Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) (No 2) - [2019] FCA 1224

FEDERAL COURT OF AUSTRALIA
Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) (No 2) [2019] FCA 1224

File number: VID 306 of 2018

Judge: MORTIMER J

Date of judgment: 8 August 2019

Catchwords: INDUSTRIAL LAW – adverse action – whether respondent took adverse action against applicant employee – whether adverse action was taken for a prohibited reason – whether adverse action was taken against employee because of her “sexual orientation” – application dismissed

Legislation:
Australian Federal Police Act 1979 (Cth) s 40H

Evidence Act 1995 (Cth) s 130

Fair Work Act 2009 (Cth) ss 12, 340, 341, 342, 351, 361

Mutual Assistance in Criminal Matters Act 1987 (Cth) s 43C

Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 (Cth)

Australian Federal Police Regulations 1979 (Cth) reg 3

Federal Court Rules 2011 (Cth) Pt 23

Cases cited:
Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 277 IR 75

Baird v Queensland [2006] FCAFC 162; 156 FCR 451

Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243

RailPro Services Pty Ltd v Flavel [2015] FCA 504; 242 FCR 424

Regulski v State of Victoria [2015] FCA 206

Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) [2018] FCA 1276

Sayedv Construction, Forestry, Mining and Energy Union [2015] FCA 27; 149 ALD 88

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; 314 ALR 346

Shizas v Commissioner of Police [2017] FCA 61; 268 IR 71

The Environmental Group Ltd v Bowd [2019] FCA 951

Wotton v Queensland (No 5) [2016] FCA 1457; 157 ALD 14

Date of hearing: 10-14 and 17-20 December 2018

Date of last submissions: 29 March 2019

Registry: Victoria

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 493

Counsel for the Applicant: Mr M G McKenney

Solicitor for the Applicant: SLF Lawyers (until 29 July 2019)
The applicant was then self-represented

Counsel for the Respondent: Mr J L Snaden with Ms Z Maud and Mr A D H Denton (before March, 2019)
Mr C B O’Grady QC with Mr A D H Denton (after March, 2019)

Solicitor for the Respondent: Norton Rose Fulbright Australia

ORDERS

VID 306 of 2018

BETWEEN:
KATHRYN LEE RICHENS

Applicant

AND:
COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE)

Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

8 AUGUST 2019

THE COURT ORDERS THAT:
1.The application be dismissed.
2.In relation to costs:
(a)the respondent file and serve any written submissions, limited to five pages, on the appropriate orders for costs in this proceeding by 4 pm on 22 August 2019;
(b)the applicant file and serve any written submissions, limited to five pages, on the appropriate orders for costs in this proceeding by 4 pm on 5 September 2019; and
(c)the respondent file and serve any written submissions in reply, limited to two pages, by 4 pm on 12 September 2019.

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

REASONS FOR JUDGMENT
BACKGROUND

This is a claim brought by the applicant, Kathryn Richens, an officer of the Australian Federal Police, currently holding the rank of Detective Sergeant. I shall call the applicant DS Richens in these reasons. She seeks relief under the Fair Work Act 2009 (Cth) for what she alleges have been a number of incidents of adverse action taken against her from early 2013, by or on behalf of the Australian Federal Police. As a sworn member of the AFP it is common ground DS Richens’ employer is, in law, the Commonwealth, but her employment contract is administered by and through the AFP. All those individuals who, on the evidence, have had a role in decisions or conduct in relation to DS Richens’ employment were either sworn officers of the AFP, or unsworn employees attached to the AFP.
I have previously set out the background of how this proceeding came to be transferred to this Court from the Federal Circuit Court, and the considerable delay and changes in the evidence resulting from that transfer: see Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) [2018] FCA 1276 (the costs reasons). I do not repeat what is contained in those reasons by way of the history of the proceeding, and adopt it as part of the background to these reasons for judgment.
DS Richens remained, at the time judgment was reserved in this proceeding, a sworn officer of the AFP.
Even putting to one side the delay caused by the transfer of the proceeding to this Court from the Federal Circuit Court, the proceeding has been beset by a number of challenges. First was the sheer scale of the evidence the parties sought to adduce. For the applicant, the affidavits which were read and relied upon for her case may have been smaller in number, but they were of a considerable size, with a tremendous amount of documentary evidence exhibited to them. They dealt, often in great detail, with events that she alleged had occurred over the last five years or more of her employment with the AFP. The AFP ultimately relied on the evidence of 37 witnesses, a number of whom swore or affirmed more than one affidavit. The volume of evidence was said to be necessary in order for the AFP to discharge the reverse onus imposed on it by s 361(1) of the FW Act. In part, it was also due to the factually detailed nature of the applicant’s allegations.
Second, the proceeding was characterised by a lack of clarity in how the applicant put her case. It is fair to say that this lack of clarity, in terms of the framework of the adverse action provisions in the FW Act and the way it was contended the factual allegations fitted into that framework, continued until closing written submissions were received from the applicant. I accept this made the AFP’s task more challenging, although the AFP was well-resourced and able to adduce a large body of evidence and make detailed submissions, so that in the end, it was not suggested that the AFP was unable to meet the case put against it. I accept the AFP may ultimately wish to contend the lack of clarity resulted in delays and unnecessary preparation, but that is not the subject-matter of these reasons. For the moment, it is enough to recognise that the applicant’s case lacked clarity at a number of levels, at least until closing written submissions were filed some months after the hearing itself had finished. When some clarity was finally attached to the applicant’s case, it turned out to be put rather differently from how it was put during trial. Again, however, the AFP did not contend it was unable to meet the case put by the applicant, even taking into account the reverse onus in s 361 of the FW Act.
A further challenge arose from the forensic decisions taken by counsel for both parties about how they would, respectively, approach cross-examination. In short, each party cross-examined the other’s witnesses with considerable selectivity. There was little cross-examination, beyond puttage, about whether witnesses’ narratives should or should not be accepted. This was especially true of the cross-examination of DS Richens herself, and of Commander Jennifer Hurst, who was the AFP’s key witness. And yet this was a case which at least in some respects turns very much on which party’s witnesses should be accepted as giving reliable and credible evidence. The parties’ approach did not make the Court’s task any easier.
For the reasons set out below, I have decided the applicant’s application should be dismissed.
THE BASIC NARRATIVE
In this section of my reasons, I make findings which give an overall picture of the context for DS Richens’ allegations. I make more specific findings of fact later in these reasons where such findings are necessary to resolve each of the applicant’s (now) six claims.
The voluminous affidavit material and the approach taken by both parties to cross-examination mean that there is a large body of evidence that is not apparently accepted by both parties, yet was also not the subject of any cross-examination. That this was the state of affairs at trial can be seen from the “Chronology of Key Events” filed jointly by the parties. That document lists a number of agreed events in the chronology, but also a number of events which are put forward by one party and not agreed by the other. Many of those events were not the subject of any cross-examination, despite the indication of a factual dispute existing. That appears also to be the case with a substantial part of DS Richens’ evidence about her various employment positions since 2013: in her affidavits (see for example her affidavit of 13 October 2017) she gives a great deal of evidence about day-to-day occurrences which she describes as having been adverse to her, and as occurrences where she was treated differently to her similarly ranked colleagues. Not all of these matters form part of her six identified claims, nor indeed did they form part of her claims as put in opening at trial. Many were not the subject of cross-examination, neither of DS Richens, nor of the AFP officers who might have been cross-examined about them (for example, Detective Superintendent Darren Booy). Much of this evidence was not referred to in the applicant’s closing written submissions. Accordingly, I have proceeded on the basis that these factual issues are, at best, part of the general background, but are not relied on in any way by either party to prove or rebut an alleged contravention, and therefore do not need to be the subject of express findings.
I do not intend to embark on some lengthy task of trying to sift through and sort out which facts remain in contest and what findings should be made about them, where the parties do not appear to have relied on those facts in advancing their respective cases. The approach I have taken is first to set out in this part of my reasons sufficient of the narrative to place the applicant’s claims, the AFP’s responses and my findings in a general context. Thereafter, and secondly, I make findings of fact on the basis of the evidence, where it is necessary to do so, in order to resolve one or more of the six claims now advanced by the applicant. I do so by reference to the evidence to which the parties directed the Court, principally in their closing written submissions.
The AFP as an organisation
In its closing written submissions, the respondent made submissions concerning the nature of the AFP as an organisation, and its decision-making processes. In particular, the respondent emphasised, by reference to the affidavit evidence of Mr Murat Boyuk, an AFP Human Resources Team Leader, the “constantly rotating nature” of its workforce. Mr Boyuk gave the following evidence:
The AFP has an organisational priority to develop a multi-skilled workforce where its sworn officers can work capably in all different areas of crime. The main way that this is achieved is through rotating members through different areas as often as is practicable. This initiative not only achieves a better equipped police force, but it also assists the AFP’s members in their professional development and career aspirations. As a general rule, someone will be considered for a rotation (whether they request one or not) when they have been in a role for two years or more. This rotation of members is common amongst the AFP from its team members up to Coordinators and, naturally, the higher the rank and responsibility of those being rotated, the greater the impact on a team.
(Footnote omitted.)
I accept that evidence and have borne this context in mind when considering each party’s case.
One manifestation of the mobility of the AFP’s workforce was the movement in rank, location and indeed continuing employment, of various AFP officers who gave evidence, or to whom reference is made in the evidence. Movement in rank poses a particular challenge for the Court’s description of witnesses. The approach I have adopted, which broadly reflects the approach taken during the trial, is to refer to officers by their rank at the time of material events, when I am dealing with those events in an historic or narrative context. Where I deal with an officer’s evidence in this proceeding, I use the officer’s rank as it was at trial, according to a list provided by the AFP to the Court. The choice is not always a binary one but I have attempted to maintain that distinction throughout.
DS Richens’ employment history in the AFP
The applicant commenced her employment with the AFP on 28 September 1998. She commenced her AFP career in Canberra in ACT Policing (General Duties) and the Territory Investigations Group (Detectives). In 2006 she transferred to Federal Operations (Investigations). She has also had several overseas postings, which are not necessary to describe in detail. She became a Detective in 2001, and a Detective Sergeant in 2011. She was awarded an Advanced Diploma of Policing in 2004, and a Master’s degree in Terrorism and Security from Charles Sturt University in December 2016.
The applicant first met Commander Hurst in January 2011, when Commander Hurst was in charge of the AFP’s People Smuggling Operations team. The applicant was then a Team Leader in People Smuggling, having been assigned to the People Smuggling Strike Team in Canberra from October 2009. While there is some dispute on the evidence whether the applicant “reported” to Commander Hurst at that time, the evidence does reveal that from around mid-2011 to mid-2013, Commander Hurst became something of a mentor to the applicant, and it is common ground the two officers had a number of informal conversations, including over coffee, about DS Richens’ career path, and what might be in her best interests in terms of career choices within the AFP. Commander Hurst supported DS Richens’ applications for several overseas postings during this period, including one which DS Richens accepted to Jakarta in late December 2012 for six weeks, and others which DS Richens did not take up.
DS Richens’ relationship with SC McPherson and their attempts to co-locate
Between 2007 and 2012, DS Richens was in a same-sex relationship with a member of the Australian Defence Force. They were not able to co-locate in terms of their professional positions. This relationship ended in mid-2012. DS Richens’ relationship with Senior Constable Emma-Kate McPherson began in January 2013. SC McPherson had joined the AFP in 2007, performing a number of different roles until 2012 when she was permanently deployed to Brisbane as a canine handler attached to the National Canine Operations and Specialist Response Group.
It was shortly after the relationship between DS Richens and SC McPherson began that DS Richens actively sought alternative positions to the one she held in Canberra, so that she and SC McPherson could live and work in the same location. This was the point at which the events which have become the subject of this proceeding commenced.
Events leading to the National Placements Sub-Committee (NPSC) application and meeting
It does not appear to be disputed on the evidence that in all of her positions with the AFP until early 2013, DS Richens had received favourable and often substantively positive performance reviews, and her work performance had been acknowledged to be of a high standard. That is not to say that those within the AFP hierarchy responsible for assessing DS Richens’ performance, or making decisions about her placements, did not see room for growth and improvement in her skills. Rather, it is simply to acknowledge, at a general level, that DS Richens had been seen by those within the AFP who had management responsibilities towards her, or worked with her, as an officer who performed well.
DS Richens’ first attempt to co-locate with SC McPherson occurred in January 2013 when DS Richens applied for a transfer to a temporary “backfill” position in the AFP’s Crime Operations unit in Brisbane. DS Richens was offered this position, but ultimately turned it down because some of the conditions attached to it were not suitable to her. This included some debate about the terms on which DS Richens could return to an operational position in Canberra when the temporary position in Brisbane ended.
There were some further vacancies identified by both DS Richens and SC McPherson in Melbourne, and both submitted expressions of interest for positions in Melbourne, also in mid-January 2013. Commander Hurst supported DS Richens’ application to a position in Crime Operations. In an email to the relevant AFP officer in Melbourne (Manager Melbourne Office Commander, Scott Lee), Commander Hurst stated that DS Richens’ expression of interest “comes with my strong support”.
Commander Hurst’s support was not unqualified. The majority of the available positions in Melbourne were in the Serious and Organised Crime team, at Team Leader level. Commander Hurst did not support the applicant transferring to those positions. In her affidavit evidence, DS Richens described Commander Hurst’s support in rather negative terms, but the email from Commander Hurst at the time explains why Commander Hurst took the view she did:
Hi Kath
Please see below from Scooter
I wouldn’t support you going into SOC – all their operations are large scale narcotics matters – you need some time in Crime Ops before you go to SOC..
I have asked Scott to consider your placement when the TL’s are being placed and include you into that mix – for a position in Crime Ops Melbourne if possible.
DS Richens’ response to Commander Hurst’s email was:
That sounds good – happy to await that outcome with fingers crossed.
Thanks so much for this.
The applicant’s transfer application to Melbourne took some time to resolve, and was not resolved by the start of March 2013. Also around this time, due to a restructure of the People Smuggling Operations team in Canberra, the applicant was moved to a Team Leader role in Crime Operations in Canberra. In this role she was under the command of Commander Hurst, although she reported to Superintendent Booy. The applicant’s evidence was:
When I commenced in Crime Operations Commander Hurst’s behaviour towards me was indifferent and I felt unwelcome in the team. I felt excluded and was rarely spoken to with the exception of Sergeant Clifton whom I already had a good rapport with from ACT Policing.
While I make no finding as to whether this was or was not how Commander Hurst behaved when the applicant first moved to Crime Operations, I note this was how, four years later in 2017, the applicant described herself as feeling at the time. That may well be accounted for by the matters to which I refer at [196]-[199] below.
In April 2013, DS Richens was offered a position in Melbourne by the National Placements Sub-Committee (which I refer to in these reasons as the “NPSC”), the body which is the subject of some allegations by DS Richens for its subsequent decision-making about her in June 2013. The precise Melbourne position was to be specified at a later date. DS Richens initially accepted the Melbourne placement offer. She had also applied to the NPSC for a transfer to Brisbane, but withdrew that application after Commander Hurst told her she would not support it. Commander Hurst supported DS Richens’ application to transfer to Melbourne. One Constable Joseph Thorn was identified by the NPSC for promotion to Sergeant and transfer to Crime Operations in Canberra. The AFP’s evidence was that this kind of “swapping” of officers in and out of positions was a regular, but not invariable, part of the transfer process.

