Pilbrow v The University of Melbourne

[2022] VMC 8

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER Division

Case No. L12656308

VARSHA PILBROW	Plaintiff
v
THE UNIVERSITY OF MELBOURNE	Defendant

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MAGISTRATE:	M A HOARE
WHERE HELD:	Melbourne (Online Magistrates’ Court)
DATE OF HEARING:	7 – 12, 29-30 November 2021,  1 – 2, 21 December 2021
DATE OF DECISION:	8 April 2022
CASE MAY BE CITED AS:	Pilbrow v The University of Melbourne
MEDIUM NEUTRAL CITATION:	[2022] VMC 8

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WORKERS COMPENSATION – Rejection of claim – Mental injury – Claim by a university lecturer of mental injury as a consequence of bullying, victimisation and unreasonable management action throughout the course of employment - Whether mental injury was of a non-compensable type arising wholly or predominantly as a result of management action on reasonable grounds in a reasonable manner  - Whether capacity for pre-injury employment -  Whether capacity  for pre-injury employment with a different employer - Workplace Injury Rehabilitation and Compensation Act 2013, ss 39(1), 40(1).

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Mr B Johnson	Arnold Thomas Becker
For the Defendant	Mr B McKenzie	Landers & Rogers Lawyers

HER HONOUR:

Introduction and overview

1        The School of Biomedical Sciences is part of the University of Melbourne’s Faculty of Medicine, Dentistry and Health Sciences. Between 2010 and February 2020, Dr Varsha Pilbrow, the plaintiff, was employed as a ‘lecturer – teaching and research’ in anatomy in the Department of Anatomy and Neuroscience (‘the Department’) within the School of Biomedical Sciences.

2        In the course of the proceeding brought by Dr Pilbrow, one of the several professors who gave evidence for the University made an observation that, as they were all scientists, ‘personalities were not part of the equation’, rather ‘it was metrics that meant the most to us’. Of course, in this workplace, as in any other, the personalities and inter-personal relations of those working there were, inevitably, a ‘part of the equation’.

3        The proceeding concerned Dr Pilbrow’s claim for mental injury under the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’). She alleged in her WorkCover claim dated 29 April 2020 that she ‘sustained victimisation and bullying over a prolonged period’(‘the claim’).

4        In her pleadings, Dr Pilbrow alleged: unreasonable criticism and requests; unreasonable management; victimisation and bullying; and/or failure to provide support to her.[1] By way of an extensive schedule of particulars, she alleged that specific events and circumstances were causative of injury.[2] Those events and circumstances occurred over several years (between 2013 and 2019) during which time Dr Pilbrow had three supervisors.

[1]           Paragraph 4 of her Statement of Claim dated 11 November 2020.

[2]           Schedule 1 to her Statement of Claim dated 11 November 2020.

5        The University rejected the claim by notice dated 26 May 2020.  Injury was denied and, further, it was contended that, if there was an injury, it was non-compensable as it arose wholly or predominantly as a result of management action taken on reasonable grounds and in a reasonable manner.

6        Additionally, Dr Pilbrow’s claimed incapacity for pre-injury employment was disputed. The University denied there was an incapacity for pre-injury employment with the University and, further, contended there was capacity for pre-injury employment with another employer in accordance with Kerridge v Monsfelt.[3]

[3] [2009] VCC 154.

7        Conducted over ten days, for the plaintiff, oral evidence was given by Dr Pilbrow, by Mr Corey Rabaut, a union officer; Ms Marie-Julietta Capodistrias, a former student; Dr Stephen Whiteside, treating GP; and Dr Oriella Cattapan, treating psychologist. For the defendant, several lay witnesses were called (all employees of the University): Profs Keast, Hime and Wilkinson-Berka and A/Profs Hayes and Fogg, as well as Mr Sean Hogan, director of workplace relations, and Ms Lindsay Karakiozakis, a human resources officer. Other medical evidence and a voluminous amount of documentation was tendered into evidence by consent.

8        An authorised transcript of over 1,000 pages was available. After the oral evidence concluded, closing addresses were delivered additional to the filing of lengthy written submissions.

Plaintiff’s evidence

Dr Pilbrow is 57 years of age. She has a significant academic background with tertiary qualifications from universities overseas, including New York University where she gained her PhD in 2003. Thereafter, for about two years, she was a teaching academic at American universities before coming to Australia. She is married with two daughters.

Employment with the University

9        Between 2008 and 2009, Dr Pilbrow was employed by the University in part-time fellowship positions.  

10      In 2010, she was appointed on a three-year full-time contract as a ‘Level B Lecturer – teaching and research’ (under the applicable Enterprise Agreement). Then in 2013, at the end of the three-year term, Dr Pilbrow’s position was made permanent.

11      From early 2013, Dr Pilbrow reported to Prof Janet Keast, the incoming head of the Department. That situation continued until September 2017.

Early Career Researcher award (‘ECR award’)

12      An ECR award was an internal award open to academics nominated by their head of department. Successful recipients received grants of ‘start-up’ research funding to assist in applying for external research grants.

13      In 2011 and 2012, Dr Pilbrow had applied unsuccessfully for ECR awards although she had understood the criteria required that applicants be in ongoing positions.

14      In 2013, after her position was made permanent, she contacted Prof Keast’s office to express interest in being nominated for an ECR award, but never heard back. Later in the year, she raised the issue with Prof Keast who told her she had not nominated her. The reason given was that she was ‘too advanced or too old to apply’. Prof Keast denied having used the words ‘too old’.

15      As for how she felt in response to Prof Keast’s comment, she felt quite crushed at the time. Dr Pilbrow had not really appreciated the importance of ECR awards until she found out that other academics who had progressed from Level B to C had all received the ECR award.

16      Prof Keast, as head of Department, had allocated ‘start-up’ research funding which gave her a sense of being supported. She therefore found it difficult to reconcile that Prof Keast had not put her up for the ECR award.

Psychological Treatment: 2013 to 2014

17      In November 2013, Dr Pilbrow began consulting a psychologist, Ms Karen Trevorrow, via referral by her GP. She saw Ms Trevorrow regularly until about October 2014.

18      In cross-examination, Dr Pilbrow did not dispute the accuracy of Ms Trevorrow’s records of those consultations.

19      On 7 February 2014, there was a history of how much she was enjoying work and that work was a good distraction. On 13 March 2014, there was a history of feeling wholly motivated at work, looking to get promoted and believing she had earned the right for senior lecturer. 

20      Dr Pilbrow conceded that work was going quite well for her at that stage.  She agreed the attendances were focussed on parenting issues. She also did not dispute that Ms Trevorrow’s clinical notes described her as a person who had ‘problems with people disagreeing with her’.

2015 Performance Development Framework ‘(PDF’) discussions

21      Dr Pilbrow aspired to advance from a ‘Level B’ to a ‘Level C’ academic within the Department.

22      In 2015, a PDF meeting was held with Prof Keast. In that context Dr Pilbrow sought support by way of internal research funding as a basis for applications for external funding. Prof Keast had responded in a way that was ‘very categorical and straightforward’. She was told: ‘your job was created as a furphy and won't be supported’ and that her position was required to be made ongoing after the three-year contract because of the Enterprise Agreement. Prof Keast conceded using the word ‘furphy’, but denied the usage of it was in the way alleged by Dr Pilbrow.

23      Dr Pilbrow had to ask other people about the meaning of the word ‘furphy’. After finding out what the word meant, she felt worthless and not valued for her work.

24      Prof Keast made constant suggestions about developing collaborations outside the University. It did not make sense to her to be kept being told to go outside for help when she needed the support from within the Department.

25      In cross-examination, Dr Pilbrow said she had no evidence of Prof Keast recognising she was experiencing frustration in 2015. She also had no evidence of Prof Keast offering opportunities to speak with other colleagues regarding potential collaborations.

Committees

26      Dr Pilbrow had been a member of the Department’s anatomy committee until about October 2013 when its membership was restructured by the incoming chair, A/Prof Hayes. She was also on a museum committee and on the Department’s teaching committee.

27      In around August 2017, Dr Pilbrow approached A/Prof Hayes about coming back onto the anatomy committee.

28      A/Prof Hayes, who was both a colleague and a friend, agreed immediately she should be on the committee but then said she would need to ‘re-think it’. That was apparently because it would mean leaving off another academic.

29      Dr Pilbrow felt upset and particularly betrayed by this, which did not just tally for her. At this stage, she felt quite isolated as she was the only academic researcher in her area and was having difficulty getting support for her teaching.

30      However, by January 2018, Dr Pilbrow had become a member of the anatomy committee and stayed on for the full academic year of 2018.

2017 Performance Review and PDF meeting

31      In early 2016, Dr Pilbrow was meeting with Prof Keast over concerns to do with a graduate student. Dr Pilbrow thought there were dubious aspects to the student’s work (‘the graduate student issue’).

32      In late 2016, the graduate research office determined that the graduate student issue would not be investigated further.

33      Dr Pilbrow had a meeting at one stage in 2016 about the graduate student issue with Prof Keast, as well as the director of the office of research, ethics and integrity and another professor. Her feeling in the meeting was that they were ‘ganging up on her’ and a decision was being forced upon her. She felt so violated, as though she was intellectually being raped, and could not sit through the meeting.

34      After that meeting, Prof Keast had proposed postponing the 2017 annual performance review regarding the 2016 academic year as Dr Pilbrow seemed very agitated.

35      Prior to the assessment, Dr Pilbrow sought unsuccessfully to have another supervisor altogether. Instead, she was told that a senior academic from a different department would be in her PDF meeting. That was Prof Roberto Cappai.

36      With respect to the 2017 PDF assessment, Dr Pilbrow felt the graduate student issue should be taken into consideration because it had impacted on her productivity and her well-being. However, at the outset of the meeting, Prof Keast stated she would not be discussing those events.

37      Dr Pilbrow requested (as she had previously) for more staff to assist her with her research and for help with funding. However, Prof Keast responded that the Department would not be hiring additional staff to synergise with her research area. Rather, she should instead be trying to develop external collaborations.

38      In cross-examination, Prof Keast’s conclusions about Dr Pilbrow’s performance as set out in the 2017 PDF document were put to her. One conclusion was that promotion from Level C to Level B would be premature based on her research performance, including the complete dependency of her research activity on Departmental funding. Also, her recent publication record lacked ‘first’ or ‘senior’ authorship in primary research journal publications.

39      Prof Keast’s overall conclusion as recorded in the document was that this protracted situation in relation to research funding was highly unusual in the Department and was unsustainable. It was also well below the academic level to which she aspired, being Level C and that these concerns had been raised in previous Performance Development Reviews and at other times and that strategies had been proposed to Dr Pilbrow.

