Vafa v Holdsworth; Vafa v University of Newcastle

[2022] NSWCATAD 163

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Vafa v Holdsworth; Vafa v University of Newcastle [2022] NSWCATAD 163

Hearing dates:

24, 25, 26, 27, 28 May 2021, 11 August 2021
25 August 2021 (final submissions)

Date of orders:

24 May 2022

Decision date:

24 May 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Britton, Deputy President

Decision:

(1) Allegation 8 of the complaint of sexual harassment as against A/Prof Holdsworth is substantiated. The balance of the complaint of sexual harassment as against A/Prof Holdsworth is not substantiated and is dismissed.

(2) The complaint of sex discrimination as against the University is not substantiated and is dismissed.

(3) The complaint of sex discrimination as against A/Prof Holdsworth is misconceived and is dismissed.

(4) The complaint of victimisation made against the University is not substantiated and is dismissed.

(5) The complaint of victimisation made against A/Prof Holdsworth is not substantiated and is dismissed.

Catchwords:

HUMAN RIGHTS – harassment – whether conduct was “other unwelcome conduct of a sexual nature” in s 22A(b) of Anti-Discrimination Act 1977 (NSW)

HUMAN RIGHTS – victimisation – whether applicant was subjected to a “detriment” – whether applicant was subject to a detriment “on the ground” that she did, one of the things listed in s 50(1) of the Anti-Discrimination Act 1977 (NSW) or because the discriminator suspected that the applicant has done, or intended to do one of those things

WORDS AND PHRASES – meaning of term “educational authority” in Anti-Discrimination Act 1977 (NSW)

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

Bonella v Wollongong City Council [2001] NSWADT 194

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Campbell v Campbell [2015] NSWSC 784

Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Ewin v Vergara (No 3) [2013] FCA 1311; (2013) 307 ALR 576

Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503; [2012] HCA 55

Ferreira & anor v Wollongong Spanish Club Pty Ltd & anor [2005] NSWADT 57

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953, 958

Haines v Leves (1987) 8 NSWLR 442

Hall v Sheiban [1989] FCA 72; (1989) 20 FCR 217

Longman v R (1989) 89 ALR 161

Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403

Marshall v Prescott [2015] NSWCA 110

Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20

Nominal Defendant v Smith [2015] NSWCA 339

Penhall-Jones v New South Wales [2007] FCA 925

Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179

Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91

Sivananthan v Commissioner of Police [2001] NSWADT 44

TB v New South Wales [2015] NSWSC 575

Tebb v State of NSW [2020] NSWCATAD 85

Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 14

Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:

Macquarie Dictionary

Oxford Dictionary

Category:

Principal judgment

Parties:

Elham Vafa (Applicant)
John Holdsworth (First Respondent)
University of Newcastle (Second Respondent)

Representation:

Counsel:
R Kumar (Applicant)
V Bulut (Respondents)

Solicitors:
Pavuk Legal (Applicant)
Hicksons Lawyers (Respondents)

File Number(s):

2019/00408761; 2020/00095640

Publication restriction:

N/A

REASONS FOR DECISION

1. In August 2015 Ms Elham Vafa commenced a Doctor of Philosophy (PhD) at the University of Newcastle, Australia. An Iranian citizen, Ms Vafa holds a Master’s degree from Lund University, Sweden.

2. In 2014, while working in Sweden, Ms Vafa met Associate Professor Holdsworth who encouraged her to apply for the PhD program at the University of Newcastle (the University) where he was and remains employed in the School of Mathematical and Physical Sciences (MaPS). A/Prof Holdsworth is an expert in the field of Ms Vafa’s research for her PhD, Photonics and Biomedical Optics. A/Prof Holdsworth was Ms Vafa’s principal supervisor for two years. In November 2017 he decided to cease his role as Ms Vafa’s supervisor.

3. Ms Vafa alleges that throughout the period she was supervised by A/Prof Holdsworth (August 2015 to November 2017), among other things, he hugged and kissed her on each cheek in greeting and farewell, and at other times touched her arms and shoulders, poked her in the arm and rubbed her back and buttocks. A/Prof Holdsworth admits on occasion doing some of these things but denies rubbing Ms Vafa’s back or buttocks. In addition, he denies Ms Vafa’s claim that she repeatedly told him that she felt uncomfortable with, and objected to, any aspect of his conduct. He claims that at no time before ceasing to be her supervisor did Ms Vafa indicate that his conduct was unwelcome or inappropriate.

4. In December 2017, Ms Vafa wrote to the University to complain about A/Prof Holdsworth and her former co-supervisor, Dr Galiya Sharafutainova. In that complaint, Ms Vafa made a series of allegations relating to the support and supervision she had been provided by A/Prof Holdsworth and Dr Sharafutainova. In addition, she complained that she had been sexually harassed by A/Prof Holdsworth (but not Dr Sharafutainova). An independent investigator commissioned by the University to investigate Ms Vafa’s complaint found the allegation of sexual harassment (as against A/Prof Holdsworth) and the allegations in regard to inadequate support and supervision (as against A/Prof Holdsworth and Dr Sharafutainova) are not proven.

