davis managed the grievance process and various issues about Dr Morton’s leave and other entitlements.

17. Mr Gavin Drury was an injury management coordinator employed by CSIRO. He was responsible for managing Dr Morton’s case when she ceased work in July 2015. Dr Morton made a complaint about Mr Drury’s management of her case.

18. Ms Heather Campbell is a senior manager within CSIRO. She was responsible for dealing with Dr Morton’s complaint against Mr Drury. Ms Campbell decided that the complaint was not established.

19. Ms Lynne Gaal is a senior HR advisor. She was involved in managing Dr Morton’s payroll and leave entitlements.

20. A number of other witnesses also gave evidence at the hearing, but it is unnecessary, at this stage, to describe their roles and positions. Their evidence is summarised in the Appendix to these reasons.

    SUMMARY OF DR MORTON’S CLAIMS

21. In her further amended statement of claim, Dr Morton makes ten claims, described as Claim 1A to Claim 9. I will briefly summarise Dr Morton’s claims.

    Claim 1A

    (1)CSIRO contravened s 351(1) of the FW Act by taking adverse action against Dr Morton because of her sex or sexual orientation.

    (2)The adverse action consisted of:

    (a)Five incidents of sex discrimination or sexual harassment perpetrated by Dr Glencross, one by Dr Preston and five by Dr Cook.

    (b)Failing to address, or adequately address, Dr Glencross’ behaviour in a timely manner upon becoming aware of his conduct.

    (c)Affording Dr Morton less favourable conditions of employment than those that would be experienced by a male. 

    (3)The incidents of sex discrimination or sexual harassment were:

    Dr Glencross

    (a)On 26 April 2012, Dr Glencross asked Dr Morton what her sexual preference was. 

    (b)On 2 May 2012, Dr Glencross referred to Dr Morton as a “prostitute”.

    (c)On 2 May 2012, Dr Glencross made a comment about Dr Morton’s “crow’s feet”.

    (d)On 16 October 2012, Dr Glencross slapped Dr Morton on her backside with a riding crop.

    (e)On 17 October 2012, Dr Glencross stared at Dr Morton’s breast area and said, “Women only wear pendants to draw attention to their cleavage.  I don’t know why you bother Katherine, you don’t have any”. 

    Dr Preston

    (f)On 2 May 2012, Dr Preston called Dr Morton a “hussy”. 

    Dr Cook

    (g)On 9 August 2012, Dr Cook told Dr Morton that Dr Preston’s nickname for her was “dizzy blonde”.  

    (h)On 10 September 2012, Dr Cook circulated an email with a picture of a scantily dressed woman. 

    (i)On 7 November 2012, Dr Cook circulated an email with a picture of a half-naked man and a woman, describing them as candidates for positions at CSIRO.

    (j)On 19 March 2014, Dr Cook circulated an email discussing, in a sexualised way, the potential candidates for a post-doctorate position. 

    (k)On 2 December 2014, Dr Cook said to Dr Morton, “take a blonde to Tasmania, dress her up and double your money”. 

    Claim 1

    (1)CSIRO contravened s 340(1) of the FW Act by taking adverse action against Dr Morton.

    (2)The adverse action consisted of:

    (a)Failing to address Dr Morton’s complaints about Dr Glencross’ behaviour towards her in a timely manner after her complaint was made.

    (b)Removing Dr Morton as a team leader.

    (c)Decreasing her allocation to the Huon project.

    (d)Dismissing Dr Morton from her employment by making her position redundant in circumstances where there was no genuine redundancy.

    (3)The adverse action was taken because Dr Morton exercised the following workplace rights:

    (a)Making complaints to Dr Cook about Dr Glencross’ behaviour.

    (b)On 28 October 2014, making a complaint to Dr Lehnert about Dr Glencross’ behaviour.

    (c)On 28 November 2014, making a formal complaint about Dr Glencross’ behaviour.

    (d)On 6 November 2014, having a meeting with Ms Davis and Ms Sturton to discuss her complaint.

    (e)On 5 December 2014, meeting with Ms Davis who requested that Dr Morton submit her allegations in writing.

    (f)On 16 January 2015, submitting further information concerning the complaint.

    Claim 2

    (1)CSIRO contravened s 340(1) of the FW Act by taking adverse action against Dr Morton.

    (2)The adverse action consisted of:

    (a)Permitting Dr Manners to manipulate the terms of reference for the investigation of Dr Preston’s conduct by reducing the time-frame for the review and not referring to Dr Morton’s allegations that Dr Preston had made inappropriate and inaccurate comments about her.

    (b)Removing Dr Morton as team leader.

    (c)Decreasing her allocation to the Huon project.

    (3)The adverse action was taken because Dr Morton exercised the following workplace rights:

    (a)In March 2015, notifying CSIRO that she wished to lodge a claim for workers’ compensation.

    (b)In October 2014, making a complaint against Dr Preston.

    Claim 3

    (1)CSIRO contravened s 340(1) by taking adverse action against Dr Morton, and contravened s 343 by taking action against her with intent to coerce her to not exercise her workplace rights.

    (2)The adverse actions and the coercive actions consisted of:

    (a)On 8 July 2015, Mr Drury engaging in intimidating and coercive behaviour by:

    (i)stating, “Three months off would not do your career any good”;

    (ii)claiming he was qualified to advise her of this position as he was, “a clinician”;

    (iii)despite medical advice, Mr Drury saying he was going to plan her return to work, “within the next couple of weeks”.

    (b)Mr Drury first contacting Dr Morton in early March 2015, even though she was not notified of the appointment of an investigator into her grievance until 27 March 2015.

    (c)Mr Drury telling Dr Morton that if she did not file a claim with Comcare, then he would ensure that CSIRO would cover the treatment she needed.

    (d)Removing Dr Morton as team leader, decreasing her allocation to the Huon project and dismissing her from her employment by making her position redundant in circumstances where there was no genuine redundancy.

    (3)The adverse action and coercive action was taken because Dr Morton proposed to exercise the following workplace rights:

    (a)Make complaints or enquiries to exercise her entitlement to workers’ compensation benefits.

    (b)Initiate or participate in proceedings under a workplace law, namely the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).

    Claim 4

    (1)CSIRO contravened s 340(1) of the FW Act by taking adverse action against Dr Morton.

    (2)The adverse action consisted of:

    (a)Mr Drury ignoring Dr Morton’s request to provide him with the name of his supervisor so that she could exercise a workplace right to make a complaint about his behaviours.

    (b)Dr Cook also failing to respond to the request that Dr Morton made to Mr Drury, despite being copied into the email.

    (c)Ms Pickering responding to Dr Morton’s complaint of 29 July 2015 by saying that she was no longer Mr Drury’s line manager, but copying Ms Campbell into the response.

    (d)On 3 August 2015, Ms Campbell taking no action to initiate a grievance process and instead dismissing Dr Morton’s complaint.

    (e)Ms Campbell not applying correct policy and procedures to Dr Morton’s complaint against Mr Drury.

    (f)Decreasing Dr Morton’s allocation to the Huon project and dismissing her from her employment.

    (3)The adverse action was taken because Dr Morton had or exercised the following workplace rights:

    (a)On 24 July 2015, requesting that Mr Drury provide her with the name of his supervisor so that she could make a complaint about his behaviour.

    (b)On 29 July 2015, making a complaint to Ms Pickering about Mr Drury’s behaviour.

    Claim 5

    (1)CSIRO contravened s 340(1) by taking adverse action against Dr Morton, and contravened s 343(1) by taking action against her with intent to coerce her not to exercise workplace rights.

    (2)The adverse action and coercive action consisted of:

    (a)Mr Drury engaging in a course of threatening behaviour as follows:

    (i)On 8 July 2015, telling Dr Morton that, “Three months off would not do your career any good”;

    (ii)Telling Dr Morton that he was qualified to advise her of this because he was a “clinician”;

    (iii)Stressing the obligations the applicant had under the SRC Act to begin to plan her return to work “within the next couple of weeks”;

    (iv)Telling her that if she did not make a workers’ compensation claim, CSIRO would pay for all expenses.

    (b)Removing Dr Morton as team leader, decreasing her allocation to the Huon project and dismissing her from her employment.

    (3)The workplace rights Dr Morton proposed to exercise were:

    (a)To claim workers’ compensation.

    (b)To initiate or participate in proceedings under the SRC Act.

    Claim 6

    (1)CSIRO contravened s 340(1) of the FW Act by taking adverse action against Dr Morton.

    (2)The adverse action consisted of:

    (a)On 7 October 2015, placing the applicant on Sick Without Pay Type 2 (SW02) leave that did not count for service despite Dr Morton maintaining a balance of paid recreational leave.

    (b)Logging Dr Morton’s unpaid sick leave beyond the date of her medical certificate.

    (c)Decreasing Dr Morton’s allocation to the Huon project, transferring her allocation on the Huon project to another staff member and dismissing her from her employment.

    (3)The adverse action was taken because Dr Morton exercised her workplace rights to make a complaint or enquiry with CSIRO in relation to the terms and conditions of her employment by having her partner, Mr Croft, query her leave entitlements.

    Claim 7

    (1)CSIRO contravened s 340(1) of the FW Act by taking adverse action against Dr Morton, and contravened s 345 of the FW Act by knowingly or recklessly making a false or misleading representation about the exercise of Dr Morton’s right to return to work.

    (2)The adverse action consisted of:

    (a)Correspondence from Ms Somerville dated 25 February 2016 misrepresenting Dr Glencross and Dr Preston’s employment status and work location with CSIRO.

    (b)Dismissing Dr Morton from her employment.

    (c)Placing Dr Morton’s name on the voluntary redundancy substitution register, but not completing that process as CSIRO considered there were no available substitutions.

    (3)The adverse action was taken because Dr Morton exercised her workplace right to participate in a return to work process under the SRC Act.

    (4)The false or misleading representation was that CSIRO had taken steps to facilitate a safe return to work.

    Claim 8

    (1)CSIRO contravened s 340 of the FW Act by taking adverse action against Dr Morton.