40      In cross-examination, Dr Pilbrow denied that the supervisor comments in the 2017 PDF document reflected what was actually discussed. An example was Dr Keast stating in it that had Dr Pilbrow not been so focused on the graduate student issue, she may have had more time to focus on achieving her performance goals.  

41      However, later in cross-examination, she conceded the views expressed by Prof Keast were validly held views.

42      Following the 2017 PDF meeting, Dr Pilbrow felt aggrieved about the way Prof Keast had treated her. She met with a human resources (‘HR’) adviser together with a support person, Mr Rabaut, a union representative. It was suggested to her she could provide a rejoinder document which she did.

43      As for whether Prof Keast met with her about her research activities outside the formal reviews, in cross-examination, Dr Pilbrow denied that. She had no evidence of Prof Keast proactively saying this is what you can do to advance your career.

44      An outcome of the PDF process was that Prof Cappai offered to take on a mentoring role with Dr Pilbrow to assist her in seeking external research funding.

45      A suggestion by Prof Cappai was to try and seek funding from the Vice-Chancellor’s Fund for her ‘mummy work’ (meaning her work on ancient cadavers). However, that did not proceed as it was not supported by the Museum’s curator, Dr Ryan Jeffries, as being too narrow in scope. The meeting with Dr Jeffries was set up by A/Prof Hayes.

46      Dr Pilbrow had not disagreed with that, but still felt there was a lack of support because she needed such an application to assist her in being promoted. A/Prof Hayes told her that making a funding application ‘just to keep Janet happy’ would only ‘anger her more’.

47      In cross-examination, Dr Pilbrow conceded that, in annual performance reviews from 2013 until 2017, Prof Keast had consistently expressed concerns for Dr Pilbrow. This was because of her facing challenges in obtaining external research funding.  She agreed that she received so-called formula-based funding that all the academics received for their research teams.

48      In around June 2017, the HR office convened a mediation process between Dr Pilbrow and Prof Keast to find a way for them to work together. As for what she had wanted to raise, it was the events going back to 2013 had negatively impacted on her career advancement. She started noticing an effect on her mental health all the way back to 2013, but not as much as around 2016.

49      Ultimately, the mediation process never concluded due to Prof Keast abandoning one of the sessions. Dr Pilbrow felt frustrated by this.

50      Then from September 2017, Dr Pilbrow was informed she would have a new supervisor, Prof Hime. He would be acting head of the Department from January 2018.

51      Overall, Dr Pilbrow felt she had had a very difficult time in her relationship with Prof Keast. She had confided in A/Prof Hayes about it and it was agreed that Dr Pilbrow would work from home for the month of November 2017.

Berry Collection – events of November 2017

52      The Faculty had a museum connected to it called the Harry Brookes-Allen Museum of Anatomy and Pathology (‘the Museum’). The Museum was the custodian of a collection of culturally sensitive and fragile human skeletal remains, including of First Nations peoples. This was known as the Berry collection.

53      Some Berry collection specimens were held in Dr Pilbrow’s laboratory in the Department for research purposes.

54      In the month of November 2017, whilst working from home, Dr Pilbrow was contacted by Dr Michelle le Roux, an interim curator with the Museum. Dr le Roux wanted permission to access Dr Pilbrow’s lab to do an audit of the Berry collection specimens. Dr Pilbrow gave her consent and that was undertaken.

55      Dr Pilbrow then learned from Dr le Roux that, in the moving of a panel, a specimen had been damaged. This bothered Dr Pilbrow and she let Dr le Roux know. She emailed A/Prof Hayes (who was Dr le Roux’s supervisor) about her concerns but had no response. She emailed her own new head of department, Prof Hime.

56      A few days later, Dr le Roux again contacted Dr Pilbrow by email about removing some Berry skulls from her lab that had mould growing on them. Dr Pilbrow was concerned about Dr le Roux returning and taking further specimen without following proper protocols. After that, she obtained Prof Hime’s approval to fund restoration work on the specimens.

57      Dr Pilbrow felt let down by A/Prof Hayes over these events and undermined regarding the timing coinciding with her working from home. She felt helpless and incapable of doing anything to help herself. A/Prof Hayes denied any connection between Dr Pilbrow working from home and the timing of the audit.

58      In cross-examination, Dr Pilbrow conceded that an audit of the Berry collection specimens was needed given their delicacy and sensitivity.

59      Later, Dr Pilbrow felt similarly undermined when she noticed an agenda item of ‘Berry skulls’ for an anatomy committee meeting scheduled for 30 January 2018. She was an apology for the meeting due to being overseas on annual leave.  She had seen the agenda when she checked her emails remotely.

60      On 30 January 2018, Dr Pilbrow sent an email to all members of the committee requesting that the item be taken off the agenda and removed from the subsequent minutes. She wrote that the item should not have been on the agenda as it related to her lab and did not have much to do with the committee. She received no response or apology at the time.

61      In cross-examination, Dr Pilbrow agreed that in her email to all members of the committee she wrote that A/Prof Hayes was taking ‘a heavy and underhanded approach to an issue that does not concern her at all’. By this, she was referring to having tried unsuccessfully many times in 2017 to resolve issues with A/Prof Hayes over the division of the Berry specimens.

62      She denied it was difficult to accommodate everyone in attending meetings and disagreed that there was no reason why a meeting should be postponed because of one person being unable to attend.

63      Dr Pilbrow raised the issue with Prof Hime. After a further meeting, the Berry specimens in her lab became the subject of a formal loan arrangement.   After that, she received a text message from A/Hayes saying, ‘Was that okay. I never meant to undermine you’.

Scheduling of meetings

64      In around April 2018, there was an issue for Dr Pilbrow regarding the scheduling of a meeting of the ad hoc teaching committee (which was chaired by A/Prof Hayes). A meeting had to be altered as A/Prof Fogg was unable to attend. The new time clashed with a lab meeting Dr Pilbrow had with her students. She declined the teaching committee meeting via email. 

65      After that, A/Prof Hayes queried whether she was distancing herself and whether there was a connection between her declining that meeting and not coming to a staff pizza dinner at A/Prof Hayes’ home.

66      As for her perception about this, Dr Pilbrow did not understand the connection that Professor Hayes was making. She thought she was not being rational.

67      Dr Pilbrow escalated the issue in relation to the teaching committee with Prof Hime.  By this time, Dr Pilbrow had complained to him about her relationship with A/Prof Hayes. He recommended not engaging with her and for communication to be through him. It was on that basis that Dr Pilbrow had not wanted to go to the pizza dinner.

68      She felt she was being excluded from meetings and that there were items that related to her being discussed in her absence.

69      As for her state of mind at this stage, Dr Pilbrow felt her mental health was really suffering. She was really struggling to continue and was collapsing at work from all of these things that were happening.

2018 Performance Development Review (‘PDR’) for review year 2017

70      Dr Pilbrow agreed that she met with Prof Hime on or around 6 April 2018 regarding her annual performance review.

71      In cross-examination Dr Pilbrow was taken through the 2018 PDR document which was the subject of the meeting on 6 April 2018. She agreed that the supervisor comments were, in essence, that she was not meeting expectations and that he was not supportive of her promotion from Level B to Level C.

72      That was based on her research performance not meeting expectations (in particular related to external research funds) Also, in the area of ‘service to the University’, she was not meeting expectations due to communication issues such as her 30 January 2018 email to the anatomy committee and comments about A/Prof Hayes. However, in the area of teaching and learning, that was progressing well.

73      Dr Pilbrow said that was Prof Hime’s unilateral assessment and she disagreed with his assessment of her performance.

74      Dr Pilbrow agreed that there were one on one meetings with Prof Hime regarding performance issues prior to the initiation of a formal performance improvement plan (‘PIP’).

Meeting with Prof Hime in May 2018  

75      In around May of 2018, an issue arose over Dr Pilbrow trying to work out a schedule for marking student papers. She emailed some academics regarding availability for marking and copied in A/Prof Hayes.

76      On 11 May 2018, Prof Hime asked Dr Pilbrow to meet with him. Ultimately, he came over to her laboratory to talk to her (‘the 11 May 2018 meeting’). He looked very agitated and she thought he was intending to scold her. Dr Pilbrow told him that if he was going to yell at her, she would record the conversation.

77      Prof Hime had then told her that ‘everyone at the anatomy group hates you’ and that ‘Jenny Hayes was resigning and won't chair the anatomy meeting all because of you’. Prof Hime denied saying that everyone hated her.

78      After this meeting, Dr Pilbrow felt as if her world had collapsed. She felt absolute shame and self-loathing. She felt so worthless after that and she was practically suicidal.

79      On 12 May 2018 (a Saturday), Dr Pilbrow sent an email with the subject line ‘No despair’ to Ms Fiona Riley, a HR advisor, and a senior administrator in the Faculty (‘the May 2018 complaint’) which email stated (in part) as follows:

Yesterday Gary Hime told me that everyone in anatomy group hates me, that Jenny Hayes is resigning only because of me, and that Jenny will not chair the anatomy teaching group anymore at all because of me.

I have never felt hate in all my life. I had been feeling insignificant most of the time these days. I haven't been able to stop crying since yesterday. Ever since Janet Keast as head of department decided not to support my academic position I have felt worthlessness, humiliation, exclusion, harassment, bullying, interference with my work, and breaches of policy and principles. …

But how does one go from feeling unsupported to being hated? …

80      Following this, Dr Pilbrow met with Ms Riley who asked for more background.  Ms Riley proposed setting up a meeting between Prof Hime and Dr Pilbrow and reminded her of the availability of the Employee Assistance Programme (‘EAP’).

External Department Review Document – May 2018

81      Over the months of late 2017 and early 2018, the Department was the subject of an external review, as other departments in the School had been. The academics including Dr Pilbrow were asked to provide information about their work. However, when Dr Pilbrow saw the Department’s final document, she noticed that all her information had been omitted. She raised this with Prof Hime who assured her the external review committee had her information.

82      This omission caused her to ruminate on Prof Keast’s remark about her job being created as a furphy and that it would not be supported.

Performance improvement plan (‘PIP’) 2018

83      Soon after that, she was emailed a calendar invitation to a meeting with Prof Hime. The email attached an initial version of a PIP document.

84      The PIP document contained benchmarks against which Dr Pilbrow’s performance needed to improve.

85      In cross-examination, Dr Pilbrow agreed the first meeting regarding the PIP was on around 31 May 2018.

86      She had felt quite scared of Prof Hime after the 11 May 2018 meeting. Also, with the instigation of the PIP, she felt like she was being given ‘retaliation’ and felt ‘victimised’.

87      At that stage, she was also concerned that Prof Hime had not formally completed the 2018 annual performance review. Prof Hime had described the PIP as being a three-stage process with the final stage meaning termination of employment.

88      In essence, the performance areas requiring improvement related to ‘service and leadership’ and research. Under ‘service and leadership’, there was a need to work collegially within established leadership structures. There were references to Dr Pilbrow’s communication and inter-staff relationship issues.

