Pilbrow v University of Melbourne
[2022] FedCFamC2G 1001
Federal Circuit and Family Court of Australia
(DIVISION 2)
Pilbrow v University of Melbourne [2022] FedCFamC2G 1001
File number(s): MLG 3239 of 2020 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 1 December 2022 Catchwords: INDUSTRIAL LAW – FAIR WORK – where respondent agreed that applicant exercised workplace rights and respondent engaged in conduct which amounted to adverse action in four instances – central issues of who the relevant decision-makers were and whether any of the admitted adverse actions were taken for a proscribed reason – finding that termination of employment was natural consequence of redundancy and unsuccessful redeployment – where applicant’s area of research did not fit within future vision for the Department – reverse onus discharged in relation to three of four instances of adverse action – reverse onus not discharged in relation to one instance where relevant advisors not identified – application largely dismissed – further orders made for future programming of matter. Legislation: Fair Work Act 2009 (Cth), ss 340, 341, 360, 361 Cases cited: Alam v National Australia Bank (2021) 393 ALR 629
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273
Ermel v DuluxGroup (Australia) Pty Ltd (No 2) [2015] FCA 17
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Peters v Commonwealth of Australia [2021] FCA 1624
Division: Division 2 General Federal Law Number of paragraphs: 286 Date of last submission/s: 17 November 2022 Date of hearing: 28-31 March 2022 Place: Melbourne Counsel for the Applicant: Ms S Kelly Solicitor for the Applicant: Maurice Blackburn Lawyers Counsel for the Respondent: Mr B Avallone and Mr C McDermott Solicitor for the Respondent: Lander & Rogers ORDERS
MLG 3239 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VARSHA PILBROW
ApplicantAND: THE UNIVERSITY OF MELBOURNE
Respondent
order made by:
deputy chief JUDGE MERCURI
DATE OF ORDER:
1 December 2022
THE COURT DECLARES THAT:
1.The respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) by issuing the applicant with a Final Written Warning dated 6 January 2020.
THE COURT ORDERS THAT:
1.Save for the adverse action claim relating to the issuing of the Final Written Warning, the applicant’s application otherwise be dismissed.
2.The matter be adjourned for directions hearing on 27 February 2023 at 9:30am in relation to the issue of the future progress of the matter in so far as it relates to order 1 of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
Introduction
Before the court is an application in which the applicant, Dr Varsha Pilbrow, alleges that she has been subjected to adverse action by the respondent, the University of Melbourne, for a proscribed reason in contravention of section 340(1) of the Fair Work Act 2009 (Cth) (‘FW Act’).
It is common ground that the applicant was employed by the respondent since 2008. It is also not in dispute that the applicant’s employment came to an end on 27 February 2020 following notification that her position had been declared redundant and an unsuccessful redeployment period. Notwithstanding agreement about the process which was taken by the respondent in the lead up to her termination, the actual reason for her ultimate termination remained a live issue in these proceedings.
It is agreed that the applicant exercised various pleaded workplace rights and it is also agreed that the respondent engaged in conduct which amount to adverse action in four instances. I will expand upon each of the pleaded and admitted workplace rights and each pleaded and admitted adverse action below.
The key issue for determination in this case is whether any of the admitted adverse actions were taken because of one or more of the workplace rights exercised by the applicant.
Factual background
The principal facts in this matter are not largely in dispute. Set out below is a summary of the key facts. Unless the context suggests otherwise, by setting out a fact in these reasons without any qualification or comment, I intend to be taken to have made a finding of that fact stated.
The applicant was initially employed by the respondent as a casual tutor in 2008.[1] She progressed in her employment with the respondent until she was appointed to the position of Lecturer (Level B) on 1 July 2010, initially on a fixed term basis and then from 1 July 2013 on an ongoing basis.[2] The applicant continued in this role until her employment came to an end on 27 February 2020. At all times the applicant was employed in the Department of Anatomy and Neuroscience (‘the Department’).[3] The Department is in the School of Biomedical Sciences (‘the School’) in the Faculty of Medicine, Dentistry and Health Sciences (‘the Faculty’) at the University of Melbourne (‘the University’).
[1] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [7].
[2] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraphs [9] to [10].
[3] Although initially the Department was called the Department of Anatomy and Cell Biology.
As part of her role in the Department, the applicant provided custodianship for the Richard Berry collection and undertook research and supervised post-graduate students in the area of anatomical sciences focussing on topographical anatomy.[4]
[4] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [16].
At all relevant times, the applicant’s employment was subject to an enterprise agreement binding on the respondent – that is, until 26 March 2019, the University of Melbourne Collective Agreement 2013 applied (‘2013 Enterprise Agreement’) and then from 27 March 2019 until 27 February 2020, the University of Melbourne Collective Agreement 2018 applied (‘2018 Enterprise Agreement’).
The applicant participated in an annual performance review each year and from 2017 onwards, the University also introduced a triennial performance development review (‘Triennial reviews’).[5] The Academic Productive Framework Guidelines which applied at the relevant time state:
4.5 Annual reviews are an opportunity for the staff member and supervisor to:
•Discuss the staff member’s performance over the past year;
•Discuss the staff member’s overall career development, trajectory and, where applicable, progress towards promotion and/or confirmation;
•Identify areas for growth and development, including potential for SSP, and areas of concern;
•Agree on key goals and performance expectations for the coming year.[6]
[5] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [19].
[6] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at Annexure VP-6.
The Academic Productive Framework Guidelines also provide for Triennial reviews. Relevantly, it provides for such a review to occur every three years, for the establishment of an advisory panel and the process by which the advisory panel obtains information from and about the reviewee.[7]
[7] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at Annexure VP-6, paragraph [5].
Professor Gary Hime commenced in the role of Acting Head of the Department in January 2018 and continued in that role until May 2019.[8] As such, he formally became Dr Pilbrow’s direct supervisor during this period, although his evidence, which I accept, is that he had started to supervise Dr Pilbrow in September 2017 following the then Head of Department, Professor Keast, stepping down from that role.[9]
[8] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraph [6].
[9] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraph [8].
Professor Hime’s evidence, which I accept, is that during the period from September 2017 to April 2018, at which point he had formally taken on the role of Head of Department, he found it challenging to manage Dr Pilbrow as she often disagreed with matters he sought to raise with her about her performance, including issues around the level of research funding she was required to generate as a Level B academic,[10] as well as difficulties in Dr Pilbrow’s working relationships with her colleagues.[11]
[10] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraph [23].
[11] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraph [12].
In April 2018, Professor Hime asked Dr Pilbrow to participate in the Triennial review process.[12]
[12] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [20].
Prior to April 2018, Professor Hime had read Dr Pilbrow’s 2017 professional development review (‘PDR’) in which the concern about the level of research funding that she had attracted had already been raised with her.[13] The 2017 PDR also contains the following statements:
Significant improvement in research performance is expected within 2017. It is essential that Dr Pilbrow demonstrate her capacity for research performance at her current level by improving her productivity, including first or senior author primary research journal articles so that her research becomes sustainable (i.e., not dependent on direct department funding); this will also provide the opportunity for her to grow her research activity to a level that would support an application for promotion. …
VP addendum: I appreciate the feedback. I am committed to improving my research performance and will strive to meet the goals of journal articles and collaboration as outlined. I should note, however, that although I make regular attempts in my PDF to have candid discussions about the challenges associated with supervising my vibrant group of RHD students and growing my research in the department where I am the only researcher conducting research on topographical human anatomy, Prof. Keast’s only response is that she will not bring in another T&R academic. Her uni-dimensional approach to problem-solving makes it difficult to engage with her in productive or helpful discussions on surmounting the challenges. It is not true that I have not been successful in obtaining external funding for my research. My research and collaborative activity is funded and sustained by small philanthropic grants from the Leakey Foundation and Near Eastern Archaeology Foundation (NEAF), but also the Research Product Realisation 3D printing grant, and Miegunyah Funds (two in recent years), CNRS researcher grant, in addition to the equal-opportunity competitive department research support grants. The Learning and Teaching Initiative Grant obtained in 2016, while funded for innovation in teaching, is also relevant as it overlaps with my research in 3D printing.[14]
[13] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraph [19].
[14] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-6.
I accept that the applicant did not agree with some of the observations contained in her 2017 annual performance review.
As part of the review process, in early April 2018, Dr Pilbrow submitted her self-assessment of her performance over the three-year period of 2015 to 2017.[15]
[15] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraph [21].
After a meeting with the Triennial Review Committee, which occurred on 4 April 2018, Professor Hime invited Dr Pilbrow to a meeting with him on 6 April 2018 to discuss his and the review committee’s feedback.[16] I find that at this meeting, Professor Hime raised concerns about Dr Pilbrow’s performance relating to the level of research funding Dr Pilbrow had attracted and her interpersonal interactions with her colleagues. I also accept that Dr Pilbrow sought further information about each of these matters.[17]
[16] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraphs [21] and [23]; Annexure GH-8.
[17] See Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at Annexure VP-9.
With the exception of a couple of emails which she conceded contained intemperate comments, Dr Pilbrow did not accept Professor Hime’s feedback and asked for examples to support his assertions both about the concerns raised regarding the level of funding she had attracted and the alleged interpersonal issues.[18] It is clear from the evidence given by Dr Pilbrow at trial that she continued to hold the view that, as I say with the exception of one or two intemperate emails, her behaviour towards her colleagues was not inappropriate, and indeed, it was she that was the victim of inappropriate conduct from others in her Department. In relation to the funding issue, Dr Pilbrow maintained that the University did not properly take into account the funding that she was involved in generating.
[18] See, for example, affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at Annexure VP-16.
On 11 May 2018, Professor Hime received an email from Associate Professor Hayes advising him that she was resigning as Head of Topographic Teaching and Anatomy Group. In that email, Associate Professor Hayes said:
I am being quite open now that I am resigning because work has become a horrible and stressful place and I can’t take what I am being subjected to by Varsha anymore.[19]
[19] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-11.
Following receipt of this email, also on 11 May 2018, Professor Hime met with Dr Pilbrow to discuss the nature of her communications with her colleagues.[20]
[20] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraphs [29] and [30].
On 25 May 2018, Professor Hime sent an email to Dr Pilbrow to set up a follow up meeting in relation to the 6 April 2018 discussion. Professor Hime annexed to this email a Performance Improvement Plan (‘PIP’),[21] in which he identified two areas for improvement, namely the ‘ability to work collegially within established leadership structures’ and the need to ‘develop a viable research program’. The follow up meeting was scheduled for 30 May 2018.[22]
[21] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-14.