    (2)The adverse action consisted of:

    (a)Not offering Dr Morton an available position in the redeployment process or making her aware of such a position.

    (b)On 24 June and 14 July 2016, Ms Walsh advising Dr Morton that her position had been made redundant under the policy for voluntary redundancy.

    (c)Failing to undertake the mandatory redeployment process.

    (d)On 10 October 2016, advising Dr Morton that Mr Roy had given approval for the redundancy process to proceed.

    (e)On 28 October 2016, informing Dr Morton that her position had been made redundant.

    (3)The adverse action was taken because Dr Morton exercised her workplace right to the benefits of the CSIRO Enterprise Bargaining Agreement 2001–2014 (the Enterprise Bargaining Agreement), including its redundancy and redeployment process.

    Claim 9

    (1) CSIRO contravened s 340 of the FW Act by taking adverse action against Dr Morton.

    (2)       The adverse action consisted of:

    (a)Manually reducing Dr Morton’s sick leave balance by 73.5 hours.

    (b)Failing to properly consider, investigate or act on Dr Morton’s complaints.

    (3)The adverse action was taken because Dr Morton exercised her workplace right to make a complaint and enquiry in relation to the terms and conditions of her employment by emailing Ms Gaal about being logged on SWO2 unpaid sick leave despite her claim for workers’ compensation benefits having been accepted.

    THE LEGISLATION

1. Part 3–1 of Ch 3 of the FW Act is entitled “General protections”. Division 3 of Part 3–1 is entitled “Workplace rights”.

2. Section 340 is within Div 3 and provides, relevantly:

   (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).

   …

3. Section 341 of the FW Act defines “workplace right” as follows:

   Meaning of workplace right

   (1)      A person has a workplace right if the person:

   …

   (b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

   (c)is able to make a complaint or inquiry:

   (i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

   (ii)if the person is an employee—in relation to his or her employment.

   Meaning of process or proceedings under a workplace law or workplace instrument

   (2)Each of the following is a process or proceedings under a workplace law or workplace instrument:

   …

   (k)any other process or proceedings under a workplace law or workplace instrument.

   …

4. Section 342(1) of the FW Act sets out a Table that describes when a person takes “adverse action” against another person. Under Item 1, adverse action is taken by an employer against an employee if the employer:

   (a)       dismisses the employee; or

   (b)      injures the employee in his or her employment; or

   (c)       alters the position of the employee to the employee’s prejudice; or

   (d)      discriminates between the employee and other employees of the employer.

5. Section 343 provides, relevantly:

   343     Coercion

   (1)      A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

   (a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

   (b)exercise, or propose to exercise, a workplace right in a particular way.

   Note:This subsection is a civil remedy provision (see Part 4 1).

6. Section 351 of the FW Act provides, relevantly:

   351     Discrimination

   (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.

   Note:    This subsection is a civil remedy provision (see Part 4–1).

   (2)      However, subsection (1) does not apply to action that is:

   (a)not unlawful under any anti-discrimination law in force in the place where the action is taken;

   …

   (3)      Each of the following is an anti-discrimination law:

   …

   (ad)     the Sex Discrimination Act 1984;

   …

7. Section 360 of the FW Act provides:

   360     Multiple reasons for action

   For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

8. Section 361 of the FW Act provides, relevantly:

   361     Reason for action to be presumed unless proved otherwise

   (1)      If:

   (a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

   (b)taking that action for that reason or with that intent would constitute a contravention of this Part;

   it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

9. Section 793 of the FW Act provides, relevantly:

   793     Liability of bodies corporate

   Conduct of a body corporate

   (1)      Any conduct engaged in on behalf of a body corporate:

   (a)by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

   …

   is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

   State of mind of a body corporate

   (2)If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

   (a)that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

   (b)that the person had that state of mind.

   THE PRINCIPLES

   Section 340(1) of the FW Act

10. Under s 340(1) of the FW Act, a person must not take adverse action against another person because the other person, relevantly, exercised or proposes to exercise a workplace right. The applicant bears the onus of proving that:

    (1)the conduct alleged by the applicant occurred;

    (2)that conduct constitutes “adverse action” for the purposes of s 342(1);

    (3)the right alleged was a “workplace right”; and

    (4)the applicant had, exercised (or not exercised), or proposed to exercise (or proposed not to exercise), the “workplace right”.

    (See Tattsbet Ltd v Morrow (2015) 233 FCR 46 at [119]; Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at [76].)

11. If s 361 of the FW Act is engaged, the onus is on the respondent to prove that the adverse action was not taken because the applicant had exercised (or did not exercise), or proposed to exercise (or proposed not to exercise), the “workplace right”.

    Workplace rights

12. Dr Morton pleads that she exercised, or proposed to exercise, “workplace rights” within the meaning of that expression in s 341(1) of the FW Act. The workplace rights alleged include her right to make complaints under the Enterprise Agreement 2011-2014 (the Enterprise Agreement), to receive redundancy and redeployment benefits under the Enterprise Bargaining Agreement and to apply for and to receive benefits under the SRC Act.

13. In Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1; [2014] FCA 271, Dodds-Streeton J said at [29], in relation to a “complaint”:

    (a)a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;

    (b)the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;

    (c)the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;

    (d)the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);

    (e)a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;

    (f)a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and

    (g)a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.

14. Justice Dodds-Streeton added at [625], in a passage recently approved in Cigarette & Gift Warehouse v Whelan [2019] FCAFC 16 at [28]:

    In my opinion, the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.

15. I do not understand CSIRO to dispute that the rights pleaded by Dr Morton were “workplace rights”, or that Dr Morton had such rights. In some instances, however, CSIRO disputes that she in fact exercised those rights.

    Adverse action

16. Under s 342(1) of the FW Act, adverse action, relevantly, consists of (a) an employer dismissing the employee; (b) injuring the employee in his or her employment; (c) altering the position of the employee to the employee’s prejudice; or (d) discriminating between the employee and other employees of the employer.

17. In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1, the High Court held at 18:

    Paragraph (a) covers termination of employment; par (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.

18. In Maritime Union Authority v Geraldton Port Authority (1999) 93 FCR 34, Nicholson J held at [244] and [246] that an offer of voluntary redundancy is not a dismissal or a threat to injure an employee in his or her employment.

19. In Squires v Flight Stewards Association of Australia (1982) IR 155, the words “injure in his employment” were considered at 164:

    The words ‘injure in his employment’ are in the context of s.5 words of wide import. I do not regard them as referring only to financial injury or injury involving the deprivation of rights which the employee has under a contract of service. They are, in my view, applicable to any circumstance where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be seen injurious or prejudicial.

    However, that expression seems to have been more narrowly construed in Patrick Stevedores.

20. In Qantas Airways Ltd v Australian Licenced Aircraft Engineers Association (2012) 202 FCR 244, the Full Court said at [32]:

    The authorities thus establish that a prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or infringement of a legal right. It will occur if the alteration in the employee's position is real and substantial rather than merely possible or hypothetical.

21. In Auimatagi v Australian Building and Construction Commissioner (2018) 363 ALR 246; [2018] FCAFC 191, the Full Court held at [114] that “prejudice” is a word of wide import. The Full Court also held at [109] that prejudice is a matter of fact, and is therefore necessary to be proved.

22. I will consider the meaning of “discriminate” later in these reasons, in connection with s 351 of the FW Act.

23. For the purposes of this case, it is unnecessary to consider the precise distinctions between the four relevant categories of “adverse action”.

    Adverse action taken because the person has exercised, or proposed to exercise, a workplace right

24. Section 361(1) of the FW Act provides, relevantly, that if the applicant has alleged that a person has taken action for a particular reason or with a particular intent, and taking that action for that reason or with that intent would constitute a contravention of Part 3, it is presumed that the action was taken for that reason or with that intent, unless the person proves otherwise.

25. In order to take advantage of s 361(1), an applicant must plead the relevant intention or reason and all the material facts concerning the contraventions alleged against the respondent: Australian Building and Construction Commissioner v Hall (2018) 277 IR 75; [2018] FCAFC 83 at [13]–[19].

26. In State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441; [2014] FCAFC 184, the Full Court described at [32] the principles from Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 as follows:

    •The central question to be determined is one of fact. It is: “Why was the adverse action taken?”

    •That question is to be answered having regard to all the facts established in the proceeding.

    •The court is concerned to determine the actual reason or reasons which motivated the decision-maker. The court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.

    •It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”

    •Even if the decision-maker gives evidence that he or she acted solely for non proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.

    •If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.

27. In Hall, the Full Court held at [100]:

    The orthodox approach to dealing with allegations of adverse action said to be engaged in “because” of a particular circumstance requires the party making such an allegation to establish the existence of the circumstance as an objective fact.  If an applicant, on the whole of the evidence, establishes, to the Briginshaw standard, that the elements of a particular contravention (other than the reasons for the respondent taking action) exist and if the respondent wishes to avoid an adverse finding in respect of the alleged contravention the respondent will bear the onus to establish, on the balance of probabilities, that he or she had not acted for any proscribed reason. As has already been noted above, s 360 contemplates that there might be multiple reasons for a respondent taking action to the prejudice of the applicant. A reason will not be proscribed unless it is “a substantial and operative factor” in the respondents’ reasons for taking the adverse action.

    (Citations omitted.)

    Section 343 of the FW Act

28. Section 343(1) of the FW Act provides, relevantly, that a person must not take or threaten to take any action against another person with intent to coerce the other person to not exercise a workplace right.

29. Coercion under s 343(1) of the FW Act involves two elements:

    (1)an intention to negate choice; and

    (2)the use of unlawful, illegitimate or unconscionable means in relation to the exercise, non-exercise or proposed exercise, of a workplace right.

30. In relation to the first element, Weinberg J held in National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114 at [103]:

    What is required is an intent to negate choice, and not merely an intent to influence or persuade or induce. Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.

31. Similarly, in Seven Network (Operations) Ltd v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 at [41], Merkel J said:

    First it needs to be shown that it was intended that pressure be exerted which, in a practical sense will negate choice.