89      Under research, the expectation was for Dr Pilbrow to submit a viable research plan to the head of Department that would encompass proposed research activity for 2019 to 2021 including the funding required.

90      Over an extended period, between June 2018 and February 2019, there were meetings and email communications about the PIP document. The document had various iterations to take account of concerns raised by Dr Pilbrow and Mr Rabaut.

91      In particular, there was disputes over the research funding figures to be applied as benchmarks, including whether these were from the 2015 or 2018 metrics. There was a debate about whether the figures should be those of her current level (Level B) or the level to which she sought promotion (Level C). Mr Rabaut launched a formal dispute process on her behalf regarding the criteria.

92      In cross-examination, Dr Pilbrow was taken through iterations of the PIP. She did not dispute that ‘tracked changes’ to the iterations showed that minimum amounts were ultimately reduced, for example from $15,000 to $10,000 for 3 June 2019 with the total minimum figure reduced from $25,000 to $20,000. Dr Pilbrow said she did not recall specific numbers.

93      In cross-examination, Dr Pilbrow denied there was any need for her to be put on a PIP. Also, the University had not followed some Enterprise Agreement procedures. She also disagreed that once the PIP was under way, there were meetings every two months to review performance.

September 2018 Complaint

94      On 4 September 2018, Dr Pilbrow emailed Ms Karakiozakis, a HR adviser, complaining about conduct she considered was bullying (‘the September 2018 complaint’). The email’s subject-line was, ‘Resolving issues of discrimination, exclusion, belittling’. She sent this after attending a faculty ‘Setting the standards’ workshop. She complained that: ‘the issues I have been facing, with bullying, harassment, exclusion, devaluing, victimisation, interference with academic freedom and career advancement have continued unabated’. She referred to concerns about the rescheduling of, and exclusion from, Departmental meetings. She complained that A/Prof Hayes was re-scheduling meetings ‘in an arbitrary manner using lies and on-the-spur policies, making it difficult for [her] to attend meetings’.

95      Ms Karakiozakis replied the same day acknowledging the concerns, noting that terminology such as ‘bullying’ had specific statutory meanings and reminder her to ensure she had supporting evidence. The following day, Dr Pilbrow responded with a lengthy email that had three headings: 

- ‘Long-standing result of indirect discrimination: Janet Keast’s decision to support research in neuroscience, but not topographic anatomy’ and a series of bullet-points as what she considered that had meant for her own area of work. 

- ‘Harassment and bullying’ with a series of bullet-points including ‘repeated demeaning language in one-on-one and group meetings’.

- ‘Victimisation’ also with three or four bullet-points.

Ultimately, that complaint was taken no further by HR because it was insufficiently substantiated.

December 2018 meeting with Prof Hime

96      On 5 December 2018, there was a meeting about the PIP attended by Dr Pilbrow, Prof Hime, Mr Rabaut and Ms Nina Narsi, an HR adviser (‘the 5 December 2018 meeting’). There were discussions about the criteria to measure funding performance.

97      Dr Pilbrow handed Prof Hime documents to show how she was meeting the criteria. He took the papers and threw them towards the rubbish bin, saying: ‘This is what the school will think of your achievements’. Dr Pilbrow described Prof Hime’s tone of voice as very accusatory and harsh. Prof Hime denied this version of events.

98      As for how she felt at this stage, nothing about this was fair, they were not following process and they were using their own agenda.

99      In February 2019, an issue arose over funds donated via a philanthropic grant that Dr Pilbrow had facilitated. Such donations were subject to review and endorsement of the head of School. The School determined that the donation should be returned to the donor as anthropology and anthropological research did not sit within the Department's vision and focus on neuroscience. 

100   In cross-examination, further to the 5 December 2018 meeting, Dr Pilbrow was taken to an email of Prof Hime dated 16 April 2019 to Mr Rabaut that stated (in part) as follows:

… I acknowledge the length of time taken to respond however I wanted to fully consider your note and investigate the further information you have provided. I have to maintain that my position is unchanged and I remain clear that I will be pushing forward with the performance management plan and the first warning issued on 5 December 2018 will stand.

I will sit out my reasoning below so that we can both be very clear of the issues we are trying to resolve.

Varsha's performance was assessed as not meeting expectations for the 2017 year as part of the normal PDF process. The concerns around her research output, publications and leadership were discussed at her PDF meeting and during subsequent correspondence. This followed a series of informal performance management of Varsha by myself and her previous supervisor Janet Keast …

The email went on:

In summary I feel as we continue to meet and discuss, we move further apart on our position re Varsha’s performance management, and I maintain that a formal PIP is my only viable course of action. These continued challenges are I feel an attempt to distract from the issue in hand which is Varsha’s continued underperformance, both in terms of her research and her behaviours and working relationships. …

101   Prof Hime’s 16 April 2019 email also stated that any further dispute regarding the implementation of the PIP would need to be escalated to the head of School (Prof McKay). That was in accordance with the 2018 Enterprise Agreement.

102   Dr Pilbrow agreed that she did escalate the dispute with Prof McKay.

Performance review - May 2019

103   From 6 May 2019, Prof Wilson-Berka became head of the Department and also Dr Pilbrow’s direct line manager.

104   Dr Pilbrow had raised a concern with HR about her performance review in 2019 being conducted by Prof Hime. That was due to the ongoing dispute over the PIP.

105   After her concern was referred to Prof McKay as head of School, Prof McKay informed her that she would arrange for the convening of a gender-balanced independent panel comprising members external to the Department.

106   Dr Pilbrow accepted the panel review proposal although expressed concern about being subject to another triennial review when she had one the year before. In around May 2019, the performance review proceeded and she was asked to provide a written response to the panel review which she did.

107   The performance review panel comprised of four professors including Prof Hime and Prof Wilkinson-Berka herself (who was in the first weeks of her employment with the University) and one professor external to the Department.

108   In cross-examination, Dr Pilbrow said Prof McKay had not mentioned that Prof Hime would be part of the panel.

109   On 31 May 2019, Dr Pilbrow and Mr Rabaut attended a meeting with Prof Wilkinson-Berka and Prof Hime regarding the outcome of the panel performance review (‘the 31 May 2019 meeting’).

110   In cross-examination, Dr Pilbrow was taken to a document headed ‘File note recorded 1 June 2019’ which Prof Wilkinson-Berka had prepared.  The 1 June 2019 file note purported to set out the discussions in the 31 May 2019 meeting. Dr Pilbrow agreed that she was informed in the meeting by Dr Wilkinson-Berka that the outcome of the panel review was of her overall performance being below standard and therefore unsatisfactory.

111   In cross-examination, Dr Pilbrow disagreed with aspects of the 1 June 2019 file note as being an accurate reflection of the meeting. She disagreed Prof Wilkinson-Berka told her that she had carefully read Dr Pilbrow’s written response to the panel. She also disagreed Prof Wilkinson-Berka asked her whether there was anything new to be added that was not already included in her written response.

112   In cross-examination, Dr Pilbrow denied that the PIP was also discussed in the meeting and also disagreed there was reference to the PIP’s requirement that she submit a research plan by 1 July 2019.

113   Dr Pilbrow said the essence of the meeting was that Prof Wilkinson-Berka introduced herself as new head of department, that the review was concluded and it was determined that her performance was unsatisfactory.

114   Dr Pilbrow disagreed that Prof Wilkinson-Berka had stated in conclusion, as recorded in the 1 June 2019 file note, ‘the matter had reached an impasse and further action was in the hands of Dr Pilbrow’.

September 2019 – redundancy

115   In August of 2019, Dr Pilbrow was informed that her position would become redundant as part of a ‘Change of Plan – Department of Anatomy and Neuroscience’ which included a decision to discontinue anthropological research.

116   Dr Pilbrow was given the opportunity to comment on the Change of Plan which she did in a lengthy email to Prof Wilkinson-Berka dated 19 August 2019. She disputed the accuracy of the University’s contention that its decision to make her position redundant complied with the 2018 Enterprise Agreement because ‘the substantive work performed in the position is no longer required by the University’. She wrote to Prof Wilkinson-Berka as follows:

To say that Anthropological Research no longer fits within the Department’s research strategy and therefore my position will become redundant appears to come from a misconception of Anthropological Research and does not take into account that my position in Topographical Anatomy is in the Anatomical Sciences, which remains a research focus of the Department.

117   Prof Wilkinson-Berka replied by email of 22 August 2019 and stated that Dr Pilbrow’s response had been carefully considered, however the Department was proceeding with the restructure. Her email also stated:

Moving forward, the Department … is changing its research direction. This change is necessary in order to advance medical discoveries that have current clinical significance and require significant funding from bodies such as NHMRC and the [MRFF] … Unfortunately, the field of evolution and related anthropological activities do not in any context fall within this research direction.

118   By letter dated 6 September 2019, Dr Pilbrow was formally advised that her position of ‘lecturer – topographic anatomy’ was to be made redundant due to structural changes within the Department.  The letter stated the redundancy was in accordance with the 2018 Enterprise Agreement. She was informed that her employment would terminate on 1 November 2019 following eight weeks’ notice which would commence on 6 September 2019.

119   The letter informed her of the redeployment process as regards suitable alternative positions. She was informed of her payout and calculations (22 weeks plus three weeks salary for each continuous year of service) and of other rights including EAP availability.  

120   As for the grounds for her position being made redundant, in cross-examination, Dr Pilbrow was taken to the minutes of an ‘Extraordinary Meeting of the Executive Committee’ of the Department on 21 May 2019 (‘the 21 May 2019 minutes’). This was a meeting was chaired by Prof Wilkinson-Berka and attended by Prof Hime as well as other professors and senior Department staff.

121   The first item in the 21 May 2019 minutes referred to ‘Vision for Research’ in the Department and stated (in part) as follows:

Jenny outlined that the Department should focus on a ‘freshen up’ effect, in terms of Research Strategy environment to be successful in large external grant funding and ... the MRFF space. …Jenny thought that Anthropological Research does not fit into any area of research conducted in the Department. Furthermore, after looking at financial data, there has not been any large income generated. Although Anthropological Research is an interesting topic, Jenny's thoughts were that this area of research could not be linked to the key areas in the Department and would not generate substantial competitive grant funding.

122   The 21 May 2019 minutes recorded the Committee’s discussions (in part) as follows:

·Anthropological research … has not grown since 2009 with no one being employed, no large grant income generated, except for $25K a couple of years ago and some Departmental funding contribution.

·The incumbent was mainly employed to teach Topographical Anatomy.

·On numerous occasions, mentoring was provided to help the incumbent to pursue collaboration with the Department of History at the University but to no avail.