On 16 May 2013, the AFP’s Crime Program Workforce Planning Meeting minutes stated:
FA Kath Richens is transferring to CP Melbourne Office. Transfer date and team to be advised. TMBST advised that FA Richens will transfer into the role of Team Leader Melbourne Trident Taskforce. FA Joseph Thorn will be transferring into FA Richens position in HQ as TL Crime Operations. Melbourne HR advised that the transfers will occur in July.
In late May 2013, DS Richens withdrew her acceptance of the Melbourne position. DS Richens’ evidence is that she withdrew from the transfer because of the difficulties she was having in co-locating with SC McPherson. SC McPherson was refused a transfer to Canine Melbourne, and was also told she could not transfer to Canberra, and had to remain in Brisbane. This was the email DS Richens sent to Commander Hurst on 23 May 2013:
Ma’am,
I regretfully withdraw from the transfer offer to Melbourne.
My decision relates to realigning personal career aspirations with life priorities confronting me now and into the foreseeable future, including inability to co-locate my partner to Melbourne and the relationship stressors and financial considerations that extend.
Thank you for supporting my EOI though the NPCSC process.
Kath
However, it is also the case that between late April and late May 2013, a number of other events occurred, which are the subject of some of the applicant’s adverse action allegations. I set those out below. There were also some discussions about whether Constable Thorn’s transfer to Canberra could be delayed until early 2014 for family reasons (his wife was expecting a child), and whether DS Richens’ transfer needed to nevertheless go ahead in July 2013, as Commander Hurst thought it should. At one stage the applicant relied on these events as part of her adverse actions claims (to the extent she asserted she was being treated differently to Constable Thorn), but it appears she no longer does.
In late May 2013, after she had withdrawn from the Melbourne transfer, DS Richens was seeking out positions in the AFP’s Counter Terrorism division in Canberra.
The June 2013 NPSC application, DS Richens’ placement at Learning and Development and further transfer attempts
In an email responding to DS Richens when she told Commander Hurst she would not be taking the Melbourne transfer, Commander Hurst had said:
We will need to discuss where to now for you; please give this some consideration and I will have some time allocated next week in my calendar for a discussion with you, Ben and myself
The “Ben” referred to is Detective Superintendent Benjamin McQuillan. It appears from the evidence that whatever discussions were held between DS Richens and Commander Hurst were also intermixed with the arrangements for DS Richens to take leave. The leave arrangements were rendered difficult at least in part because a number of officers had leave approved at the same time – a matter which Detective Superintendent McQuillan deposed resulted in the team having insufficient capacity during that period.
DS Richens appears to have spent a considerable period of time on 6 June 2013 arranging to lodge her application to the NPSC for redeployment out of Crime Operations, as she had been directed to do. She was attempting to identify positions which might be suitable for her, and which she would be keen to pursue. She gave evidence that she had been advised, by both Superintendent Mark Colbran and (then) Sergeant Donna Hall, that she was able to submit a “deferred” NPSC application, which in substance stated that she would “like the opportunity to use other avenues first” before being compelled by the NPSC to take a placement chosen by the NPSC. I note at the time of trial Sergeant Hall had changed her surname to Sloane and had left the AFP. Some time was spent in evidence about whether there was, in fact, such a thing as a “deferred” application to the NPSC. In the end, this seemed to be something of an arid debate over terminology, which I have not found necessary to resolve.
The content of DS Richens’ application to the NPSC assumed some significance at trial. On its face, it is clear DS Richens requested further time to try to identify a suitable operational vacancy for herself – this was the “deferred” aspect of her application. As the form then required her to do, DS Richens also identified a number (nine in fact) of positions in other portfolios to which she would accept a transfer. I note that the term “portfolio” appears to be a preferred internal descriptor used by the AFP and, where appropriate in these reasons, I have adopted it. One position she nominated was in the portfolio titled “Learning and Development”.
This is what DS Richens said in her application about this proposed position:
3) Learning and Development: Advised that a Team Leader vacancy exists. Submitted my EOI and CV to Manager Learning and Development and yet to discuss my suitability for this vacancy with her.
In other words, DS Richens had already applied for a vacant position in Learning and Development before submitting her NPSC application in June 2013. Learning and Development is where she in fact was transferred, and is the subject of some of DS Richens’ further allegations.
In the email sent enclosing her application, the applicant told the NPSC:
NPSC Secretariat,
RE: APPLICATION FOR PLACEMENT BY THE NATIONAL PLACEMENT SUB COMMITTEE
Please find attached my application for placement by the National Placements Sub Committee.
I was requested to submit this application for the NPSC scheduled 13/6/13, however wish to seek deferment to have this tabled at a later NPSC for the following reasons:
•I was advised on 28/5/13 that there is unfortunately no position for me in Crime Operations following my withdrawal from a transfer to Crime Operations Melbourne.
•Between 28/5/13 - 6/6/13 I have been proactively seeking vacancies in other portfolios suitable to my skills set. These enquires are incomplete and there are indications due to various restructures and budgeting outcomes that a suitable vacancy may arise in the coming weeks, for which my CV will be closely considered.
•I do not feel I have been afforded suitable time to respond to the request to identify a new position for myself prior to this NPSC, and as such request either an extension of time to finalise my proactive enquiries, or alternatively be considered for placement to an operational vacancy (or proposed vacancy under restructure) within one of my identified portfolios of interest.
I am on leave 7-17/6/13, but available at any time on [REDACTED] should you require further information.
Submitted for your action.
Thanks,
Kath Richens
(Original emphasis.)
While the NPSC process was underway, DS Richens was still applying, separately, for other positions, including a position in Counter Terrorism in Canberra.
On 17 June 2013 the applicant was informed by David Turner, the AFP’s then Acting Manager Human Resource Strategies, that the NPSC had decided to place her in Recruit Training in Canberra, on a fixed-term mobility position in the Learning and Development portfolio. She was, as the name suggests, to be involved in teaching AFP recruits. As I have noted, the applicant had already applied for a position in this portfolio. The applicant gave evidence that this position was “non-operational”, was a two year position and did not allow her to apply for transfers during that period.
Despite being given this information, DS Richens persisted in her attempts to secure an operational position and spoke with Acting Commander Andrew Donoghoe about the positions in Counter Terrorism she had been inquiring about. She sought, through Mr Turner, to have her placement in Learning and Development “suspended” while she pursued a potential vacancy in Counter Terrorism. On the same day, DS Richens was told again, this time by Superintendent Booy, that she was to go to Learning and Development. Acting Commander Donoghoe confirmed to her by email on 21 June 2013 that the NPSC decision had to stand. Also on 21 June 2013, Superintendent Booy actioned the applicant’s transfer to Recruit Training, effective 15 July 2013.
The leave requests
DS Richens had some leave planned between 13 and 17 May 2013. The purpose of her taking leave was to spend time with SC McPherson and attend SC McPherson’s mother’s 60^th birthday party in Victoria. The leave had been approved in March 2013. There were other officers taking leave at the same time and one of the adverse action allegations made by DS Richens concerns the contention that Commander Hurst “targeted” DS Richens by requiring her to meet with Commander Hurst regarding her leave and to find a backfill for her position, while other officers taking leave were not required to identify backfills.
At the end of May 2013 there was a further issue with DS Richens’ leave. She had applied (on 24 May 2013, a day after she had turned down the Melbourne transfer) to take leave from 3-6 June 2013. In her affidavit evidence, DS Richens described this leave as “a matter of urgent wellbeing need”, and deposed that its purpose was to spend time with SC McPherson. Her request was declined by Commander Hurst (through Detective Superintendent McQuillan), who informed her she could take leave the following week, from 11-14 June 2013. DS Richens then booked some non-refundable airfares to Brisbane. However, she was later told by Detective Superintendent McQuillan that in order to take that leave she needed to find a backfill for her position and the position of another AFP officer who was taking leave at the same time. DS Richens alleges she was targeted for unfair treatment by Commander Hurst in how her leave (which had been approved) was placed in jeopardy. Ultimately, DS Richens managed to find backfills, and took her leave, apparently from 11 June 2013.
It appears to be common ground that DS Richens was directed by Commander Hurst to make her application to the NPSC prior to commencing this period of leave. It also appears to be common ground DS Richens submitted that application on 6 June 2019.
A little later, after the NPSC decision to which I refer above, and due to the stress she was feeling, DS Richens applied for another round of leave – this time, long service leave. DS Richens applied for long service leave from 1-12 July 2013. She did this in the usual way by submitting an application form to her supervisor, Superintendent Booy.
It should be noted that the time period during which DS Richens was seeking to take long service leave overlapped with her last two weeks in the Crime Operations team, before she moved to Recruit Training. On the evidence the applicant’s last day of long service leave was 12 July 2013 (a Friday), and she commenced in Recruit Training on 15 July 2013 (a Monday). That fact is relevant to the circumstances which arose after her request was lodged.