32. In National Tertiary Education Industry Union v Commonwealth, Weinberg J held at [97]:

    The expression “the intent to coerce” should be construed as requiring something more than a mere inducement to comply. The term “coercion” connotes something akin to the use of force, or at least threat of harm to the interests of another.

33. In Esso Australia Pty Ltd v The Australian Workers’ Union (2016) 245 FCR 39, it was held at [194] that the second element—whether the conduct is unlawful, illegitimate or unconscionable—involves an objective test.

34. In Commonwealth Bank of Australia v Finance Sector Union of Australia (2006) 154 IR 467; [2006] FCA 1048, it was held at [50] that conduct would be illegitimate if it would, “strike the reasonable observer as seriously contrary to generally held notions of morality”. In Kakavas v Crown Melbourne (2013) 250 CLR 392, the High Court held at [118] that there is unconscionable conduct where there is:

    an unconscientious taking advantage by one party of some disabling condition or circumstance that seriously affects the ability of the other party to make a rational judgment as to his or her own best interests.

35. In Auimatagi, the Full Court held:

    [157] The notion of unconscionability, as imposing a standard of right behaviour formed around conscience, will take its content from the values and expected conduct in an industrial setting. It is a word best understood in its practical application to real life settings where there can be an articulation and expression of why, in an employment and industrial context, the pressure sought to be exerted should be ascribed such a description of departing from right behaviour.

    [158] Although illegitimacy can be seen to be a similar conception to unconscionability as a word connoting a degree of right behaviour, illegitimacy has emerged (rightly or wrongly) as its own separate category of behaviour…

    [159] The notion of proportionality has been said to inform the concept of illegitimacy, in an assessment whether there is a reasonable or justifiable connection between the nature of the demand made and the nature of the pressure exerted.

    (Citations omitted.)

36. In Hall, the Full Court held at [26] that if there is a failure to plead the intent to negate choice required by the first element of coercion in s 343, the presumption under s 361 will not operate. The burden will then remain on the applicant to prove that the action was taken with the requisite intent. In that case, the Court concluded at [41] that the expression, “intent to coerce”, without more, was ambiguous and did not convey the particular intent required.

    Section 351 of the FW Act

37. Section 351(1) of the FW Act provides that an employer must not take adverse action against a person who is an employee of the employer because of, relevantly, the person’s sex or sexual orientation. Under s 351(2)(a), 351(1) does not apply to action that is not unlawful under an applicable anti-discrimination law set out in s 351(3).

38. In Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181, O’Callaghan and Thawley JJ said:

    [114] The general operation of s 351 can be stated in the following way.

    [115] First, putting to one side whether any of the exceptions in s 351(2) apply, the Court’s task in determining the application of s 351(1) is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason.

    [116] Secondly, where adverse action is taken as a result of a decision made by an individual within a corporation, the identification of the operative reasons for taking the adverse action turns on an inquiry into the mental processes of the relevant individual.

    [117] Thirdly, the object of that inquiry is to determine the actual reasons. These are determined from all of the facts and circumstances and inferences properly drawn from them. In light of s 361, one would ordinarily expect direct evidence from the individual responsible for the employer’s action as to their reasons for that action, which may properly include positive evidence that the action was not taken for a prohibited reason. Of course such statements must be assessed against all of the facts and circumstances…

    [118] Fourthly, s 351(1) does not apply, even though it otherwise would have applied, if the relevant action falls within s 351(2)…

    (Citations omitted.)

1. Dr Morton submits that s 351(1) of the FW Act incorporates the anti-discrimination laws described in s 351(3), including the Sex Discrimination Act 1984 (Cth). She submits that any conduct that is sexual harassment or sex discrimination under the Sex Discrimination Act is necessarily also adverse action in contravention of s 351(1) of the FW Act.

2. The judgment of Perry J in RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424 is against that submission. In that case, Perry J held that the first instance judge erred in making a declaration that an employer had contravened s 351(1) of the FW Act by unlawfully terminating an employee’s employment in contravention of s 15(2) of the Disability Discrimination Act 1992 (Cth). Her Honour held that the primary judge had erred in several respects:

   [112]First, it is true that s 351(2) of the FW Act provides that s 351(1) does not apply to an action that is, relevantly, not unlawful under any anti-discrimination law, including the Disability Discrimination Act. However, the primary judge has effectively substituted the “carve-out” in s 351(2) for the test to be applied under s 351(1). However, the question under subs (1) is simply “why did RailPro dismiss Mr Flavel?”. Thus, if the dismissal was “because of” Mr Flavel’s mental disability, s 351(1) is breached unless the dismissal falls with one of the “carve-outs” in s 351(2)(a), s 351(2)(b) or s 351(2)(c). Save therefore where the adverse action is that defined in column 2, para (d) of Item 1 of the table in s 342(1) (ie that the employer “discriminates between the employee and other employees of the employer”), s 351(1) does not require that any comparison be undertaken between the treatment of the employee in question and any other employee(s). As such, s 351(1) relevantly prohibits specific conduct which the Parliament has adjudged to be discriminatory in a general sense, in contrast to s 15(2) of the Disability Discrimination Act where the comparison must still be made in the particular case in order to determine whether there has been a breach of that Act. Moreover under the Disability Discrimination Act, it suffices if an act is done for a proscribed reason even if it is not a “substantial reason” in contrast to the need to establish that the proscribed reason is a substantial and operative reason under the FW Act. Moreover it is sufficient under the Disability Discrimination Act if the discrimination is referrable to a perceived, as opposed to actual, disability or a disability of an associate (see “disability” defined in s 4(1) of the Disability Discrimination Act). That is not the case again under the FW Act.

   [113]Understood in its context, therefore, the purpose of the “carve-out” is simply to ensure that conduct which would not contravene the general anti-discrimination laws, including relevantly the Disability Discrimination Act, equally does not contravene the FW Act and thereby avoids a result whereby the FW Act imposed more onerous obligations upon an employer than those already imposed upon her or him under general anti-discrimination laws. It is, in other words, a limitation or a check upon the scope of the prohibition in s 351(1). In effect s 351 proscribes a “subset” of that which is proscribed under the Disability Discrimination Act.

   [114]The converse is not, however, true. It does not follow that conduct which contravenes the Disability Discrimination Act thereby also contravenes s 351(1) of the FW Act contrary to the assumption apparently made by the primary judge.

   (Citations omitted).

3. Accordingly, Perry J held that contravention of the anti-discrimination laws described in s 351(3) does not necessarily mean that s 351(1) of the FW Act has also been contravened.

4. Dr Morton submits that in Sayed v Construction, Forestry, Mining and Energy Union (2015) 149 ALD 88; [2015] FCA 27, Mortimer J decided at [161] that, “to contravene anti-discrimination law would also contravene s 351(1) as adverse action”. CSIRO supports Dr Morton’s submission, asserting that Mortimer J held that s 351(1), “incorporated the discrimination legislation, so that an employer contravening an anti-discrimination law would also engage in adverse action on the basis of discrimination”. CSIRO then goes on to submit that Mortimer J’s approach was wrong.

5. In my opinion, the submissions of both Dr Morton and CSIRO misunderstand what Mortimer J held in Sayed at [161]. It is necessary to begin by considering the arguments raised before her Honour:

   [154]The respondent contended “discriminates” should be given the meaning which is attributed to it in anti-discrimination statutes—namely, less favourable treatment…

   [155]The respondent’s submissions did not grapple with indirect discrimination and how this would be encapsulated, given the rather tortured statutory definitions of that term…

   [156]The respondent contends that the approach taken by Katzmann J in Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [40] supports its submission…

   [157]In Pilbara Iron, Katzmann J observed (at [40]) that Item 1(d) speaks of discrimination occurring “between employees” and not “against” an employee, but concludes that, especially given the presence in Item 2 of the word “against”, there is no material difference. In the matter before her Honour, both parties accepted that “discriminate” should be construed as “treat less favourably”, so that her Honour did not have to decide this question. In contrast, the parties in this proceeding contended for different constructions…

   [158]The applicant submits “discriminates” in Item 1(d) should simply be construed as treating people differently. In this way, the attributes set out in s 351 then prohibit such different treatment by reference to a consideration irrelevant to the performance of an employee’s work…

   [160]I accept the applicant’s submission as a matter of construction in relation to Item 1(d)…In my opinion, the language in Item 1(d), and its use of the word “between”, suggests the conduct which is to be examined is the way in which the employer targets the particular employee. Is that employee treated differently from other employees? By s 351, the “irrelevant” reasons for the different treatment…are then specified. The inquiry is thus a straightforward one, to that point, and does look only for differential treatment, as the applicant submits.

   [161]However, the terms of s 351(2), read with subs (3), then must be applied. Those provisions expressly pick up the detailed regimes of each of the territory, state and federal anti-discrimination statutes. In other words, the requirements that there be “less favourable treatment”, the complicated requirements for indirect discrimination, and the exceptions for which each statute provides are, through these provisions, incorporated so as to limit the protections given by Div 5 of Part 3-1 of the Fair Work Act in a way which is intended to mirror the limits under those other legislative schemes. When read as a whole, s 351 and s 342(1) Item 1(d) will operate to render only conduct proscribed under other anti-discrimination regimes as conduct contravening s 351. That, in substance, is the outcome for which the respondent contended, although not because of the meaning of “discriminates” in Item 1(d) of s 342(1), but rather at the subsequent step of the application of the prohibition in s 351.

6. It may be seen that Mortimer J was concerned with a narrow issue—the meaning of the phrase, “discriminate between the employee and other employees of the employer”, in Item 1(d) of the Table in s 342(1) of the FW Act. Her Honour held that the phrase does not itself require less favourable treatment of an employee. However, her Honour held that the effect of s 351(2) and (3) is that, unless the treatment of the relevant employee is less favourable, s 351(1) will not apply. That is because the employer’s action will not be unlawful under any anti-discrimination law unless it is less favourable treatment.