·In an evolutionary standpoint, Anthropological Research is an interesting area of research... however, the question was raised whether the incumbent can proceed to advance the research to the level that is viable as expected by the Department.

·… It was noted that the incumbent has isolated themselves to the point that no potential research collaborations could have eventuated.

·The incumbent has had various collaborations over the past years... and for various reasons, these collaborations have not eventuated and as such it seemed to be problematic.

123   The 21 May 2019 minutes then recorded that Prof Wilkinson-Berka queried: ‘… the core business and sustainability of this research area regardless of personalities and future recruitments’.

124   In cross-examination, Dr Pilbrow said she had not seen the minutes previously and disagreed with the content of the document.

125   In re-examination, Dr Pilbrow said her treatment by the University through the redundancy was really poor and a source of trauma for her. Her view was that University did not comply with its obligations under with Enterprise Agreement in terms of consultation.

Restricted swipe card access - October 2019

126   On the weekend of 5 and 6 October 2019, Dr Pilbrow needed access to her lab to complete some work. On the Saturday, she found her swipe card was not giving her access to the building. She called the University’s security office, but could not get through to anybody.

127   On the Sunday, she returned to find the same issue. She emailed the building manager, HR staff and also copied in Prof Wilkinson-Berka and the head of School, Prof McKay.

128   Dr Wilkinson-Berka responded by email with a query as to whether Dr Pilbrow was planning to take away University material without permission. Further emails were exchanged and Dr Pilbrow wrote that she had no intention of removing any materials.

129   In cross-examination, Dr Pilbrow agreed the access was reinstated that morning and full 24/7 access was restored after the weekend.

130   As for her state of mind at this point, she felt she was being accused of stealing. She felt extremely harassed and bullied. This was not just by one individual but by a whole mob and the conduct kept coming back to her over and over again. It was driving her to suicide and they were intending to kill her. That was all she could think of, over and over again.

Events of 17 October 2019

131   On 14 October 2019, Dr Pilbrow had received an email from Prof Wilkinson-Berka about the Berry specimens in her lab. The email stated that the Museum was undergoing a revamp which required the return of the specimens. Dr Pilbrow asked by email whether she could be permitted to keep working on the materials in the lab. She received no response nor did she hear anything further about the specimens being returned.

132   On 17 October 2019, Dr Pilbrow returned to her lab after a break to find two security guards standing outside her lab. They stopped her from entering the lab, saying she was not permitted to enter.  At that point, she froze and had ‘a complete panic attack’.

133   In cross-examination, she denied there was only one security guard and also disagreed that she was not stopped from entering the lab.

134   From the doorway, Dr Pilbrow could see A/Prof Fogg and four or five other academics and Museum staff. She asked A/Fogg for an explanation. He told her the Berry specimens were being removed as had been communicated with her by Prof Wilkinson-Berka.

135   In cross-examination, Dr Pilbrow said it was extremely humiliating to be confronted with the sight of people dismantling her lab. She felt shock and panic.

136   Prof Hime, who was also there, suggested they go and see Prof Wilkinson-Berka. They went upstairs with one of the guards to Prof Wilkinson-Berka’s office. However, when they came out of the lift, Prof Wilkinson-Berka was in the corridor outside her assistant’s office. When Dr Pilbrow asked to speak with her, Prof Wilkinson-Berka replied, ‘I don't need to speak to you’ and walked away slamming a door as she left. Prof Wilkinson-Berka denied she slammed the door.

137   At this stage, Dr Pilbrow felt stressed and completely shocked. Her legs were shaking and she could barely breathe. She did not know what was happening to her or why.

138   She went to her office where she received a phone call from her union who warned her to expect to be told to pack up and leave the building. Soon after, a senior HR officer (Mr Michael Caswell) came and told her she needed to leave and the reason would be explained the next day at a meeting.

139   Dr Pilbrow was escorted by the security guards out of the building and across the campus to Royal Parade. She had to pass by people and felt utterly humiliated. She did not know or understand what was happening.

140   Dr Pilbrow could not say what might have justified the use of security guards to escort her off the premises. All she could think of was that this was a mob bullying her so much that they really wanted to completely destroy her and kill her.

141   In cross-examination, Dr Pilbrow denied she had demonstrated previously a possessive attitude towards the Berry specimens in her lab such as during the November 2017 audit by Dr le Roux.

142   In cross-examination, Dr Pilbrow disagreed that it was reasonable for the Prof Wilkinson-Berka to arrange security on 17 October 2019 given the circumstances of her redundancy and an issue that had come to light regarding deletion of files by her from the University's learning management system (‘LMS’). Dr Pilbrow said she failed to see any connection.

Cyber security and intellectual property breaches allegation

143   The next day, on 18 October 2019, Dr Pilbrow (with Mr Rabaut and also her husband) attended a meeting with Mr Michael Caswell, the University’s associate director of workplace relations, and the HR adviser, Ms Karakiozakis.

144   The purpose of the meeting was to inform her of an allegation against her by the University that may form the basis a finding of ‘serious misconduct with continuing employment untenable’. The allegation related to her having carried out the deletion, and apparent re-deletion, of files from the LMS.

145   It was alleged that on 11 October 2019 under her ‘User ID’, multiple files were deleted from the LMS. The files, which were for the use of students and academics, included: teaching materials, practical class notes, assessments and course timetables.

146   In the meeting, Dr Pilbrow was handed a document headed ‘Content Deletion Report’ generated on 17 October 2019 (‘the Deletion Report spreadsheet’). The document ran over almost thirty-five A4 pages and had four columns headed: ‘Who / Action / When / What’.

147   Under the column ‘Who’, the name ‘Varsha Pilbrow’ appeared on every row. Under the column ‘Action’, the word ‘Deleted’ appeared on every row. Under the column ‘When’, appeared a date and time with all dates being ‘11/10/2019’. Under ‘What’, the item deleted was listed.

148   Dr Pilbrow was given time in the meeting to review the spreadsheet. She agreed she had carried out deletions of files, however this was ‘spring clean’ to comply with the University’s frequent direction that academics ‘clean up’ files on the LMS. Also, there had been a direction to clean up files in advance of a planned change-over to a new LMS platform.

149   The spreadsheet set out files which appeared twice and this gave the impression of re-deletion. However, Dr Pilbrow strongly disputed any re-deletion of files.

150   In cross-examination, Dr Pilbrow conceded to having inadvertently deleted some files that were ‘live’ in the sense of currently being used by students. She thought she had done this via a single click of a mouse on a folder rather than individually clicking on a series of individual files.

151   As for how she felt when she was presented with this allegation, Dr Pilbrow felt she was being subject to ‘gaslighting’. That was because of the discrepancy between the allegation of deletion and re-deletion of files.

152   In the 18 October 2019 meeting, Dr Pilbrow felt like she was being blackmailed. She was told she could ‘take the redundancy payment and walk away right now’. Alternatively, she was told she would not get much at all in the event the charge of ‘serious misconduct that renders continuing employment untenable’ being upheld.

153   By email on 25 October 2019, Dr Pilbrow received a lengthy letter (authored by Mr Caswell) formally advising of her suspension for serious misconduct (‘the 25 October 2019 letter’).  The letter referred to the 18 October 2019 meeting and stated that the University had since made further enquiries.

154   The letter then stated that, for the reasons set out in the letter, the University had formed the view that Dr Pilbrow had engaged in serious misconduct that rendered continuing employment untenable pursuant to the relevant clauses of the 2018 Enterprise Agreement.

155   Under the heading of ‘Background’, the sequence of events that the University relied upon (numbered ‘A’ through to ‘I’) were set out chronologically from the initiating event on 11 October 2019. That was when A/Prof Fogg received emails from anatomy students alerting him that they could not access materials on the LMS. A/Prof Fogg had re-loaded materials, only to receive further emails from students still unable to access the materials. Then, over that week, the Department’s learning resource team reviewed which files had been deleted and by whom. A/Prof Fogg had then learned that the files related to two anatomy subjects and had been deleted utilising Dr Pilbrow’s ‘user ID’.

156   The 25 October 2019 letter set out the University’s views regarding consequences of the deletions which were that:

·‘…students were significantly disadvantaged at a time when they were completing work for assessment that may result in requests for special consideration’,

·The deletion of these files requires significant rebuild of the LMS and restoration of the deleted files.

157   There were two supporting documents attached to the 25 October 2019 letter as follows: a signed one-page report of A/Prof Fogg dated 18 October 2018 (‘A/Prof Fogg’s 18 October report’); and the Deletion Report spreadsheet (‘the Attachments’).

158   As for the basis of the ‘serious misconduct’, the letter stated that the University considered Dr Pilbrow’s conduct constituted breaches of:

·sections of the Appropriate Workplace Behaviour Policy ‘including but not limited to failure to act in good faith and use skill, care and diligence in the performance of her duties and not intentionally cause serious risk to the reputation or viability of the University’; and

·sections of the Information Security Policy relating to her user ID being used to delete University owned intellectual property.

159   Further, the University considered her conduct, in deleting ‘the Intellectual Property’ was in breach of University policy and was serious misconduct. Her conduct, as set out in the attachments, was ‘serious misconduct’ in that:

·It was ‘wilful or deliberate behaviour’ inconsistent with her continuing employment;

·It caused ‘serious and imminent risk to the viability or profitability of the University by having the potential to disadvantage students and expose the University to reputational harm’.

160   The 25 October 2019 letter concluded that there was sufficient evidence of ‘serious misconduct’ and of breaches of the terms of her employment contract based on breaches of University policy and statute.

161   Dr Pilbrow was given ten days to respond. She lodged a dispute under the Enterprise Agreement and with the Fair Work Commission.

162   The University then convened a dispute committee to review the serious misconduct allegation under the terms of the 2018 Enterprise Agreement.

163   Ultimately, in early December 2019, Dr Pilbrow was informed that the dispute committee had found there was insufficient evidence to sustain an assessment of serious misconduct.  The dispute committee had found that deletions occurred over a four-minute period. Also, an updated log provided by the University did not identify deletion of reinstated files ‘as was suggested’. The committee could find nothing in materials received that suggested Dr Pilbrow’s action in deleting files was malicious.

164   Dr Pilbrow agreed that, via Mr Rabaut, she was provided with a copy of an extra report of 6 December 2018 prepared by a member of the dispute committee, Prof Sean Cooney. This report contained the personal observations of Prof Cooney, an associate dean of law with the University, who recorded that he was ‘troubled by the way the Workplace Relations unit of the University had formulated its case in the 25 October 2019 letter’. Prof Cooney also stated that he found it ‘hard to see’ that the deletion of files on a single date over a period of four minutes in purported compliance with the University’s direction could constitute serious misconduct in the absence of additional contextual evidence. Prof Cooney stated also:

Staff remove and delete files on University platforms on a daily basis. Sometimes, large numbers of files can be removed/updated at once, often in response to a direction or recommendation. In my view, staff should not be in danger of having their employment terminated on such a basis unless there is: deliberate sabotage; or, gross and (usually) repeated failure, contrary to appropriate advice, to use skill, care and diligence in the use of University systems.