In her affidavit evidence, DS Richens described the way she felt which prompted her to apply for this leave:
I applied for LSL because I felt incredibly stressed and bullied by Commander Hurst, Superintendent Booy, Sergeant Anderson and Mr Turner. I felt that I could not attend work in Crime Operations without being harassed and intimidated. It took courage for me to attend work each day and I sat at my desk trembling, shaking and like my life was in crisis. I wanted to immediately remove myself from this environment.
These are the kind of matters about which it is not possible to make findings, one way or the other, on the state of the evidence, because none of this kind of evidence was tested. As I have said elsewhere, I do accept, however, that when DS Richens looked back at this period at the time she swore her first affidavit in October 2017, this was her perception of how she felt at the time. There is no basis to find that DS Richens concocted this evidence. It may sound extreme, and perhaps attended with some exaggeration, but I accept that when DS Richens swore her affidavit in October 2017, this was her memory of how she felt. That is not the same finding as one which finds, as a positive fact (for example), that each time she came into the Crime Operations office in June 2013, DS Richens did sit at her desk trembling and shaking. It is, however, clear that DS Richens was very unhappy, and was forthright about her unhappiness. In her October 2017 affidavit, she deposes to raising with her new supervisor in Recruit Training, Superintendent James Stokes, on the first occasion she met him on 26 June 2013, that her new position was the result of an “involuntary redeployment”, and the operational role in the Counter Terrorism portfolio was what she was interested in. Hardly, one imagines, what a supervisor wishes to hear from a new officer starting in her or his team. Various evidence from the respondent also confirms that during this period DS Richens presented as anxious and agitated: see for example the evidence of Superintendent Booy at [34] of his first affidavit, about his meeting with the applicant on 28 June 2013.
Following receipt of DS Richens’ application for long service leave, Superintendent Booy and Sergeant Jim Anderson were concerned she had not completed all the tasks she needed to before she left Crime Operations. At [25] of his first affidavit, Superintendent Booy listed what those tasks included. The applicant was adamant she had a complete handover ready to go. Superintendent Booy and Sergeant Anderson called a meeting to discuss the issue, to which DS Richens brought Sergeant Hall as a support person. Sergeant Hall was, at that time, a member of the AFP’s “Confidant Network”, the purpose of that network being to provide officer-to-officer support regarding reports of alleged inappropriate or unethical behaviour in the workplace. At this point it is not necessary to set out the very long and detailed competing versions of what happened at that meeting. A compromise was reached: the applicant would complete some of the tasks Superintendent Booy had identified as outstanding, and her leave would be granted, but delayed by two days. The applicant did what she was required to do, a backfill for her position was identified, and she then took her leave.
While DS Richens was on leave, she and SC McPherson decided to write to Assistant Commissioner Leanne Close about their failed attempts to co-locate. In their email to her, the two officers described their predicament. It is a lengthy email but worth setting out in full, as it gives some context to many of the allegations in this proceeding:
Dear Ma’am,
I apologise for approaching you directly, however I am seeking your independent review and advice on the matter of co-locating with my partner S/C Emma McPherson in Canberra. Our request to co-locate was raised through NMA to Brisbane Aviation for consideration of Emma’s release to a vacancy in Canberra. At this point the feedback from Brisbane Aviation has been particularly unsupportive and offers no resolution or ongoing consideration. Emma has been told she is not released within the next 18 months and is not to raise or discuss the request again with anyone else or possible disciplinary action may take place.
The matter is distressing for us both as we have put forward reasonable solutions which are of mutual benefit to the organisation and our relationship. We genuinely feel that the request has not received balanced consideration, and Brisbane Aviation management are unwilling to negotiate the transfer into future workforce planning options. I appreciate you are very busy and I hope my contacting you direct is not viewed as inappropriate, I have just unfortunately reached a point of not knowing how to address the matter now, and persistence through the channels already addressed appear inflammatory.
Brief Overview of Request
We have been attempting to co-locate since January 2013. After I was found highly suitable for the International Network over the past 2 years the selection panel afforded feedback that I should expand my operational skills in regional operations to assist with placement into the network. As a result I requested positions in Brisbane but was declined any permanent vacancies. As there were vacancies in Canine Melbourne, we both progressed transfers there. In April 2013, through the NPSC process (EOI Mobility Transfers for Team Leaders) I was afforded a transfer to Crime Operations Melbourne, however Emma was declined through an informal process addressed to Canine and Brisbane Aviation. We attempted to seek reconsideration of her transfer by resubmitting the request through CMS for NPSC placement, however this was also declined citing nil vacancies as the reason. Brisbane Aviation A/Superintendent Brendan Withers then consulted Canine Canberra and advised there was an opportunity for her to transfer back to Canberra as an alternative option following an email from Superintendent Andrew Clarke indicating vacancies there. We viewed that option as attainable and I withdrew from the Melbourne transfer to align my career aspirations with my work-life balance requirements, however the opportunity for Emma to transfer was then declined.
Following my withdrawal from Melbourne I was advised there was no longer a position for me in Crime Operations Canberra, and through the NPSC process was reassigned to a permanent position as Team Leader, Recruit Training, Learning and Development commencing 15 July 2013.
We have been resilient to non-constructive feedback including but not limited to ongoing statements such as our circumstances are not comparative to the co-location of heterosexuals who meet genuine compassionate reasons, it’s not the AFP’s problem we live apart nor is it the AFP’s responsibility to co-locate people with their partners, and if Emma feels aggrieved by not being released she should see Davison Trahaire and find herself a share house to make some friends and save some money. We have both engaged Wellbeing Services and the Confidant Network and have been appreciative of the guidance and support they have provided to date.
We understand that retention of females in the AFP is important and combined we have 26 years of experience. The AFP has invested in our careers, I am within a leadership role and Emma is within a specialist role with additional skills retention in OST. We want to be fully efficient in our jobs whilst obtaining a healthy work-life balance, however it feels the medium to long-term option confronting us is to seek alternative careers outside the AFP in order to obtain that.
We are seeking review of our request for Emma to transfer at our own cost from Brisbane to a vacancy in Canine Canberra. There are current and planned vacancies in Canine Canberra and several additional Canine vacancies becoming available for general purpose dogs assigned to ACTP. There are Canine courses in progress with an opportunity for Emma’s vacancy in Brisbane to be filled, and we genuinely offer to repay the costs borne by the AFP ($4,500) for her original transfer to Brisbane to enable that process. Emma’s dog specialises in explosives / firearms detection to which there are 8 of the same purpose in Brisbane, and 3 of the same purpose in Canberra. Emma also has a genuine interest in being the first female to perform duties as a dual handler / general purpose handler in Canberra, however has been advised she will be ineligible for the general purpose Canine EOI as she is Brisbane based.
I am currently in Brisbane on LSL with Emma, and would be happy to discuss further at any time that is convenient with you. I have cc’d Brigid Ryan on this email as she was supportive from a Wellbeing perspective in my approaching you outside formal chains of command.
Kind regards
Kath Richens (5685)
and
Emma McPherson (18908)
(Original emphasis.)
Assistant Commissioner Close replied in a sensitive way. Again, it is worth setting out the whole response:
Hello Kath
Apologies for the delay in my response, but I was on leave last week.
I have made enquiries in recent weeks about the potential for Emma to return to Canberra with the Aviation portfolio. I did this after you approached the Confidant Network and sought their advice. Donna Hall asked told me your concerns about this matter and advised you were happy for me to make those enquiries with Aviation.
I spoke to NMA Shane Connelly about this three weeks ago. Initially, he agreed with me that this sounded like an option. However, upon making enquiries with his management team, he found out that Emma has not been in Brisbane very long at all. The investment in having her train and transfer to Brisbane was significant and Aviation have advised Emma that they want to have her work there for the two years minimum as was agreed at the time of the transfer.
I cannot override the decision of Aviation, but I will forward your email to NMA for his information and to ensure there are no other options that might be considered.
On the matter of people saying to you or Emma your “circumstances are not comparative to the co-location of heterosexuals who meet genuine compassionate reasons” can you send me the emails or details of the conversations so that I can investigate. It is not appropriate for anyone to make these sorts of comments. I want to make sure that whoever did so is advised that their comments are inappropriate and contrary to the values of the AFP.
Kind regards
Leanne