7. It may be observed that while the “adverse action” proscribed under s 351 is not confined to discrimination, the passage at [161] of Sayed was concerned only with the discrimination category of adverse action. Justice Mortimer held that ss 351(2) and (3) of the FW Act pick up the provisions of the anti-discrimination laws that operate to make actions not unlawful. Her Honour did not hold that s 351(1) picks up and incorporates provisions of the anti-discrimination laws that make actions unlawful.

8. Although Dr Morton and CSIRO submit that there is tension between the views of Perry J in RailPro and Mortimer J in Sayed, I can see no such tension. In RailPro, Perry J held that s 351(1) did not pick up and apply the offence provisions of the anti-discrimination legislation.  That issue was not the subject of consideration in Sayed.

9. I reject the submission that s 351(1) of the FW Act operates to pick up the provisions of the Sex Discrimination Act that make certain actions unlawful, including the vicarious liability provisions. That would be an unlikely construction of s 351(1) when it makes no reference to the Sex Discrimination Act. That may be contrasted with ss 351(2) and (3), which expressly exclude the operation of s 351(1) where the relevant action is not unlawful under a relevant anti-discrimination law. There would be other difficulties with such an approach, including how to reconcile the vicarious liability provision in s 106 of the Sex Discrimination Act with s 793 of the FW Act. Further, if all s 351 did was mirror the anti-discrimination laws the provision refers to, there would be no need for s 351 at all. I also respectfully adopt the analysis of Perry J in RailPro Services.

10. In my opinion, s 351(1) of the FW Act stands independently from the anti-discrimination laws referred to in s 351(3). Therefore, conduct may contravene s 351(1) whether or not it conforms to the definitions of “sexual harassment” and “sex discrimination” under the Sex Discrimination Act. Further, s 351(1) does not pick up the vicarious liability provision in s 106 of the Sex Discrimination Act. However, under ss 351(2) and (3), the employer receives the benefits of any defences, exceptions or exemptions under the Sex Discrimination Act.

11. There is tension between the views expressed about the meaning of the phrase “discriminate between” in Item 1(d) in Sayed and in Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697. In Sayed, Mortimer J held at [158] that “discriminate between” in Item 1(d) should be construed as “treating people differently”. In contrast, in Pilbara Iron, Katzmann J accepted at [40]–[41] that “discriminate between” should be construed as “discriminate against”, and means “treat less favourably”.

12. I prefer the construction given in Pilbara Iron. It is true that the phrase “discriminate between the employee and other employees” is used in Item 1(d) of the Table in s 342(1) of the FW Act, in contrast to phrases like “discriminates against the employee” in Item 2(b) and 4(b) of the Table and ss 153, 195 and 354 of the FW Act. However, taking the opening words of s 342(1) into account, the provision reads, relevantly, that, “a person takes adverse action against another person…if…the employer…discriminates between the employee and other employees of the employer”. The phrase, read as a whole, suggests that it refers to conduct which discriminates against one employee (or a group of employees). That Item 1(d) of the Table in s 342(1) of the FW Act does not merely refer to different treatment, including favourable treatment, conforms to the other types of adverse action specified in the Table, each of which involves unfavourable treatment of an employee.

13. In addition, while it was held in Sayed that the concept of less favourable treatment is imported by the anti-discrimination laws described in s 351(3), the word “discriminate” in Item 1(d) applies also to other provisions, namely ss 340 and 346, which adopt the definition of “adverse action”. But the anti-discrimination laws are only picked up by s 351, not the other provisions. The protective purposes of ss 340 and 346 indicate that they are only concerned, relevantly, with less favourable treatment of an employee or group of employees. Accordingly, Item 1(d) requires less favourable treatment of an employee (or a group of employees) in comparison to other employees of the employer.

    Section 793 of the FW Act and vicarious liability

14. Dr Morton relies upon s 793 of the FW Act and common law principles of vicarious liability to establish that CSIRO is liable for the alleged contraventions of s 351(1) of the FW Act by CSIRO through the conduct of Dr Glencross, Dr Preston and Dr Cook. CSIRO contends that CSIRO is not liable for any acts committed by its employees in the nature of sexual harassment or sex discrimination. Dr Morton also relies upon s 793 of the FW Act in respect of the other forms of adverse action and coercive action she alleges, but that is less controversial.

15. Under s 8(2) of the Science and Industry Research Act1949 (Cth), CSIRO is a body corporate. The further amended statement of claim alleges, and the amended defence admits, that CSIRO is a “national system employer”. Although not expressly pleaded, it is implicit in the admission of that allegation that CSIRO employed Dr Morton and the persons of whose conduct she complains.

16. CSIRO argues that Dr Morton cannot rely upon s 793 of the FW Act as she has not pleaded the section. However, r 16.02(3) of the Federal Court Rules 2011 (Cth) allows, but does not require, a pleading to raise a point of law. What is required under r 16.02(1)(d) is the pleading of material facts. While the further amended statement of claim fails to expressly plead the material facts required to engage s 793, the parties have, as I have said, conducted the proceeding on the basis that CSIRO employed the persons against whom Dr Morton’s allegations are made. She has only sued CSIRO. Accordingly, she must be relying, implicitly, upon principles of vicarious liability. This is one of a number of deficiencies in the further amended statement of claim. However, CSIRO did not take issue with the pleading prior to its closing address, and I do not think that it can claim to be taken by surprise by Dr Morton’s reliance on s 793. She should not be prevented from relying upon that provision.

17. CSIRO conceded that common law principles of vicarious liability for a tort committed by an employee apply to the liability of an employer for contraventions of the FW Act by its employees. It is not obvious that the concession was correctly made. In Australian Building and Construction Commissioner v Upton (The Gorgon Construction Case) (2017) 270 IR 190; [2017] FCA 847, Barker J considered the issue but, at [224], expressly refrained from deciding it. It is unnecessary to decide the issue in the circumstances of this case. In the absence of reference to any other authority or argument, I will proceed upon an assumption that the concession was correctly made.

18. At common law, an employer is vicariously liable to third parties for tortious acts of the employee which are impliedly authorised; that is, acts committed while the employee is acting within the scope of his or her authority and performing the employment duties or acts incidental to the performance of those duties: see Halsbury’s Laws of Australia at [165–1045]. In New South Wales v Lepore (2003) 212 CLR 511, Gleeson CJ noted at [42] that Salmond JW, Law of Torts, (Stevens and Haynes, 1907) at p 83 it is stated that, “an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes—although improper modes—of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act”. Provided that there is necessary connection with the employment, an employer may be liable even if there has been an express prohibition against the wrongful conduct: see Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [99], per McHugh J.

19. However, difficulties arise when considering whether an employee is liable for an intentional wrong perpetrated by an employee. In Prince Alfred College Inc v ADC (2016) 258 CLR 134, a case dealing with sexual abuse, the High Court said:

    [80]In cases of the kind here in question, the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability. As Lloyd shows, it is possible for a criminal offence to be an act for which the apparent performance of employment provides the occasion. Conversely, the fact that employment affords an opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability. As Deatons demonstrates, depending on the circumstances, a wrongful act for which employment provides an opportunity may yet be entirely unconnected with the employment. Even so, as Gleeson CJ identified in Lepore and the Canadian cases show, the role given to the employee and the nature of the employee’s responsibilities may justify the conclusion that the employment not only provided an opportunity but also was the occasion for the commission of the wrongful act. By way of example, it may be sufficient to hold an employer vicariously liable for a criminal act committed by an employee where, in the commission of that act, the employee used or took advantage of the position in which the employment placed the employee vis-à-vis the victim.

    [81]Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.

20. I have already held that s 351(1) of the FW Act does not incorporate the provisions of the Sex Discrimination Act that make sexual harassment and sex discrimination unlawful. On that basis, the vicarious liability provision in s 106 of the Sex Discrimination Act has no application in the present case.

    Section 140 of the Evidence Act 1995 (Cth)

21. Section 140 of the Evidence Act provides:

    (1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

    (2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

    (a)       the nature of the cause of action or defence; and

    (b)       the nature of the subject matter of the proceeding; and

    (c)       the gravity of the matters alleged.

22. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [31], the Full Court held that Dixon J’s discussion in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–363 of the operation of the civil standard of proof “appositely expresses the considerations which s 140(2) of the Evidence Act require a Court to take into account”. The considerations include that ss 340(1), 343(1) and 351(1) are civil remedy provisions, contravention of which exposes CSIRO to pecuniary penalties.

    The evidence

1. The trial was conducted over 19 days from 8 October to 2 November 2018. A total of 32 witnesses gave evidence orally. Three other witnesses gave their evidence by affidavit and were not required for cross-examination.

2. The evidence of some of the witnesses was lengthy. In particular, Dr Morton gave evidence over seven days. There was a great deal of evidence and cross-examination of witnesses about allegations ultimately deleted from the amended statement of claim. This was not objected to, presumably because it was thought to be relevant by way of background, or to credit. However, it substantially lengthened the evidence.

3. In view of the number of witnesses called and the length of their evidence, I propose to summarise the evidence in an Appendix to these reasons, rather than in the body of these reasons. The Appendix should be read as part of these reasons.

   ASSESSMENT OF THE WITNESSES

4. It is necessary to make an assessment of the credibility and reliability of the evidence given by the witnesses.

   Assessment of Dr Morton’s evidence

5. The credibility and reliability of Dr Morton’s evidence is central to several, although not all, of the allegations she has made. I conclude that, except to the extent that it is adequately corroborated, her evidence is not credible or reliable.

6. My reasons for this conclusion may be divided into four interrelated categories. They are:

   (1)discrepancies between Dr Morton’s reporting of her level of psychiatric functioning and her presentation in the witness box;

   (2)discrepancies between Dr Morton’s reporting of her level of psychiatric functioning and the level revealed through other sources (such as social media and text messages);

   (3)Dr Morton’s failure to make timely complaints about the sexual harassment and sex discrimination allegedly perpetrated Dr Glencross, Dr Preston and Dr Cook;

   (4)various other discrepancies, implausibilities and inconsistencies in Dr Morton’s evidence; and

   (5)inconsistencies between Dr Morton’s evidence and that of other witnesses whose evidence I consider credible and reliable.