5. In April 2018 Ms Vafa lodged the first of two complaints with the President of the Anti-Discrimination Board. In that complaint Ms Vafa alleged that she was sexually harassed by A/Prof Holdsworth, and discriminated on the ground of sex, by A/Prof Holdsworth and the University in contravention of the Anti-Discrimination Act 1977 (NSW) (the AD Act). In addition, Ms Vafa alleged that, as a consequence of complaining to the University about A/Prof Holdsworth, she was victimised by the University and A/Prof Holdsworth, in contravention of the AD Act.

6. In January 2020 Ms Vafa lodged a further complaint with the Anti-Discrimination Board alleging that she had been victimised by the University.

7. In May 2021, the University terminated Ms Vafa’s PhD candidacy.

8. For the reasons that follow, I find one of the allegations of sexual harassment substantiated. The balance of the complaint of sexual harassment and the complaints of victimisation are dismissed.

Overview of the complaints

9. Ms Vafa alleges that:

1. A/Prof Holdsworth:

1. sexually harassed her in contravention of the AD Act, s 22E;

2. discriminated against her on the ground of her sex in contravention of the AD Act, s 31A.

3. victimised her on the ground that she had made allegations about him, in contravention of the AD Act, s 50.

2. The University:

1. victimised her because of complaints she had made about A/Prof Holdsworth and/or the University in contravention of the AD Act, s 50;

2. discriminated against her on the ground of sex in contravention of the AD Act, s 31A;

3. by virtue of s 53(1) of the AD Act, is vicariously liable for A/Prof Holdsworth’s conduct.

Background: sexual harassment complaint

10. Before considering the submissions made by the parties, I will set out some background facts and provide an overview of the evidence relating to the sexual harassment complaint.

Ms Vafa’s supervisors to November 2018

11. When Ms Vafa commenced at the University, her principal supervisor was A/Prof Holdsworth and her co-supervisors, Professor Bruce King and Professor Stefan Andersson-Engels. Professor King was a member of the School of MaPS. Professor Andersson-Engels was a member of the School of Biophotonics, Lund University, Sweden. The University’s records state that the supervisory load carried by the three was A/Prof Holdsworth, 60%; Professor Bruce King, 15%; and Professor Stefan Andersson-Engels, 25%.

12. In late-2016 Professor King retired and Dr Sharafutainova took over his role as co-supervisor. Since 2011 Dr Sharafutainova had been employed by the University as a technical officer in the School of MaPS. In 2012, Dr Sharafutainova completed a PhD under the supervision of A/Prof Holdsworth. Since that time, Dr Sharafutainova has worked closely with A/Prof Holdsworth on various research projects. Each has significant respect for the other’s technical knowledge and expertise.

13. Ms Vafa claims that A/Prof Holdsworth insisted that Dr Sharafutainova be appointed as her co-supervisor when Professor King retired and that she did so under “duress”. A/Prof Holdsworth denies that he insisted that Dr Sharafutainova be appointed co-supervisor but agrees that he recommended that appointment. He claims that the first time Ms Vafa complained to him about Dr Sharafutainova being added as a co-supervisor was during a study trip to Ireland in 2017.

14. On 2 May 2017, the University notified Ms Vafa that her request that Dr Sharafutainova be appointed as Ms Vafa’s co-supervisor was formally approved, backdated to 25 November 2016.

15. Dr Sharafutainova and A/Prof Holdsworth claim that since Ms Vafa commenced her PhD, Dr Sharafutainova provided Ms Vafa with significant support and acted as her “informal supervisor”. In oral evidence Dr Sharafutainova gave this explanation of her role:

“[The support] included attending meetings, providing documents, providing trainings, supporting her, advising on obviously TracePro software I specialized. So I was asked to support her in this specialized expertize this TracePro software. Advising her on attending university provided groups, attending workshops for PhD students and English speaking skills. And advising to attend some workshop of our current PhD students.

So yes, I was acting as co-supervisor.”

(Transcript 27/5/21, Disc 3, p 28)

16. In June 2017, while in Ireland, Ms Vafa sent an email to Dr Sharafutainova advising that she had decided to “reduce her supervisory team”. According to Dr Sharafutainova, initially she did not understand that email to mean that she had been removed as co-supervisor and that she only became aware of that decision when informed by A/Prof Holdsworth in an email sent 16 June 2017:

“Just to make it clear, Elham is removing you as a co-supervisor.

I’m not in favour. I tried to stop it.

It’s her decision alone.

Sorry.”

17. Dr Sharafutainova said that she was upset and disappointed by Ms Vafa’s decision. She claimed that she could not recall Ms Vafa raising any issue with her before June 2017. Dr Sharafutainova said she was surprised especially given that on 11 May 2017 she received an email from Ms Vafa congratulating her on her appointment to her supervisory team, following confirmation by the University of her appointment. Dr Sharafutainova claims that she accepted Ms Vafa’s decision and never spoke to her about it. In oral evidence she agreed it would have been helpful to her career to have remained as Ms Vafa’s supervisor.

18. Ms Vafa disputed that she was supported by Dr Sharafutainova. Ms Vafa claims that in their dealings, Dr Sharafutainova was abrupt, and on occasion shouted and yelled at her and refused her access to equipment and the laboratory she managed. Dr Sharafutainova denied these claims.