This sort of evidence makes the applicant’s overall case challenging. Responses such as that from Assistant Commissioner Close (and there are others in the evidence) appear fair, and proportionate, disclosing a rational basis for why past decisions have been made. In contrast, despite what was said in DS Richens’ and SC McPherson’s email, on Assistant Commissioner Close’s evidence DS Richens herself did not respond to Assistant Commissioner Close and did not produce to her any of the allegedly discriminatory communications of which she and SC McPherson had complained. Nor was the Court referred to any evidence of such communications despite (one might have thought) such evidence being material to some of the applicant’s adverse action allegations.
However, the Court Book does contain email correspondence between Assistant Commissioner Close and SC McPherson in late July 2013, in which SC McPherson provided an example of the “inappropriate comments” referred to in the 9 July 2013 email. SC McPherson prefaced her description of the comment with the following statement, in which I note she uses the pronoun “we”:
As I am sure you can appreciate the nature of these kind of comments and behaviours come with other pressures having me feeling very uncomfortable in my current workplace. We mentioned this comment to show the kinds of things we have been dealing with and to justify the fact that we believe that my request has not been viewed with equal respect and fairness as other couples.
The example that SC McPherson provided was from a conversation with her then Team Leader on 1 May 2013, about her transfer request. SC McPherson stated she was told she should not “get her hopes up” for a transfer. She stated that there was a discussion about what would constitute “compassionate circumstances” for a transfer. SC McPherson stated her Team Leader said her personal circumstances didn’t fit within that concept, and gave an example of such circumstances as being an AFP member coming to Brisbane, who wants to be with his wife, who won’t move to Canberra. When SC McPherson told her Team Leader she wanted to be with her partner, she stated that her Team Leader responded “but that’s different”.
As I have noted, this was not an example provided to Assistant Commissioner Close by DS Richens, but by her partner, and it did not directly involve DS Richens. Nevertheless, it is an example from the evidence. Nothing of it was made on behalf of the applicant. Whether or not Assistant Commissioner Close “looked into” what SC McPherson had said (see her affidavit of December 2017 at [26], where she deposes she would have looked into any such comments if provided to her) did not emerge from the evidence, as Deputy Commissioner Close (as she was at the time of trial) was not cross-examined about this.
This is an example of how difficult the parties, and particularly the applicant, have made the Court’s task, by not referring the Court to aspects of the evidence which would appear to have been relevant to her discrimination claims, and by not testing material aspects of the AFP’s witness evidence.
DS Richens’ Performance Development Agreement in late 2013
After she had commenced in Recruit Training, Superintendent Booy was finalising DS Richens’ Performance Development Agreement (PDA). As Superintendent Booy explained in his evidence, the PDA is an agreement between each officer and her or his supervisor, applying to a defined period of time. The supervisor is often required to “review” an officer’s performance, measured against what was agreed (in advance) to occur during that period of time. The review process has a binary outcome: either the officer is rated as having “fulfilled” or “not fulfilled” the aspects of her or his PDA. There is no dispute that Superintendent Booy, when he completed the applicant’s PDA review in October 2013, rated her as having fulfilled all aspects of her PDA for the period of March-August 2013. DS Richens was, however, unhappy with six comments made by Superintendent Booy in his review, which she contended amounted to “explicit and implicit claims of underperformance”. The circumstances surrounding DS Richens’ subsequent complaint about Superintendent Booy’s review is the fifth claim in DS Richens’ final set of allegations, and I will set out where necessary the detail of the facts in my findings on those claims.
Officers can apply for a review of their PDA assessment, in certain circumstances. DS Richens sought to have her PDA reviewed. Superintendent Booy stood by his observations when first contacted by the AFP’s Human Resources department, saying they were fair and justified. After what appears on the evidence to have been a somewhat protracted process, during which the applicant continued to assert Superintendent Booy’s comments were “defamatory” and without a basis, in December 2013 Ms Julia Lynch (then employed by the AFP as a Team Leader, Performance Management Unit, Human Resource Management) told DS Richens there could be no review of her PDA. Ms Lynch stated this was because PDA reviews were only available where an officer had been rated as having not fulfilled aspects of the PDA and as “underperforming”, or in circumstances where a Management Team is unable to resolve a “serious intractable performance dispute” (this latter category being one Ms Lynch considered did not apply in DS Richens’ case). Since DS Richens’ PDA was rated as “fulfilled”, and Superintendent Booy’s observations were only commentary, Ms Lynch did not consider there was any basis for a review. The applicant continued to complain about this outcome, and press for her PDA to be changed, into 2014.
As part of the Fair Work Commission outcomes, the issue of DS Richens’ PDA review was revived again. A review was one of the two agreed outcomes before the Fair Work Commission. If anything, the PDA review produced a more unfavourable report to DS Richens, which she described in her October 2017 affidavit. It is not necessary to set out the content of what was said by various AFP officers in that review (including Commander Hurst, Superintendent Booy, Sergeant Anderson and Detective Superintendent McQuillan).
Attempts to transfer to other positions until May 2015
It is not necessary at this point to set out the very considerable evidence relating to the efforts the applicant, and SC McPherson, continued to make to transfer to positions which would mean they could co-locate. The evidence shows constant effort to do so, especially on the part of the applicant, and so much so (in terms of the amount of correspondence) that it does lead one to wonder how the applicant had time to perform her duties.
The applicant was obviously still finding the situation very stressful. Her evidence is that after consulting her general practitioner in mid-February 2014, she was a given a medical certificate and granted personal leave from 17 February-14 March 2014. The absence of any solution to the co-location issue, and a number of events to which DS Richens deposes in her October 2017 affidavit, led her to return to her general practitioner in mid-March 2014 and be granted the appropriate certificate for a further two months of personal leave, until 2 May 2014.
When she returned to work on 5 May 2014, DS Richens deposed in her affidavit evidence to receiving considerable support from Superintendent Stokes, who, as I have noted above, was her supervisor in Recruit Training.
The applicant immediately commenced actively looking for other positions, including in Counter Terrorism. Despite her apparent aversion to the portfolio, she also tried to transfer to Learning and Development in Brisbane. During this time, DS Richens also learned of the transfer of one Sergeant Peter Lamont to a position in the AFP’s Counter Terrorism unit – a unit she was very keen to work in. The applicant’s evidence is that this transfer of Sergeant Lamont appears to have been arranged by Commander Hurst.
The applicant continued to apply for and enquire about vacancies and transfers, including to Counter Terrorism in mid-September 2014, when expressions of interest were called for. The applicant submitted an EOI and deposed to being “excited” about it, and of having confidence in her application.
However, the applicant was clearly still very worn down by the inability to co-locate with SC McPherson, or to secure a placement out of Recruit Training and back into an investigative role. She deposes that in a conversation with Superintendent Stokes in mid-October 2014, she said the following to him, when he asked her “so, how’s life”:
… what life, I don’t live life, I pass time, I go home to nothing each day, and I struggle to get up in the morning to come to work.
With the assistance of Superintendent Stokes, DS Richens attempted to find positions such as temporary backfill positions in Brisbane, with limited success. Superintendent Stokes was clearly trying to be supportive of DS Richens and her situation, but at least on DS Richens’ evidence, he could not see an answer. DS Richens deposed to this conversation about her application for a temporary backfill position in Brisbane:
Me: “Well 3 months is better than nothing and I would appreciate the respite because in addition to my FWC conference next week, Emma has her Human Rights conciliation in Brisbane on 31 October 2014 that I need to attend with her”.
Superintendent Stokes: “At some stage you need to give up”
Me: “Give up what? My partner or my job?”
Superintendent Stokes: “I don't know”
Me: “well what do you mean give up, why did you say that. I’m good at my job and I love my partner so what am I supposed to give up?”
Superintendent Stokes appeared frustrated by my response and stated words to the effect: “I don't know Kath, I don’t know what I mean. I guess at some stage you need to stop because it is making you unwell”
Me: “well that’s why I’m asking to work in Brisbane, so I can have a normal life”
After considerable persistence, DS Richens commenced a four week backfill position in Brisbane in early November 2014. It was in Learning and Development. It appears to have turned into a longer stay. It appears that while she was in Brisbane, DS Richens’ preoccupation with securing a position she was happy with continued. SC McPherson deposes:
Between 30 October 2014 and 12 February 2015, Kath was in Brisbane backfilling the Sergeant Learning and Development positon. Kath spent a lot of time seeking updates from Mr Turner on the progression of the FWC undertakings as she was stressed and continued to be denied vacancies.
In late November 2014, DS Richens was informed she was unsuccessful for the position she had applied for in mid-September 2014 in the Counter Terrorism unit in Canberra. In her affidavit, she deposes that she considered this outcome was “pre-determined” because Mr Turner had told her at the Fair Work Commission conciliation conference she would not get a role in Counter Terrorism. Mr Turner denied saying this. The AFP objected to the applicant’s evidence on the basis it was inadmissible opinion. I consider the evidence is admissible as evidence of her state of mind at the time, but no more than that.
There was further communication between DS Richens and Mr Turner about possible transfers right up until the end of 2014 and into early 2015. The possibility of a “swap” with an AFP officer who was stationed in the Aviation division in Melbourne arose in December 2014, and DS Richens pursued this. Her affidavit evidence deals with what she saw as a consistent stream of obstacles put in the way of this “swap” being effected. However, as I outline from [78] below, this “swap” eventually occurred.
The Fair Work Commission complaint
The applicant lodged a complaint with the Fair Work Commission on 7 September 2014.
SC McPherson had also lodged a complaint, but with the Australian Human Rights Commission.
A conciliation conference was held at the Fair Work Commission on 21 October 2014. There is some dispute between the parties about what precisely were the outcomes of the conference. However, there is no dispute that whatever occurred was taken by both sides as being capable of resolving the applicant’s complaint to the Fair Work Commission, although formally the Commission appears to have left the complaint “open” for some time. Ultimately it appears the Commission closed the file.
Mr Turner deposed the respondent agreed to two outcomes as a result of the conference:
(a)a review of the applicant’s PDA; and
(b)that the respondent would look for sworn operational roles in Melbourne and Canberra at the applicant’s level that suited her skill set.
Mr Turner’s summary is consistent with the substance of the following email exchange between Jasmine Millar, Senior Legal Counsel at the AFP, and DS Richens, immediately following the Fair Work Commission conciliation conference. It is useful to set out that correspondence in full.
On 21 October 2014, Ms Millar sent the following email to DS Richens:
Dear Detective Sergeant Richens,
I refer to the conciliation conference at the Fair Work Commission this morning.
As discussed at the conference, the AFP is willing to undertake the following actions to resolve your general protections dispute:
1. Conduct a review into the PDA comments; and
2. Identify operational roles in your preferred location of Melbourne which may be suitable to you. We understand that you may consider operational positions in Canberra and we may also identify these for your consideration. It would, of course, remain open to you to apply for any position in which you have an interest.
Could you please confirm that the above accords with your understanding of the outcomes agreed today?
On the practical side of things, we would propose to move forward on these items as follows:
1. PDA comments review - Dave Turner will identify the appropriate person to conduct the review and initiate the review process by 29 October 2014. You will be advised who will be conducting the review and the expected timeframe for completion.
2. Suitable positions - Dave Turner and his HR Team will commence work on identifying operational positions that may suit your preferences. This may involve some consultation with operational areas and L&D. Dave Turner will contact you in the next 2 weeks about potential roles and confirm the process going forward.
Should you have any questions in relation to the above or wish to discuss please do not hesitate to contact me.
Kind regards,
On 22 October 2014, DS Richens replied to Ms Millar’s email. It is immediately apparent how prescriptive her response is:
Dear Jasmine,
Thanks for your email.
My understanding is that AFP will undertake the following actions to assist in resolving my general protections dispute, and that these actions are to be conducted within reasonable time. I note you indicate timeframes to commence the actions which are acceptable to me.
1) AFP will explore the issues of co-location with my partner in my location preference identified as (1) Melbourne. Positions in location of preference for my partner remain subject of HRC 2014-11449 in strict consultation with her Solicitors at Maurice Blackburn. I stated Counter Terrorism (CT) as my operational functional preference. AFP will identify Outcome 1 operational roles in my preferred location of Melbourne which also may be suitable to me. AFP understand that I may consider operational positions in Outcome 1 Canberra and AFP may also identify these for my consideration. AFP have provided consent to apply for any position in which I have an interest. I raised that operational vacancies in Melbourne (ie: new CT Team formed under recent NPI) are managed through HR processes at a local HR level and therefore will require National HR consultation with operational functional areas to identify and consult those specific operational vacancies.
2) Conduct a review into the disputed PDA comments in accordance with PDA Procedures, Section 17 – Performance Review Audit.
In regards to the second point, I will submit a portfolio of evidence for this review to Dave Turner this week.
Deputy President Kovacic has left my file open with the Fair Work Commission, and as such I clarify that these actions are not a deed of release to my general protections dispute.
Thanks,
Kath Richens
The reference to SC McPherson appears to be to her Australian Human Rights Commission complaint, and I infer Maurice Blackburn were her solicitors in relation to that complaint. There was no direct evidence in this proceeding about the terms or outcome of SC McPherson’s complaint. SC McPherson was one of the witnesses the AFP did not require for cross-examination.
The next day, Ms Millar replied to DS Richens:
Dear Kathryn,
Thank you for your email. We will start to action the items.
In relation to your portfolio of evidence for the PDA review, please provide this to the investigator at the appropriate time rather than Dave Turner. I understand that Dave Turner will be in a position to advise you who the investigator will be shortly.
Kind regards,
It seems that aside from the above email exchange between DS Richens and Ms Millar, to which DS Richens refers in her affidavit evidence, there is no record of the agreed outcomes of the Fair Work Commission conciliation conference. There was certainly no formal agreement between the parties. Subsequent events demonstrated that no lasting resolution was achieved.
DS Richens’ transfer to Melbourne Aviation
This transfer occurred in May 2015. In February 2015, Mr Turner informed DS Richens that the swap had been approved, and that although he had thought it had “fallen through”, the AFP had “managed to resurrect it”. It was a permanent transfer to “Melbourne Aviation”.
Mr Turner stated there would be no relocation costs attributable to the AFP. He saw the applicant’s transfer as being not dissimilar to a “compassionate move” and therefore one which, under the AFP’s guidelines, an officer must fund herself or himself. DS Richens disagreed with this, maintaining that it was part of the Fair Work Commission conference options for resolution that the AFP would pay the reasonable relocation costs for any position to which she was transferred. She also maintained that in any event, she was being treated differently from other AFP officers who had their relocation costs paid in circumstances similar to hers, including Sergeant Lisa Coleman, with whom she “swapped” roles. These costs form part of DS Richens’ claims of loss in this proceeding.
DS Richens describes the Melbourne Aviation role as a “community policing role”, attending incidents within the Melbourne Airport precinct, without any investigative aspects to the role. In her October 2017 affidavit, DS Richens’ description of her attitude to that role appears negative from the time she commenced in it. She also applied for rental assistance in Melbourne, on the basis of her transfer from Canberra, and was denied it, thus fuelling further complaints by her. In her October 2017 affidavit she describes how difficult and stressful it was to transfer to Melbourne without the assistance from the AFP to which she claims she was entitled. In that affidavit, she describes those effects in the following way:
Arranging my own transfer caused me significant stress as I was not afforded the same entitlements as other members including having my home packed and moved interstate by a removalist, having temporary accommodation in my new location until I could secure a rental property and having rental assistance until I could find a new home to purchase. I was also not afforded the usual financial disturbance and pet allowances and assistance to establish myself in my new location. At the same time I had to move out of my home and stay at my sisters in Canberra to enable my home to be rented.
In Melbourne you cannot apply for a rental property unless you have inspected the property prior to application. This caused me significant distress and financial pressure in travelling back and forth between Melbourne and Canberra to inspect properties. At times these properties were rented out prior to my inspection. I slept on a friend’s floor until I could find a rental property. I felt very unwell trying to co-ordinate my relocation without any assistance.
Continuing attempts to transfer after May 2015