[22] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraph [33].
At the meeting on 30 May 2018, Dr Pilbrow complained about both the process that Professor Hime had followed and the substantive issues raised by him in the PIP.[23] Dr Pilbrow again requested specific examples of the issues raised against her. On 12 June 2018, Professor Hime wrote to Dr Pilbrow confirming that he was aware that he was to provide further information and specific examples of the matters discussed on 30 May 2018 and that he would endeavour to do so as soon as possible.[24]
[23] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [24]; Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraph [33].
[24] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-15.
On 14 September 2018, Dr Pilbrow received an email notifying her that her ‘2017 Triennial PDR’ had been completed.[25] She says that this occurred without any prior notice to her.[26]
[25] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [26]; Annexure VP-10.
[26] Applicant’s Outline of Submissions filed on 18 March 2022 at paragraph [20].
On 18 September 2018, Dr Pilbrow sent an email to Professor Hime, copied to Ms Lindsay Karakiozakis, who was employed in the respondent’s Human Resources Department at the time, complaining about the performance development review (‘the PDR Complaint’).[27] In this email, Dr Pilbrow complained about the 2017 Triennial Review process and the substantive issues raised in that process.
[27] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [27]; Annexure VP-11.
On 21 September 2018, Professor Hime sent an email to Dr Pilbrow setting out a summary of the issues he (and previous supervisors) have discussed with Dr Pilbrow about her performance.[28] Dr Pilbrow is critical of the delay in the provision of this information in circumstances where she first asked for this level of detail at the meeting on 6 April 2018.[29]
[28] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at Annexure VP-14; Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-18.
[29] See court transcript at page 141 and following.
On 24 September 2018, Dr Pilbrow forwarded Professor Hime’s email of 21 September 2018 to Ms Karakiozakis and raised further concerns about the process to which she was being subjected.[30]
[30] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at Annexure VP-16.
A further meeting was held on 25 October 2018 attended by Dr Pilbrow and Professor Hime. That meeting was also attended by Ms Karakiozakis and Mr Corey Rabaut, Dr Pilbrow’s union representative.[31] On the same date, Professor Hime provided Dr Pilbrow with an amended PIP.[32]
[31] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraph [39].
[32] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-19.
On the following day, 26 October 2018, Professor Hime issued Dr Pilbrow a first written warning and indicated that she had seven days in which to respond.[33] On 2 November 2018, Dr Pilbrow provided a written response to the first written warning in which she took issue with the contents of the warning and the process which led to its issuing.[34] On 20 November 2018, Professor Hime replied to Dr Pilbrow, noting the matters raised in her response.[35]
[33] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-20.
[34] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-21.
[35] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-22.
On 22 November 2018, Dr Pilbrow’s union representative, Mr Rabaut, emailed Professor Hime regarding the information available and relevant to the assessment of Dr Pilbrow’s research funding.[36] On 26 November 2018, Professor Hime responded to Mr Rabaut.[37] On 3 December 2018, Mr Rabaut sent an email to Professor Hime making further representations on Dr Pilbrow’s behalf regarding the PDR process and assessment of Dr Pilbrow’s research funding.[38]
[36] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-23.
[37] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-24; Affidavit of Ms Lindsay Karakiozakis affirmed and filed on 11 February 2022 at Annexure LK-9.
[38] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-25.
On 5 December 2018, Professor Hime met with Dr Pilbrow. This meeting was also attended by Mr Rabaut and Ms Neena Narsey, Senior Human Resources Business Partner in the Faculty. Dr Pilbrow alleges that in this meeting, Professor Hime ‘flung’ a copy of her response on the floor and said words to the effect of ‘that is what the School will think about your research income!’[39] In his affidavit, Professor Hime denied this, although he accepted that he may have dropped the document on the floor and said words to the effect of ‘the specific numbers in this document are not what is important but the fact that you can demonstrate your ability to attract significant income is’.[40] Professor Hime further stated:
46.… I intended no disrespect to Dr Pilbrow by my physical action during this meeting. It was a reflection of some frustration I had with her focussing too much on irrelevant details, but it was also a way of emphasising my point.[41]
[39] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [37].
[40] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraph [46].
[41] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraph [46].
I accept that Professor Hime was frustrated at this meeting, as from his perspective, Dr Pilbrow refused to accept his feedback and work with him to address the matters raised, but rather continued to seek to challenge the detail in the documents.
On 21 December 2018, Mr Rabaut initiated a dispute under the dispute resolution procedure at clause 80 of the 2013 Enterprise Agreement (‘the PDR Dispute’).[42] In the PDR Dispute, Dr Pilbrow asserted that the incorrect performance standards were being applied to her and that she was, in fact, meeting the applicable performance standards.
[42] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-26.
On 6 February 2019, Professor Hime met with Dr Pilbrow and Mr Rabaut to discuss a further amended PIP, with Ms Karakiozakis also in attendance.[43] Professor Hime states that in this amended PIP, he reduced the research funding targets for Dr Pilbrow to $10,000 by 30 June 2019 and a further $10,000 by 30 November 2019. In relation to this, Professor Hime states at paragraph [48] of his affidavit:
48.… In part, I reduced the amount to incentivise Dr Pilbrow to agree to finalise the PIP, because this was an amount that I thought she might commit to. These revised figures were below those expected of Level B academics. …
[43] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [39]; Annexure VP-25.
By email dated 8 February 2019, Dr Pilbrow sought clarification from Professor Hime about the performance expectations in the PIP.[44] There were ongoing discussions regarding the PIP over the course of February 2019.[45] This included an email from Dr Pilbrow’s union representative dated 28 February 2019 in which he made certain comments about Professor Hime’s management of Dr Pilbrow’s performance.
[44] Affidavit of Ms Lindsay Karakiozakis affirmed and filed on 11 February 2022 at Annexure LK-12.
[45] Affidavit of Ms Lindsay Karakiozakis affirmed and filed on 11 February 2022 at Annexure LK-13; Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-28.
On or about 20 February 2019, Dr Pilbrow spoke to Ms Oonagh Kane from the Faculty’s Advancement Services about a possible donation of $15,000 to her lab, with the donor wishing to remain anonymous (‘the Donation’).[46] Over the course of 20 to 22 February 2019, there were various email communications between Dr Pilbrow and the Advancements Operations team about this issue.[47] On 19 March 2019, the Advancements Operations team emailed Dr Pilbrow to discuss the Donation to support the work undertaken by her.[48]
[46] Affidavit of Ms Oonagh Kane affirmed and filed on 11 February 2022 at paragraph [7].
[47] Affidavit of Ms Oonagh Kane affirmed and filed on 11 February 2022 at Annexure OK-1.
[48] See Affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at JWB-7, which is an email trail between 19 March 2019 and 22 May 2019.
Also in March 2019, Professor Hime says that he discussed the proposed Donation with Ms Kane and the School Manager, Ms Belinda Bain.[49] In his affidavit, Professor Hime says that he did so in circumstances where the amount of the Donation ($15,000) was similar to the amount he had identified as an amount Dr Pilbrow should achieve as part of her performance standards. On 11 April 2019, there were email exchanges between Ms Kane and Professor Hime about the Donation.[50]
[49] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraph [57].
[50] Affidavit of Ms Oonagh Kane affirmed and filed on 11 February 2022 at Annexure OK-2.
On 12 April 2019, Dr Pilbrow advised Professor Hime by email that she had raised concerns with the University’s Human Resources Department about his handling of her performance review.[51]
[51] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-29.
On 16 April 2019, Professor Hime wrote to Mr Rabaut regarding the tone of Mr Rabaut’s correspondence dated 28 February 2019.[52] Ultimately, Mr Rabaut withdrew his ‘commentary regarding the management of Varsha … as they have caused offence which was not my intention’.
[52] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-30.
On 29 April 2019, in circumstances where the PDR Dispute remained unresolved, Dr Pilbrow escalated her concerns to Professor Fabienne Mackay, Head of School of Biomedical Sciences.[53] In her email to Professor Mackay, among other things, Dr Pilbrow expressed concern about participating in the annual PDR process whilst the PRD Dispute remained unresolved. In response, by email on 1 May 2019, Professor Mackay agreed to convene an independent panel (‘the Panel’) to assess Dr Pilbrow’s performance.[54]
[53] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at Annexure VP-28.
[54] Affidavit of Professor Fabienne Mackay affirmed and filed on 11 February 2022 at FM-5.
Notwithstanding this further effort to address Dr Pilbrow’s concerns, by email dated 6 May 2019 to Ms Narsey, Dr Pilbrow took issue with the ‘independence’ of the Panel that was established on the basis that it included Professor Hime, being the person against whom she had complained in the PDR Complaint and the PDR Dispute.[55] Dr Pilbrow also complained about the fact that this process involved Professor Hime having the opportunity to meet with the Panel whereas Dr Pilbrow did not.
[55] Affidavit of Professor Fabienne Mackay affirmed and filed on 11 February 2022 at FM-6.
In order to address this concern, Ms Narsey wrote to Dr Pilbrow on 10 May 2019 indicating that the Panel would provide a document to Dr Pilbrow setting out its advice and recommendations and that she would then have an opportunity to respond to those comments as part of the performance review process.[56]
[56] Affidavit of Professor Fabienne Mackay affirmed and filed on 11 February 2022 at FM-6.
On 3 May 2019, Professor Mackay sent an email to Professor Hime about her concerns regarding the acceptance of the Donation to support the work of Dr Pilbrow’s lab.[57]
[57] Affidavit of Professor Fabienne Mackay affirmed and filed on 11 February 2022 at FM-9.
It was against this rather complex background that on 6 May 2019, Professor Jenny Wilkinson-Berka commenced in the role of Head of Department and Professor Hime returned to his previous position as Deputy Head of Department.[58] As such, from this point on, Professor Wilkinson-Berka took over supervisory responsibilities for Dr Pilbrow.
[58] Affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at paragraph [11]; Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraph [53].
On or about 7 May 2019, Dr Pilbrow was advised by Ms Kane that the Donation was not accepted by the Head of School, Professor Mackay.[59] On 8 May 2019, Dr Pilbrow wrote to Professor Mackay seeking an explanation for this decision.[60]
[59] Affidavit of Ms Oonagh Kane affirmed and filed on 11 February 2022 at Annexure OK-7.
[60] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at Annexure VP-39.
On 13 May 2019, Professor Wilkinson-Berka, along with Professor Hime, participated in a Triennial Performance Development Review Panel regarding Dr Pilbrow.[61] The Panel collectively formed the view that Dr Pilbrow was meeting expectations in relation to teaching and learning, but not in relation to research and leadership and service.