7. I will address the first four of these categories at this stage.

   Discrepancies between Dr Morton’s reporting of her level of functioning and her presentation in the witness box

8. A striking feature of Dr Morton’s evidence was the marked difference between her presentation while giving evidence and the presentation of her symptoms and level of functioning to examining psychiatrists.

9. Dr Morton gave her evidence-in-chief over three days and was cross-examined for a further four days. She appeared to have no difficulty understanding the questions she was asked. Her answers were generally responsive, except on some occasions when she appeared to be deliberately unresponsive. She spoke eloquently and remained composed. To my observation, she rarely hesitated before giving her answers, even under cross-examination. It was evident that her mind was sharp and adroit.

10. Dr Morton’s concentration was remarkable. It did not flag, even towards the end of long days of giving evidence. She was taken to many emails, text messages and other documents, which she was able to read and understand, even under the pressure of being in the witness box, without apparent difficulty. Her command and knowledge of the documents in the case was impressive.

11. Dr Morton appeared to have an excellent memory of the fine details of the various allegations she made and the events that occurred. She exhibited considerable knowledge and recollection of the details of relevant CSIRO policies and industrial instruments, her leave entitlements and their interaction with her Comcare entitlements. Under cross-examination, she was readily able to give explanations of events and communications dating back to 2012. She often professed to be able to remember exactly what she was thinking or feeling at the relevant times and could recall the detail of conversations that occurred throughout the period of her employment since 2012. There were few occasions when Dr Morton claimed to be unable to remember an event or communication.

12. In terms of her concentration, memory, organisation of thought and adroitness in answering questions, I consider Dr Morton to be an impressive witness. But that is not to say that I found her a credible or reliable witness.

13. There was marked discrepancy between Dr Morton’s performance as a witness and the symptoms she reported to psychiatrists, Dr Rees and Dr Mathew.

14. Dr Rees diagnosed Dr Morton with Major Depressive Disorder, which commenced in 2012. Dr Rees last examined her on 13 July 2018. There was no suggestion from Dr Morton that her condition had changed by the time the trial commenced about 2½ months later.

15. Dr Rees consistently reported Dr Morton as having complained of poor concentration, poor memory, reduced motivation, lethargy and difficulties with organisation. In his report of 1 August 2018, Dr Rees described his interview with Dr Morton before addressing some specific questions:

    This most recent interview was consistent with previous interviews with Dr Morton. … Her speech was slow and halting and her affect flat…Her speech was rambling and circumstantial. It was difficult to keep her to the subject at hand. She tended to either over elaborate or go off on a tangent.

    In general, she was able to address my questions with appropriate answers but on many occasions, she continued to answer previous questions or provide remembered fragments of answers to previous questions…By this, I mean that her answers are sometimes off topic and may relate to previous discussions. It represents a “sticky” adherence to topic and an unwillingness to move onto [other] materials.

    …

    There was no evidence of any psychotic thought content and although her replies were rambling and at times difficult to follow, there was no formal thought disorder. …

    She described ongoing memory difficulties and these were apparent when asking her to recall previous content of our discussions. As noted, her intelligence is high and her insight regarding her situation appeared within normal limits.

    …

    … Certainly, inattention is a frequent problem in my consultations with Dr Katherine Morton and leads to them being longer and less productive than would be the case for an ordinary person of Dr Morton’s intelligence.

    …

    Additionally, her personality type is markedly obsessional and tends to mean that she will become quite unwilling to move onto a new question or new content if she has not given what she would consider an adequate elaboration of previous answers…It also means that Dr Morton has difficulty focusing on the next question in any given interview. Dr Morton tends to be over inclusive when she eventually latches on to a topic and her answers are over elaborated and then tend to veer off to irrelevant or unnecessary content involving other areas.

    … In my opinion, the difficulties of interviewing Dr Morton are largely because of her inattention as a result of her personality style, memory difficulties and anxiety.

    …

16. Dr Morton told Dr Mathew that her memory was not very good. She reported difficulties with her concentration, saying she was not reading books because of this and could not focus through a movie. She told Dr Mathew that her energy and self-care were poor and that sometimes she failed to shower for several weeks at a time.

17. In the witness box, Dr Morton exhibited no problems with concentration, memory, inattention, difficulty with organisation of thought, rambling speech, unwillingness to move on from a topic, continuing to answer previous questions, providing remembered fragments of answers to previous questions, over-elaboration or veering off to irrelevant or unnecessary content. If these were genuine problems, at least some of them are likely to have become apparent over the seven days over which Dr Morton gave evidence.

18. In my opinion, the excellent concentration, memory, organisation and quickness of mind demonstrated by Dr Morton in the witness box are so inconsistent with her reporting of her disabilities, that I must conclude that she engaged in substantial exaggeration when presenting her symptoms to her psychiatrists.

    Discrepancies between Dr Morton’s reporting of her level of functioning and the level of revealed through other sources

19. In addition to the symptoms described above, Dr Rees recorded Dr Morton as reporting she suffered from lethargy and loss of pleasure in activities she had previously found pleasurable. She told Dr Rees she had panic attacks, which tended to be related to apprehension regarding any activity that might take her outside of her property in rural Tasmania. Dr Rees also diagnosed her with Agoraphobia, the onset of which was about November 2016.

20. Dr Mathew recorded the symptoms reported by Dr Morton as including no longer enjoying activities such as baking, shopping, walking and catching up with friends. She said she had stopped most of these activities. She told Dr Mathew that she did not go out except for doctors’ appointment or groceries.

21. However, the evidence reveals that Dr Morton has engaged in a number of activities over the years that are inconsistent with the symptoms she reported to the psychiatrists.

22. In the first half of 2015, Dr Morton was still working at CSIRO as a scientist, although she had some time off work with various medical problems. Her Facebook posts show that she went on a holiday to Tasmania, sold numerous personal items on eBay, socialised and would go for long walks. She commenced a Masters of Business Administration (MBA) at the University of Queensland. In my opinion, Dr Morton attempted to play down the idea that the MBA course involved any difficulty. However, it is apparent that she, at least, had to regularly attend classes, read articles or chapters of text books, complete group and individual assignments and undertake examinations. She achieved a grade point average of 6.5 (from a maximum of 7) for Semester One 2015. She completed the course in the Semester Two of 2016.

23. Dr Morton did not tell Dr Matthew about her enrolment in the MBA. Dr Matthew indicated that if she had received special awards given by the Dean for high performance, he would need to re-evaluate his assessment of her functioning. Dr Rees at first said that he would not expect a person with Major Depressive Disorder to successfully complete an MBA, although he later said that submitting university assignments and organising papers would not be completely inconsistent with that condition. In my opinion, the ability of Dr Morton to undertake and complete the subjects required to obtain her MBA, let alone achieve her outstanding results, are inconsistent with the symptoms she reported to the psychiatrists, such poor concentration, memory and organisation, and lethargy.

24. On 6 July 2015, Dr Morton ceased work under a certificate from Dr Rees for three months off. However, she continued her MBA studies. Her Facebook posts show that during this time she was enjoying socialising and was still selling items on eBay. She received a Dean’s commendation for academic excellence, attaining a grade point average of 6.6 for Semester Two 2015. Dr Morton went on a holiday to Hawaii, where she reported on Facebook she was, “having an awesome time”.

25. In 2016, Dr Morton was posting on Facebook about going on long walks. She was on a panel of speakers at a women’s conference. She posted that she was celebrating finishing her eleventh MBA subject, receiving a redundancy and having a four month break until her next subject. I do not accept Mr Croft’s evidence that they were not in fact celebrating. She also posted that she was celebrating her university marks and was baking. She attained a grade point average of 7.0 for her MBA in her third semester and 6 for her fourth and final semester. She completed her MBA with an overall GPA of 6.67 and received a 2016 Academic Excellence Award. She posted that she was going to the MBA Awards Dinner. She attended her graduation ceremony and posted a photograph of herself at the ceremony on Facebook.

26. In 2017, Dr Morton went on a cruise for 10 days to the South Pacific. The ship had several thousand people aboard. She claimed that she spent the majority of her time in her cabin and did not spend a lot of time socialising on the ship. Those claims must involve a concession that she at least spent some of her time out of the cabin and socialising. Her Facebook posts show that she was waiting for a bar at the quayside to open before boarding the ship and that, at the end of the cruise, she had attended the Sydney CBD sales and was in a bar at the airport in Sydney. I do not accept Dr Morton’s evidence that she had walked through the Sydney CBD at 5.30 am and that her reference to the CBD sales was a joke about the fact that nothing was open early in the morning. The content of the post does not support it being just a joke, and I formed the impression that she was simply making this part of her evidence up. The activities in Dr Morton’s posts are inconsistent with someone having panic attacks associated with leaving their property.

27. In 2017, Dr Morton travelled from Tasmania to Brisbane for a wedding. She denied that, as maid of honour, she had a central role in the wedding. That denial does not appear realistic. In my opinion, her willingness to attend the wedding (even of a close friend) is inconsistent with her reporting of panic attacks associated with leaving her property.

28. In 2017, Dr Morton appears to have been operating her rural property in Tasmania as a commercial venture, at least to the extent that it was purchased with a negatively geared loan. She was earning some income by selling and agisting sheep, although I accept that this was on a small scale. She had a financial advisor register a company to operate the business. Dr Morton purchased an investment property and engaged a project manager to look after repairs to the property. She had a list of things to do on her property, such as spraying thistles.

29. In 2017, Dr Morton posted on Facebook about a spot of “light weekend reading”, with a photograph of three books. While she denied reading two of the books, including one about animal nutrition, I do not accept her evidence. Rather, the post was consistent with her reading at least part of the books. At about that time, she was looking after sheep, demonstrated by another post where she talked about picking up a book about injuries to sheep. She admitted reading the third book, “The Barefoot Investor”, over a period of time, although she downplayed the amount of text involved.