DS Richens clearly was unhappy with the role she took up in Melbourne Aviation. In her evidence she conveys the impression she felt she had little choice but to take it, although it was not the kind of role she was seeking. She deposes (at [265] of her October 2017 affidavit):
My placement at Melbourne Airport Uniform Policing caused my skills to diminish, experience to lapse and delimited my competitiveness for opportunities.
DS Richens’ evidence is that she continued to apply for “multiple opportunities” for transfer to an investigations team, as they became available, but was always unsuccessful. In mid-2015, her evidence is that staffing levels at Melbourne Airport were reduced, but there was an increase in resources and funding being allocated to Counter Terrorism. This led DS Richens in late July 2015 to lodge an EOI for a position in Counter Terrorism in the Melbourne Office. Her evidence is that although she was told her EOI would be forwarded to the relevant Superintendent, she heard nothing further. I accept this evidence, it is consistent with other aspects of DS Richens’ evidence, and she was not challenged on it. The applicant, of her own motion, made an enormous number of inquiries and applications, and it may not be surprising that she did not receive a response to each and every one of them.
A further opportunity in the Melbourne Office arose in August 2015, this time for the position of Sergeant, Counter Terrorism Community Liaison. DS Richens applied for that role. She also applied for another role in the Joint Counter Terrorism Team. Her evidence discloses she made her interests in these positions known to various relevant officers within the AFP, through a variety of means. It is clear DS Richens left no stone unturned to try and secure an investigations role again, in particular a role in the Counter Terrorism area. Again, it appeared DS Richens was unsuccessful for these positions. In her evidence, which I accept on this aspect of her narrative in terms of the considerable efforts she was putting into securing a transfer back into an investigative role, she deposes to a conversation about a much more junior AFP officer, who somehow was successful in being transferred to the Joint Counter Terrorism Team. She was not cross-examined on this evidence and I accept the following conversation occurred:
In this meeting OIC Lane also spoke about a colleague and friend Constable Astrid Auliciems (Constable Auliciems) who was being transferred to JCTT. She had only graduated from Recruit Training around July 2015 and been deployed to Melbourne Airport three (3) months, OIC Lane stated words to the effect:
“She has already done her time in Community Policing. She did a few years in Queensland Police prior to joining the AFP so she’s experienced and does not need to be at the Airport ... she already has the skills”.
I said words to the effect:
“well I’ve done eight (8) years in Community Policing, and this is now my third (3) year in a training and mentoring role... so when will I be going”.
OIC Lane stated words to the effect:
“I will follow up with Superintendent Burnage. You will go at some stage you just have to keep asking”
(Original emphasis.)
In cross-examination, DS Richens clarified the point of the example (noting Constable Astrid Auliciems was appointed to a Constable position) as follows:
The role that Constable Orlisiams was offered but didn’t get?---Yes. But the point is is that they required a female in the team, and I was a female sergeant, and I had applied for the sergeant’s position but found not suitable for reasons unknown. They subsequently required a female in the team, and they asked Constable Orlisiams to move there.
I note Constable Auliciems’ name was incorrectly transcribed.
There were other matters, which were perceived by DS Richens as indications that she was being consciously not chosen for the roles for which she was applying. Superintendent Ian Bate told her, in an email in mid-October 2015:
Whilst the positon of Team Leader Client Liaison Team in the CT portfolio is still to be filled I wanted to inform you that the Melbourne Office management team’s decision was not to place you in this position as we are keen to give you the opportunity to take on an operational role when one becomes available during 2016. It was the general consensus that giving you an operational role would better provide for you continued development as a Team Leader. Please do not hesitate to contact me if you wish to discuss this any further.
A few days later a colleague of DS Richens at Melbourne Aviation, Sergeant Craig Orr, told her he had received a text message from Superintendent Bate offering him the Counter Terrorism Community Liaison Team Leader vacancy. He told DS Richens he declined as he did not apply for it and was not interested in the role.
DS Richens received a further rejection when she applied for another position in late October 2015, for which she was interviewed, but received feedback that her responses during the interview were not up to standard.
This pattern of DS Richens applying for positions and not being successful continued into early 2016, despite DS Richens also being told there was a shortage of experienced female officers in the AFP’s Melbourne Office. The pattern continued into April 2016, despite DS Richens reminding the relevant officers (and (then) Superintendent Neil Burnage in particular) that (in her words) the AFP had given an undertaking to the Fair Work Commission in October 2014 to transfer her into an operational role. Superintendent Burnage told the applicant the following by email in May 2016:
I will continue to present your name and credentials at all up-coming HR Committee meetings. Opportunities will also arise for transfer which is subject to advertisement and application, this also forms part of the HR Committee’s deliberations. I would encourage you to continue to watch for emails in this respect.
In May 2016, DS Richens was offered a position as a Sergeant in the AFP’s Operations Monitoring Centre. She described the position in correspondence with another officer (OIC Bradley Lane) as one which involved “assessing new jobs against the CCPM and allocating them to teams to investigate”, and told OIC Lane, who offered her the position, that it was an administrative and not an investigative role. She was not challenged on this evidence. DS Richens rejected the offer.
The lack of transfer opportunities to the kind of investigative role she wanted continued for DS Richens well into August 2016, notwithstanding matters such as her achievement of an Executive Dean’s Award for her academic performance in her Master of Terrorism and Security Studies. OIC Lane reassured her that her transfer to the Melbourne Office continued to be supported, although DS Richens deposed that she did not feel supported at all. Again, I accept that when she swore her affidavit in October 2017, this was DS Richens’ genuine recollection of how she felt at the time.
DS Richens filed her complaint under the FW Act with the Federal Circuit Court on 24 August 2016.
By November 2016, nothing had changed from DS Richens’ perspective. She gave evidence of the following statements during a conversation with Superintendent Martin Goode on 15 November 2016:
“I’m aware of your “situation” but not the intricacies - just that you have a matter in the “system”, and
“Commander Beveridge will not be facilitating any transfers of Team Leaders until Co-ordinator positions are determined in 2017”, and
“Other Sergeants will also be transferring from the airport, I’ll keep you informed on the process but not advise you who and when another Sergeant will be transferred”.
I stated words to the effect:
“My transfer has been continually re-prioritised and I feel unsupported”, and
“I’ve been continually placed in a position of structured redundancy”, and
I have my Masters and full qualifications for CT yet am retained at the airport which offers me nothing for my resume”, and
“I was recently found as requires development after a Band 8 interview”, and
“My experience now 3 years older than everyone else. I’m no longer competitive for opportunities and no longer have the same opportunities as other people”, and
“I’m treated differently to other Sergeants transferring”, and
“The situation causes me to need time off work”, and
“Commander Beveridge telephoned me in September 2016 and stated that he was transferring people in October / November 2016 however that’s never occurred”, and
“There are a number of Constables on long term higher duties in Sergeants roles in Melbourne Office”.
Superintendent Goode acknowledged that I was over skilled for the Melbourne Airport and stated words to the effect: “I feel your frustration - the issue can’t go on indefinitely”.
DS Richens exhibited contemporaneous notes she took of this conversation. She was not challenged on this evidence. I accept a conversation with Superintendent Goode occurred on 15 November 2016. Superintendent Goode’s affidavit evidence also exhibits some notes that he took of that conversation. He states he did not agree with certain statements made by DS Richens during that conversation, but did not deny the particular terms of the conversation. He was not required to attend for cross-examination. This is another example of evidence left by both parties at a level of dispute and inconsistency, without cross-examination.
In his affidavit, Superintendent Goode contended that the “work at the airport is challenging and provides Team Leaders with an excellent platform to move on to other more intensive supervisory investigation roles”. It did not appear to have had this effect for DS Richens.
DS Richens had her Master’s degree in Terrorism and Security Studies from Charles Sturt University conferred in December 2016. She had still not been transferred. She received another Executive Dean’s Award for outstanding academic achievement.
Just before Christmas in 2016, Commander John Beveridge called DS Richens to inform her about some upcoming vacancies at Team Leader level, some in Counter Terrorism, and some in other areas. When she expressed her preference for Counter Terrorism, he asked her how she felt about working with Commander Hurst, who was at that stage Commander of the Counter Terrorism unit. DS Richens replied that she would behave professionally. However, during the period of February-May 2017, on DS Richens’ own evidence (on which she was not challenged in cross-examination) more officers were transferred to Counter Terrorism, and she was not. Some were at lower levels of seniority and experience than her.
DS Richens deposed, and was not challenged in cross-examination, that from early March 2017 she began hearing from other AFP officers, mostly junior to her, that she was to be transferred to Crime Operations. She expressed her reluctance to take on such a role. She also deposed to another female officer being informed she was to be transferred to Counter Terrorism, despite her not wanting to be transferred.
The AFP objected to some of this evidence on the ground of hearsay, where it concerned statements attributed to other officers not called as witnesses. I consider the statements admissible for the fact they were made to DS Richens and appear to have affected her state of mind, and her perception of being unfairly treated. The truth of the statements is not relevant to any of the six claims of adverse action now made.
In May 2017, DS Richens was informed she would be transferred to the Counter Terrorism Community Liaison Team, which she considered was not an investigative role. She protested to a number of people, including Commander Beveridge, about this proposed transfer. However, as it turned out, in mid-May 2017, DS Richens was informed she would be transferred to the AFP’s Organised Crime and Cyber – Joint Task Force. This was an investigative role, and she accepted the transfer, commencing on 5 June 2017.
By this stage, her FW Act complaint was almost ready for trial in the Federal Circuit Court.
DS RICHENS’ ALLEGATIONS
The terms of the applicant’s originating application were, to say the least, brief. In written opening submissions filed prior to trial, the allegations were set out in more factual detail. They were not tied in any ordered way to the provisions of the FW Act. In its opening written submissions the AFP identified 17 allegations it contended were being made by the applicant, and framed its response around those 17 allegations. In his opening oral submissions at trial, counsel for the applicant stated he would not “quibble” with the AFP’s characterisation, although – as I set out below – he then put the case rather differently during the rest of his opening. Contrary to some suggestions in the AFP’s closing written submissions, I do not accept the applicant’s counsel adopted these 17 categories in his opening submissions, and there is no basis to hold the description of the applicant’s claims to how they were categorised by the AFP.
In oral closing submissions, and with the greatest of respect to the applicant’s counsel, it was challenging for the Court to identify what facts the Court was asked to find and how they were contended to fit with alleged contraventions of the FW Act. There were many exchanges between the Court and counsel during oral closing submissions which were designed to have the applicant identify how her case was put. That exercise was not successful. Counsel for the applicant assured the Court (and the AFP) that these matters would be clarified. The Court’s expectation was that this would occur in closing written submissions. Contrary to the AFP’s closing written submissions, it was not the Court’s understanding that any new or separate document was to be filed by the applicant ahead of closing written submissions. However it is also true that by the conclusion of the applicant’s closing oral submissions, many if not most of the core aspects of the applicant’s claims had not been clarified.
When DS Richens’ closing written submissions were filed, they did clarify how her claims were put, but they presented a rather different approach to the applicant’s case. It is unclear whether counsel prepared the applicant’s closing written submissions, as they are not signed by counsel. In correspondence to the Court on 15 and 22 February 2019 the applicant’s solicitors indicated that the applicant’s closing written submissions were being drafted with the assistance of different (and more senior) counsel to the counsel who appeared for the applicant at trial. However, it is not possible for the Court to know who prepared the submissions, and in what circumstances.
However, in general terms at least most of the key factual events and conduct upon which the applicant bases her case have not altered. Rather, the characterisation of those events and conduct, and how they are contended to fit within the provisions of the FW Act, is what has been rather fluid, and not clarified until closing written submissions.
I accept the difficulties this has caused the AFP, although as I said earlier in these reasons, the AFP is well-resourced and has been able to respond to what the applicant has put, and has not asked for more opportunities to do so, save for short extensions on closing written submissions, which were granted. There were other circumstances which resulted in the AFP needing an extension of time, unrelated to the way the applicant put her case. In particular, as I have noted, the factual events on which the applicant placed reliance have been tolerably clear all along.
Accordingly, the fluidity of the applicant’s case reached its inevitable end point with her closing written submissions. It is the case put in those closing written submissions which the Court will rule upon. However, notwithstanding the fluidity, there were certain features of the way the applicant’s case was opened at trial which I consider have always been at the forefront of her evidence, and of her allegations, and those matters should also be set out to fairly represent her allegations in their proper context.
Although there are now six discrete allegations of contravention, it is also important to bear in mind that what the applicant’s case raises, clearly enough I am satisfied, is a pattern of treatment of her which has its origins in two matters: the fact she is in a same-sex relationship, and the fact that she has continued to complain about AFP decision-making concerning her employment.
In oral opening submissions, the applicant’s counsel began by outlining four matters that the applicant says affect an employee the most:
Your Honour, the applicant opens her case by submitting that there are four most significant issues that face any employee. Firstly, where you live and the impact on your personal life. Secondly, what work you are performing and the scope for your career and professional development. Thirdly, how you, as an employee, are assessed, which is linked to pay, opportunities, promotion. And fourthly, your Honour, to be in a workplace that’s safe, not just from an occupational health and safety perspective, but in a workplace that’s conducted lawfully and, relevantly, in a non-discriminatory manner in a way which complies with the existing law.
From this general categorisation flowed, the applicant’s counsel submitted, the particular conduct forming the adverse action against the applicant. In opening, the narrative was described as involving a “before and after” scenario: the applicant contends her previously solid mentoring relationship with Commander Hurst broke down after she commenced a relationship with her current partner, SC McPherson. Counsel for the applicant submitted that the applicant had always been seeking operational positions, in particular investigative roles, and, indeed, this was the intended outcome of the Fair Work Commission process. Counsel submitted the AFP was to identify an operational role for the applicant, but that this never happened.
First claim: proposed transfer from Canberra to Melbourne (January-May 2013) - adverse action because of the exercise of a workplace right
This claim of adverse action is put on two different bases. First, the adverse action is alleged to have occurred because of DS Richens’ exercise of a workplace right to withdraw her transfer application. This is alleged to be a contravention of s 340 of the FW Act. Second, it is alleged to have occurred because of Commander Hurst’s disregard or disapproval of DS Richens’ same-sex relationship with SC McPherson. This second aspect relies on s 351 of the FW Act.
The claim concerns a series of events and decisions about whether DS Richens would be able to transfer from Canberra to be with her partner, SC McPherson. Initially, DS Richens applied to transfer to a position in Brisbane, where SC McPherson was then located. Commander Hurst arranged for a transfer to Brisbane to a temporary position. DS Richens was not content with a temporary position and did not accept the transfer, and instead applied for and was offered a transfer to a role in Melbourne. SC McPherson also applied to transfer to Melbourne, but was not successful. That event appears to be part of what caused DS Richens to decide not to go to Melbourne. The adverse action is alleged to be that, on making that decision, DS Richens was told by Commander Hurst that there was no longer a role for her in Crime Operations in Canberra, although DS Richens contends Commander Hurst had previously assured her that her role in Crime Operations could continue if she did not transfer. Instead, DS Richens alleges Commander Hurst forced her to apply to the NPSC for a transfer out of Crime Operations in Canberra. As a result of this, DS Richens ended up being transferred to Learning and Development, into a position she alleges she never wanted and which has hampered her career advancement.
The adverse action is alleged to be not keeping the Canberra Crime Operations position available for DS Richens and instead moving her to Learning and Development. This is contended to have “injured” DS Richens in her employment, because it adversely affected her short-term and long-term career. It is also alleged to have altered DS Richens’ position to her prejudice because it took her out of an active investigative role.