[61] Affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at paragraph [39].
On 17 May 2019, Professor Hime sent Dr Pilbrow an email attaching an updated formal improvement plan which he said was being imposed ‘with immediate effect’.[62]
[62] Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at Annexure GH-31.
Over the period from 17 May 2019 to 23 May 2019, Dr Pilbrow communicated via email with Ms Narsey from Human Resources about her performance review and the Panel’s assessment of her performance for that purpose.[63] It is clear from the email exchange that Dr Pilbrow took issue with the fact that she had not had an opportunity to present to the Panel, as Professor Hime had, and that she had not been provided with the Panel’s independent document setting out the Panel’s advice and recommendations as she had been promised. Ms Narsey redirected Dr Pilbrow to the review document that she had been provided with which contained the Panel’s comments separate to the comments of the Head of Department. Dr Pilbrow was invited to provide her comments to the Panel’s review for consideration, which she did on 23 May 2019.[64]
[63] Affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at Annexure JWB-5.
[64] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [49]; Annexure VP-34.
Also at about this time, on 21 May 2019, a special meeting of the Department’s Executive Committee was held to review the Department’s research strategy and consider the Review Report prepared following a 2018 Department Review commissioned by the Faculty of Medicine, Dentistry and Health Sciences and School of Biomedical Sciences.[65] The Executive Committee discussed the recommendations of the 2018 Department Review and the vision for the research in the Department.
[65] See Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at Annexure VP-43.
Relevantly, the Committee discussed Professor Wilkinson-Berka’s view that anthropological research did not fit into the focus for research in the Department. A variety of views were expressed about the history of anthropological research, the funding attracted to such research and the lack of collaborations with this area of research. The minutes of this meeting also reflect Professor Wilkinson-Berka’s strong view that anthropological research did not fit into the research themes within the Department.[66]
[66] See affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at Annexure JWB-6.
On 22 May 2019, Professor Hime advised the Advancement Operations team of the decision taken by the Head of School, Professor Mackay, not to accept the Donation.[67] The following day, on or about 23 May 2019, Professor Mackay wrote to Dr Pilbrow advising her of the reasons for the rejection of the Donation.[68]
[67] Affidavit of Ms Oonagh Kane affirmed and filed on 11 February 2022 at Annexure OK-8.
[68] Affidavit of Professor Fabienne Mackay affirmed and filed on 11 February 2022 at Annexure FM-12.
On 31 May 2019, a Professional Development Review meeting was held with Dr Pilbrow. Dr Pilbrow was accompanied by Mr Rabaut.[69] Professor Wilkinson-Berka and Professor Hime were also in attendance. At this meeting, Dr Pilbrow was provided with feedback about her performance as assessed not only by Professor Hime, but also by the Panel convened at Dr Pilbrow’s request. Dr Pilbrow continued to question the PIP which had been implemented the previous year and also questioned the validity of the Panel’s assessment of her performance.[70]
[69] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [50]; Affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at paragraph [33] and following.
[70] See Affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at annexure JWB-10 for the file note of this meeting.
On 5 and 6 June 2019, there were various emails between Dr Pilbrow and Associate Professor Quentin Fogg, Professor Wilkinson-Berka and others about who would pay for the conservator fees associated with a Mummy Tooth Extraction that Dr Pilbrow had organised.[71] In essence, Dr Pilbrow had made arrangements for this event to occur, an event which it is agreed was likely to attract a level of publicity for the Department. However, it became apparent at the eleventh hour that the costs of a conservator had not been provided for. Dr Pilbrow sought the intervention and assistance from within her Department to meet this cost, but was told that this was an expense that she was expected to cover from her research funds. Ultimately, the issue was resolved when funds were made available from another source.
[71] Affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at Annexure JWB-15.
By email dated 12 June 2019, Mr Rabaut sought to escalate the PDR Dispute to Professor Mackay under clause 1.38.7 of the 2018 Enterprise Agreement. In this correspondence, Mr Rabaut also asserted that the University was inhibiting Dr Pilbrow’s ability to attract funding by reference to Professor Mackay’s decision not to accept the Donation.[72]
[72] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at Annexure VP-36.
On 12 August 2019, Dr Pilbrow met with Professor Wilkinson-Berka and was provided with a document entitled ‘Change Plan – Department of Anatomy and Neuroscience’ (‘Change Plan’).[73] The Change Plan made reference to the 2018 Department Review and Recommendations and stated that the change would impact one Level B Teaching and Research position which would be made redundant. That was a reference to Dr Pilbrow’s role. Professor Wilkinson-Berka advised Dr Pilbrow that the University had decided to make her position redundant.[74] The Change Plan proposed a timeline for consultation and implementation.
[73] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [56]; Annexure VP-41.
[74] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [58].
On 19 August 2019, Dr Pilbrow provided a response to the Change Plan by email.[75]
[75] Affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at Annexure JWB-12.
On 22 August 2019, Professor Wilkinson-Berka responded by email indicating that Dr Pilbrow’s response had been carefully considered, but the decision to restructure was maintained.[76] As will be discussed in greater detail shortly, Professor Wilkinson-Berka sought advice and assistance from both Professor Mackay and members of the Human Resources team in preparing this response.
[76] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at Annexure VP-44; Affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at Annexure JWB-13.
At a meeting on 6 September 2019 attended by Dr Pilbrow, Mr Rabaut, Professor Wilkinson-Berka and Ms Narsey, Dr Pilbrow was provided with a letter notifying her that:
·her position was redundant due to structural changes within the Department;
·her employment would therefore terminate on 1 November 2019;
·she would be provided with an opportunity to be considered for redeployment; and
·if she did not wish to be considered for redeployment, she could elect to request an early separation, in which case she would be paid out the balance of the notice period in addition to her redundancy entitlement.[77]
[77] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [60]; Annexure VP-45.
On 30 September 2019, Dr Pilbrow raised a dispute in relation to the proposed termination of her employment under clause 1.38.8 of the 2018 Enterprise Agreement.[78] However, the respondent asserted that the proposed redundancy did not fall within the scope of clause 1.38.8 of the 2018 Enterprise Agreement (‘the Change Plan Dispute’).
[78] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [61].
On 5 October 2019, the respondent deactivated Dr Pilbrow’s swipe card access without any discussion or prior notice to Dr Pilbrow.[79] Ultimately, this access was reinstated on or about 7 October 2019 after an exchange between Dr Pilbrow and Professor Wilkinson-Berka.[80]
[79] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [63].
[80] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [64]; Annexure VP-49.
On or about 11 October 2019, Associate Professor Fogg became aware that a large number of files in relation to the subject ANAT20006 had been deleted from the University’s Learning Management System.[81] He said he became aware of this by students notifying him in his capacity as co-ordinator for that subject that they could not access the files.[82]
[81] Affidavit of Associate Professor Quentin Fogg affirmed and filed on 11 February 2022 at paragraph [26].
[82] Affidavit of Associate Professor Quentin Fogg affirmed and filed on 11 February 2022 at Annexure QF-8.
On 14 October 2019, Professor Wilkinson-Berka advised Dr Pilbrow that various materials held in her lab would be returned to the Museum and that this would occur on 17 October 2019.[83] In response, the following day, Dr Pilbrow sent an email to Professor Wilkinson-Berka, and copied in a range of others, advising that she was working ‘on the anthropological materials in my lab and office and request that you please do not restrict my work by removing the material’.[84]
[83] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at Annexure VP-53.
[84] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at Annexure VP-53.
As anticipated in the 14 October 2019 email, on 17 October 2019, the respondent arranged for the removal of materials from Dr Pilbrow’s lab and as part of that process, arranged for security guards to be stationed outside Dr Pilbrow’s laboratory at the time of the removal of the materials.[85] No further discussion occurred with Dr Pilbrow about the arrangements for this.
[85] Affidavit of Associate Professor Quentin Fogg affirmed and filed on 11 February 2022 at paragraph [19] and following; Affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at paragraph [51] and following.
Dr Pilbrow had temporarily left the lab shortly before the removal commenced.[86] When she returned, she became distressed to see that there were people in her lab and that materials were being removed. She queried what was happening, at which point, Professor Hime, who was present, asked whether she would like to speak to Professor Wilkinson-Berka about what was happening. Professor Hime accompanied Dr Pilbrow to Professor Wilkinson-Berka’s office.
[86] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [70].
Although there is a dispute about exactly what was said and how, it is agreed that Professor Wilkinson-Berka did not allow Dr Pilbrow to enter her office at this time, but rather asked Dr Pilbrow to return to her own office.[87]
[87] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [70]; Affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at paragraph [56] and following; Affidavit of Professor Gary Hime affirmed and filed on 11 February 2022 at paragraph [60] and following.
Later on 17 October 2019, Mr Michael Caswell, the Associate Director of Employee Relations, and Ms Narsey approached Dr Pilbrow and asked her to leave work for the day.[88] There is a dispute about exactly what happened,[89] but it is agreed and I find that Dr Pilbrow collected her belongings and was escorted from the University premises that afternoon.
[88] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [71].
[89] See Affidavit of Mr Michael Caswell affirmed and filed on 11 February 2022 at paragraph [17].
The following day, on 18 October 2019, Dr Pilbrow attended a meeting with Mr Caswell and Ms Karakiozakis.[90] Dr Pilbrow was accompanied at this meeting by her husband and her union representative, Mr Rabaut. Whilst there is a dispute about exactly what occurred at that meeting,[91] I find that Dr Pilbrow was informed of allegations that she had engaged in serious misconduct. Following this meeting, Dr Pilbrow was suspended and her access to the university and its IT systems was removed.[92]
[90] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [72].
[91] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [73] cf affidavit of Mr Michael Caswell affirmed and filed on 11 February 2022 at paragraph [21].
[92] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [74].
On 22 October 2019, Dr Pilbrow wrote to Mr Caswell regarding her suspension, the removal of her IT access and the fact that she had not yet received formal allegations of serious misconduct.[93] On or about 25 October 2019, Mr Caswell sent a letter setting out the allegations of serious misconduct regarding the deletion of files.[94]
[93] Affidavit of Ms Lindsay Karakiozakis affirmed and filed on 11 February 2022 at Annexure LK-25.
[94] Affidavit of Mr Michael Caswell affirmed and filed on 11 February 2022 at Annexure MC-10.
By email dated 28 October 2019, Dr Pilbrow wrote to Mr Caswell, indicating that she refuted the purported serious misconduct allegations.[95] Consequently, a disputes committee (‘the Disputes Committee’) was convened to review the serious misconduct allegations.[96]
[95] Affidavit of Mr Michael Caswell affirmed and filed on 11 February 2022 at paragraph [26]; Annexure MC-11.