30. Dr Morton posted on 26 September 2017, “and I read a review of the SRC Act by QC Harding, interesting.”. Under cross-examination, she admitted that she had read a section of the review, concerning superannuation.

31. In her Facebook post of 3 February 2017, Dr Morton referred to buying a container, packing 70 boxes, making appointments, doing the washing, catching up with friends and cooking. She concluded, “Maybe I really am a superwoman”. On 7 February 2017 she posted about getting 91 boxes packed and stacked. She was also looking at listings for property investments.

32. In 2018, Dr Morton was “pondering the jobs market in or around Launceston for professionals”. Whilst she denied that she was surveying the job market herself, her post at least demonstrated that she was interested in the job market. She posted on 1 May 2018 about scanning legal documents and her interest in topics such as human follicle populations in relation to age, genetic and environmental factors. She posted about retrieving an egg from under the roof of her hay shed, tracking down missing parcels and syringing electrolytes into lambs’ mouths, as well as going for a walk. She also accepted that she had to scan a lot of documents for the preparation of her case.

33. Further, in 2018, Dr Morton had the initiative and energy to launch a Facebook page called, “The Sexually Assaulted Scientist”.

34. In my opinion, many of the activities that Dr Morton engaged in from 2015 onwards are inconsistent with the symptoms she was reporting to psychiatrists. She demonstrated an ability to undertake an MBA and achieve excellent results, as well as reading other complex materials, such as part of a report on the SRC Act. She was interested in business and investment matters, as well as the care of animals at her property. She exercised and baked. She celebrated her achievements and milestones. She had the organisational skills and energy to sell items on eBay and to pack numerous boxes. She was able to earn some income from agisting and selling sheep, and able to purchase an investment property and organise to have it renovated. She holidayed in Tasmania, Hawaii and took a ten day cruise in the South Pacific. She travelled to Brisbane for a wedding, at which she was the maid of honour. These are just some of her activities which, I consider, are inconsistent with the reporting of her symptoms to psychiatrists.

35. In reaching the conclusion that many of Dr Morton’s activities since 2015 are inconsistent with the symptoms that she reported, I have taken into account the possibility that doing a particular activity on an occasional “good day” may not represent the usual course of her condition. However, in my opinion, the overall pattern and frequency of the activities reported on her Facebook posts is inconsistent with any substantial loss of concentration, memory, organisation, lethargy, or interest in previously pleasurable activities, and the onset of panic attacks when leaving her property. Again, I am forced to the conclusion that Dr Morton substantially exaggerated in the reporting of her symptoms to the psychiatrists.

    Dr Morton’s failure to make timely complaints about Dr Glencross, Dr Preston and Dr Cook

36. Another area of concern about the credibility of Dr Morton’s evidence is her failure to complain about the alleged sexual harassment and sex discrimination until years afterwards. In contrast, she had no hesitation in making complaints about Dr Glencross’ managerial style and decisions within a few months after she commenced work at CSIRO. The fact that her complaints of sexual harassment and sex discrimination were not raised earlier suggests that they have been recently fabricated.

37. There are eleven incidents of sexual harassment or sex discrimination alleged by Dr Morton in her further amended statement of claim. She alleges that Dr Glencross perpetrated five of these events between April and October 2012, namely: asking what her sexual preference was; referring to her as a prostitute; commenting about her crows-feet; slapping her on the backside with a riding crop; and commenting about her cleavage. There is also a further allegation, related to the riding crop incident, that Dr Morton had corrected Dr Glencross about a comment he made about the sexual practices of dominatrixes on 15 October 2012.

38. In respect of Dr Preston, one allegation is pleaded: that, in May 2012, he called Dr Morton a hussy.

39. There are five allegations pleaded against Dr Cook, between August 2012 and December 2014. It is alleged that he: told her that Dr Preston had a nickname for her of “dizzy blonde”; sent Dr Morton a picture of a scantily dressed woman; sent a picture of a half-naked man and a woman; discussed, in a sexualised way, the potential candidates for a position; and said, “Take a blonde to Tasmania, dress her up and double your money.”

40. The first time Dr Morton made any of these allegations in writing was in an email to Dr Preston on 25 October 2014, where she referred to unacceptable behaviours such as being slapped on the bottom with a riding crop and the cleavage comment.

41. Dr Cook agreed that Dr Morton had verbally mentioned the riding crop incident and cleavage comment in October 2012 and a version of the prostitute comment in April 2012. I accept Dr Cook’s evidence that in respect of the riding crop allegation, Dr Morton specifically said that she did not want any action to be taken. Dr Morton alleges that she raised these matters as complaints and expected Dr Cook to take action against Dr Glencross. But, if so, she is likely to have followed up her complaints in writing, bearing in mind that she was a prolific user of emails and text messages. There were no such emails or text messages. That Dr Morton had not made any complaints to Dr Cook about the riding crop incident and the cleavage comment was confirmed in her email of 25 October 2014 to Dr Preston, where she stated, “While these behaviours are clearly unacceptable I chose not to pursue them any further at that time.” Accordingly, Dr Morton confirmed that she had not made complaints about these matters and, implicitly, had not made complaints about any like behaviour. I accept Dr Cook’s evidence that Dr Morton mentioned the riding crop, cleavage and prostitute comments in passing and did not raise them as complaints.

1. Dr Manners’ view was that instigating preliminary information gathering was, in fact, a proactive step of investigating the claims. The next step would have been further investigation, which seemed pointless as Dr Glencross was leaving the organisation.

2. Dr Manners denied that it was his view that the allegations against Dr Glencross just were not serious enough to warrant any investigation. He maintained that investigating Dr Glencross was futile, because he was leaving the organisation. He agreed that there may have been some benefit to the organisation in investigating the allegations.

3. Dr Manners was not aware of Dr Preston’s action in sending his view of the meeting of 22 October 2014 to Dr Cook. Dr Manners indicated that he would have liked that information to have been provided to the investigator. Dr Manners said that he did not know why Dr Morton was not sent the redacted report, although reports are usually provided in a face to face meeting to explain the findings and discuss them with the complainant.

4. Dr Manners was taken to CSIRO’s Grievance Procedures. He said he did not recall Dr Cook saying “We don’t have any work or dollars if she returns to the workplace”, but agreed that was indicated in the notes of the meeting. He said he was not aware that if somebody who was on Comcare is made redundant, it could cost the organisation a lot of money in incapacity payments. He denied that he saw the redundancy as a “litigation risk”, but said it was a risk of complicating what was already a difficult situation.

5. Dr Manners was taken to the email from Dr Morton of 17 May 2016. Dr Manners said he had not seen that email before these proceedings. He said that he did not know that Dr Morton was not happy to be leaving CSIRO. He was aware that it was very difficult for Dr Morton to return to work and there were, in her mind, many obstacles to that.

6. Dr Manners said that Ms Walsh had talked to him about concerns that Dr Morton had raised in returning to work. He did not know that Dr Morton said she could no longer see any path back to a career at CSIRO, nor a safe working environment within the organisation. However, he would have surmised that her motivation for the VRS request was that she no longer saw CSIRO as a place where she wanted to build her career.

7. Dr Manners said that if Dr Morton wished to visit Bribie Island, then Dr Glencross would be contacted and told not to be present. He did not know whether that process was implemented.

8. Dr Manners was taken to an email he sent to Mr Roy. He had taken Dr Cook aside, with Ms Walsh present, and spoken to him about being careful with his language and professional conduct. He was told that when he was in a social situation with a work colleague it was still necessary to maintain a professional demeanour. He did not enquire as to the nature of the emails between Dr Morton and Dr Cook.

9. Dr Manners denied that, when Dr Morton indicated she would accept a VRS, he thought that was a green light to get her out of the organisation. He denied that because she had asked for it, he did not need to comply with the Enterprise Bargaining Agreement.

10. Dr Manners said that he thought that the redundancy was an avenue to resolve the situation for both Dr Morton and CSIRO. She could move on and had made a decision to move on.

    Evidence of Ms Rayleen Gaal

11. Ms Rayleen Gaal was employed as a HR Service Advisor with CSIRO. She has held that role since 2011. She reports to Mr Miller.

12. Ms Gaal was involved with dealing with issues concerning Dr Morton’s leave. She was aware that on 19 August 2015, Dr Morton’s Comcare claim was denied and that she would not receive compensation payments. On 20 August 2015, she changed Dr Morton’s leave in the system from paid sick leave to recreational leave. She did that because her paid sick leave was exhausted, and recreational leave was the next form of leave to be used.

13. Ms Gaal said that, in normal circumstances, an employee can access the SAP system to enter leave requests. However, if a person has a compensation claim, and has reached their 45 weeks of incapacity, a new information type is entered into the system and from that point on the staff self-service portal could not be used to enter leave. She could not recall whether she or someone else made that transaction entry in relation to Dr Morton. She said that if it was her, it was not done for any improper purpose.

14. Under cross-examination, Ms Gaal recalled that, in September 2015, Dr Morton contacted her about her leave on the system. Dr Morton had an enquiry about what her leave balances were.

15. Ms Gaal agreed that the code for stopping a person’s access to the SAP system was a code that was manually entered. The code was “9NW2”. She agreed that it was possible to undertake a forensic examination of the system to see when that code was entered.

    Evidence of Mr Trevor Heldt

16. Mr Trevor Heldt is the HR Director at CSIRO. He commenced that position in about 2006.

17. Mr Heldt deals with redundancies at CSIRO. The number of redundancies varies between about 80 and 450 per year. CSIRO is partly funded by government, but approximately 40% of funding comes from industry and other work. That means that CSIRO needs to change, from time to time when particular skills or the work they are undertaking are no longer required.

18. CSIRO takes a business case approach to redundancy that involves two stages. Case 1 deals with the reasons, compliance with the Enterprise Agreement and other procedures. Case 2 deals with an individual officer, so that CSIRO can account and align the regional business case and how the individual has been through that process. Mr Heldt has an administrative role in dealing with Case 1 and 2. He conducts a procedural review of the business case for compliance with the Enterprise Agreement, and the required procedures. Mr Heldt cleared the Case 1 and 2 in respect of Dr Morton’s redundancy. CSIRO’s general position is to make its best efforts to accommodate VRS requests.