19. A/Prof Holdsworth disagrees with Ms Vafa’s claim that Dr Sharafutainova failed to provide Ms Vafa with support. In addition, he denies her claim that on occasion during the weekly meetings to discuss her PhD, Dr Sharafutainova reduced Ms Vafa to tears. However, he agrees, that Ms Vafa had complained to him about Dr Sharafutainova and he had said “that’s Gailya … she’s Russian”. In cross-examination he described Dr Sharafutainova as being “Russian blunt”, and “very forthright” (Transcript 26/5/21, Disc 3, p 7).

Layout of the school

20. Throughout the period A/Prof Holdsworth acted as Ms Vafa’s supervisor (August 2015 to November 2017, “the period of supervision”), he and Ms Vafa used two laboratories in the University’s physics building, named PG101 and PG104. Each contained computers, technical equipment and were used by undergraduate students. PG104 was managed by Dr Sharafutainova.

21. A/Prof Holdsworth and Dr Sharafutainova each had offices within the physics building. Initially Dr Sharafutainova shared her office with four students, and from late-2016, with one other student.

Study trip to Ireland

22. By April 2017, Prof Andersson-Engels had moved from Lund University to University College Cork. Between early-April 2017 and late-June 2017, Ms Vafa and A/Prof Holdsworth were based at the University College Cork where they undertook research and modelling relevant to Ms Vafa’s thesis. For much of that time they worked at adjacent desks in the open plan Tyndall National Research laboratory which was also used by others.

Ms Vafa remains overseas to October 2017

23. On 23 June 2017, Ms Vafa travelled to Munich to present a paper at a conference. She then travelled to Sweden and took four weeks personal leave. She returned to Australia on 17 October 2017 after spending 10 weeks in Iran (1 August 2017 to 16 October 2017).

24. An issue in dispute is whether A/Prof Holdsworth was aware of and had approved Ms Vafa spending 10 weeks in Iran on personal leave.

25. A/Prof Holdsworth claims that he was extremely disappointed to discover that Ms Vafa had done little work on her PhD in the 10 weeks she spent in Iran especially as he had established a software platform to enable each of them to log in remotely and continue to work on Ms Vafa’s research project.

26. A/Prof Holdsworth claims that Ms Vafa told him that while in Iran she would be undergoing palate reconstructive surgery and, while convalescing, would continue to work on her thesis. (Shortly before coming to Australia, Ms Vafa was diagnosed with and treated for cancer of the palate.) A/Prof Holdsworth said he was surprised to later learn from Ms Vafa that the foreshadowed surgery did not take place and instead a dentist refitted her prosthetic palate.

27. Ms Vafa claims that A/Prof Holdsworth not only knew but had approved her not working on her thesis while in Iran, pointing in support to her travel diary. The entries in that diary for the period 18 July 2017 to 15 October 2017 state that Ms Vafa was on personal leave.

28. According to A/Prof Holdsworth, before purchasing an airfare for a student who had been approved to travel overseas, the University required the student to prepare a travel diary to enable fringe benefits tax to be calculated. The student was required to submit the diary to their supervisor, who in turn forwarded it to the Head of School, who in turn submitted it to the University’s finance department. In cross-examination A/Prof Holdsworth said he could not recall forwarding Ms Vafa’s diary to the head of school in December 2016 but accepts that he did. Nonetheless, he disputes that the travel diary evidences that he approved Ms Vafa doing no work on her thesis for 10 weeks. He claimed that he sought to provide Ms Vafa with flexibility to enable her to have dental work carried out in Iran. He insists that he understood that she would continue to work on her thesis while she was convalescing and that, when she was well enough, she would return to Australia. He said he was prepared to accept that Ms Vafa would be working at a reduced rate while in Iran but not that she would be doing no work at all. He said it was his understanding that under the terms of their scholarship PhD students were only entitled to four weeks personal leave and, if they took in excess of that amount, it would impact on their scholarship.

Alienware computer

29. A/Prof Holdsworth purchased an “Alienware” computer from his research funds to enable Ms Vafa to undertake modelling work for her thesis. The parties disagree on whether that computer was purchased primarily for Ms Vafa’s use (as claimed by A/Prof Holdsworth) or exclusively for her use (as claimed by Ms Vafa).

30. Shortly after Ms Vafa’s return from Iran in October 2017, Dr Sharafutainova requested Ms Vafa’s permission to use the Alienware computer. Ms Vafa agreed. On 20 October 2017, Dr Sharafutainova went to use the computer at the agreed time and found that Ms Vafa was still logged in. Dr Sharafutainova sent Ms Vafa an email stating that if she did not hear from her in five minutes, she would proceed to use the computer. Later that day, Dr Sharafutainova again emailed Ms Vafa stating that she had decided against using the computer because she was concerned that, as Ms Vafa was still logged on, her work might be lost.

31. In an email in reply copied to A/Prof Holdsworth, Ms Vafa wrote that she had left the computer free for Dr Sharafutainova to use.

32. In an email sent the following day to both A/Prof Holdsworth and Dr Sharafutainova, Ms Vafa suggested that a protocol be established for users to log off at the end of a session so that “we can be sure of not losing data inadvertently”.