[96] Affidavit of Mr Michael Caswell affirmed and filed on 11 February 2022 at paragraph [28]; Annexure MC-12.
Whilst the misconduct investigation was underway, including through the Disputes Committee, efforts at redeployment continued. By email dated 28 October 2019, Ms Narsey sent an email to Mr Caswell in which she set out steps taken to explore re-deployment for Dr Pilbrow.[97]
[97] Affidavit of Mr Michael Caswell affirmed and filed on 11 February 2022 at Annexure MC-3.
The Disputes Committee was convened on 15 November 2019.
On 6 December 2019, the Chair of the Disputes Committee sent an email to Mr Sean Hogan, the Director of Workplace Relations, stating that it was the unanimous finding of the Disputes Committee that there was ‘insufficient evidence to sustain an assessment of serious misconduct in the matter of Dr Pilbrow’.[98] One member of the Disputes Committee, Professor Sean Cooney, provided his own individual comments.[99]
[98] Affidavit of Mr Michael Caswell affirmed and filed on 11 February 2022 at paragraph [31]; Annexure MC-14.
[99] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at Annexure VP-57.
By email dated 11 December 2019, Mr Rabaut sent an email to Mr Hogan indicating that Dr Pilbrow wanted to ‘raise a grievance about the vexatious claims made by Associate Prof Quentin Fogg towards her’.[100] By email dated 19 December 2019, Mr Hogan replied to Mr Rabaut.[101] Mr Hogan was not called as a witness in these proceedings.
[100] Affidavit of Mr Michael Caswell affirmed and filed on 11 February 2022 at Annexure MC-15.
[101] Affidavit of Mr Michael Caswell affirmed and filed on 11 February 2022 at Annexure MC-16.
On 24 December 2019, Dr Pilbrow was issued with a Notice of Termination with an annexure which set out the re-deployment opportunities which were considered and reasons why they were deemed not suitable.[102]
[102] Affidavit of Ms Lindsay Karakiozakis affirmed and filed on 11 February 2022 at Annexure LK-27.
By letter dated 6 January 2020, Professor Mackay issued a Final Written Warning to Dr Pilbrow in respect of the file deletion issue.[103] By letter dated 8 January 2020, Dr Pilbrow sent a letter in reply to Professor Mackay in which she raised concerns about the Final Written Warning.[104] By letter sent by email on 13 January 2020, Ms Karakiozakis replied on Professor Mackay’s behalf to Dr Pilbrow’s 8 January 2020 letter.[105]
[103] Affidavit of Ms Lindsay Karakiozakis affirmed and filed on 11 February 2022 at Annexure LK-28.
[104] Affidavit of Ms Lindsay Karakiozakis affirmed and filed on 11 February 2022 at Annexure LK-29.
[105] Affidavit of Ms Lindsay Karakiozakis affirmed and filed on 11 February 2022 at Annexure LK-30.
On 27 February 2020, Dr Pilbrow’s employment ultimately came to an end after a number of extensions to the termination date.[106]
[106] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraphs [87] to [88].
Issues for consideration
Notwithstanding the complexity of the factual matrix in which this claim arises, the issues for determination before this court are relatively confined.
It is not in dispute that Dr Pilbrow had a workplace right to make a complaint or inquiry in relation to her employment under section 341(1)(c)(ii) of the FW Act and that she had a workplace right to initiate a process or proceeding under a workplace instrument under section 341(1)(b) of the FW Act. It is also not in dispute that in making the PDR Complaint, the PDR Dispute and the Change Plan Dispute, Dr Pilbrow exercised a workplace right.[107]
[107] Respondent’s Outline of Submissions filed on 25 March 2022 at paragraph [5].
Moreover, the parties also agreed that in:
(a)making the decision to declare Dr Pilbrow’s position redundant (the ‘Redundancy Decision’);
(b)making the serious misconduct allegations against Dr Pilbrow (the ‘Serious Misconduct Allegations’);
(c)imposing a Final Written Warning (the ‘Final Written Warning’); and
(d)terminating Dr Pilbrow’s employment (the ‘Dismissal’)
the respondent took adverse action, as defined, against Dr Pilbrow.[108]
[108] Respondent’s Outline of Submissions filed on 25 March 2022 at paragraph [2].
The issue before this court, therefore, is whether the respondent took such adverse action for a proscribed reason, namely because Dr Pilbrow had exercised one or more of the identified workplace rights.
In particular, the issues for determination in this case are whether:
(a)the respondent made the Redundancy Decision because of or for reasons which included that she had exercised a workplace right by making the PDR Complaint and/or commencing the PDR Dispute;
(b)the respondent made the Serious Misconduct Allegations because of or for reasons which included that she had exercised a workplace right by making the PDR Complaint, commencing the PDR dispute and/or initiating the Change Plan Dispute;
(c)the respondent issued the Final Written Warning because of or for reasons which included that the applicant had exercised a workplace right by making the PDR Complaint, commencing the PDR Dispute and/or initiating the Change Plan Dispute;
(d)the respondent terminated Dr Pilbrow’s employment because or for reasons which included that Dr Pilbrow had exercised her workplace rights by making the PDR Complaint and/or commencing the PDR Dispute.
Applicable law
Section 340 of the FW Act relevantly provides that:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Section 341 of the FW Act then defines the term ‘workplace right’ and section 342 defines the term ‘adverse action’. Given the concessions made in this case, it is not necessary to set out either of those provisions in detail.
Section 360 of the FW Act also provides that ‘for the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason’.
Section 361 of the FW Act further provides that:
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part:
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The application of section 361 to a claim under section 340 of the FW Act is relatively well-settled. As noted by the respondent at paragraph [5] of their Written Closing Submissions, this issue has recently been considered in Alam v National Australia Bank (2021) 393 ALR 629 at paragraph [14] where the court said:
14.Several matters bearing upon the application of s 361 in relation to s 340 are settled:
(a) …
(b) …
(c)an employer takes adverse action in contravention of s 340 if a proscribed reason is a ‘substantial and operative’ reason for the action or if the reasons for the action include the proscribed reason: Bendigo v Barclay at [104] (Gummow and Hayne JJ);
(d)the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]-[44];
(e)the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];
(f)while the evidence of the decision‑maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre‑condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215, 273 FCR 332 at [72];
(g)the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be a ‘weighty consideration and often a determinative consideration’ in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action … but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated … When there is evidence of a broad range of facts and circumstances, which are not dependent on the acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action …
(h)even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the resumption …
(i)the decision-maker’s knowledge of the circumstances asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance … Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason …
(j)adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition …
In its defence, the respondent denies that it took the adverse action against the applicant because, or for reasons which included the fact that the applicant has exercised a workplace right. It did not, however, identify in its defence any of the individuals who made any of the adverse action decisions.
The respondent in this case is a body politic and corporate established under the University of Melbourne Act 2009 (Vic).[109] As such, the respondent’s motivation in taking each of the adverse actions against the applicant must be assessed and determined by reference to the individual or individuals within the organisation who had a material effect on the decision to take the adverse action.
[109] Respondent’s Defence filed on 9 December 2020 at paragraph [1(b)]; Applicant’s Reply filed on 21 December 2020 at paragraph [1(a)].
The following reasoning by Anderson J in Peters v Commonwealth of Australia [2021] FCA 1624 is particularly apposite:
352.The Court’s inquiry will always be ‘why did the Respondent do what it did?’ This question is one of fact, which must be answered in light of all the facts established in the proceeding. In proving otherwise, the employer is entitled to adduce such evidence as is necessary to satisfy the Court that the asserted proscribed reason was not a substantive and operative reason for the adverse action alleged. Direct testimony from a decision-maker which is accepted as reliable is itself capable of discharging the burden upon an employer …
353.The Court must determine whose mind or minds is ‘the operative mind of [the employer] in making the decision’. It is a pure question of fact where in particular circumstances the corporate mind may be located. Further, the corporate state of mind may be located in the mind of one or more officers …
354.The Court’s inquiry into the state of mind element of an alleged contravention must be framed by the alleged adverse action around which the allegation is built. One must first go to the adverse action alleged i.e. what decision is impugned by the pleading? One must then identify whose state of mind was the operative state of mind of the respondent corporation in relation to that decision.
355.Where a decision to engage in certain action is made by way of a collective decision, the Court’s task is to focus on why those who resolved that the corporate body should conduct itself in that way were moved so to resolve …
356. Where a decision has been made by an officer or group of officers, with input from others (that is, individuals other than those who decided to effect the conduct), this Court is bound by the Full Court decision in Elliott v Kodak Australasia [2001] FCA 1804. In Construction, Forestry, Mining and Energy Union vClermont Coal [2015] FCA 1014, Reeves J, after referring to Kodak, made the following observations (at [121]):
… where the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry … focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak …
357.It is not, however, necessary for a respondent to call every person who might have influenced a particular decision. …
This reasoning applies equally to the present proceeding before this court. Applying this reasoning, the inquiry before this court requires:
(a)the identification of who made the decision to engage in each of the impugned adverse actions;
(b)where more than one person had a material impact on that decision, a consideration of the reasons which actuated each of those individuals that had a material effect on the ultimate decision; and
(c)a determination of whether any of the said individuals was motivated, in whole or in part, by a reason that included the applicant’s exercise of one or more of the pleaded and admitted workplace rights, such that a finding is open that the respondent made any one or more of the adverse action decision for a proscribed reason or for reasons which include a proscribed reason.
A failure by the respondent to establish that the individuals involved in the decision(s) to engage in any of the adverse actions were not motivated by a proscribed reason, even in part, would require the court to make a finding, based on the presumption in section 361 of the FW Act, that the decision was made for the proscribed reason.
The reason or reasons actuating conduct which constitutes adverse action are matters of fact and the standard of proof is the balance of probabilities having regard to the totality of the evidence. As noted by French CJ and Crennan J in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at paragraph [45]:
45.This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. (citations omitted)
Similarly, their Honours, Gummow and Hayne JJ went on to say at paragraph [127] that:
127.In determining an application under section 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a ‘substantial and operative factor’ as to constitute a ‘reason’, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reason of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.[110]
[110] See also Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [141] per Heydon J.
It is clear from the background summary set out above that from at least 2017, there were various concerns raised by Dr Pilbrow about the way in which her employment was managed. It is said for the applicant that these contextual matters are relevant when the court considers whether to accept the direct evidence given by the respondent’s witnesses as to what motivated them in making the adverse action decisions.