The AFP submitted in its closing written submissions (which at one point appear to incorrectly identify Sergeant Smith as a male) that there was no evidence before the Court about what complaint Sergeant Smith made regarding her PDA, nor any evidence as to the outcome of her complaint. The AFP referred to affidavit evidence of Ms Lynch in which she deposed that she did not make any decisions in relation to Sergeant Smith or review Sergeant Smith’s PDA. Ms Lynch also deposed that her understanding was that Sergeant Smith’s dispute was not about a review of comments in a PDA and was not resolved pursuant to the PDA Procedures dispute resolution process. DS Richens was briefly cross-examined on this matter and acknowledged that any information she had been told about Sergeant Smith’s complaint was second-hand: either from the Australian Federal Police Association, or that Association’s website.
Where an allegation such as this is made, that is simply an insufficient probative basis to satisfy the Court of the existence of discrimination between one employee and another, in the sense of differential treatment.
Even if the conduct underpinning the fifth claim was found to be adverse action, I find the AFP has discharged its onus of proving the conduct was not undertaken because DS Richens had made the complaint in the first place about her PDA review. This allegation, it can be seen, has a similar kind of circularity to the previous claim. Even putting that to one side, it is obvious on the evidence that Ms Lynch refused to conduct an audit because she did not consider it fitted within the PDA Procedures. In my opinion she was likely to be correct in her view, but that does not matter: that was the true reason for the conduct, and it is not a prohibited reason. In her amended complaint at [33], the applicant directs this allegation against Ms Lynch only. As I have noted, there is no evidence about what Mr Turner did in relation to this matter, let alone why he did it. In circumstances where there is no clear allegation by the applicant against Mr Turner, I do not consider the AFP was required to joust at shadows and adduce evidence from him about it.
These conclusions mean I do not need to determine whether the complaint made by DS Richens was or was not the exercise of a “workplace right” by her. The AFP contends it was not, because it fell outside the terms of cl 17 of the AFP’s PDA Procedures, which I set out above. There is some force in that argument, but it is not necessary to determine it given my conclusions on whether the conduct was adverse action and the non-existence of a prohibited reason. Nor, more broadly, is it necessary to enter the debate about what is meant by the phrase “is able to make a complaint” in s 341(1)(c) of the FW Act and whether it is limited to circumstances where by law or workplace instrument an employee has an entitlement to complaint: see Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 at [28] (Greenwood, Logan and Derrington JJ); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; 314 ALR 346 at [625] (Dodds-Streeton J); The Environmental Group Ltd v Bowd [2019] FCA 951 at [128]-[129] and [156] (Steward J) and Regulski v State of Victoria [2015] FCA 206 at [160] (Jessup J).i
Sixth claim: refusal of transfer to Counter Terrorism following complaint to the Fair Work Commission - adverse action because of the exercise of a workplace right
This claim, although described as one claim, in fact appears to be divided into five separate parts, according to the applicant’s closing written submissions.
All of the impugned conduct is alleged to have occurred at dates after the applicant lodged her Fair Work Commission complaint. The basic theme for the entirety of this claim is that the impugned conduct occurred because she had made that Fair Work Commission complaint.
The first, fourth and fifth parts all concern various applications DS Richens has made, since first lodging her Fair Work Commission complaint, for investigative positions in the AFP’s Counter Terrorism unit.
The second part concerns the applicant’s transfer to a position at Melbourne Airport.
The third part concerns the refusal of the AFP to pay the applicant’s relocation expenses to Melbourne, when she transferred to Melbourne in May 2015.
The AFP makes the following concession at [141] of its closing written submissions:
The respondent accepts that the filing of a complaint with the FWC is a workplace right, and accepts that the applicant was treated differently to those that were placed in Counter Terrorism.
It then submits that:
The question for the Court is therefore: was the applicant’s FWC complaint a substantial and operative reason for each decision-making body that did not transfer the applicant into Counter Terrorism from 7 September 2014 onwards?
That is certainly the question, given the AFP’s concession, for three of the five parts of the sixth claim. It does not address the second and third parts. Those parts are dealt with by the AFP in its closing written submissions, but not specifically under the sixth claim. Nevertheless, there are five parts to the sixth claim which are identified in the applicant’s closing written submissions, and they can be said to reflect what is in the amended complaint. The second part of the sixth claim (transfer to Melbourne Airport) reflects [39] of the amended complaint, and the third part (relocation expenses) reflects [40] of the amended complaint. The AFP’s submissions concerning the second part, being the Melbourne Airport transfer, are that the applicant had identified and requested that placement, and thus it cannot be alleged that it constituted adverse action.
In relation to the third part, concerning the relocation expenses, the AFP submits, in reliance on the terms of the AFP Enterprise Agreement, that the applicant never had an entitlement to be paid those relocation costs (and further submits the applicant was told by Mr Turner in December 2014 that she would have to pay those costs).
Despite the fact the AFP did not expressly consider the second and third parts of this claim in the relevant section of its closing written submissions, I propose to consider them as part of the applicant’s sixth claim.
I do so on the basis that the concession made by the AFP about adverse action extends only to the three Counter Terrorism position allegations. I see no basis on which it would be appropriate to draw any distinction on the workplace right concession, however, that concession should be seen as extending to all five parts of the sixth claim.
The three Counter Terrorism applications
In substance I accept the AFP’s submissions that on each occasion when the applicant was not successful for a position in Counter Terrorism for which she applied, it was because those people within the AFP responsible for making the selection decisions decided she was not the best, or most appropriate, officer for the position in question. The AFP has discharged its onus to prove that the reason DS Richens was not appointed to any of the positions she had identified in her allegations was not because she had lodged a complaint against the AFP with the Fair Work Commission.
I do not propose to deal with these allegations by reference to a vast amount of evidentiary detail, because they were not developed in closing written submissions by the applicant by reference to any particular evidence. Instead, the applicant’s submissions generally footnoted the amended complaint and provided one general cross-reference to an earlier part of the submissions – said to be Part D, but I assume it was meant to be Part E. Part D of the applicant’s closing written submissions concerns applicable legal principles. Part E, on the other hand, is headed “Factual background and circumstances”. However, this section contains 132 paragraphs and 327 footnote references, and the applicant’s closing written submissions do not identify which of all these paragraphs and footnote references are said to prove her allegations under the sixth claim. It is not the Court’s responsibility to sift through a morass of factual references to see which ones might be the ones the applicant wishes to identify. Nor is it the respondent’s responsibility to do so, although the existence of the reverse onus does cast responsibility on the AFP to identify the evidence on which it relies to discharge its onus. The failure of the applicant’s legal representatives in their submissions to develop, by reference to specific evidence, how these five parts of the sixth claim are established, means in my opinion that the Court is entitled to select key aspects of the evidence which appear to it to be the most material to this claim, and otherwise to rely on the AFP’s submissions and evidence.
The 24 September 2014 Counter Terrorism application
This application came a few weeks after the applicant had lodged her Fair Work Commission complaint. The advertised position was in Counter Terrorism in Canberra. There was an ISAP constituted to review applications for the position. On 24 November 2014, DS Richens received an email from AFP Recruitment informing her she had been unsuccessful for the position, and that she had 28 days to seek feedback. DS Richens sought feedback, but the contact for providing that feedback, Detective Superintendent Dokmanovic, was preparing for a deployment to Beirut and asked her to contact Detective Superintendent McLennan (the other member of the ISAP) to obtain feedback.
At the time he was named as “contact officer” for the Counter Terrorism role in Canberra, Detective Superintendent Dokmanovic deposes to not having had “extensive experience participating in selection panels”. He also deposes to not having had any dealings with the applicant prior to her submitting her application for the position. In his evidence, he also described the selection process which was undertaken, and how five candidates were shortlisted for Commander Brian McDonald to choose from. He deposes that the applicant was not shortlisted because other candidates “demonstrated stronger claims against the selection criteria, in that they provided better, more contemporary and/or tangible examples of how they met the criteria”. He also deposes that Mr Turner was not involved in the selection process, and that the applicant was not treated any differently from any other candidate who submitted an EOI for the position. Further, he deposes that he was not aware the applicant had made any complaints about her employment or commenced proceedings against the AFP at the time of, or before, submitting her application for the position.
Neither Detective Superintendent Dokmanovic nor Detective Superintendent McLennan were required for cross-examination. Their evidence is rational, and being unchallenged, I accept it.
There is no basis in the evidence for the applicant’s allegation about her non-selection for this position and the AFP has discharged its onus of proving her non-selection was not because she had made a complaint to the Fair Work Commission.
The September 2015 Counter Terrorism applications
The HR Committee of the Regional Operations, Capacity and Capability Committee (or “ROCCC”) dealt with vacancies in the Community Liaison Team and Joint Counter Terrorism Team (both within the Counter Terrorism unit) in September 2015, and made two decisions where DS Richens was not identified as a suitable candidate for the positions.
I accept the AFP’s submissions (at [148]-[150] of its closing written submissions) about who the decision-makers were, and what their evidence disclosed. As the AFP points out, only three of these decision-makers were required for cross-examination. Those individuals were Superintendent Bate, Detective Superintendent Warren and Mr Burnage.
There is nothing in their evidence in answers in cross-examination which gave me any reason to doubt their principal evidence, which was that the applicant’s complaint to the Fair Work Commission played no role in their decision-making about what positions the applicant should be placed in, or in their decisions to place officers other than the applicant in certain positions.
Each of these individuals gave considered evidence, and I have no reason to doubt it.
The AFP has satisfied me that in making these appointments in 2015, DS Richens’ lack of success was not because she had made a complaint to the Fair Work Commission.
I pause here to make an observation about the quality of some of the evidence on which the applicant relied, to illustrate why some of her conspiracy theories which were built on this kind of material are not persuasive. In the context of her allegations about why she was unsuccessful in securing a role in Counter Terrorism, the applicant relied on a contention that:
On 1 October 2015, Richens received a text message from Constable Darren Jackson stating that he was advised that Richens had not completed two years in her role at Airport Uniform Policing, and was thus not considered for the two Counter Terrorism positions in Melbourne.
(Footnote omitted.)
What the evidence of DS Richens shows is that she sent a text message to Constable Jackson, asking him to see what he could find out from another person (one Peta Maddigan) about whether she had secured one of the positions in Counter Terrorism. His response was that he had spoken to her and “decided not to tell you when she said you had probably missed out and would have to do 2 years at the airport”. Constable Jackson did not give evidence in this proceeding, but the respondent filed an affidavit from Detective Sergeant Maddigan. She deposes in her affidavit that at the time of the ROCCC HR Committee meeting on 16 September 2015, at which the relevant vacancies in the Counter Terrorism unit were considered, she does not recall knowing the applicant, or being aware of any complaints the applicant may have made about the AFP. At the time, Detective Sergeant Maddigan was performing the role of Acting Coordinator of the Protection Team in Vic-Tas, which required her to attend the fortnightly meetings of the ROCCC. She deposed that in her opinion the applicant needed to complete her two year placement at the airport as she had only performed the Team Leader Aviation role for a few months. Detective Sergeant Maddigan was not cross-examined in this proceeding. However, her affidavit puts the applicant’s evidence about the text message in a different light.
Further Counter Terrorism transfers
This next round of decisions were made by what the AFP calls “substantive Coordinators”, who decided on Team Leader rotations in May 2017. Their decisions were endorsed by the Peoples Strategies Committee (or “PSC”).
The AFP submits that of the relevant decision-makers, only three were required for cross-examination: Commander Beveridge, Mr Burnage and Detective Superintendent Warren.
Mr Beveridge had retired from the AFP at the time he gave evidence. He was cross-examined about, at least, whether the applicant was qualified for a position in Counter Terrorism and what steps he took to assist her to find a suitable role.
My impression of Mr Beveridge as a witness is that he had tried to a significant extent at relevant times to be supportive of DS Richens. His evidence was that he considered it was not good for her career to stay at the airport too long, and he confirmed this was not an investigative role:
… I don’t see it as a career-enhancing role. Certainly, you get some skills talking to other government agencies at the airport, but for someone as a sergeant who wants to be an investigator or a superintendent or a commissioner of police, if you spend too long there, yes, I don’t – it would be hard to get promoted.
Mr Beveridge had tried to find DS Richens a suitable position. He was ultimately the person responsible for securing her the role in the Organised Crime and Cyber team. He made it clear he knew little of the detail about the applicant’s Fair Work Commission complaint, other than that there was one, and to the extent it was necessary for him to know whether, as part of the Fair Work Commission conciliation conference outcomes, any “promise” had been made to the applicant that she would be placed in Counter Terrorism. The whole tenor of his evidence, supportive of the applicant as it was, is probative against the applicant’s proposition that he and other decision-makers were refusing to select her because of her Fair Work Commission complaint.
The cross-examination of the other two witnesses was relatively general, but once again there was nothing in their evidence in answers in cross-examination which gave me any reason to doubt their principal evidence, which was that the applicant’s complaint to the Fair Work Commission played no role in their decision-making about what positions the applicant should be placed in, or in their decisions to place officers other than the applicant in certain positions.
I found Mr Beveridge particularly even-handed and measured in his evidence and I accept it. I also have no reason to doubt the evidence of Mr Burnage and Detective Superintendent Warren.
Other evidence about reasons
It appears that operating on DS Richens’ views about why she did not get these positions is what she claims Mr Turner said to her during the Fair Work Commission conciliation conference. Putting to one side the difficulties with adducing evidence about what is said in such conferences, at [218] of her October 2017 affidavit, she deposes:
Mr Turner had already informed me at the Fair Work Conference that I was not getting a job in CT.
Mr Turner denied saying this. In cross-examination he stated he did not have a conversation with the applicant at the Fair Work Commission. He also denied making the above statement alleged by the applicant in her October 2017 affidavit. Yet, this unproven statement appears to have become one of the linchpins of the applicant’s case.
The Melbourne Airport transfer in May 2015
The applicant contends in her closing written submissions at [303] that:
… from September 2014 onwards, despite Richens requesting it, the AFP (Connelly and Turner) refused Richens returning to an investigative role and put her in a further non-investigations role, at Melbourne Airport, denying Richens the experience in investigations necessary to advance her career. Richens accepted the role in Melbourne in the absence of other suitable transfer options.
(Footnotes omitted.)
This transfer to Melbourne happened, it is contended, because DS Richens lodged a complaint with the Fair Work Commission. It will be recalled that complaint was lodged on 7 September 2014. A conciliation conference was held about six weeks later and the two outcomes I have described earlier in these reasons were agreed, but the complaint was not closed for some time. DS Richens was informed of her success in being transferred to the Melbourne Aviation team in February 2015, although the transfer did not occur until May 2015. As the narrative set out earlier in these reasons shows, the “swap” which allowed for that transfer was being discussed as early as December 2014. While I accept DS Richens was not satisfied with the position she was being offered at Melbourne Airport, I find her evidence overwhelmingly establishes that she wished to leave Recruit Training in Canberra, and that she was keen to move to Melbourne. Those two outcomes were achieved by her transfer to Melbourne Airport, even if, on her evidence, she felt “pressured” into taking the position. I find it was, at least, a move back into some kind of operational role: see the affidavit evidence of OIC Lane at [6]. By this point in time I find that unless DS Richens secured precisely the kind of position she wanted in Counter Terrorism, her reaction to any transfer offer was going to be a negative one.
For that reason, I do not consider that DS Richens’ transfer to Melbourne Aviation was adverse action. She was not treated differently on the evidence to any other particular employee in relation to this transfer. Indeed, I find it was a transfer she accepted, in order to move out of Recruit Training in Canberra and move to Melbourne, where most of the potential Counter Terrorism positions seemed to be. However, it should also be recalled that Learning and Development was a portfolio she had noted down on her NPSC application as a placement option, ahead of the June 2013 NPSC meeting, which meeting resulted in her placement in that portfolio.