165   Prof Cooney had observed in conclusion that any allegation of sabotage or gross incompetence would need to be supported by clear evidence.

Redeployment process

166   As part of the University’s redeployment process enacted under the Enterprise Agreement, Dr Pilbrow had been proactive in expressing interest in and applying unsuccessfully for roles within the University such as with the Dental School and in Virology.  

167   In cross examination, Dr Pilbrow agreed she received a statement regarding the searches conducted across the University. She agreed the statement said the searches were done, but had no evidence to suggest they actually did this.

End of employment with the University

168   Dr Pilbrow did not return to work at the University again after 17 October 2019.

169   By letter dated 6 January 2020, she was given a ‘final written warning’ of unsatisfactory performance on the basis of the file deletions (‘the FWW letter’).  In essence, the University maintained that ‘the conduct … remains unequivocal’, and that the file deletions conduct did not accord with its workplace policies nor with its expectations as to appropriate behaviours of an experienced and senior academic.

170   Subsequently, Dr Pilbrow received a redundancy payment. Her last date of employment was on 27 February 2020.

Current circumstances

171   Ever since her departure from the University, Dr Pilbrow had continued applying for positions in tertiary education, both full time and part time. She had arranged an affiliation with Latrobe University as an honorary research fellow That was originally to have access to a university library so she could assist one of her former PhD students. She had maintained a current profile on the website for the Australian Institute of Archaeology. She had done some pro bono work in order to keep up her academic profile.

172   Dr Pilbrow thought that, if she did get a job, she would completely fail. For example, she had done a half day of paid work providing an external review for a Masters thesis at the Australian National University, but needed an extension even to do that.

173   Dr Pilbrow was not taking anti-depressant or anti-anxiety medication. That was on the advice of her GP, Dr Whiteside, and her psychologist, Dr Cattapan.

174   In cross-examination, she agreed that in the past she had kept working full-time even whilst being treated by a psychologist. That was because she had loved her job and was extremely scared of losing her job.

175   In cross-examination, Dr Pilbrow agreed that on 25 November 2020 proceedings were initiated on her behalf in the Federal Court of Australia seeking reinstatement of her position as a Level B lecturer with the University.

176   In cross examination, she denied that the redundancy and severance sum she received from the University (being $122,114 net and a total severance figure of $156,000 net) was effectively a disincentive for her to obtain work.  That was because she needed to work as she still had a significant mortgage and needed a living wage.

Other lay evidence

Mr Rabaut’s evidence

177   Mr Corey Rabaut, industrial officer, was employed by the National Tertiary Education Union for about eleven years until about six months ago. He had assisted Dr Pilbrow over the University’s allegations of under-performance and been a support person in meetings.

178   The under-performance concerns related to Dr Pilbrow’s research activity and the amount of research funding income she was bringing in.

179   Mr Rabaut’s concern, as expressed at the time, was that Prof Hime was assessing Dr Pilbrow’s performance as falling short of expectations for a Level C academic and that she should be performing at level C given the length of her employment. Whereas, in his view, that was an incorrect application of the Enterprise Agreement given Dr Pilbrow was a Level B academic. He therefore raised a dispute on her behalf.

180   As for the serious misconduct allegation, Mr Rabaut attended meetings about that issue as well and assisted in the dispute process.

181   Mr Rabaut had assisted her through the redundancy and redeployment process. In cross-examination, he agreed that she had wanted the redeployment process to continue as other matters were being sorted out.  He could not recall all the redeployment opportunities, but there were various roles explored including with the Dental School.

Ms Capodistrias’ evidence

182   Ms Marie-Julietta Capodistrias was an honours year student in the Department between February 2018 and mid 2019. Dr Pilbrow was her supervisor and mentor throughout and had been incredibly supportive.  

183   On 17 October 2019, Ms Capodistrias was working in Dr Pilbrow’s lab when a group of academics and others came in. They began retrieving materials and placing them on trolleys. She recalled Dr Pilbrow coming back after lunch to a security guard on the door and having to ask permission to enter.

184   In examination in chief, Ms Capodistrias was shown a transcript of Facebook Messenger messages between herself and her partner which she agreed contained her contemporaneous observations of people in the lab ‘removing stuff’.

185   As for her impressions at the time, Dr Pilbrow had seemed confused about why people were in the lab and why she was being ushered into the corridor and escorted into the lifts. To Ms Capodistrias, it had felt really wrong for them to be removing materials in this way. It seemed a bizarre and very strange situation and also serious.

186   In cross-examination, Ms Capodistrias agreed she wrote a message to her partner stating: ‘LOL I just got asked to leave but in a nice way’.

187   As for the number of security guards, in cross-examination, she initially said there was one guard, then two. Her impression was of ‘an element of her being held’ on either side of her arms as they ushered her into the elevator.

188   As for the LMS, in cross-examination, Ms Capodistrias said that was the platform for all learning materials and was ‘the main tool that everyone uses’.

189   In re-examination, her impression of Dr Pilbrow’s demeanour as she was escorted to the lifts was of being very upset, completely dumbfounded and that it was quite an uncomfortable sight.

A/Prof Hayes’ evidence

190   A/Prof Jennifer Hayes was an associate professor of anatomy in the Department. Dr Pilbrow had been a colleague in the Department for many years. They were also friends who would speak about their lives outside work over a coffee or a wine.

191   Between 2008 and 2018, A/Prof Hayes had chaired the Museum committee. In around 2017, the committee decided to audit the Berry collection as there had not been one previously.

192   As for the audit and the events of November 2017, A/Prof Hayes recalled the exchange of emails between herself, Dr Pilbrow and Dr Le Roux. On 15 December 2017, she had written to Dr Pilbrow requesting that ‘we please work together on this’.

193   She agreed Dr Pilbrow had replied as follows (in part): ‘The museum certainly cannot make … decisions with regards to my lab or specimens without consulting with me personally. This is highly improper or intrusive’.

194   At the time, A/Prof Hayes was unaware of Dr Pilbrow’s email of complaint about her to Prof Hime of 14 December 2017 at 6:15 pm which had stated: ‘… Jenny Hayes is not a member of my lab, has poor understanding of my research projects and her email to me was inaccurate and inappropriate? I’m not sure why she was involved as this is just adding to the trust and communication issues’.

195   A/Prof Hayes was unaware of any trust and communication issues at that time. Dr Pilbrow was as important to her as any member of her team. She was aware that Dr Pilbrow was keen for promotion and so she invited her to be on every committee that she chaired.

196   As for A/Prof Hayes’ decision, as chair of the committee, to include the item ‘Berry skulls’ on the agenda of the 30 January 2018 meeting, that was to discuss the audit of those specimens. In examination in chief, A/Prof Hayes was taken to the minutes of that meeting. The reference to her having a potential conflict of interest simply was to note her position as chair of both committees (the Museum and also topographic anatomy). The minutes referred to the audit and that a documented loan agreement would be set up between Dr Pilbrow and the Museum to align with the University’s cultural collection policies.

197   About this matter, A/Prof Hayes thought that Dr Pilbrow clearly ‘took exception’ to what she thought was straight-forward.

198   As for Dr Pilbrow’s 30 January 2018 email to the committee member complaining about A/Prof Hayes ‘interfering’ with her freedom of research, that broke her heart. She had always supported Dr Pilbrow’s research. Also, the specimens were always going to returned to Dr Pilbrow’s lab as the loan agreement would reflect.

199   In cross-examination, A/Prof Hayes said she was aware Dr Pilbrow had issues with Prof Keast because they had conversations about it. She also was aware she struggling which was why she had looked out for her. As for Dr Pilbrow’s demeanour in these conversations, A/Prof Hayes’ view was that there was a paranoid element to it in the sense of looking at an email and loading it with meaning or having a conversation and loading it with meaning.

200   A/Prof Hayes had hoped that Prof Keast no longer being head of Department that would represent a new starting point for Dr Pilbrow, but it was not.

Prof Keast’s evidence

201   Prof Janet Keast was head of Department from January 2013 until late 2017. Her appointment coincided with the Department's change of name to Anatomy and Neuroscience.

202   Dr Pilbrow reported to her and she had conducted her PDRs.  The question of financial support and research funding in relation to Dr Pilbrow came up several times.

203   As for the ‘furphy’ comment in 2015, Prof Keast conceded she had used the word ‘furphy’ in a discussion with Dr Pilbrow. The reason she remembered using that word was because Dr Pilbrow had looked very upset on the spot. She could not recall the precise context, but she thought it related to Dr Pilbrow’s line of reasoning that she had only just started a new job. The reality was she had been in the Department for seven or eight years.

204   As for the ECR award, those awards were regarded ‘like gold’ in the sense of being highly sought after. As the head of Department, it was her role to review and advise potential candidates on whether they were likely to be competitive or were ‘way off the mark’. She had to rank applications and justify her ranking to the Faculty.  

205   As for whether she had told Dr Pilbrow that she was ‘too old or too advanced’ for that award, she would never make a remark about somebody’s age. Age was irrelevant as these awards were decided not by age, but by years of post-doctoral experience.  She could not recall having used the phrase ‘too advanced’. But if she had, it would have been in the sense of advanced relative to post-doctoral experience.  

206   In cross-examination, Prof Keast disagreed that eligibility for an ECR award included having an ongoing position. Many ECR awards were given to academics who were not in permanent roles. She also disagreed that all, or even most, academics that were promoted from Level B to Level C would have received ECR awards. That was numerically impossible because there were many more staff promoted than there were such awards.

207   Prof Keast assessed that Dr Pilbrow met some aspects of performance expectations such as in teaching. However, research was a major component of the position of ‘lecturer - teaching and research’ and her performance did not meet expectations of an academic in that position. This was a matter about which Prof Keast had been very concerned going back over previous years. The issue was Dr Pilbrow not successfully obtaining research funding from external funding bodies. These were bodies that support academic research such as the Australian Research Council (‘ARC’) and the National Health and Medical Research Council (‘NHMRC’). The lack of external funding meant the Department was continuing to fund Dr Pilbrow’s research. This was both highly unusual and unsustainable as Prof Keast had recorded in the PDR document.

208   Strategies and mentoring had been offered by Prof Keast and others to facilitate Dr Pilbrow having greater focus on external collaborations. That was intended to increase opportunities for funding.

209   In cross-examination, Prof Keast said that figures such as in the 2015 Research Productive Minimum Expectations document were to be regarded as a guide for appraising staff across the School. Her view was having precise numbers just did not work in practice because nobody would ‘wear it’.  