In considering any direct evidence given by the respondent’s witnesses as to the reason for the adverse action taken in this case, the court must weigh that evidence together with the totality of the evidence. Having said that, it has been repeatedly stated that in a claim under section 340, the court is not required to undertake a broad inquiry into whether or not the employee was subjected to an unfair or substantively unfair outcome.[111] Nor is it a broad inquiry into the various grievances that an employee may have against her employer.
[111] Peters v Commonwealth of Australia [2021] FCA 1624 at [358], Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] and Ermel v DuluxGroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48].
The question is ultimately why did the decision maker(s) take the decision(s) that it (they) did? And, importantly, did it (they) do so for a proscribed reason or for a reason which included a proscribed reason?
In determining this issue, a preliminary issue arises as to who made each of the adverse action decisions.
Consideration and findings
I will now turn to consider the question of who the relevant decision-maker was in relation to each of the admitted adverse actions.
Who made the Redundancy Decision?
In closing submissions, it was submitted for the respondent that Professor Mackay accepted that the ultimate responsibility for the Redundancy Decision rested with her and that Professor Wilkinson-Berka was materially involved in that decision.[112] It was submitted that Professor Hime was not materially involved in the Redundancy Decision.[113]
[112] Respondent’s Written Closing Submissions filed on 21 April 2022 at paragraphs [17] and [18].
[113] Respondent’s Written Closing Submissions filed on 21 April 2022 at paragraph [19].
In response, it was put for the applicant that this submission was inconsistent with the oral evidence given by Professor Mackay and ought be rejected.[114] It is submitted for the applicant that the evidence establishes that the decision-makers in relation to the Redundancy Decision were, in fact, Professor Mackay and the Dean of the Faculty of Medicine, Dentistry and Health Sciences – Professor Shitij Kapur.
[114] Applicant’s Written Closing Submissions filed on 5 May 2022 at paragraph [16].
If the applicant’s primary submission is accepted, namely that Professor Kapur was one of the decision-makers in relation to the Redundancy Decision, then the respondent’s failure to call him to give evidence about the basis upon which he made that decision would be fatal to the respondent’s defence on this aspect of the case. The issue to be determined therefore is whether he was, in fact, a decision-maker or whether he had a material involvement in the decision to declare Dr Pilbrow’s position redundant.
In support of the proposition that Professor Shitij Kapur was the decision maker in relation to the redundancy, the applicant points to the evidence given by Professor Mackay, where in the course of cross-examination, the following exchange occurred:
Counsel for applicant: Whose decision was it, Professor Mackay, to change the research vision for the department?
Professor Mackay: Well, there’s a … review that informs the decision, there’s the strategy of the faculty, there’s the context, we were experiencing a context where we had a demographic contraction of students graduating from high school …
Counsel for applicant: Professor Mackay, I asked you whose decision it was. Whose decision was it to change the … research vision of the department …
Professor Mackay: It’s a process … by faculty … so … at the end it has to be accepted by faculty.
Counsel for applicant: And … when you say ‘faculty’ … who do you mean?
Professor Mackay: The Dean.
Counsel for applicant: So the change to the research vision for the department was ultimately approved by the Dean?
Professor Mackay: Yes.
…
Counsel for applicant: Who made the decision to make Dr Pilbrow’s position redundant?
Professor Mackay: I mean, the process did. … you know, ultimately, I have a responsibility … but this is the outcome of the process.
Counsel for applicant: So you accept, do you, that it was your decision?
Professor Mackay: Supported by the Dean, yes.
Counsel for applicant: The Dean was a decision maker?
Professor Mackay: As much as I was, yes.
Counsel for applicant: Do you mean that you accept my proposition that the Dean was one of the decision makers in relation to the redundancy of Dr Pilbrow’s position?
Professor Mackay: Yes. It’s a consequence of the decision we’ve made as part of the review and the change of direction of the department. It’s an academic decision, and the Dean is responsible for … yes, cutting the activities of the faculty, everywhere in the faculty. So he is responsible for any changes we make in academic units.[115]
[115] Court transcript at pages 174 to 175.
In the course of re-examination, the issue of the Dean’s involvement in decisions relating to Dr Pilbrow’s employment was re-visited. The following exchange occurred, initially in the context of questions regarding Professor Mackay’s response to the anonymous donation proposed, which is discussed in further detail below:
Counsel for respondent: And what do you say about the suggestion that this was coming up with an alternate excuse or something that you made up?
Professor Mackay: No. I refute that. We are not responsible for reviews of department, which is dictated by the university process. These things had to happen every five years. We are taken through that. Every department gets reviewed. There are recommendations. There’s a discussion with the dean about the recommendations. They agree with the recommendations, and then … the, you know, unavoidable impact of that was anthropology would no longer be pursued, and that’s a thing that was pretty evidence already in 2018, but we were waiting for the head of department to drive that change.
Counsel for respondent: Now, you were asked questions before which led to you giving evidence about the dean?
Professor Mackay: Yes.
…
Counsel for respondent: In relation to the dean’s decision-making or approval of the vision, are you aware what information was provided to … the dean?
Professor Mackay: … yes … we did a school report on a regular basis to the dean with every single change, every single operation or budget or whatever information, and he was informed of that …he was informed early on of the upcoming changes to the review process, and that’s something he supported.
Counsel for respondent: And … to what extent was information provided to the dean about Dr Pilbrow?
Professor Mackay: No, we didn’t discuss the specifics of staff with the dean. We discussed strategic matters, budget matters and direction.
Counsel for respondent: To what extent was the dean provided information about any complaint or dispute that Dr Pilbrow had raised?
Professor Mackay: Look, I don’t think he … had any … considering the way I was managing this, he would know about it but until then I don’t think he would know. I’m not sure if he would know. I don’t know if … he was aware of that.[116]
[116] Court transcript at pages 191 to 193.
It is submitted for the applicant that Professor Mackay’s evidence was unequivocal in so far as she answered in the affirmative when asked directly as to whether the Dean was one of the decision-makers in relation to Dr Pilbrow’s redundancy.[117]
[117] Applicant’s Written Closing Submissions filed on 5 May 2022 at paragraphs [19] and [20].
However, when regard is had to the totality of Professor Mackay’s evidence, I do not agree with that characterisation of her evidence. Professor Mackay’s response to the direct question put by counsel for the applicant as to whether the Dean was a decision-maker in relation to the redundancy was qualified by the further statement that it was:
a consequence of the decision we’ve made as part of the review and the change of direction of the department. It’s an academic decision, and the Dean is responsible for … the activities of the faculty … so he is responsible for any changes we make in academic units.[118]
[118] Court transcript at page 175.
There is no suggestion in this evidence, or indeed in any other evidence given by Professor Mackay or by any other witness in this matter, that the Dean assessed Dr Pilbrow’s suitability for redundancy or considered whether her position should be made redundant such that the state of his mind is a relevant factor in the court’s determination of this matter. I accept that the acceptance of the review recommendations was likely a matter brought to the Dean’s attention and which he agreed to, but as the applicant submitted, there was no specific recommendation in that review as to the need for Dr Pilbrow’s particular position to be made redundant.[119]
[119] Applicant’s Written Closing Submissions filed on 5 May 2022 at paragraph [70].
I also note that Professor Mackay’s oral evidence must be viewed in the context of the evidence given in her affidavit at paragraphs [3] and [5], in which she said:
3.Between September 2015 and February 2020, I was the Head of the School of Biomedical Sciences (School) in the Faculty at the University. In this role, my key responsibilities were to manage 6 teaching and research Departments, set strategic education, research and engagement goals for the School. I managed the School’s annual budget of approximately $180 million. … I had five of the six Heads of Department report directly to me during this time, and I assumed the role of Head of the Pathology Department in addition to my role as Head of School. At that time, the School had over 500 academics and over 2,600 students, plus a significant number of professional staff (the exact number I am unable to recall). I reported directly to the Dean of the Faculty, Professor Shitij Kapur.
…
5.I had one-on-one discussions with the Heads of Department who reported to me approximately once a month where I would provide them with general guidance, oversight and coaching. Generally, the Heads of Department were responsible for supervising staff within the Departments, with assistance from the Human Resources Team as necessary. I was not involved in the day-to-day management of academic staff, and I did not conduct, and was not involved in, performance reviews for Departmental staff. … I trusted my Heads of Department to properly handle staff management issues that were within their responsibilities and they were accountable for this, and I knew that if there were issues with the approach being adopted by the Head of Department, they would be brought to my attention by Human Resources. …
Similarly, at paragraph [18] of her affidavit, Professor Mackay said:
18.Each Head of Department is responsible for determining the vision for their Department and a strategy to achieve that vision. The vision has to be consistent with overarching University/Faculty strategies. I remember speaking to Professor Wilkinson-Berka when she started about her views about how she intended to run the Department. … I do not recall having any conversation specifically about Dr Pilbrow or any human resources matters. The conversation was general around strategic directions not about individuals. …
This evidence is consistent with the oral evidence given that the day-to-day management of staffing issues rests with the relevant Head of Department with assistance from time-to-time from Human Resources as required. Whilst Professor Mackay may, from time-to-time, have become involved in such matters, as was the case in relation to Dr Pilbrow, there is no suggestion that Professor Mackay involved the Dean in any issue relating to Dr Pilbrow’s management or, relevantly, the question of whether Dr Pilbrow’s role should be made redundant.
Nor is there any evidence before the court to suggest that the ultimate power to declare a position redundant rests with the Dean, or indeed any nominated individual by reference to the applicable industrial instrument. As noted by the applicant, the 2018 Enterprise Agreement defines redundancy to mean ‘where the University decides that it no longer requires the Continuing position an Employee has been performing to be done by anyone …’.[120] As noted, the 2018 Enterprise Agreement does not identify the person or position within the University who is required to make this assessment.
[120] 2018 Enterprise Agreement, cl 1.40.1.
Nor do I accept the applicant’s submission that the absence of a formal delegation means that Professor Mackay could not be the decision maker.[121] The applicant has not pointed to anything in the 2018 Enterprise Agreement which would suggest that such a formal delegation is necessary. The positon might be different if, for example, the Enterprise Agreement had provided that a person holding a particular office or position within the University has the power to hire and fire and that such power could be delegated to another employee. In those circumstances, absent a delegation, if permitted, there could be an argument about whether that power had been properly exercised.
[121] Applicant’s Written Closing Submissions filed on 5 May 2022 at paragraph [70].