Further, there is no evidence that what actuated the minds of those who facilitated her transfer to Melbourne Aviation was her complaint to the Fair Work Commission. I have no doubt those involved were keen to resolve what was now a long line of complaints by DS Richens, and in that sense may have seen the fact of her moving to Melbourne (where she wished to be, or at least on many occasions had suggested she wished to be) as a stop along the way to that resolution. In my opinion, none of that conduct on the evidence can be expressly or impliedly linked back to the exercise by DS Richens of her right to complain to the Fair Work Commission. None of the evidence given in chief, or more critically in answers during cross-examination, came close to even hinting at such a link.
The relocation expenses claim in May 2015
This part of the sixth claim contends that when she relocated to Melbourne in May 2015, DS Richens had a workplace right to be paid relocation expenses from Canberra to Melbourne, which she sought to exercise on 11 May 2015. The applicant contends the AFP, through Mr Turner, refused to pay those expenses while paying the relocation expenses of other officers in what she contends were comparable situations. DS Richens identifies those officers in her closing written submissions as:
L Coleman, Morris, S Coleman, and Jackson.
There are no footnotes to evidentiary references to support this submission; only to the terms of the amended complaint.
There is in evidence a complaint made by DS Richens on 12 May 2016 to the National Manager of the AFP’s People, Safety and Security team about Mr Turner’s refusal to agree to the AFP paying these relocation expenses. That complaint indicates that Mr Turner’s refusal was based on the relocation not falling within the entitlements set out in cl 63 of the AFP Enterprise Agreement. That was also his affirmed evidence in this proceeding. In her letter, DS Richens sought to argue that cl 63 did not apply because the relocation costs “relate to an undertaking made by the AFP in the FWC”. She was referring to the agreement made as an outcome of the Fair Work Commission conciliation conference that the AFP would seek to find her operational roles in Melbourne or Canberra.
DS Richens also referred in her complaint to the situations of Sergeant Coleman and Constable Jackson:
4)Relocation costs were met by the AFP for Sergeant Lisa Coleman who vacated a position in Melbourne allegedly enabling this transfer. Sergeant Coleman’s relocation to Canberra was at her request and involved a geographical relocation from Melbourne to Canberra. The payment of her relocation demonstrates that I was treated different due to my relocation to Melbourne being subject of a complaint I made to the FWC.
5)Constable Darren Jackson permanently transferred from Canberra to Melbourne at the same time as me. Constable Jackson’s transfer was a direct assignment at his personal request and he received full permanent transfer relocation entitlements inclusive of rental assistance for the past 12 months. This again demonstrates that I was treated different due to my relocation to Melbourne being subject of a complaint I made to the FWC.
Before turning to Mr Turner’s evidence, the point immediately to be made about this relatively contemporaneous complaint by DS Richens is that nowhere does she allege that the reason her relocation costs were not being paid was because she made a complaint to the Fair Work Commission. Rather, she expressed the allegation as follows in her letter of 12 May 2016:
This again demonstrates I was treated different due to my relocation to Melbourne being subject of a complaint I made to the FWC.
What that appears to mean is that the relocation costs were considered by DS Richens at least to be part of her Fair Work Commission complaint. She appears to be using the conduct and content of the Fair Work Commission complaint as the basis for her argument that the AFP was required to pay her relocation costs. She draws no link between the exercise of her right to complain to the Fair Work Commission and the refusal of the relocation costs.
I am persuaded by Mr Turner’s evidence that there was no such link. His affidavit evidence was:
(a)The transfer the Applicant was undertaking was in my assessment not dissimilar to ‘a compassionate move’ as it was a move that was not as a result of a direction by the Respondent for an operational need or because the Applicant was successful in applying for a particular role but a move the Applicant was seeking due to her own personal preferences and reasons.
(b)Under the Respondent’s National Guideline on compassionate posting, at part 13, it states that “Employees must be aware that should a request for an assignment for personal reasons (including a compassionate assignment) be approved, all financial costs associated with the move are the employee’s responsibility” the Respondent would not fund any costs associated with the move. If the AFP had required the Applicant to move, it would have covered her full costs;
…
(c)I consulted with the National Manager of People Strategies and Security and the Policy prior to making my decision;
(d)I did not deny the Applicant’s seeking of relocation costs to be paid because of her relationship status or any complaint she made;
(e)I did inform the Applicant that if she was unhappy with my decision, she could follow the dispute resolution process.
(Original emphasis.)
In evidence-in-chief he said:
All right. I want to come back to relocation costs. You started talking about that earlier. You talk about it in your affidavit and we now that there were some attempts made by the applicant to be reimbursed the costs associated with her move from Canberra to Melbourne in May of 2015, and we’ve heard some evidence about your decision to refuse those attempts. Why did you not, on behalf of the AFP, reimburse the applicant for the costs associated with her move from Canberra to Melbourne?--- There was no organisational requirement to move Detective Sergeant Richens to Melbourne. It was, effectively, a swap organised by her with the imprimatur, I suppose, of the organisation, but it was organised by her, and there was no Commonwealth requirement. It was not an order of merit. There was no merit process run, so, effectively it was a personal decision of hers to go to Melbourne. I formed the view that the Commonwealth shouldn’t be exposed to those costs, which can be significant. I discussed it with my supervisor at the time, and we both agreed that it would be inappropriate to – to afford costs for that move.
Well, other than that there was no operational reason as you have just explained, were there any other reasons why you did not, on behalf of the AFP, reimburse the applicant for the costs associated with her move from Canberra to Melbourne?--- Well, the only other reason is that it would be contrary to the enterprise agreement in place at the time, in that it, specifically – that the enterprise agreement in place at the time specifically addressed that situation, which would be contrary to that – to that – providing costs would be contrary to that clause in the enterprise agreement.
I see. Any other reasons beyond those two?---No, there wasn’t. No.
I also accept Mr Turner’s evidence about the situation with the alleged comparator officers. He deposed:
In response to paragraph 260 of the Applicant’s affidavit, I state:
(a)Relocation costs were not met for Sergeant Coleman. Her partner was also with the Respondent and had applied for a vacancy within the Respondent in Canberra and been successful. As a result, Sergeant Coleman’s partner’s relocation costs were paid by the respondent.
…
(b)I do not know Federal Agent Darren Jackson. I have since come to know Sergeant Lisa Coleman as I worked with her partner however, deny treating the Applicant differently to them.
Mr Turner was not cross-examined substantively about the comparator officers. This was the extent of it:
Do you agree, Mr Turner, that relocation costs were met for Sergeant Coleman?---No, I don’t.
I find that, by refusing to pay DS Richens’ relocation costs, DS Richens has not proven that the AFP treated her differently from any officer in relevantly the same situation as her. There is unchallenged evidence that the AFP did not pay Sergeant Coleman’s relocation expenses. There is no direct evidence about the circumstances of Constable Jackson; simply an assertion by the applicant in her complaint in May 2016. There is no evidence at all about the other people named in her closing written submissions. The applicant sought to include evidence of “relocation entitlements” for certain of the comparator officers in the revised version of the Court Book, but these were documents which had been coded red at the conclusion of the trial, and for the reasons set out above I have not taken that evidence into account. Accordingly, there is no sufficient evidentiary basis to find DS Richens was treated differently from other officers, within the terms of item 1(d) of s 342(1).
Even if, contrary to my opinion, the decision about not paying DS Richens’ relocation expenses could constitute adverse action, I find it was not for the prohibited reason that she had made a complaint to the Fair Work Commission. It was because Mr Turner did not believe she was entitled to be paid those expenses. I tend to consider on the evidence he was correct in that judgement, but it does not matter whether he was or was not. What matters is that I find the AFP has proved this was his true reason.
The sixth claim must fail.
THE APPLICANT’S CLAIMS FOR COMPENSATION
I have not upheld any of the applicant’s six claims of contravention of the FW Act. Accordingly, on my primary findings, no compensation is payable to the applicant.
In the alternative, if, contrary to my findings, the AFP has contravened the FW Act in one or more of the ways alleged by the applicant in her six claims, then I make the following findings on the question of compensation.
As a general finding, and subject only to any specific matters to the contrary to which I refer below, I accept the entirety of the AFP’s submissions on the issue of compensation.
As the AFP’s closing written submissions point out, there is a raft of difficulties attending the applicant’s compensation claims. I begin with the most obvious ones.
Some of the applicant’s submissions are entirely speculative, such as the economic loss claim for “loss of higher income” because of what was assumed to be DS Richens’ career progression if there had been no adverse action. There is no attempt to track the progress of a comparator officer, and to make good the proposition that DS Richens’ career would have followed a similar trajectory. No allowance is made for the possibility of succeeding on one allegation of adverse action and not the others, and therefore what impact that might have on the speculative exercise of where DS Richens’ career might be at today, but for the alleged adverse action.
The applicant has also sought in support of some of the compensation claims in her closing written submissions to rely on documents which the parties had agreed would not be tendered. For the reasons set out above, I find the applicant, having committed to a position, which is reflected in the red and green highlighting on the agreed Court Book submitted by the parties at the conclusion of the trial, should not be permitted to resile from this position. The AFP conducted the latter part of its case and made its final submissions on the basis that there was such an agreement. This affects in particular, as the AFP submits, proof by the applicant of her claims about “loss of higher income” and “relocation expenses”.
The claims of loss for “dual living expenses” and “annual leave and personal leave” are all premised on an alternative scenario which would have had the applicant and SC McPherson co-locating. However, the applicant had the chance to do this in Brisbane, and chose not to. She may have had her reasons for refusing that transfer, but in my opinion, the fact she chose not to take that position means she cannot make out any causal link between the alleged adverse action and the fact that she was living in a different location to SC McPherson. In any event, none of the six specific claims appear to actually allege adverse action by the AFP in a decision or conduct which in fact prevented DS Richens and SC McPherson living in the same location, and that the AFP did so for a prohibited reason. Further, as the AFP submits, in fact (and aside from a day here or there) the applicant took her annual, long service and personal leave as she asked for it. Annual leave is an entitlement to be absent from work without loss of pay. The applicant had the benefit of this entitlement, and there is no economic loss which has accrued to her.
The claim for “relocation expenses” is exaggerated and opportunistic, and the fact that it is made does not reflect well on the applicant. How any of the six claims of adverse action could possibly lead to the AFP being responsible to pay for the title searches done in respect of the purchase by the applicant of a property in Melbourne is impossible to understand. The same is true of claims for “loan fees”, a “loan dispersal fee” and conveyancing costs. No justification for these claims is provided in the applicant’s closing written submissions; the loss is simply asserted. In her initial claim for relocation costs on 11 May 2015, the applicant asked for the sum of $6,329.39. How that has now become a claim for more than $75,000.00 can only be explained by gross exaggeration.
One aspect of the “relocation expenses” claim is reasonably clear. If I am wrong on the relocation costs part of the sixth claim, then DS Richens is entitled to the sum she asked for in 2015: namely, $6,329.39. That is the only economic loss claim I would have allowed.
As to non-economic loss, the sum of $100,000.00 is claimed. That appears to be a figure plucked out of the air. No justification by way of submissions based on other compensation awards is made. There was some direct evidence from DS Richens about how the alleged adverse action affected her (some of that evidence which I have extracted above). She also sought to rely on some medical evidence, but the AFP has objected to the admissibility of that evidence, and submits that even if the applicant was permitted to rely on that evidence, it would “not come close to establishing the type of detriment that the applicant would need to show in order to justify such a high award”. The AFP’s objections had force, and would certainly have led me to place very little weight on the opinions of any treating practitioners who were not even called to give evidence, let alone provide expert reports under Pt 23 of the Federal Court Rules 2011 (Cth).
That said, if I had found some or all of the claims of adverse action proven, I would have been inclined to award DS Richens some figure for non-economic loss. That is because it is clear on the evidence that she has been much affected by what has happened to her since 2013. Several of the AFP’s key witnesses gave evidence about their observation of her distress. In my opinion it is not, however, possible to disentangle the reasons for why she has been so affected. For example, a considerable amount of her distress is likely to have been caused by the fact of her separation from SC McPherson, although their physical separation was not in fact one of the six claims made.
Some damage was clearly caused by the attitude of Commander Hurst, and in particular the change in her attitude towards the applicant. I have made some findings that she was angry and frustrated with DS Richens, and showed it. I have no doubt on occasion she was abrasive. If the first claim had succeeded, it is likely I would have awarded the applicant some compensation for hurt and injury. At this point, because of my initial findings and because of the unhelpful way in which the applicant’s evidentiary case on non-economic loss was presented, with no treating practitioner witnesses called and no expert evidence adduced, I find myself unable to put a figure on what that compensation might have been. I would be doing no more than speculating on what I consider to be a highly unsatisfactory evidentiary base. Further hearing and argument would have been required. I would have taken the same approach if I had been satisfied there should be compensation for non-economic loss on any of the other five claims, if they had succeeded. I can be no more precise than that.
CONCLUSION
The application must be dismissed.
The AFP sought to be heard on the question of costs. Orders will be made allowing for the parties to file written submissions on costs. The Court will then consider whether any oral hearing on that matter is required.