210   As for Dr Pilbrow being distressed around the time of the 2017 performance appraisal, Prof Keast acknowledged it was distressing because she trying to achieve advancement without much success. Dr Pilbrow would have liked that just as they would all have liked that for her. She was prepared to take into account the graduate student issue as, without that, her research performance may have met expectations.

211   As for why Prof Cappai had become involved in Dr Pilbrow’s PDR, that was because her relationship with Dr Pilbrow had become negative. Prof Keast had felt distressed this. She had sought HR advice which was to have Prof Cappai involved.

212   The relationship with Dr Pilbrow in the period after the 2017 PDR was awful and exhausting.  She spent time and energy trying to explain things to Dr Pilbrow, but they were getting nowhere. There was a barrage of negativity from Dr Pilbrow. For example, her addendum document to the PDR was misrepresenting Prof Keast’s attempts to assist her as negative activities.

213   Prof Keast felt she could no longer supervise Dr Pilbrow effectively. So, in September 2017, Prof Hime, then deputy head of Department, took over her supervision.

Prof Hime’s evidence

214   Prof Hime’s current role was deputy head of the Department, having been employed by the University from 1999. Between January 2018 and May 2019, he was acting head of Department. He had taken over the supervision of Dr Pilbrow from Prof Keast in about September 2017 due to Prof Keast wanting to step aside because of the irreconcilable differences between them.  He remained Dr Pilbrow’s supervisor until May 2019 when Prof Wilkinson-Berka became head of the Department.

215   In April 2018, Prof Hime conducted Dr Pilbrow’s performance review for the preceding academic year of 2017. He had completed the supervisor comments in the PDR document which had been a triennial review. That was a two-part process involving the meeting with the supervisor, then the supervisor obtained an opinion from a panel of two other senior academics.

216   As for Dr Pilbrow’s feelings of being isolated, under cross-examination, Prof Hime said that being the only person conducting research in her field, she could have felt isolated in that sense. She was not placed on several committees because it was not felt she could productively contribute to those committees.

217   As for her performance, she was a productive member of the teaching team.  The major concern for the School related to Dr Pilbrow being the only team leader not bringing in significant research funds.  

218   Prof Hime agreed that the PDR document recorded that Dr Pilbrow had brought in a total of $6,000 over the previous last year three years. That was against the expectation for Level B which was a minimum income of $20,000 per annum. That had not been achieved by Dr Pilbrow. Essentially, that meant her research was unsustainable without continuous financial input by the University. The figure of $20,000 came from the academic performance framework documents from 2015 to 2017.

219   In cross-examination, Prof Hime said he could possibly accept that an academic’s teaching load of around 55 per cent would mean less time to allocate research activities. However, in Dr Pilbrow’s case, she probably spent less than 20 per cent on ‘leadership and service’ as she did not have any major leadership roles within the Department.

220   As for his commentary in the PDR document regarding ‘leadership and service’, Prof Hime agreed there were concerns about Dr Pilbrow’s modes of communication. That was the underlying basis for the following comment:

… I strongly advise not sending emails in the middle of the night. If you are annoyed by an interactional process at the university, it is important to communicate this in the cold light of day. … Although you may think you are in the right, you need to work on awareness, on an awareness of the way you interact with other people.  

This related to email communications sent by Dr Pilbrow to other academics that caused distress. For example, in December 2017, A/Prof Hayes told him she could no longer deal with interactions with Dr Pilbrow which were causing her mental distress. She wanted to step down from leading the teaching group and chairing the anatomy committee.

221   As for the PIP in 2018, that was initiated by him, in consultation with HR, following the outcome of ‘not meeting expectations’ in her performance review. The two major performance concerns were research funding and communication with other staff. There were multiple meetings about, and iterations of, the PIP document. Dr Pilbrow and Mr Rabaut had numerous objections and modifications. Ultimately, there was a version with the start date of 1 November 2018 to December 2019 which incorporated changes requested by Dr Pilbrow and her union representatives.  

222   In cross-examination, as for figures to be achieved for research funding, all Prof Hime wanted was to see Dr Pilbrow bring some funds into the Department as virtually every other academic was bringing in at least $100,000 annually. The Department had just wanted to see something. He had ultimately reduced the figure from $25,000 to $20,000 which he believed was achievable.

223   After the 31 May 2019 meeting about the panel review outcome, Prof Hime had bowed out of the process as Prof Wilkinson-Berka had taken over as Dr Pilbrow’s supervisor.

224   As for the issue of promotion, most academics did not remain as Level B academics for the length of time that Dr Pilbrow had. In his own experience, he was Level B for five years before promotion and most academics he knew progressed in a similar way.

225   Ultimately, in relation to the PIP, all their time was spent discussing the necessity for the plan and so there was no chance to follow up aspects of the plan itself with Dr Pilbrow.

226   As for the 11 May 2018 meeting, Prof Hime was aware of Dr Pilbrow’s allegation that he had said ‘everybody in the anatomy group hates you’.  He denied having used such unprofessional language.  He would never tell a staff member that another staff member hated them. He regarded himself as somebody who stays calm, but on this day, he felt the most agitated that he ever had with Dr Pilbrow. He was agitated because A/Prof Hayes had been in his office crying about her inability to cope with the actions and communications of Dr Pilbrow. Professor Hime could not recall his exact words, but it would have been something on the lines of ‘look, everybody is annoyed with you’ or ‘everybody has issues with you’.  

227   As for the 5 December 2018 meeting and whether he had thrown documents and said ‘that's what the school thinks that your achievements’, Prof Hime recalled the discussion and the arguing about the merits of the PIP. He recalled holding the bundle of papers in his hand at one point and dropping them to the floor.

228   In cross-examination, Prof Hime agreed that dropping the documents from his hand was a deliberate act. His point was to say, ‘let's not concern ourselves with the minutiae of this document’. Rather, he wanted to focus on improving Dr Pilbrow’s research and improving communication. He conceded it was an aggressive act designed to influence Dr Pilbrow strongly.

229   As for the deletion of LMS files, at that time of the academic year, it would severely impact upon students and their ability to study.  

230   As for the events of 17 October 2019, when Dr Pilbrow arrived back at her lab and had seemed concerned, he suggested they go and see with Prof Wilkinson-Berka. His recollection was sketchy, but he could recall Prof Wilkinson-Berka indicating she did not want Dr Pilbrow to enter her office.

231   Prof Hime could not recall whether there were one or two security guards.

A/Prof Fogg’s evidence

232   A/Prof Quentin Fogg was an associate professor in clinical anatomy in the Department and had been in that role from January 2018. From around April 2019, he was chair of the Museum committee.

233   Dr Pilbrow was a colleague with whom he worked on a couple of subjects and all of those interactions were pleasant and supportive.

234   As for the reason for retrieving the Berry specimens from Dr Pilbrow’s laboratory on 17 October 2019, that was the on advice of Prof Wilkinson-Berka, as head of Department. She advised that the Berry specimens (being Museum property) should be removed because the laboratory area in which they were held was no longer going to be in use.   

235   In cross-examination, as for the timing, the request had been to carry out the retrieval as soon as they could and 17 October 2019 was the first available date. He denied there were any specific protocols or inductions for people entering a ‘dry lab’ such that of Dr Pilbrow.

236   On 17 October 2019, he and a team of others, including from the Museum, attended the lab to retrieve the specimens. Soon after their arrival, Dr Pilbrow had returned to the lab. There was a brief and perfectly pleasant conversation. Dr Pilbrow then left with Prof Hime to speak with the head of Department.

237   As for the security guards, there was either one or maybe two present and they were unintrusive through the process.

238   In the month of October, students were preparing for summative assessments towards their final grade. Academics and students strongly rely on the course materials being available via the LMS as the primary source of information.

239   As for his awareness of the deletion of files from the LMS, he began receiving emails from students on around 11 October 2019 about files being unavailable on the LMS. He assumed this was an IT issue and contacted the helpdesk to look into it. He began restoring files and received more emails about invalid links. As a consequence of the deletions, he personally spent about two weeks of methodically going through materials and rebuilding hyperlinks with appropriate sequencing.

240   Given the time of year, he had expected a spike in students making ‘special consideration’ applications because of materials being unavailable, but in the end there was not. 

241   A/Prof Fogg received a communication from the IT team advising that there had been a deliberate deletion of files by Dr Pilbrow. The files related to two anatomy subjects. He recalled receiving the Deletions Report spreadsheet from the School manager very early on 17 October 2019 around 8:00 or 8:30 am.

242   A/Prof Fogg had prepared his 18 October 2019 report after a phone call from the School manager asking him to provide more information in relation to the deletions. His report, which was headed ‘RE: Cyber Security events of October 2019’, referred to himself and Dr Pilbrow teaching anatomy subjects and stated (in part) as follows:

… On 11th October 2019 a total of 232 files for the iteration of ANAT20006 currently running were deleted. I was alerted to issues with the [LMS] page for the course by students ... on 11th October 2019... I replaced those files straight away, thinking that I had uploaded them incorrectly. More emails arrived over subsequent days indicating those same files, and numerous others, were reporting as ‘invalid’. ... Further ‘invalid’ links were encountered by students early in the week commencing 14th October prompting additional investigation by the learning resources team… Early on 17 October I was advised that the issues were due to file deletions and that Dr Pilbrow had an unusually high amount of activity on the LMS during this period (the learning resources team and I did not suspect anything malicious prior to this.  This prompted a request for cyber security staff to investigate further. The investigation revealed that Dr Pilbrow had deleted these 232 files… … This was particularly important as the students had a major assessment scheduled for 16th October. …

… On 11th October 2019 a total of 778 five were deleted by Dr Pilbrow from the LMS for [another] subject. …

I hope this report provides sufficient context to support further investigations. I am available for further comment, if needed.

243   As for whether he had communication with Prof Wilkinson-Berka about this issue on 17 October 2019, he thought he might have seen her in the passing and they had been talking probably about the Berry collection retrieval that day. He probably would have mentioned to Prof Wilkinson-Berka receiving the report from cyber security. He thought he mentioned that the report concerned Dr Pilbrow. He was reasonably confident he would have conveyed to Prof Wilkinson-Berka finding the report quite surprising.

244   In cross-examination, A/Prof Fogg agreed he had taken no steps to ask Dr Pilbrow if she had deleted files. That was because he was instructed not to make contact with people. Also, when doing the work to restore the files, he was under the assumption it was an error on the LMS and, on that basis, had no cause to contact Dr Pilbrow.

245   In cross-examination, he conceded that there were no instructions given initially about not contacting anyone because there was no suspicion of the action being malicious at that point. He had contacted everyone affected by the deletion. He also agreed that only a limited number of people, including he and Dr Pilbrow, could have been responsible for the deletions.

246   In cross-examination, A/Prof Fogg agreed that the learning resources team did not suspect anything malicious prior to early on 17 October 2019.