Gloria Jean’s meeting

33. On 30 October 2017, Ms Vafa emailed A/Prof Holdsworth and Dr Sharafutainova and suggested they meet.

34. In an email in reply, Dr Sharafutainova agreed and asked Ms Vafa to provide “discussion topics in advance”. On the other hand, A/Prof Holdsworth replied “I do not think this is a good idea and my answer is no”. When Ms Vafa approached him a second time and said, “we are a small group and should all get along”, A/Prof Holdsworth acquiesced and then encouraged Dr Sharafutainova to meet with Ms Vafa, saying “Elham wants to apologise. Let’s go and listen to her … Let’s give her a chance”. Dr Sharafutainova said that she understood from that comment that A/Prof Holdsworth meant that Ms Vafa wanted to apologise for her prolonged absence and the lack of progress with her study.

35. On 31 October 2017, Dr Sharafutainova, A/Prof Holdsworth and Ms Vafa met at the Gloria Jean’s coffee shop located on the University campus. While there are conflicting accounts, it is agreed that the meeting started well but soon became heated.

36. Dr Sharafutainova and A/Prof Holdsworth claim that at the start of the meeting, Ms Vafa praised A/Prof Holdsworth and said he was a “wonderful and supportive supervisor”. Ms Vafa denies praising A/Prof Holdsworth and said she merely thanked A/Prof Holdsworth for purchasing the Alienware computer.

37. According to Dr Sharafutainova and A/Prof Holdsworth, the meeting deteriorated when Ms Vafa said that she should be given exclusive use of the Alienware computer to complete her research. Ms Vafa disputes that claim. She says that she had simply requested that she be given priority as her need was greater than the five other people using the computer.

Dr Sharafutainova’s account of the Gloria Jean’s meeting

38. Dr Sharafutainova said that during the meeting Ms Vafa became aggressive and:

1. was “pointing [her finger] on me saying ‘You! Who ask you to help [on the coding on her project]?’”, to which Dr Sharafutainova responded “John ask to help”;

2. said that Dr Sharafutainova had not supported her or contributed to her research;

3. said that “too many people” were being acknowledged in a paper she had co-authored;

4. said she was offended that Dr Sharafutainova had not greeted her when she returned from Iran in October 2017;

5. said that Dr Sharafutainova had refused to allow her to use PG104.

39. Dr Sharafutainova said:

1. she could not recall having refused Ms Vafa permission to use the laboratory she managed but, if she had, it would have been because that she was required to supervise student practical sessions or because the laboratory was unavailable for some other reason;

2. she was “really shocked” by Ms Vafa’s allegations and aggressive tone. She had never observed Ms Vafa behaving like that before. In her opinion, Ms Vafa had previously always been polite and softly spoken.

40. Dr Sharafutainova said that she was upset and shocked and did not respond:

“[B]ecause it was aggression on me. I feel blackmailed and it was aggression towards me. I was crying after this, I had nerve break after this just because I don't cry on people and I hard working person, doesn't mean I don't feel something inside. It was very aggressive, because it was very unusual behavior of Elham at the time.”

(Transcript 27/5/21, Disc 3, p 45)

41. According to Dr Sharafutainova, Ms Vafa appeared to be threatening her about an email she had sent to a student, Mr Levi Tegg. A/Prof Holdsworth then said, “that’s enough”, they stood up and left and were pursued by Ms Vafa.

A/Prof Holdsworth’s account of the Gloria Jean’s meeting

42. A/Prof Holdsworth’s account of the meeting is broadly consistent with that given by Dr Sharafutainova. He described Ms Vafa as being “agitated”. He said the meeting started well with Ms Vafa saying that he was “very kind, very nice”, and then Ms Vafa proceeded to “rip into” Dr Sharafutainova, accusing her of “not helping her, not doing things for her” (Transcript 26/5/21, Disc 3, p 8). This “went on and on and on”, Dr Sharafutainova was in tears and he said, “Let's go”. He said as they walked up two flights of stairs they were followed by Ms Vafa who continued to “verbally attack” Dr Sharafutainova. He said he then turned to Ms Vafa and said “Stop! Enough!”

43. A/Prof Holdsworth said that during the meeting Ms Vafa accused Dr Sharafutainova of not supporting her by not helping with her confirmation documentation, not packing the optics equipment to take to Ireland and interfering with her use of optics modelling software to complete her research.

Ms Vafa’s account of the Gloria Jean’s meeting

44. Ms Vafa disagreed with parts of the account of the meeting given by A/Prof Holdsworth and Dr Sharafutainova. Ms Vafa:

1. claimed that throughout the meeting she was calm and respectful;

2. denied being aggressive, using an aggressive tone or pointing her finger at Dr Sharafutainova. She said she had no reason to be aggressive as she had removed Dr Sharafutainova from her supervisory team in May 2017;

3. claimed because of her “disability” (having a prosthetic palate) she was unable to shout as alleged;

4. agreed that the meeting ended when A/Prof Holdsworth said, “that’s enough” and he then left the meeting with Dr Sharafutainova;

5. claimed A/Prof Holdsworth and Dr Sharafutainova were aggressive towards her and that after they left she had a panic attack.

The Tegg email

45. On 19 October 2017, Dr Sharafutainova sent an email to student, Mr Levi Tegg, (the Tegg email) and copied it to A/Prof Holdsworth:

“Hi Levi

Thank you for the support really, all data you make to be able through MATLAB is very thoughtful. Someone who we must not name should be thankful for any analyzing data instrument codes that we do work on [smiley face].