When regard is had to the totality of the evidence, I find that the people who were involved in making the decision to declare Dr Pilbrow’s position redundant were Professor Mackay and Professor Wilkinson-Berka. Whilst the evidence given by Professor Mackay in cross-examination, taken at its highest, might support a finding that the Dean was aware of the Department Review and Recommendations and approved those recommendations to the extent that they were consistent with the strategy of the Faculty overall, I find on the balance of probabilities that he did not have any involvement in the decision at the Departmental level to make Dr Pilbrow’s decision redundant, which was a consequence of the implementation of that Review and the Recommendations.
As noted in the applicant’s Written Closing Submissions, there was nothing in the 2018 Department Review and Recommendations which specifically identified Dr Pilbrow’s position as being no longer required.[122] It was the decision of Professor Wilkinson-Berka, after consultation with the Executive Committee and with Professor Mackay, to implement the Review Recommendations, to change the research focus and to remove anthropological research as a focus for the Department which led to the conclusion that Dr Pilbrow’s position was no longer required.
[122] Applicant’s Written Closing Submissions filed on 5 May 2022 at paragraph [70].
There is no proper basis upon which to conclude that the Dean was involved in this decision. I therefore find that the individuals who had a material impact on the decision to declare Dr Pilbrow’s position redundant were Professor Mackay and Professor Wilkinson-Berka. It is their motivations which are the subject of inquiry to determine whether they were actuated in their decision by a proscribed ground.
Who made the Dismissal Decision?
It is submitted for the respondent that the Dismissal Decision is ‘practically subsumed within the former adverse action of the Redundancy Decision’.[123] It is also submitted that ‘the Redundancy Decision is the primary focus of this case, and, strictly speaking, there is no decision-maker relevantly involved in this subsequent adverse action’.[124]
[123] Respondent’s Written Closing Submissions filed on 21 April 2022 at paragraph [21].
[124] Respondent’s Written Closing Submissions filed on 21 April 2022 at paragraph [21].
The applicant says that this submission cannot be accepted[125] and in the absence of any specific evidence regarding who made the Dismissal Decision, the respondent cannot be taken to have discharged the reverse onus in relation to the Dismissal Decision.[126]
[125] Applicant’s Written Closing Submissions filed on 5 May 2022 at paragraph [30].
[126] Applicant’s Written Closing Submissions filed on 5 May 2022 at paragraph [26].
The applicant submits that the decision to terminate Dr Pilbrow’s employment was not an automatic conclusion of the Redundancy Decision. Relevantly, clause 1.42.1 of the 2018 Enterprise Agreement provides:
1.42.1Where the University has determined that an Employee’s position is redundant, the University will advise the Employee in writing that:
1.42.1.1 the position is redundant;
1.42.1.2the University will endeavour to redeploy the Employee to a suitable alternative position; and
1.42.1.3 if Redeployment is unsuccessful, employment may be terminated due to redundancy.
It is submitted that the use of the word ‘may’ in clause 1.42.1.3 means that whilst the employment may be terminated, it will not automatically come to an end. As such, it requires a decision to be made by a ‘human agent of the respondent’.[127]
[127] Applicant’s Written Closing Submissions filed on 5 May 2022 at paragraph [32].
It is further submitted that, notwithstanding the respondent’s failure to identify any such ‘human agent’, there is sufficient evidence to conclude that the person who decided to proceed with the termination of Dr Pilbrow’s employment was the Dean, Professor Kapur, on the basis that it was Professor Kapur who notified Dr Pilbrow in writing on 6 September 2019 that her employment would terminate on 1 November 2019.[128] For the same reasons in relation to the Redundancy Decision, I find that Professor Kapur was not involved in the Dismissal decision.
[128] Applicant’s Written Closing Submissions filed on 5 May 2022 at paragraph [34].
The respondent says that at the time of the Redundancy decision, the applicant was notified that if redeployment was unsuccessful, the applicant’s employment would come to an end due to redundancy in circumstances where her position no longer existed following the implementation of the Change Plan.[129] As such, it is submitted that in circumstances where redeployment was actively considered (and noting that Dr Pilbrow has not challenged the redeployment process at any stage), not having identified a successful role, the natural consequence of the redundancy process was that her employment would come to an end at the conclusion of the notice period. It is not in dispute that the notice period was extended on a number of occasions to allow various other dispute processes to take their course.
[129] Respondent’s Reply filed on 12 May 2022 at paragraph [7].
For the following reasons, I find that the use of the word ‘may’ in clause 1.42.1.3 is ‘permissive’, in the sense that it permits, but does not require, the termination of an employee’s employment for reasons of redundancy if certain things happen.
I come to this view for two reasons:
(a)firstly, by reference to clause 1.40 in which cl 1.42.1.3 is found; and
(b)secondly, because the use of the word ‘may’ contemplates that there may also be other reasons why a termination might be effected, notwithstanding the initiation of a redundancy process, as indeed, the facts in this case itself highlight.
As to the first issue, clause 1.40 deals with redundancy generally. It provides, as stated earlier, a definition of what amounts to redundancy and a process for consultation. Relevantly, it provides at clause 1.40.2:
1.40.2Where the University has made a decision to make a position redundant, the University will consult in accordance with cl 1.36 to …
…
1.40.2.2.2prior to involuntary separation arising from redundancy, consider and exhaust all reasonable alternative actions set out below at clause 1.41; …
Clause 1.41 then deals with redeployment and other alternative actions, including a process whereby an employee may elect to end their employment prior to the expiry of the notice period given in the redundancy notice.
It is against this background that clause 1.42.1.3 appears. It is clear when one reads clause 1.40 in its entirety that the effect of clause 1.42.1.3 is that if notice has been given that an employee’s position is redundant, the employee does not elect to leave early, no alternative position is found through the redeployment process, then the employee’s employment may be terminated due to redundancy.
The use of the word ‘may’ is permissive in that once each of the factors identified in clause 1.42.1.1 and 1.42.1.2 are satisfied, the respondent is permitted to terminate the employee’s employment for reasons of redundancy. It leaves open the possibility that there may be other reasons which warrant the employee’s termination. As indeed was the case in this matter, it is possible that during a redundancy process, allegations of misconduct may arise, triggering another process under the Enterprise Agreement which could also, but for different reasons, permit the termination of an employee’s employment. In those circumstances, the employer would not be required to terminate for reasons of redundancy, simply because the other requirements of clause 1.42.1.1 and 1.42.1.2 were satisfied. This interpretation is consistent with a plain reading of the terms of the 2018 Enterprise Agreement.
Professor Mackay’s recollection of discussions that she had with Professor Hime about Dr Pilbrow over the course of 2018 and early 2019 was not particularly clear, although she agreed that by April 2019, Professor Hime had initiated a performance improvement plan with regard to Dr Pilbrow, that Dr Pilbrow had disputed that process and had complained about it, including a complaint directly made to her.[197] This is consistent with her evidence that her role in these discussions was one of mentoring her then Acting Head of Department rather than herself forming a view about a member of staff’s performance per se.
[197] Affidavit of Professor Fabienne Mackay affirmed and filed on 11 February 2022 at paragraph [47].
In relation to the issue of the implementation of the 2018 Review and Recommendations, Professor Mackay conceded in cross-examination that she probably did discuss ceasing the funding of anthropological research as part of the bigger strategy to support research in fields that were sustainable.[198] She also agreed that no action was taken to implement the 2018 Review and Recommendations until Professor Wilkinson-Berka joined the University.
[198] Court transcript at page 168 and following.
She did not concede, however, that they discussed how to make Dr Pilbrow’s role redundant or that this was due to her complaints about the performance management process. She maintained that her discussions with Professor Wilkinson-Berka about the 2018 Review and Recommendations was ‘a strategy decision’ and ‘nothing to do with performance’.[199]
[199] Court transcript at page 168.
It was put to Professor Mackay that the reference in her email to Professor Wilkinson-Berka of 19 August 2019 to being ‘almost there’[200] was that they were almost at the point of being able to terminate Dr Pilbrow’s employment.[201] Professor Mackay did not accept this. She said ‘No. It means … it’s a process we’re doing. It’s lengthy. It is complicated and we’re bringing it to an end’.[202]
[200] See Affidavit of Mr Michael Caswell affirmed and filed on 11 February 2022 at Annexure MC-16.
[201] Court transcript at page 177.
[202] Court transcript at page 178.
In this context, the following exchange then occurred:
Counsel for applicant: And you’re bringing it to an end without giving any genuine consideration to the matters that Dr Pilbrow has raised?
Professor Mackay: No, that’s not true. This is what … the response will be … will be made. That is what the sentence above says. We’re going to draft a response.[203]
[203] Court transcript at page 178.
Professor Mackay also did not accept that the use of the words ‘blah, blah, blah’ in this email was indicative of the lack of consideration given to the issues raised by Dr Pilbrow. Rather she said, ‘I’m not an HR expert, so I don’t know what the answer is going to be, but it has to be, you know, following a proper process’.[204]
[204] Court transcript at page 178.
Having regard to the totality of the evidence, including Professor Mackay’s express evidence about what motivated her in the decision to agree with the proposed changes in research priorities for the Department, I find on the balance of probabilities that she did not act for a reason which was or included any of the workplace rights pleaded and conceded in these proceedings. In particular, I have had regard to the fact that there were a number of different processes being undertaken in relation to Dr Pilbrow. Largely, these were process which were implemented by the Head of Department with assistance from members of the Human Resources Department. I accept Professor Mackay’s evidence on the balance of probabilities that the various complaints made by Dr Pilbrow did not motivate her decision in relation to the research focus for the Department.
For each of these reasons, I find that the respondent has discharged the onus of proof in relation to the Redundancy Decision.
Why was the Dismissal Decision made?
For the reasons set out above, I find that the decision to dismiss Dr Pilbrow was the natural consequence of the decision to declare her position redundant in circumstances where there were no appropriate redeployment options identified during the notice period.
Moreover, for the reasons set out above, I find on the totality of the evidence that in making this decision, neither Professor Mackay nor Professor Wilkinson-Berka were motivated by any of the workplace rights which the applicant exercised in this case.
As stated above, if I am incorrect and Professor Hime played any role in the ultimate decision to declare her position redundant and ultimately terminate her employment, I find that he was in no way motivated by any workplace right exercised by Dr Pilbrow.
It is the case that after the decision was made to declare Dr Pilbrow’s position redundant, the applicant lodged the Change Plan Dispute. It is also the case that subsequently, Dr Pilbrow was subjected to a Serious Misconduct Allegation and was issued with the Final Written Warning. I also accept that Professor Wilkinson-Berka suspended Dr Pilbrow’s after-hours access on the weekend of 5 and 6 October 2019 before reinstating her access, and that arrangements were made for the removal of various items from Dr Pilbrow’s lab on 17 October 2019. I also accept that each of these matters caused significant distress to Dr Pilbrow and that she considered that they were inappropriate.