247   He was then questioned as to at what point he had formed the belief that there was malicious intent. That was only when he received the report from the IT people with the list of deletions and the times they occurred. He would assume if somebody had accidentally deleted things, they would contact the course coordinator.

In cross-examination, A/Prof Fogg was then taken to an email dated 17 October 2019 at 2:33 pm addressed to Prof Wilkinson-Berka from Mr Terry Reidy, the University cybersecurity engagement manager (‘the Terry Reidy email’). The Terry Reidy email stated (in part): ‘… My team has undertaken a review of logging information following allegations of malicious deletion of University owned data within the [LMS] by an employee. …’

248   A/Prof Fogg himself had made no allegations of malicious deletion up until the stage of his 18 October report which was include in materials given to the disputes committee.  

249   As for whether the University asked academic staff to engage in a clean-up of the system, the University may ask staff to move files around but never to delete anything.

250   In cross-examination, A/Prof Fogg said at no stage did he make an allegation about Dr Pilbrow and the re-deletion of files.

251   Beyond the provision of his 18 October 2019 report, he was asked for no further input.

Mr Hogan’s evidence

252   Mr Sean Hogan was employed by the University in the role of director of workplace relations. He was involved in issues relating to the redundancy of Dr Pilbrow’s position which included the convening the dispute committee about that.

d.Prof Wilkinson-Berka, under cross-examination, conceded the reason for the restriction and then for seeking confirmation in the email chain that Dr Pilbrow would not remove items was due in part to a lack of trust by her in Dr Pilbrow at that point. She agreed that was due to impressions gained from Department members about difficulties working with Dr Pilbrow.

538      Thirdly, Prof Wilkinson-Berka’s refusal to engage in any discussion with Dr Pilbrow on 17 October 2019 was unreasonable and again, to my mind, based on mistrust and suspicion that I find was without proper basis. I do not accept Counsel for the University’s submission that this was reasonable in all the circumstances.

539      Certainly, it is true that by this stage of the day, the cybersecurity breach issues were playing a part in Prof Wilkinson-Berka’s refusal to engage. Prof Wilkinson-Berka, under cross-examination, explained the refusal to engage with Dr Pilbrow as everyone, including her EA, being stressed and worried. She also said that having received the information regarding the cybersecurity issue from Mr Ready, she had not wanted to confuse the situation.

540      Weighing the evidence, I find that mistrust and suspicion, by then also flowing from the conversation between her and A/Prof Fogg, also informed the use of the security personnel to escort Dr Pilbrow off the premises. I find these matters were, when weighing the whole of the evidence, without proper basis. That derived from A/Prof Fogg’s assumption or conclusion, conveyed to Prof Wilkinson-Berka, that Dr Pilbrow had acted with malice in deleting files.

541      In short, I find that the manner in which aspects of the management action of redundancy was taken on 17 October 2019 was unreasonable in particular: the timing and manner of the Berry specimens retrieval; the use of security; and the failure to engage in any discussion or communication on the day.

542      I make that finding considering the whole course of conduct of the day and events leading up to it. That is because the authorities are clear that management action is not rendered unreasonable because of missteps along the way. To my mind, this was more than missteps but a whole of course of conduct that was unreasonable and accorded an unnecessary lack of respect and dignity to a long-serving employee.

Other matters - redeployment process and restriction of access

543      As I have said, it was not in issue that the redeployment process was a part of the management action of the redundancy. There was a considerable amount of evidence in relation to activity undertaken by the University across various faculties with respect to exploring redeployment opportunities. I do not understand Mr Rabaut, as the Union representative, nor indeed Dr Pilbrow’s Counsel to have contended seriously that this aspect of the redundancy was undertaken without appropriate diligence. I accept Mr Hogan’s and Ms Karakiozakis’ evidence regarding the searches and roles exploited.  I find that the management action of redeployment was taken in a reasonable manner and was on reasonable grounds given the redundancy.

544   I have already referred to the evidence regarding the restricted access. I find that restricting the access of an employee whose role has been made redundant was management action on reasonable grounds in all the circumstances, yet was as I have observed under-pinned by suspicion and mis-information. That meant there was no communication about the restriction to weekdays which I find was unreasonable particularly given the whole of the evidence of Dr Wilkinson-Berka and the immediate restoration of 24/7 access.

Suspension on grounds of serious misconduct

545      The evidence was that Dr Pilbrow was advised formally of the suspension of her employment the next day (on 18 October 2019) in a meeting with Mr Michael Caswell, the University’s associate director of workplace relations, and Ms Karakiozakis.  Her husband and Mr Rabaut also attended. She was then informed of the alleged cybersecurity and intellectual property breaches that the University considered may form the basis of a finding of ‘serious misconduct with continuing employment untenable’. In essence, this arose out of the deletion, and alleged re-deletion, of files on the University's LMS.

546      The evidence was that in the meeting Dr Pilbrow was handed the Deletion Report spreadsheet and given time to review it whilst Mr Caswell and Ms Karakiozakis were out of the room.

547      The evidence was unchallenged that Dr Pilbrow had in fact deleted a volume of files which she immediately confirmed. She also explained that it was to comply with University directions about cleaning up files on the LMS in advance of the planned change-over to a new LMS platform.

548      Dr Pilbrow accepted that she had deleted current files with ‘live’ content in use by students, however she had done so inadvertently and without any realisation that in doing so she deleted ‘live’ materials. This had happened via a single click of a mouse on a folder rather than individually clicking on a series of individual files. However, Dr Pilbrow strongly disputed in the meeting any re-deletion of files, rather the printed digest contained duplication.

549      In the 18 October 2019 meeting, Dr Pilbrow felt like she was being blackmailed and subject to ‘gaslighting’. Her evidence was of being told she could ‘take the redundancy payment’ and walk away. Alternatively, she would ‘not get much at all’ should the ‘serious misconduct’ charge be upheld.

550      Dr Pilbrow was given ten days to respond which she did and included an email from September 2019 about the need for academic staff to clean up old files.

551      The evidence was ultimately that, in early December 2019, the dispute committee found there was insufficient evidence to sustain an assessment of serious misconduct.  As I have noted previously, the dispute committee found that deletions occurred over a four-minute period and there was no basis as an updated log provided by the University showed of re-deletions ‘as was suggested’ in the 25 October letter.

552      Further to those findings, I attribute considerable weight to the opinion of Prof Cooney, a professor of law, and an employee of the University. His opinion, which he expressed voluntarily and candidly against the interests of the University, was one I found to be sensible, well-reasoned and independent of the School.

553      I agree with Prof Cooney’s view that the way in which the Workplace Relations unit of the University formulated its case in the 25 October 2019 letter was ‘troubling’. The heavy reliance on ‘the attachments’ particularly A/Prof Fogg report of 18 October 2019 was problematic. I have already referred to my considerable reservations regarding many aspects of A/Prof Fogg’s evidence and his presumption of malice or deliberate intent.  The University’s own updated log confirmed no re-deletions as I have noted and there was no reference to the documentation provided by Dr Pilbrow such as the Melissa Hofstetter email about cleaning up files.

554      As the Committee found, and Prof Cooney noted, the rapid leap by the University to an assessment of serious misconduct and suspension of employment was entirely unreasonable (when the actual deletions activity was in a single four-minute session to comply with employer instructions) was entirely unreasonable. That is particularly given Dr Pilbrow’s explanation of compliance with the University’s direction.  

555      On this matter, I take into account Mr Hogan’s multiple concessions under cross-examination which included that:

a.on the basis of being shown the Melissa Hofstetter email containing instructions to clean up files, Dr Pilbrow was acting under lawful and reasonable instruction by the University as an employee

b.an employee undertaking the process of deleting files could not permanently delete files altogether in the sense of destroying intellectual property; and,

c.given Dr Pilbrow’s evidence about the deletion being via a click on a folder, this could have been an accidental deletion.

556      Finally, Mr Hogan, whom as I have already stated I found to be an impressive witness, agreed there was no evidence to suggest other than that the deletion was an isolated and inadvertent incident.

557      For these reasons, I find the grounds of the management action of the serious misconduct assessment and suspension of employment was unreasonable as was the manner in which the action was taken given the problematic aspects of the letter and the assumptions made to which I have referred.

558      Unfortunately for Dr Pilbrow that was not the end of the cybersecurity issues.

559      Her various allegations about this matter included that the University maintained a record on her file regarding the alleged breaches in circumstances where they were not substantiated. [35]

[35]          Sched. 1 (xv) to (xviii).

560 I find that the University did maintain such a record because it determined that ‘misconduct’ had nevertheless taken place in reliance on clauses in the 2018 Enterprise Agreement. That was evident from the FWW letter of 6 January 2020. There is no question the FWW letter was ‘management action’ pursuant to the definition of s 40(7) being either appraisals, counselling or communication.

561      The grounds for the FWW letter were stated to be:

‘Following the review of the purported serous misconduct undertaken in accordance with … the Enterprise Agreement 2018, the conduct by you remains unequivocal’.

562      Further, whilst it acknowledged Dr Pilbrow’s explanation that she was acting on University instructions in relation to a clean-up, in having deleted live content, she had acted ‘negligently and carelessly in the discharge of [her] duties and responsibilities…’ I note that Mr Hogan agreed in re-examination that under the Enterprise Agreement, ‘misconduct’ included ‘negligent, careless or incompetent discharge of an employee's duties or responsibilities’.

563      I find the FWW letter was action taken not on reasonable grounds. Certainly, it was accurate that Dr Pilbrow had deleted live content and had done so inadvertently and with insufficient care. However, to my mind, the statement that the conduct ‘remains unequivocal’ whilst technically correct in the sense that there had been deletions of files, nevertheless, fairly plainly fails to take account of the entirely of the circumstances and findings of the dispute committee as well as the sage observations of Prof Cooney. I have already referred to these matters at length.

564      Weighing the whole of the evidence, it seems to me the University has taken an unduly punitive and unreasonable approach to this matter in issuing the FWW on the grounds I have noted. For completeness, I take no account of the fact that there was a latter correction to the heading which referred to ‘unsatisfactory conduct’ as it was plain from the body of the letter the University was relying on ‘misconduct’.

565      Having made findings in relation to the management action, I summarise my overall findings:

a.The management action of redundancy was on reasonable ground but not taken in a reasonable manner based my findings in relation to the events of 17 October 2019.

b.The management actions in relation to the cybersecurity breaches (being both the serious misconduct assessment and the FWW letter) were not on reasonable grounds nor taken was in a reasonable manner.

566      Having made those findings, I now return to the question of injury.

567      I have already made findings of injury and causation in the course of employment in 2017 and 2018 as to: the actual events and circumstances; Dr Pilbrow’s subjective perceptions of her treatment in that period; and of the real connection between them.