(emphasis added)

…”

46. Mr Tegg replied:

“I’ve found some time to work on the Matlab script some more. This afternoon I was thinking I would implement shaded error bar/uncertainty regions.

I understand that things have changed now that Elham is back, but if it's something you'd still like help with, would It be possible for you to send me your copy of the most recent version of the Matlab script to work on?

…”

47. All parties agree that the Tegg email was discussed at the meeting. According to Dr Sharafutainova, Ms Vafa raised the email in an attempt to “blackmail” her and said she would show it to the head of school. Ms Vafa, on the other hand, said that she suggested to Dr Sharafutainova that they show the email to the head of school after Dr Sharafutainova criticised her for having read the email.

48. Following the meeting, Dr Sharafutainova emailed colleague, Dr Xiajing Zhou alleging that Ms Vafa had attempted to blackmail her:

“As you asked, below is my email to Levi Tegg that accidentally got to John Holdsworth and then to Elham. Today, on a meeting between three of us, John H, Elham and myself, Elham revealed a knowledge, of the email. I told that I am sorry that email got to her but it was a work related conversation. Then, in my opinion, she kind of tried to blackmail me saying that she could go to the Head of School with that email.

I am not going to communicate with her anymore. If she Is going to continue a work on the breast scanner, use my Tracepro and matlab codes and/or approach to investigate the scanner performance in her research in her research than I think I am entitled to be in a respective paper. Might be I am wrong.

…”

49. In these proceedings, when asked what she understood Ms Vafa’s concern to have been with the Tegg email, Dr Sharafutainova said it was her impolite description of Ms Vafa as “someone who we must not name”.

50. In oral evidence, A/Prof Holdsworth gave this explanation about the significance of the Tegg email:

“In her prolonged absence, Dr. Sharafutainova and Mr. Levi Tegg, who had previously done a project on the scanner, worked to develop an automated program. If you like, a macro script that would run the model of Ms. Vafa basically 24-7. With changes to provide appropriate output of that. That was running. That work had been done by Levi Tegg out of the goodness of his heart, out of interest, and under the guidance of Gialiya. That work was conveyed to Ms. Vafa as soon as it was complete. If you like in my other email where I said we've got interesting results to discuss, those were the results that needed discussion.”

(Transcript, 26/5/21, disc 3, p 11)

After the Gloria Jean’s meeting

51. In an email sent to A/Prof Holdsworth on 1 November 2017, Ms Vafa wrote:

“I would like to say thank you for making it possible to have the meeting today. Although my doctor realised I had a panic attack and prescribed me medicine due to tension and difficulty to breathe after the meeting, but I’m happy that I can continue my project in peace from now on hopefully.

I’m just wondering if you want me to arrange a Skype meeting with other supervisors or would you like to do it yourself?

I also would like to appreciate your consideration on providing me with a full-time PC and extra tracePRO key.

…”

52. A/Prof Holdsworth claims that he saw the Gloria Jean’s meeting as the “last straw” and after that meeting he decided he could no longer act as Ms Vafa’s supervisor:

“Following that event, there was no chance, absolutely no chance of Dr. Sharafutainova and Ms. Vafa working together. In one stroke, Ms. Vafa had removed from the research team or she shattered the research team. Removed the expertise on the trace probe modeling. With those actions by Ms. Vafa, I could no longer supervise her Ph.D. “

(Transcript 26/5/21, disc 3, pp 8, 9)

53. On 1 November 2017, A/Prof Holdsworth emailed Assistant Director-Research and Training, Professor Frances Martin, Dr Zhou and Deputy Head of MaPS, A/Prof Hogan:

“I need help with this student.

Her focus on her work is minimal. Really minimal.

Her focus on university linkages for her benefit is high. Her manipulation and sense of entitlement are breathtaking.

The last straw is not respecting the intellectual support that she has been given and in essence, destroying any possible cohesion in my research group while artfully manipulating the situation to her being the victim.

I am over it. My health and well-being have suffered enough. I have no confidence in her abilities to achieve in her PhD studies without the support of me and my colleagues who she has comprehensively devalued and hurt.

I have had no recent correspondence with her international co-supervisors. They have not contacted with me about [Elham] nor any aspect of possible university linkage development in the last three months.

…”

Progress reports

54. The University required PhD candidates and their supervisors to submit pro forma progress reports twice a year. The supervisor(s) was required to complete one section of the report, the candidate another. Four reports in relation to Ms Vafa were tendered in these proceedings: the 2015, 2016 and 2017 annual progress reports and the 2016 and 2017 mid-year progress reports.

55. The report required the supervisor and the candidate to separately answer a series of questions about the candidate’s progress with their PhD. These included a rating of the candidate’s progress, the target date for submission of the thesis, and, an estimate of the percentage of the thesis submitted for review. The first negative comment made by A/Prof Holdsworth and Ms Vafa about each other appears in the 2017 annual progress report, which was submitted by A/Prof Holdsworth on 20 November 2017.

2015 Annual progress report

56. In that report Ms Vafa:

1. rated her overall progress as “good”;

2. reported that on average she discussed her research project with her supervisors fortnightly by a number of means, including email, phone, face-to-face and Skype;

3. stated she was satisfied with the contact she had with, each of her supervisors;

4. reported that the feedback she received met her expectation: it was “timely, clear and useful”.