I deal with the Serious Misconduct Allegations and the issuing of the Final Written Warning in further detail below. However, for the reasons discussed, I do not accept that either of these matters provides evidence to support the assertion that the termination of Dr Pilbrow’s employment was due in whole or in part to the workplace rights that she had exercised. Nor do I accept that the University’s cancellation of Dr Pilbrow’s after-hours access or the removal of specimens from her laboratory support this proposition.
Rather, as stated, the termination of Dr Pilbrow’s employment was the natural consequence of the Redundancy Decision. It is common ground that the termination date initially set for 1 November 2019 was extended on a number of occasions. Ultimately, the termination of her employment for reasons of redundancy occurred on 27 February 2020.
Dr Pilbrow does not assert that there was a failure to make reasonable redeployment efforts, nor, importantly, does she assert that any such failure amounted to adverse action because of the exercise of workplace rights. In those circumstances, and in the absence of any finding that the decision to declare Dr Pilbrow’s decision redundant was made for a proscribed reason, I also find on the balance of probabilities that the decision to give effect to the termination consequent upon the redundancy was not made for a proscribed reason or for reasons which include a proscribed reason.
Why were the Serious Misconduct Allegations issued?
It is common ground that between 11 and 13 October 2019, Associate Professor Fogg became aware of some difficulties students were having accessing materials in various subjects that he and Dr Pilbrow were teaching. It appeared that some of the material was no longer available on the University’s Learning Management System. It is also common ground that over the course of the next day or so, he took steps to upload the missing material as students required access to it for upcoming assessments on 16 October 2019.
It is also common ground that over the course of the next few days, inquiries were made by the University’s IT Department to understand what had happened to these materials. Associate Professor Fogg’s evidence, which I accept, is that on 16 October 2019, he was advised by Mr Tom Dun, Learning Environments, that an investigation had been undertaken and it appeared Dr Pilbrow had ‘engaged in a large number of interactions in the subject content area and I should check whether she had made changes to the LMS’.[205]
[205] Affidavit of Associate Professor Quentin Fogg affirmed and filed on 11 February 2022 at paragraph [30].
Associate Professor Fogg then details the steps he took to bring this matter to the attention of Professor Wilkinson-Berka, as well as information he was subsequently provided from the Cybersecurity Engagement Manager about the outcome of his investigations and recommendations.[206] Associate Professor Fogg further states that he prepared a report of the incident from his perspective at the request of the School Manager, Ms Bain.
[206] Affidavit of Associate Professor Quentin Fogg affirmed and filed on 11 February 2022 at paragraphs [31] to [37].
Professor Wilkinson-Berka also gives evidence about her role in the investigation into this matter and the decision to issue the Serious Misconduct Allegations. It is important to note that this incident occurred in the context of steps being taken around the same time to remove certain artefacts from Dr Pilbrow’s lab and to return them to the museum. She gives evidence about the background to this decision and the fact that it was taken after discussions with Associate Professor Fogg, who was the chair of the Harry Brookes Allen Museum of Anatomy and Pathology Management Committee and Mr Rohan Long, the curator of the Harry Brookes Allen Museum.[207] She says that there were concerns about some of the artefacts in Dr Pilbrow’s office and laboratory and that they needed to be properly curated by the museum. There is email correspondence between Mr Long and Associate Professor Fogg from early November 2019 which supports this concern.[208]
[207] Affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at paragraph [45] and following.
[208] See Affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at Annexure JWB-22.
Professor Wilkinson-Berka explains at paragraph [47] of her affidavit that she was concerned given the nature of such a transfer that Dr Pilbrow might behave unpredictably and unreasonably, particularly in circumstances where she had, by this time, been advised that her position in the Department was declared redundant.
As outlined above, Professor Wilkinson-Berka had advised Dr Pilbrow by email that the removal of the artefacts would occur on 17 October 2019. Dr Pilbrow wrote to Professor Wilkinson-Berka requesting that she not be prevented from accessing the material which she required to do her work.[209]
[209] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at Annexure VP-53.
Notwithstanding Dr Pilbrow’s response, the planned removal went ahead on 17 October 2019. Dr Pilbrow complains about the manner in which this was done, in particular the fact that security were present and that it had commenced whilst she was on her lunch break. Moreover, she complains about the way in which she was dealt with when she went upstairs at the suggestion of Professor Hime to discuss her concerns with Professor Wilkinson-Berka.
As stated, it is not necessary to determine every issue in dispute in this matter. Nor, as the authorities have consistently held, is an adverse action claim a royal commission into every decision made in the context of an employee’s employment. However, the incidents which occurred in early to mid-October must be viewed in context of the applicant having been advised of her redundancy, concerns about the state of artefacts in the applicant’s lab and the deletion of files from the Learning Management System by Dr Pilbrow.
Professor Wilkinson-Berka’s evidence is that she became aware from Associate Professor Fogg on the morning of 17 October 2019 of difficulties that students had experienced in accessing online lecture materials and that Dr Pilbrow appeared to have deleted those files.[210] She says that she was concerned given the large number of files deleted and the impact on students.
[210] Affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at paragraph [53].
Professor Wilkinson-Berka further states that in this context, Professor Hime attended her office later that afternoon followed by Dr Pilbrow.[211] It was in this context, and particularly given the concerns raised about the deletion of files, that she decided not to discuss the matter with Dr Pilbrow at this time. I accept that Dr Pilbrow, unaware of the file deletion issue at this point, may have perceived Professor Wilkinson-Berka’s conduct as dismissive of her concerns about the removal of the artefacts from her lab.
[211] Affidavit of Professor Jenny Wilkinson-Berka sworn and filed on 11 February 2022 at paragraph [67].
Later on the afternoon of 17 October 2019, Professor Wilkinson-Berka consulted with Mr Caswell and Ms Narsey from the Human Resources Department about the file deletion issue. Relevantly she said at paragraph [62] of her affidavit:
62.… While I did not know what specific process would be undertaken by the Human Resources Department, due to the apparently serious nature of deleting files from the University system, I considered it important that the matter be investigated to determine what had occurred.
Mr Caswell also gives evidence about his involvement in relation to the events on 17 October 2019 and the issuing of the Serious Misconduct Allegations.[212] He says that he met with Dr Pilbrow in her office and she was upset about the removal of the material from her lab that day. He says that he conveyed to Dr Pilbrow that her behaviour was making some of her colleagues feel uncomfortable, threatened and unsafe. He further said at paragraph [17] of his affidavit that:
17.… I advised Dr Pilbrow to leave the University campus and informed her that we would discuss what had happened at a future meeting in order to defuse the situation because of the disturbance that had occurred earlier that day. … Dr Pilbrow then collected her personal items and was escorted from the University by the two security guards.
[212] Affidavit of Mr Michael Caswell affirmed and filed on 11 February 2022 at paragraph [16] and following.
Mr Caswell says that at a meeting later that day with Professor Wilkinson-Berka and Ms Narsey, they discussed the events of that day as well as the file deletion issue. Mr Caswell says that he understood from this meeting that Professor Wilkinson-Berka endorsed further action by HR in relation to the file deletion issue.[213]
[213] Affidavit of Mr Michael Caswell affirmed and filed on 11 February 2022 at paragraph [18].
Mr Caswell met with Dr Pilbrow, her husband and her union representative the following day, on 18 October 2019. He says that at this meeting, he told Dr Pilbrow that allegations of serious misconduct had been made against Dr Pilbrow and that if those allegations were upheld and result in the termination of her employment that may affect her redundancy entitlement.[214]
[214] Affidavit of Mr Michael Caswell affirmed and filed on 11 February 2022 at paragraph [20].
Dr Pilbrow says that in this meeting, as well as stating that she had engaged in serious misconduct, Mr Caswell effectively gave her the option of accepting a redundancy payment which would be a large sum, or face termination for misconduct which would result in a much lesser payment.[215] At the hearing before me, Dr Pilbrow said that the meeting lasted about 30 to 45 minutes and that there was a break when Mr Caswell and Ms Karakiozakis left the room.[216] When asked why they left the room, Dr Pilbrow said:
They gave me this digest of files and they asked me to think about it and they said they would give me five minutes to think about it and then they left the room and they came back in five minutes.[217]
[215] Affidavit of Dr Varsha Pilbrow sworn on 7 January 2022 at paragraph [73].
[216] Court transcript at page 26.
[217] Court transcript at page 27.
In this context, Dr Pilbrow gave the following further evidence:
When they got back they asked Mr Rabaut, who was my union supported (sic) if he had explained to me what the allegation was and he said yes and then they proceeded to, once again, tell me that I had done serious misconduct and that I … that that was a serious offence and my continued employment was untenable and … and that was the point when they asked me to make up my mind as to take the redundancy offer that was on the table or to be stood down for serious misconduct and lose my substantial payout.[218]
[218] Court transcript at page 27.
Dr Pilbrow’s husband, Dr Timothy Pilbrow, also gave evidence in this matter. Annexed to his affidavit is a file note of this meeting made by Dr Timothy Pilbrow on 10 May 2021.[219] Relevantly, that file note contains the following:
After some discussion between Varsha, Mr Caswell and Ms Karakiozakis, during which Varsha refuted the allegations that had been made, Mr Caswell stated that it would be in Varsha’s best interests to take the offer of redundancy or face the possibility that a ruling of serious misconduct would be made, leading to her immediate termination and thus forfeiting the redundancy payment.
When I heard Mr Caswell state this, it sounded to me like a threat that the university would pursue a serious misconduct charge unless Varsha agreed to the redundancy as offered, but that they would turn a blind eye to the alleged misconduct if she agreed to the misconduct charge.
Given the evidence they present of deleted files did not as presented substantiate the allegation of wilful repeated deletion, this to my mind was strongly indicative that the University of Melbourne did not have a documentable case of serious misconduct, but was merely attempting to intimidate Varsha into dropping her challenge to the redundancy decision.
[219] Affidavit of Dr Timothy Pilbrow sworn and filed on 7 January 2022 at Annexure TP-1.
Mr Caswell expressly denies that he suggested that Dr Pilbrow had the option of accepting the redundancy or going through a misconduct proceeding. He stated at paragraph [21] of his affidavit:
21.… I actually was quite careful to avoid giving any such impression that Dr Pilbrow had a choice. I instead explained the impact a termination for misconduct could have on Dr Pilbrow’s redundancy if the allegations were made out.