19. Mr Heldt was aware that Dr Morton had lodged a grievance against two staff members and that she had lodged a workers’ compensation claim. He denied that his actions were related to those complaints.

20. Under cross-examination, Mr Heldt agreed that it was only in the second stage that he would look at the individual who was attached to the position. He acknowledged that the Case 1 documents referred to the staff member currently having a Comcare claim and the location of the potential impact as Brisbane and Bribie Island. It was put to him that he knew it was Dr Morton’s redundancy that was the subject of the business case. Mr Heldt denied that. He said there were 5,500 employees in CSIRO and he was not aware of the location of every officer and their name and situation.

21. Mr Heldt was taken to an email he sent to Mr Roy. In that email, he said that Dr Morton had been identified as excess to the needs of the organisation. He confirmed that the requirements of the People Policy and Enterprise Agreement had been met. He was satisfied that redeployment efforts had been met, and relied upon the business case for that information.

    Evidence of Mr Marty Phillips

22. Mr Lewis Martin Phillips operates a fish farm at Mourilyan, near Innisfail, in Far North Queensland.

23. Prior to May 2012, Mr Phillips had met Dr Glencross several times. He used to speak to Mr Glencross on a semi-regular basis about barramundi work. Mr Phillips had not seen or communicated with Dr Glencross since he left Australia.

24. On one visit, Dr Glencross brought Dr Morton to Mr Phillips’ farm. In May 2012, Mr Phillips attended the Agriculture Australia conference in Melbourne. Mr Phillips was president of the Australian Barramundi Farmers’ Association, and Dr Glencross had requested that they meet to discuss industry issues. Mr Phillips met Dr Glencross and Dr Morton at a hotel bar, prior to the conference dinner.

25. Mr Phillips had no recollection of Dr Glencross referring to Dr Morton as a prostitute. When asked whether he would recall that statement being made by Dr Glencross, if it were made, Mr Phillips answered, “Quite possibly”. He said he found Dr Glencross to be a very professional, kind and courteous person. It would have been rather out of character for him to make that comment and he did not recall that happening.

26. Mr Phillips also said that he had no recollection of Dr Glencross commenting that Dr Morton had crows-feet. When asked if he would recall such a comment if it were made, he again said “Quite possibly”. He said that he had not heard Dr Glencross speak that way about anyone and it would have been very out of character.

    Evidence of Mr Trevor Van Dam

27. Mr Trevor Van Dam is a principal reviewer of a business that specialises in conducting workplace investigations. In an affidavit, Mr Van Dam said:

    Engagement by CSIRO

    7On 24 March 2015, Dr John Manners wrote to me and requested that I conduct an inquiry under CSI RO’s Misconduct Procedure into suspected misconduct on the part of Dr Nigel Preston (CB 416:9, COM.001.008.0917).

    Terms of reference for the investigation

    8The letter of 24 March 2015 engaged me to conduct an inquiry into suspected misconduct against Dr Preston pursuant to the CSIRO Terms and Conditions of Service and the Misconduct Procedure.

    9I was not engaged to investigate the conduct of Dr Brett Glencross, although his alleged behaviour was discussed as part of the investigation into Dr Preston.

    10I was engaged as an independent investigator. In so doing, I did not act on behalf of CSIRO but on my own behalf. I also reported back to CSIRO in that independent capacity.

    General approach to the investigation process

    11When conducting an investigation, I typically review the written complaint and interview the complainant before interviewing any witnesses. After that, I interview any witnesses identified and the respondent.

    12I only speak to the complainant again if there is a need to seek clarification about something or if allegations were made against the complainant.

    13I do not usually give a complainant an opportunity to review or respond to the respondent’s evidence, before I finalise the report.

    Conducting the investigation

    14I conducted the investigation into Dr Morton’s complaint in accordance with the terms of reference provided to me.

    15I interviewed Dr Morton, Dr Mathew Cook and Dr Preston in the course of the investigation. These interviews were recorded and transcribed.

    16I did not consider that there was a need to speak to Dr Morton again after I spoke to Drs Preston and Cook.

    Outcome of the investigation

    17On 14 May 2014, I provided my findings and recommendations to Dr Manners that the complaint of misconduct against Dr Preston was not sustained. I had no further involvement in the matter after this point. (CB 457:10; COM.001.001.4576).

    (Emphasis in the original.)

28. Under cross-examination, Mr Van Dam was taken to the email from Dr Preston to Dr Cook outlining what happened at the meeting. He was asked whether he would have had to consider what Dr Preston said more carefully if he had known that Dr Preston had sent Dr Cook that email. Mr Van Dam answered, “Quite possibly”. When asked whether it detracted from his reliability as a witness, his answer was, “It may detract, your Honour, yes”.

    Evidence of Dr Anthony Worby

29. Dr Anthony Worby commenced at CSIRO in November 2001. From that time, until June 2014, he had responsibility for staff based on Bribie Island. He then left CSIRO in July 2014, until he took up a new position with CSIRO in August 2017.

30. Dr Worby was the line manager for Mr Brewer in his initial period with CSIRO. He knew Dr Morton and Dr Glencross.

31. Mr Worby stated that Dr Glencross was an outstanding scientist. He said that Dr Glencross could be described as “brisk”. He was a very driven scientist and on a number of occasions, Dr Worby discussed with him that he might soften his management style towards other people.

32. On 19 April 2013, Dr Worby had a meeting with Dr Morton. Mr Nicholas Bourne was also there. Dr Morton said that she felt she had a difficult relationship with Dr Glencross. She said that when they would go to Bribie Island to run experiments, he would often change things around without much regard for the efforts of the people who were already out there. Dr Worby said that Dr Morton did not allege that there was any misconduct by Dr Glencross of a sexual nature. She did not allege that Dr Glencross made derogatory comments about her.

33. Apart from that meeting, Dr Worby would occasionally meet Dr Morton. They did talk about Dr Glencross during those meetings. Dr Morton expressed a level of frustration with Dr Glencross’ style. In those discussions, Dr Morton did not raise allegations against Dr Glencross of a sexual nature, or suggest that he made comments of a derogatory nature.

34. Dr Worby had a number of meetings with Dr Glencross in 2012 and 2013 to discuss how he might grow, professionally, into his role. Part of the context around this was the imminent retirement of Dr Preston and the fact that CSIRO would be looking for another senior person to step into Dr Preston’s shoes. Dr Glencross had the skills to do that from a scientific perspective, but did not have the people skills or management skills. Dr Worby was having discussions with Dr Glencross about whether they could improve his management style to the point where he might be able to take over from Dr Preston. They also discussed how to improve his interactions with staff at his level.

35. Dr Worby’s evidence was that it was essential for CSIRO to bring in external funding from clients in order to deliver on the strategic objectives of the organisation and deliver on projects.

36. Under cross-examination, it was suggested that Dr Morton told Dr Worby that Dr Glencross had hit her on the backside with a riding crop. Dr Worby said that was not true. It was also put to Dr Worby that Dr Morton told him that Dr Glencross had made derogatory comments about her cleavage, had made comments in relation to her crows-feet, had referred to her as a prostitute and had asked her what her sexual preference was. Dr Worby denied that Dr Morton told him those things.

37. Dr Worby acknowledged that in respect of an application by Dr Glencross for promotion, he had said, “Brett’s behaviour does, at times, push the limits of what is acceptable in the workplace”. He said that Dr Glencross had a style in the workplace that could be difficult, but it was not at a scale which he thought should hold him back from promotion, but it was behaviour that he spoke to Dr Glencross about a number of times. He had a discussion with Dr Glencross and Dr Preston about some professional development and some coaching.

38. It was put to Dr Worby that, because Dr Glencross was so good at bringing in external funding, he was able to turn a blind eye to Dr Glencross’ behaviour. Dr Worby said that was not a correct characterisation. He said that Dr Glencross was an excellent scientist who had a challenging manner at times. Some of his interactions with other staff could have been better, but Dr Worby thought that dealing with it informally was the most appropriate vehicle.

39. Under re-examination, Dr Worby was asked to explain what he meant by Dr Glencross pushing the limits of what was acceptable in the workforce. Dr Worby said that Dr Glencross’ behaviour was only ever intended to get the best possible outcome for the science. He thought that if there was something that might not have been set up in a particular way when he arrived at Bribie Island, he would just go about changing it and that frustrated and upset some people. However, Dr Worby said there was never anything malicious in that that he was aware of. He said that often the best scientists are the most difficult to manage, and this was another case of an excellent scientist who did not have the desirable level of personal skills.

    Evidence of Mr Gavin Drury

40. Mr Gavin Drury is an exercise scientist. Between January 2014 and 2015, he was employed at CSIRO as an injury management coordinator. Between March 2015 and August 2015, he was the case manager assigned to Dr Morton.

41. Mr Drury’s primary role as a case manager was to facilitate an effective return to work and provide a pathway for ill or injured employees to get back to the workplace. CSIRO had an early intervention policy.

42. In March 2015, Mr Drury received some documents concerning Dr Morton’s claim. He telephoned her. He said he discussed the Comcare procedures for lodging a claim and the early intervention process for employees who were ill or injured. He said he told her that there were a range of options and that early intervention could be applied to a Comcare claim being submitted, and that would continue up to the point that Comcare made a decision regarding the claim. He said that, depending on what the illness was, allied health professionals could be engaged. In Dr Morton’s case, a psychologist could be appointed or discussion could occur with a GP or referral to a specialist could be implemented to assist with her recovery and return to work.

43. When asked about Dr Morton’s allegation that he accused her of only filing a Comcare claim because she was unhappy with the grievance investigation outcome, he said that was incorrect.