57. A/Prof Holdsworth in answer to the question “Does this candidate meet their targets for 2015?”, wrote “Partially”. Under the heading “Progress Rating” he wrote:

“The overarching issue has been her health status and engaging with affordable health assessment as well as the prosthetic palette broke requiring urgent attention before a replacement could be made. The cost involved ‘$7000’ meant it was cheaper to have this done in her home country than in Australia and I set a program of work in literature review and allowed her to stay in Iran to have the palette made. She is due back 19 January. She has engaged in debate with the university about the state of her international student health cover and this has been a distraction to her studies as well.”

2016 mid-year progress report

58. In that report Ms Vafa:

1. rated her overall progress as “good”;

2. stated that “I really appreciate my supervisors and my colleague as they help me in the way of getting close to success all the time.”

59. In answer to the question “Are there any other barriers not identified elsewhere that affect your progress?”, Ms Vafa answered “Yes”:

“My insurance problem which has not been resolved by the university yet. Students need better equipment at the office to be able to work there e.g. a ventilation system which is why I do most of my work from home and on campus.”

60. In that report A/Prof Holdsworth:

1. stated that Ms Vafa met her targets for 2016;

2. rated Ms Vafa’s overall progress as “good”;

3. stated that he discussed the project with Ms Vafa on a weekly basis, he believed the feedback he provided met Ms Vafa’s expectations;

4. described his interaction with Ms Vafa as “productive”.

61. In answer to the question “Are there any barriers that affect Ms Vafa’s progress?”, he answered “Yes, health insurance issues.”

2016 Annual Progress Report

62. In that report Ms Vafa:

1. rated her overall progress as good;

2. stated that she discussed her research project with her supervisors weekly;

3. stated that she was satisfied with the contact she had with her supervisors;

4. stated that the feedback met her expectations and that she was satisfied with the general supervisory guidance and advice;

5. wrote “no” in answer to the question “Are there any other barriers not identified elsewhere that affect your progress?”.

63. In that report A/Prof Holdsworth:

1. stated that Ms Vafa had met her targets for 2016 according to the plan of work they had developed;

2. estimated that Ms Vafa had provided 25% of thesis for review;

3. rated Ms Vafa’s overall progress as “good”;

4. answered “no” to the question “Are there any barriers that affect Ms Vafa’s progress?”;

5. stated that he had discussed Ms Vafa’s research with her on a weekly basis, that he was satisfied with the contact he had with Ms Vafa, in his view the feedback met Ms Vafa’s expectations and their interactions were productive.

2017 mid-year progress report

64. Ms Vafa, A/Prof Holdsworth and Professor Andersson-Engels met on 26 May 2017 to discuss the progress of Ms Vafa’s thesis.

65. In the report apparently submitted after that meeting, Ms Vafa:

1. wrote “partially”, in answer to the question, “have you met your targets for 2017 according to the workplan developed by your supervisor?”:

“I did my confirmation presentation successfully with many good results in October 2015. As per my discussion with panel members, I needed to be provided with a computer capable of doing the optical modelling in my work. The previous computer at the University could not handle my work and therefore it was broken. The IT service at UON could not recognize the problem (broken SSD drive) with our previous PC which this matter delayed my work for about six months. I tried to do my best to keep working with the limited available resources that we had but it was a very tough situation for me. After my confirmation, it took about six months to have access to a suitable computer system for my work although it is not always working properly. My trip to Ireland planned by the University took some time to be arranged due to funding issues at UON which made my situation very stressful. The setup delivery to Ireland for doing a part of my work was delayed by the shipping service at the University of Newcastle by one month and when it arrived, a part of the system was broken due to unsuitable packing stuff provided by UON for such an important system. My supervisor was away for a while and during that period, I did not receive a helpful assistant by my co-supervisor at UON.”

2. stated that she had provided her supervisors and received feedback on 25% of her thesis;

3. stated that she discussed her thesis fortnightly with her supervisors;

4. rated her overall progress as “good”;

5. wrote “yes” in answer to the question, “Are there any other barriers, not identified elsewhere, that affect your progress?”:

“Since my co-supervisor at UON [Dr Sharafutainova] has not had great cooperation in my PhD work so far, I would like to have only two supervisors until I can find another qualified person for the position of my second co-supervisor.”

“My PhD was supposed to be a joint program between Lund University and UON. Since the plan has changed due to the delayed response by UON, I ask the UON to follow up the progress for my double degree to diminish the stress from me. My external supervisor has moved to Ireland and the other option would be to double degree with UCC.”

6. wrote “yes” in answer to the question “Are you satisfied with your principal supervisor?”;

7. wrote “no” in answer to the question “Are you satisfied with the contact you had with your co-supervisor?”, and gave these reasons:

“I have not received any helpful assistance from my co-supervisor at UON so far. Therefore I would like to change my supervisory team while we are all still working together and will collaborate as much as possible.”

66. In that report A/Prof Holdsworth:

1. stated that Ms Vafa “partially met” her targets for 2017 according to the plan of work they had developed:

“Computer issues resulted in 5 months delay in modelling

Delay in transport of goods coming to Ireland.”

2. estimated that Ms Vafa had submitted and he had provided feedback on approximately 25% of her thesis;

3. rated Ms Vafa’s overall progress as “good”;

4. answered “no” to the question, “Are there any barriers that affect this candidate’s progress?”.