Ms Karakiozakis also attended the 18 October 2019 meeting. Her evidence is that on the morning of 18 October 2019, she met with Mr Caswell who told her that Dr Pilbrow was suspected of purposefully deleting files from the student system.[220] She states that at the meeting with Dr Pilbrow, her husband and her union representative:
52.… Mr Caswell explained to Dr Pilbrow that it was alleged that she had deleted a number of files from the University’s system, and then had deleted them again after they had been re-uploaded by Associate Professor Quentin Fogg. Mr Caswell explained that these allegations were serious, if they were found to be substantiated this could impact Dr Pilbrow’s employment with the University and, as a consequence, her redundancy may be impacted.
[220] Affidavit of Affidavit of Ms Lindsay Karakiozakis affirmed and filed on 11 February 2022 at paragraph [52].
Ms Karakiozakis further expressly denies that ‘Mr Caswell told Dr Pilbrow that she had a choice between her employment being terminated for misconduct or agreeing to a redundancy package’.[221]
[221] Affidavit of Ms Lindsay Karakiozakis affirmed and filed on 11 February 2022 at paragraph [53].
When viewed in context, I find that the decision to issue Dr Pilbrow with Serious Misconduct Allegations was not based on the fact that she had exercised any workplace right as pleaded. Rather, I accept the evidence given by each of the respondent’s witnesses that issuing the Serious Misconduct Allegation was done in response to the University’s view that her deletion of material from the University’s system, particularly in circumstances where the deletion occurred just prior to or over the course of a weekend when students needed access to that information for an upcoming assessment. The fact that the view initially held by the University that Dr Pilbrow had re-deleted the information after it had been reinstated by Associate Professor Fogg was not maintained, does not alter this conclusion. Nor does the fact that the Disputes Committee concluded that there were insufficient grounds for serious misconduct to be found to have occurred.
I accept the evidence given by each of the individuals involved in the issuing of the Serious Misconduct Allegations that they were not motivated, in whole or in part, by any workplace rights that Dr Pilbrow had exercised.
For each of these reasons, I find that the respondent has discharged the onus of proof in section 361 of the FW Act in relation to the decision to issue the Serious Misconduct Allegations.
Why was the Final Written Warning issued?
As indicated above, the respondent has submitted that Professor Mackay made the decision to issue the final warning.
For the reasons set out above, I do not accept that the evidence supports this contention. It is clear that whilst Professor Mackay ultimately issued the Final Written Warning, she did so on advice from someone from the Human Resources Department. No evidence was led as to the identity of that person or the advice given. Applying the principles in Elliot, given the very limited evidence from Professor Mackay as to the reasons for deciding to issue the Final Written Warning, the respondent needed to lead evidence from the person or persons within the Human Resources Department who provided that advice and the reasons for doing so, in order to discharge the onus of proof in relation to this allegation of adverse action.
This is particularly so given the further evidence given by Professor Mackay in the course of cross-examination that she issued the Final Written Warning on the basis that she understood from the advice provided by Human Resources that that was an appropriate response. In her affidavit, as noted earlier in these reasons, Professor Mackay indicated that she agreed with the reasons set out in the Final Written Warning and that those reasons provided a justification for the issuing of the warning.
The letter itself identifies the fact that as a senior academic, Dr Pilbrow was required to comply with the University’s Appropriate Workplace Behaviour, in particular, in relation to the protection of university resources and the need to protect the interests of all students.[222] Whilst the letter itself then gives the reasons for the issuing of the Final Written Warning, it does not give any evidence refuting that a proscribed reason was not part of the reason.
[222] See Affidavit of Ms Lindsay Karakiozakis affirmed and filed on 11 February 2022 at Annexure LK-28.
The respondent submits that the failure to call the relevant person or persons from Human Resources who advised Professor Mackay in relation to the issuing of the Final Written Warning and who drafted that letter is not fatal to the respondent discharging the onus of proof in section 361 of the FW Act.
In support of this submission, the respondent relies upon the observations of Jessup J at paragraph [27] in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 (‘Anglo Coal’), where Jessup J relevantly said:
27.In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question.[223]
[223] Cited with approval in Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71 at [68].
It is therefore submitted that the failure to call someone from Human Resources is not fatal to the respondent establishing that it has discharged the reverse onus in circumstances where Professor Mackay accepts that she was responsible for the issuing of the Final Written Warning and in circumstances where the letter itself sets out the reasons for which it was issued.[224]
[224] Respondent’s Reply filed on 12 May 2022 at paragraph [13].
The observations made by Jessup J in Anglo Coal, however, must be viewed in the context in which they were made. In that case, the person who made the decision to terminate the employment of the applicant was Mr Power. He gave evidence, which was accepted by the primary judge, about the reasons why he terminated the applicant’s employment. The issue in that case was whether the termination was undertaken by reason of the applicant’s temporary absence due to illness (which was a proscribed reason) or because the applicant had behaved in a dishonest manner. It was common ground that the applicant was in fact on sick leave when his employment was terminated. It was also common ground that the applicant had obtained a medical certificate indicating that he was unfit for duties for the duration of his absence.
However, the background in that case was that the applicant had applied for annual leave for two days which was refused. In a conversation about that with the Mine Superintendent, Mr Lawn, who had refused the leave application, the applicant then said that he would take sick leave. A conversation ensued between the applicant and Mr Lawn about the possible consequences if he did not attend for work.
The applicant then did not attend for work and provided a medical certificate covering the absence. On his return, he attended a meeting with Mr Lawn and a representative from the respondent’s Human Resources Department. The applicant was asked about his absence on sick leave in circumstances where he had previously sought annual leave for the same period. A disciplinary process was then initiated by Mr Lawn with correspondence on behalf of the employer signed by the then Mine Manager. Whilst this process was underway, Mr Power took over as Mine Manager. Mr Lawn then briefed Mr Power on the disciplinary process and on his discussions with the applicant after his annual leave application had been refused and the fact that he then took sick leave and provided a medical certificate.
At paragraphs [15] to [16] of Anglo Coal, Jessup J noted:
15.In evidence which the primary Judge accepted, Mr Power stated his reasons for terminating Mr Byrne’s employment. Factually, he accepted what Mr Lawn had told him about his conversation with Mr Byrne … He formed the view that Mr Byrne had, in effect, threatened Mr Lawn with a medical certificate, and had indicated to Mr Lawn that he would use the certificate to get what he wanted, thereby putting himself above reproach by Mr Lawn or his employer. He thought that Mr Byrne had expected that his request for annual leave would be approved and, when it was not, decided to take the leave in any event, without regard for the impact of his conduct on his colleagues or his employer. As it appeared to Mr Power, Mr Byrne had no regard for the need for annual leave to be managed carefully because of its impact on productivity and operations and the pressure it placed on other employees when too many people were away at any given time. He considered that Mr Byrne had conducted himself in a manner which showed that he intended to be dishonest with his actions and to take sick leave when he was not in fact sick. Mr Power believed that Mr Byrne had not been unfit to work on 24 and 25 April 2014, and that he had obtained a medical certificate because it was an easy way to circumvent the refusal of his annual leave request. He said that, in his experience, it was easy for an employee to get a medical certificate, even if he or she were not unwell, because of the reliance which doctors placed on their patients self-reporting their symptoms. He did not attach any significance to the fact that Mr Byrne had obtained a medical certificate.
16.Mr Power also considered the fact that, at the show cause meeting on 9 May 2014, Mr Byrne did not show any remorse for his conduct or otherwise accept that his conduct was not appropriate. Indeed, according to Mr Power, the attitude then exhibited by Mr Byrne showed contempt and disdain for his employer and its processes. That attitude led Mr Power to believe that Mr Byrne thought that his behaviour was acceptable, and did not understand why it was problematic.
It is evident from this excerpt that Mr Power’s views about Mr Byrne’s behaviour was based in part on his own observations at the meeting on 9 May 2014, and in part, on the information provided to him by Mr Lawn, which he accepted as to the discussion between Mr Lawn and Mr Byrne about the leave issue. Both Mr Lawn and Mr Power gave evidence in the proceeding. Mr Lawn’s views about Mr Byrne’s behaviour had a material effect on Mr Power’s ultimate views and decisions regarding Mr Byrne’s employment. It is in this context that Jessup J’s views at paragraph [27] must be viewed.
Whilst the respondent is not required to call evidence from any and all witnesses who might arguably influence the reason for any adverse action taken, evidence in that case was led from Mr Lawn, who, whilst not the ultimate decision maker, did have a material effect on that decision. Relevantly, at paragraph [33] of his reasons, Jessup J went on to say:
33.Although not specifically adverted to as a factor by the primary Judge, I think the circumstance that the participation of each of the three uncalled human resources staff members was limited to attendance at meetings at which others were present, either without or additionally to Mr Power, was also relevant to her Honour’s conclusion that no adverse inference should be drawn from the respondent’s omission to call them. Put the other way round, there was never an occasion when one or more of those staff members met with Mr Power in the absence of someone who was called to give evidence. In respect of every occasion when Mr Power’s thinking was potentially exposed to the influence of others, at least one of those others was called as a witness. (emphasis in original)
The reasoning of Jessup J, with which Rangiah J agreed, does not address the issue of whether the person or persons who made the decision to recommend that Professor Mackay issue a Final Written Warning, as opposed to some other sanction, ought to have been called in this case. For the reasons previously expressed, the failure to lead evidence from the person or persons who recommended a Final Written Warning, particularly where other sanctions were available, means that the respondent has failed to discharge the reverse onus in relation to the issuing of the Final Written Warning. The suggestion that the content of the Final Written Warning speaks for itself ignores, with respect, the need to satisfy the court as to whether that reflects the reasoning of the person who made the recommendation or whether that person, or persons, who have not given evidence were motivated by some other reason, not stated. Whilst the letter identifies a reason for the issuing of the warning, it does not state that a proscribed reason played no part in that decision.
This is particularly so in circumstances where in cross-examination, Professor Mackay said, as stated earlier, that if a lesser response had been suggested, she would not have disagreed with that course of action. No evidence is therefore given as to why the decision was made to issue a Final Written Warning in response to the file deletion issue, rather than, for example, counselling or some other lesser sanction.
For this reason, I therefore find that the University has failed to discharge the reverse onus in section 361. As such the issuing of the final warning is presumed to have been taken for a proscribed reason.
Conclusion
For each of these reasons, I therefore make the orders set out at the commencement of these written reasons for judgment.
I certify that the preceding two hundred and eighty-six (286) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 1 December 2022
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