568      Further, I find that Dr Pilbrow suffered injury as a consequence of the management action of redundancy (taken in an unreasonable manner) and the cybersecurity breaches (taken on unreasonable grounds and/or in an unreasonable manner). 

569      The evidence was that after the events of 17 October 2019, there was a gap of a few weeks before she sought treatment. On 11 November 2019, she saw Dr Whiteside in a 35 minute consultation and the focus of the history as the accusations of cybersecurity breaches, the suspension and the University ‘trying to terminate her services’. He does not make a specific diagnosis although notes sleep deprivation and suicidal ideation. The next day she saw Dr Cattapan and was focused on the cyber security issues, then not again until 12 December 2019. On that day there was a reference to her having consulted her lawyers who were suggesting delaying the process at that time.

570      Counsel for the University made submissions about the significance of the evidence of a four month gap in treatment until April 2020. When she does see Dr Whitehead, the history is of being retrenched and the misconduct charge not being dropped. The next week she saw Dr Cattapan describing ‘feeling pressured financially’ and of having ‘no other option but to go through court because [the University] sabotaging any attempt at applying for other positions’.  

571      Certainly, Dr Pilbrow’s credit came under heavy attack on these matters (and the related issue of causation) in lengthy and rigorous cross-examination by Counsel for the University. This attack was made on numerous grounds including:

·her motivation to work was compromised by reason of the substantial redundancy payment;

·her litigious focus including seeking a remedy of reinstatement which appeared inconsistent with her evidence regarding incapacity;

·her continuing to work during past periods of psychological treatment (such as in 2013-14 and 2017);

·her continuation of work until 17 October 2019 as well as her proactive searches for work both with the University through the redeployment process up until her termination and then subsequently on her own evidence outside;

·her online academic profile and honorary fellowship with Latrobe University suggesting both her availability, and an unimpaired capacity, for work; and

·the evidence of both Dr Whiteside and Dr Cattapan that they were not fully cognisant of these issues. For example, Dr Whiteside said it was ‘news to him’ that Dr Pilbrow was applying for work even before 27 February 2020 when her employment ended. He also was unaware of her Federal Court litigation seeking reinstatement.

572      Ultimately, I am persuaded when weighing the whole of the evidence, in particular Dr Pilbrow’s own evidence but also that of her treating practitioners, the fact of Dr Pilbrow’s delaying of treatment and delaying pursuing entitlements under WorkCover was explicable on two main grounds: first, her stoicism a matter to (which I will return); and second, her desperate but unfounded hope that she would succeed in having the misconduct charge overturned as was apparent from the history given to Dr Whitehead on 23 April 2020.

573      Before I turn to capacity, I will consider one final aspect of causation.

Whether mental injury wholly or predominantly caused by management action on reasonable grounds and in a reasonable manner

574      For completeness, I turn to the question of whether injury was caused wholly or predominantly by aspects of management action that I have found were taken on reasonable grounds and in a reasonable manner. These were:

a.the appraisals and counselling (in short, the performance management);

b.the committees and meetings allegation; and

c.the external review omission of information.

575      In my view, the weight of evidence was against such a finding. None of those matters could be considered a predominant cause injury in the Pulling sense, of exceeding ‘all other causes in power and influence’.[36]

[36] [2018] VSC 248.

576      Dr Whiteside’s evidence was that the fact that Dr Pilbrow’s position was no longer available to her was a predominant cause of her problems. He considered there was ‘emotional trauma’ which came from the position no longer being available to her.  He agreed strongly with the with the proposition that the University’s change in priorities and her position no longer being available to her was a ‘burning issue’ for her and constituted some sort of betrayal to her.

577      I have already referred extensively to the evidence in relation to the causation between injury and her perceptions of ill-treatment during 2017 and 2018 and to the histories given in late 2019 and April 2020.

578      Neither of the medico-legal psychiatrists provided an opinion as to which of the multiple factors in the workplace would be considered ‘wholly or predominantly’ causative of injury.

Capacity

579      As for capacity, in July 2020, Dr Whiteside had opined there was no current work capacity. In May 2021, he opined that while she had applied for jobs, it was very doubtful whether she would be able to satisfactorily perform any of these.

580      When cross-examined in relation to the clinical records, Dr Whiteside agreed that he had not considered a need to issue a certificate of capacity before 29 April 2020.[37] On that date, he noted she did not feel well enough at that stage to apply for new jobs and he issued a certificate. 

[37]          That was apart from a certificate of capacity for two days issued on 1 July 2019.

581      Dr Whiteside was cross-examined on his opinion as to capacity for work given Dr Pilbrow’s apparent ability to concentrate whilst giving evidence over three days. His view was that that she was ‘probably fighting for her survival right now’ and giving it everything to present herself as well as possible during the proceeding.

582      I do not attribute particular weight to that matter as in my assessment three days of giving evidence is wholly different to sustaining full time employment as an academic lecturer.

583      I take into account that whilst both Dr Whiteside and Dr Cattapan gave evidence of not being cognisant of the whole of the circumstances relating to searches for work, there was nevertheless evidence of frank exchanges with both of them about seeking work and wanting to work. For example, on 29 July 2021, Dr Whiteside recorded a history that she was still applying for jobs but having ‘no luck at all, no responses at all’.

584      Also, under pressure of cross-examination he Dr Whiteside further conceded that the absence of psychiatric treatment was support for the proposition that Dr Pilbrow did not suffer from an incapacitating psychiatric condition. On other hand, Dr Whiteside’s further assessment, which I accept, was that she was ‘deeply emotionally scarred as a result of her relations with her employer’ and that a full recovery was doubtful.

585      Dr Cattapan, on capacity, opined that the symptoms of anxiety and trauma would impact significantly on her capacity for her pre-injury employment or any suitable employment. She assessed that had been the case since the time of her first report in May 2020. In examination in chief, Dr Cattapan said she was aware of her wish to work and of her having applied for work.

586      Whilst it is true there was a lapse in time before Dr Pilbrow sought help and certificates began to be issued, it is well-established in the case law that injury is not the same as incapacity although, of course there must be a nexus between them.[38]

[38]          See, for example, Total Transport Pty Ltd v Tasiopoulos [2019] VSC 266, [18].

587      It is also not necessary for the injury and incapacity to occur at the same time for there to be an entitlement to compensation. As stated by AsJ Daly in O’Brien Glass Industries Ltd v Pisani:[39]

It is apparent from the authorities, most recently the decision of the Court of Appeal in Richter v Driscoll,[40] that while there must be a causal nexus between an injury and incapacity for work, there need not necessarily be a temporal nexus between that injury and the resulting incapacity. One might expect there usually would be, but no requirement of such a temporal nexus is discernible from the authorities.

[39] [2018] VSC 294, [53] (a decision later upheld on appeal, this passage was not the subject of comment), see [2019] VSCA 61.

[40] [2016] VSCA 142.

588      In this case, my impression of the plaintiff was that she was a person of stoicism who continued working right through 2017 and 2018 when there were considerable difficulties and stressors in the workplace as I have found. She gave the impression of being determined and driven person with significant financial pressures who resisted stopping work during that period. Similarly, in late 2019 and early 2020. She was adamant that she needed to work, she had a significant mortgage and needed ‘a living wage’. She agreed, under cross-examination, that she had worked full time previously even whilst seeing a psychologist and the reason for that was she desperately needed her job. She wanted to do her job, loved her job and was extremely scared of losing her job.

589      In considering the question of capacity, I am guided by the statement of Nettle JA in Dwyer v Calco Timbers Pty Ltd No 2: ‘it would be unfortunate, and in [our] view wrongheaded … if such an applicant were treated less favourably than another who, being of less strength of character simply resigned himself to his injury’.[41]

[41] [2008] VSCA 260, [3].

590      Dr Whiteside, an impressive and sensible witness as I have observed, conceded that his opinion of incapacity was partly based on Dr Pilbrow’s own account of doubting her capacity, nevertheless seemed to me to hold considerable reservations about Dr Pilbrow’s capacity to function as full-time academic lecturer.

591      As for the medico-legal psychiatrists, neither opined that there was capacity for unrestricted pre-injury employment. Dr Hundertmark for the University considered in May 2020 there was a capacity for part time work in a role similar to her previous one. Both Dr Whiteside and Dr Cattapan considered there had been some deterioration since then. Dr Kaplan considered that as the prognosis was unfavourable. As for capacity, he opined that the condition was likely to impact upon her capacity for unrestricted work.

592      On that basis, the medical opinions are fairly consistent that there is not a capacity for pre-injury employment.

593      Weighing the whole of the evidence, including Dr Whiteside’s view of emotional trauma and likely incomplete recovery, I find there is not a current capacity for unrestricted pre-injury employment. I also agree with Dr Kaplan’s opinion regarding her condition being one that was likely to impact on her capacity for unrestricted work.

594      As for when the incapacity commenced, I find it likely that was from 29 April 2020 which is when Dr Whiteside issued the first certificate. Prior to that time, Dr Pilbrow herself was committed to her efforts to resume work.

595      Given the strong reservations of Dr Whiteside, Dr Cattapan and Dr Kaplan, including as to prognosis and recovery, I am not persuaded the weight of evidence that Dr Pilbrow has had or has a capacity for fulltime unrestricted employment even with a different tertiary institution in accordance with the principles in Kerridge-v-Monsfelt.[42]

[42] [2009] VCC 154.

596      For the reasons set out previously, I find that her incapacity resulted from or was materially contributed to by employment.

Conclusion

597For the grounds set out in these reasons, I find:

a.    Dr Pilbrow suffered a mental injury in the nature of a chronic adjustment disorder with mixed anxiety and depressed mood associated with panic attacks and traumatization features with a nominated date of injury of 17 October 2019 and her injury arose out of or in the course of her employment with the University as follows:

i.   in the course of employment in 2017 and 2018 given my findings as to: the actual events and circumstances over that period; Dr Pilbrow’s subjective perceptions of her treatment in that period; and of there being a real connection between those perceptions and the actual events and circumstances;

ii.   in the course of employment subsequently given my findings as to the management action of redundancy (being on reasonable grounds but in taken in an unreasonable manner) and the management actions of the ‘serious misconduct assessment’ and the final written warning relating to the cybersecurity breaches (taken on unreasonable grounds and in an unreasonable manner). 

b.    To the extent that other aspects of management action taken on reasonable grounds and in reasonable manner were causative of injury, it was not wholly or predominantly so.

c. The University has therefore failed to discharge the burden of proof with respect to its defence of management action in accordance with s 40(1) of the Act.

d.      Dr Pilbrow had no capacity for pre-injury employment from 29 April 2020 and such incapacity resulted from or is or was materially contributed to by the injury.

e.       She does not have a current work capacity for pre-injury employment.

f.She is entitled to reasonable medical and like expenses in accordance with the Act.