2017 annual progress report

67. In that report, Ms Vafa:

1. wrote “partially”, in answer to the question, “have you met your targets for 2017 according to the workplan developed by your supervisor?”, explaining:

”I have not been provided by the necessary equipment need to do the part of the PhD, though I believe based on my work results that I have done a perfect job for my PhD project. I had already informed my principal supervisor as well as other supervisors regarding all the issues. I also had informed UON about these issues and all problems in my previous progress report though in vein.”

2. in answer to the question “are unmet resources needs … affecting the progress of your study”, wrote:

“The necessary equipment in the lab for improving the scanner has not yet provided. Based on the principal supervisor comment in the last progress report, the finding for purchasing the mirrors was secured and every thing was in place. I would see that nothing is in place as there is no clue why the supervisor has not yet provided the mirrors. [T]he PC suitable for doing the simulations was provided in late July 2017 and I had a full access from Nov 2017.”

3. estimated that she had provided about 50% of her thesis to her supervisors for review and received feedback on approximately 25% of her thesis;

4. rated her overall progress as “good”;

5. wrote “yes” in answer to the question “Are there any other barriers not identified elsewhere that affect your progress?”:

“1. I changed my supervisory team though my principal supervisor was strongly against it and since then I have not had the local support. I removed Dr Sharafutainova from the supervisory team because I have not received any collaboration with that person as I reported in my previous progress report.

2. My previous co-supervisor have had a very aggressive…behaviour since she was removed from the team and trying to send some emails to the other people at the department to say bad words about me. She mentions the reason that she is not happy that I removed her from the supervisory team.

3. My PhD was supposed to be a joint program between Lund University in Sweden and UON. Since the plan has changed due to the delayed response by UON, I ask the UON to follow up the process for my double degree to diminish the stress from me. My external co-supervisor has moved to Ireland and the other option would be my double degree with UCC. None of the progress has been followed up by may principal supervisor.

4. My principal supervisor have had some personal issues with me and have not been very in supportive since I removed Galiya from the team, his reason for keeping Galiya in the supervisory team were not reasonable at all.

5.based on the decision by ADR at UON I will find another supervisor. Therefore I will keep in contact with professors who are qualified for supervisor and do not leave the students alone on half of the way.”

6. wrote “no” in answer to the question, “Are you satisfied with the contact you have had with your principal supervisor?”;

7. wrote “yes” in answer to the question, “Are you satisfied with the contact you have with your co-supervisors?”.

68. In that report A/Prof Holdsworth:

1. stated that Ms Vafa had partially met her targets for 2017:

“Optical performance computation had not been done.

Prepared journal article on scanner had not been done.

Prepare for Ireland visit was done poorly. Key equipment and components were left out of the box to be shipped to Ireland. The control computer with software could not be found. Documentation was poor.

…

Ms Vafa has not generated modelling output from July 31 to 16 August 2017. She has not presented any draft work developed during that time.”

2. estimated that Ms Vafa had provided and that he had provided feedback on 15% of her thesis (in the previous reports A/Prof Holdsworth estimated that Ms Vafa had submitted 25% of her thesis);

3. rated Ms Vafa’s progress as “poor”:

“I have supported this candidate mightily. I’ve sent her to Ireland for a 3-month period, Germany and Adelaide for conferences. She did use her funds towards the Adelaide trip and also Germany as well … but the additional costs were born by me with the contribution from her co-supervisor. I have purchased a sophisticated computer for her work. It required that Elham focus ON her work, not on peripheral extraneous, distancing events, factors or imagined “promises”.

4. wrote “yes” in answer to the question, “Are there any barriers that affect this candidate’s progress?”:

“As a result of failure to focus on work output expectations of assistance beyond any reasonable norms: a breathtaking sense of entitlement: and a deliberate act in which she shattered any possibility of collaboratively within my research group, disrespecting my research colleague and me, I am forced to remove my supervision of Elham. In my opinion that she is better off in Lund Sweden which is where she wants to be.”

5. wrote “no” in answer to the question “Are your interactions with the candidate productive?”:

“Elham has decided to blame others for her inadequacies and has verbally attacked and disrespected by research colleagues in front of me at a meeting Elham wanted and had schemed to organise. She did virtually no work between end of July and mid-October. As a result of her actions I have withdrawn my supervision.”

A/Prof Holdsworth’s response to the questions about the final progress report

69. A/Prof Holdsworth was cross-examined about the reason he gave Ms Vafa a negative assessment in the final 2017 progress report, when he had previously rated her progress as “good”.

70. Commenting on the rating of “good” he gave in mid-year 2017 report A/Prof Holdsworth said:

“… At that meeting [26 May 2017] with Professor Andersson Engels Ms. Vafa, and I, I indicated that the computer that had an issue that Ms. Vafa had not followed up with IT. I indicated that she could have done more. I got suss back rather than any acknowledgement of yes, there's a problem that I need solved for my work. I will follow that up with IT. I got back a statement so you want me to be a computer science engineer? Really, it's inappropriate. Now, I fully acknowledge that I have not applied those Section A, Section B, section C protocols with Ms. Vafa. It was my practice at this time to involve Ms. Vafa with Section B. I found myself unable to be as forthright as was needed. As a result, these are more glowing, shall we say, than they could otherwise have been.”