44. Mr Drury said he was aware that Dr Rees had written Dr Morton off from work for three months. He says he told Dr Morton that he was concerned, based on his previous Comcare experience, that a large amount of time off work would reduce her chances of returning to the workforce successfully. He wanted to ask whether the certificate could be revised such that they could implement an effective return to work plan. He could not remember Dr Morton’s exact response. Mr Drury denied that he told Dr Morton, “Three months off would not do your career any good”.

45. Mr Drury said that, in his experience, the longer the time an employee takes off work, the less successful the outcome of returning to work in a meaningful manner. He was concerned that a lengthy certificate would impede CSIRO’s ability to facilitate a return to work. Mr Drury’s view was that if someone was off work for 90 days, the chance of returning to work would be quite poor. While he could not remember the exact figure, the chances would be reduced quite heavily.

46. Mr Drury said that his motive in discussing with Dr Morton the possibility of looking for options to come back to work earlier was just to facilitate a good return to work. He was concerned that three months off would impair her ability to be employed in her area of expertise, so he was trying to explore the possibility of finding alternative work. He was concerned the Dr Morton might not be able to find reasonable employment if she was off work for an extended time.

47. When asked whether he mentioned to Dr Morton that he was a clinician during the telephone call, he agreed that he had.

48. Dr Morton had some exchanges of emails with Mr Drury. On 30 July 2015, he forwarded the exchange of emails to Ms Lyons. Around that time, Dr Morton asked for the name of his line manager. Mr Drury said he did not provide Dr Morton with the name of his supervisor because he did not have a supervisor at that time, but he did forward her concerns to Ms Heather Campbell, who was the general manager of HSC.

49. Mr Drury was taken to a response to Dr Morton’s complaint from Ms Campbell that he was copied into. He confirmed that the matters in the email were correct. When asked whether Ms Campbell consulted with him regarding the contents of the email, he said, “I can’t remember, your Honour”.

50. Under cross-examination, it was put to Mr Drury that when he had worked at the Department of Human Services, one of his major achievements was reducing their workers’ compensation provisions. He agreed that it was and that it was a skill.

51. Mr Drury was asked whether, as a case manager, one criterion for assessing how well he was doing was the extent of the reduction of claims. He responded that it was more about facilitating a return to work. Getting people to return to work would reduce the premium. He denied that he had a vested interest in getting people back to work, saying that his interest was to try and facilitate a wholesome return to work. As someone with a clinical background, the rewards for him came from actually finding meaningful work for injured employees.

1. Mr Drury denied that he knew that Dr Morton had made formal complaint about Dr Glencross and Dr Preston in March 2015. He denied that he asked Dr Morton if she was making a Comcare claim because she was not happy with the outcome of the grievance.

2. It was put to Mr Drury that he was not happy with the fact that a psychiatrist had given Dr Morton three months away from work. His response was that his emotions did not come into the role. His job was to facilitate a return to work. It was part of his role to challenge some of the medical certificates that he thought were quite lengthy, based on the statistics and evidence about a lengthy time off work. As part of the Comcare and CSIRO policy, one would automatically send for an independent assessment to ensure that CSIRO was getting the best medical advice to make sure someone was getting back to work in a timely manner and was being treated appropriately. Mr Drury denied that he was challenging Dr Rees’ medical certificate. He said an independent assessor would make that determination.

3. Mr Drury was challenged upon calling himself a clinician. He maintained that he is a clinician. It was put that he was not a mental health clinician, but he said he did not tell Dr Morton that he was a mental health clinician. He is a clinically trained exercise scientist.

4. Mr Drury agreed that Dr Morton may have asked about his background and he may have said “Yes, I am a clinician”. He denied that he wanted to give Dr Morton the impression that he was a doctor or a nurse. He said he wanted to give her the confidence that he had been in this area for 15 + years, that he was familiar with the Comcare scheme, that he had dealt with many difficult long and complex cases and that he could assist her to return to work. He accepted that he did not say those exact words, but said that is what he was thinking.

5. It was put that Mr Drury did not have any formal training in the area of mental health or psychological injury. Mr Drury said that he would have attended quite a few courses working for Comcare and the Department of Health about dealing with mental health issues. He said that when working within CSIRO, he was not making clinical decisions, but by having a clinical background, he could understand the process and pathway between early intervention and return to work. Therefore he was in a good position to help facilitate that process.

6. Mr Drury did not accept that he told Dr Morton that he was going to bring her back to work in the next couple of weeks. He denied that his motive was to get Dr Morton back to the workplace as quickly as possible regardless of the medical certificate she had provided. He denied that he said to Dr Morton, “If you don’t make a claim, CSIRO will pay for all the expenses”.

7. It was put to Mr Drury that he told Dr Morton that he was worried about the fact that she may not get reasonable employment if she was off for three months. He said he did not remember the exact conversation. He denied that he told Dr Morton that her job would be at jeopardy if she made a workers’ compensation claim, and denied that he talked to her in a way that would give her that impression.

8. Mr Drury accepted that, in his email to Dr Morton of 8 July 2015, he asked to meet her on 4 or 5 August 2015. He said that he wanted to have the meeting in his capacity as an injury management coordinator, as it was usual to meet injured or ill employees and try to facilitate their return to work.

9. It was put to Mr Drury, that by describing himself as a clinician, he wanted her to think that he was a mental health professional. Mr Drury denied that.

10. Mr Drury accepted that Dr Morton made a complaint to Ms Pickering and copied him into the complaint. In an email to Ms Lyons, Mr Drury said, “Presumably, as discussed, I will draft an email for you to send in relation to Katherine’s questions”. Mr Drury said that the questions would have been discussed primarily between Ms Campbell and Ms Lyons. He accepted that he may also have spoken to Ms Lyons.

11. Mr Drury accepted that he wrote an email dated 29 July 2015. In the email, he said, “Katherine will need to be directed accordingly”. He denied that this was his way of saying that it was necessary to take a tough stance with Dr Morton’s claim. He said that comment was about taking appropriate action to facilitate her return to work. He said that:

    Often as a case manager, you get sticky situations where there is a bit of sort of rebuttal from injured employees or claimants, and sometimes you need some other professionals to take the reins and put a distance and see it from a—you know an overarching prospective.

12. Mr Drury said that he was asking his senior manager for her input to help move this case in the right direction. He said his fear was, based upon the initial certification of three months, that he would lack engagement from Dr Morton. He thought he should get some other eyes to look at this.

13. When asked what Dr Morton was going to be directed to do, Mr Drury said that she wouldn’t be directed to do anything particularly. It was just to engage in the return to work–process under s 36 of the SRC Act, which would involve engaging in any medical assessments relevant to her condition and working with himself, or another return to work coordinator.

14. Mr Drury said, in his email, that he had documented, in detail, his conversation with Dr Morton. He said he had written some notes which were part of the initial file. He did not know what had happened to them.

15. It was pointed out that Mr Drury had said, “There is a pattern of behaviour here which is quite alarming. I will need the full support of HSC and HR to manage this case”. Mr Drury said he was referring to, perhaps, complaints made against him. He was concerned about not getting engagement from Dr Morton. It was an unusual claim. He copied a number of other persons, to help facilitate the return to work and to seek advice from his peers.

16. Mr Drury was asked why he found Dr Morton’s comments about his dealings with her be alarming. He answered, “I don’t know your Honour”. He was asked whether it was because the pattern of behaviour was not necessarily about the complaints Dr Morton had been making about him, but the complaints she had been making about other people at CSIRO that he was aware of. Mr Drury said that he did not know. When he was asked again what was so alarming, his response was that it was probably the lack of engagement from Dr Morton in the return to work process.

17. Mr Drury was asked about his comment that “I have had two debrief sessions for clinical peers about Mrs Morton’s behaviour and attitude and the best way to manage her claim”. He said that he was seeking clarity on how to engage Dr Morton in the return to work process so that they could provide some form of early intervention. He denied that the comment was about her behaviour and attitude towards him and the fact that she made a complaint about him. He also denied that it was about the fact that she made complaints about others. He denied that “the best way to manage her claim” was really a reference to getting her off Comcare. He said the best way to manage her claim was to facilitate a robust return to work.

18. Mr Drury acknowledged that he was aware Dr Morton had made a grievance about Dr Preston and Dr Glencross. The formal grievance was attached to the Comcare claim that he received in March 2015.

19. Mr Drury had organised an appointment for Dr Morton to see a Dr Eveline Timmins. On 19 August 2015, Mr Drury sent an email to Dr Morton saying that she did not need to attend the assessment of Dr Timmins and he had cancelled the appointment. He did not agree that the reason he cancelled the appointment was that the decision to accept her Comcare claim had been revoked. He later accepted that the appointment could have been cancelled for a number of reasons, including that the Comcare decision had been revoked. Mr Drury was asked whether it bothered him that Dr Morton was not being assessed. He said that it would have bothered him, but perhaps another appointment was being set up or another doctor had been arranged. He then said he did not recall the exact reason the appointment was cancelled.

20. Mr Drury was asked whether he remembered receiving an email from Maria Avgeropoulos dated 3 August 2015. The email concerned a request Dr Morton made regarding wanting documentation that was going to be used in her s 36 assessment. It was put to Mr Drury that he did not want to provide that documentation to Dr Morton, because he had a personal grudge against her. He denied that. He denied that he was upset with her perceived attitude and repeated behaviour towards him. He denied that he was upset because she had called him out as not being a clinician. He denied that he was upset because she would not meet with him because she had a medical certificate and was suffering psychological injury.

21. Upon re-examination, Mr Drury said that he wanted to meet with Dr Morton to try to get a better understanding of her case. Further, he thought that meeting in person may facilitate a better outcome. Sometimes meeting the injured person could assist and build a bit of a bridge. Mr Drury said that, in his experience, it was unusual that a person he was case managing would refuse to meet him.

22. Mr Drury rejected the suggestion that his motive in dealing with Dr Morton was simply to reduce CSIRO’s Comcare premiums. He said that he tried to look after the injured parties, and any reduction of the premium would be a by-product of the good work that he did to facilitate a return to work. He denied that he ever held a grudge against Dr Morton.