I certify that the preceding four hundred and ninety-three (493) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.
Associate:
Dated: 8 August 2019

File number:	VID 306 of 2018
Judge:	MORTIMER J
Date of judgment:	8 August 2019
Catchwords:	INDUSTRIAL LAW – adverse action – whether respondent took adverse action against applicant employee – whether adverse action was taken for a prohibited reason – whether adverse action was taken against employee because of her “sexual orientation” – application dismissed
Legislation:	Australian Federal Police Act 1979 (Cth) s 40H Evidence Act 1995 (Cth) s 130 Fair Work Act 2009 (Cth) ss 12, 340, 341, 342, 351, 361 Mutual Assistance in Criminal Matters Act 1987 (Cth) s 43C Mutual Assistance in Criminal Matters Legislation Amendment Act 1996 (Cth) Australian Federal Police Regulations 1979 (Cth) reg 3 Federal Court Rules 2011 (Cth) Pt 23
Cases cited:	Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 277 IR 75 Baird v Queensland [2006] FCAFC 162; 156 FCR 451 Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 RailPro Services Pty Ltd v Flavel [2015] FCA 504; 242 FCR 424 Regulski v State of Victoria [2015] FCA 206 Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) [2018] FCA 1276 Sayedv Construction, Forestry, Mining and Energy Union [2015] FCA 27; 149 ALD 88 Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; 314 ALR 346 Shizas v Commissioner of Police [2017] FCA 61; 268 IR 71 The Environmental Group Ltd v Bowd [2019] FCA 951 Wotton v Queensland (No 5) [2016] FCA 1457; 157 ALD 14
Date of hearing:	10-14 and 17-20 December 2018
Date of last submissions:	29 March 2019
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	493
Counsel for the Applicant:	Mr M G McKenney
Solicitor for the Applicant:	SLF Lawyers (until 29 July 2019) The applicant was then self-represented
Counsel for the Respondent:	Mr J L Snaden with Ms Z Maud and Mr A D H Denton (before March, 2019) Mr C B O’Grady QC with Mr A D H Denton (after March, 2019)
Solicitor for the Respondent:	Norton Rose Fulbright Australia