(Transcript 26/5/21, Disc 3, p 17)

71. A/Prof Holdsworth described Ms Vafa as a person “[Who] would not take negative feedback. It’s always someone else’s problem. Someone else’s fault.” (Transcript 26/5/21, Disc 3, p 18)

72. In answer to the allegation that in the 2017 annual progress report he attempted to portray Ms Vafa negatively, A/Prof Holdsworth replied:

“It does reflect the fact that she spent 10 weeks in Iran with no output. It does reflect the fact that when she came back, she was disgruntled with access to equipment. Did not establish a booking list for access to the equipment. When challenged about that, advised in writing that Gialiya could use it, that Ms. Vafa was going to take another day off to pay medical bills. She had not addressed her health... I beg your pardon, she had refitted her palate at a dentist in Iran and not come back. She had then manipulated the coffee meeting, attacked Dr. Sharafutainova verbally at that meeting. Removed all possibility of a cohesive research group and effectively ended any possibility of me being able to supervise Ms. Vafa.”

(Transcript 26/5/21, Disc 3, p 19)

73. A/Prof Holdsworth denied that the statement he made in the 2017 annual progress report that Ms Vafa had a “breathtaking sense of entitlement” and that in his opinion she is “better off in Lund, Sweden, which is where she wants to be” was malicious:

“No. Ms. Vafa returned from Iran wanting to re-establish the link with Lund University for the purpose of her own health benefits, not for any research area. It's a dishonest manipulation of inter-university linkage for her own personal benefit.”

(Transcript 26/5/21, Disc 3, p 20)

The informal complaint

74. A significant issue in these proceedings is when A/Prof Holdsworth first became aware that Ms Vafa had informed the University that he had sexually harassed her.

75. In an affidavit dated 27 October 2020 (Ms Vafa’s first affidavit), Ms Vafa stated that “in or about November 2017” she made “an informal complaint” to the University about the “sexually harassing behaviour of A/Prof Holdsworth”. In cross-examination, when asked why she had failed to mention that complaint in her email sent 20 November 2017 to Professor Martin and copied to A/Prof Hogan, Ms Vafa said that “University policy” prevented her from disclosing her complaint to another member of staff (Transcript 25/5/21, Disc 1, pp 17, 18).

76. In re-examination, Ms Vafa identified for the first time the date she made the informal complaint to Professor Martin on 13 November 2017. She said at a meeting on that day with Professor Martin she raised A/Prof Holdsworth’s “poor supervision” and “inappropriate behaviour”. Ms Vafa claimed that she showed Professor Martin her Facebook which showed A/Prof Holdsworth made video calls and sent her “videos about terrorism”. (Transcript 25/5/21, Disc 2, p 2).

77. A/Prof Holdsworth claims that he first learnt that Ms Vafa had complained about him on 6 December 2017 when informed by the University.

The formal complaint

78. In an email sent 11 December 2017 to Ms Emma Mosmann of the University’s Assurance Services unit (the formal complaint), Ms Vafa made a series of allegations about A/Prof Holdsworth and Dr Sharafutainova.

A/Prof Holdsworth: sexual harassment allegation

79. The complaint in respect of A/Prof Holdsworth was in two parts: allegations of harassment, abusive and threatening behaviour and allegations concerning the supervision and support provided by A/Prof Holdsworth. With respect to the former, Ms Vafa alleged that A/Prof Holdsworth :

1. during their weekly meetings would frequently touch her on the shoulders, back or hands;

2. would regularly touch and hold his hands on her back;

3. at the 2016 Christmas party in the Physics building, rubbed her back on a number occasions;

4. on multiple occasions, hugged her tightly and kissed her on the cheek without her permission;

5. on various occasions, would enter her office from behind in a ‘sneaky manner’ and alert her to his presence by putting his hand on her shoulder;

6. in late-2016 and early-2017, suggested, and was insistent upon, sharing accommodation with her for the duration of their research trip to Ireland;

7. in Ireland, shared photos on Facebook of her without her permission, and shared videos and communicated with her over Facebook Messenger, which she did not consider appropriate.

Complaint about A/Prof Holdsworth: inadequate support and supervision allegations

80. Ms Vafa alleged that A/Professor Holdsworth:

1. had promised that she would be awarded a dual degree by Lund University Sweden and the University;

2. on several occasions in 2016 and once in 2017, had poked her hard in the arm with his finger causing her embarrassment and physical discomfort;

3. placed her under duress to include Dr Sharafutainova as a supervisor for her PhD and later made threats towards her when she later sought to remove Dr Sharafutainova from the supervisory team;

4. forced her to include the name of one of his students in an academic paper in circumstances where she had not used that student’s work;

5. threatened her with the cancellation of her PhD candidacy when she sought to clarify her PhD plan and promises that were unfulfilled;

6. unreasonably ended his supervisory relationship with her in circumstances where he had no cause to and largely because she had removed Dr Sharafutainova as supervisor;

7. in meetings to discuss his decision to remove himself as supervisor, shouted at her and treated her unfairly and caused other staff members to treat her unfairly; and

8. unfairly and dishonestly disparaged her to prospective supervisors, causing them not to take her on as a PhD student.

Complaint about Dr Sharafutainova

81. Ms Vafa alleged:

1. Dr Sharafutainova’s communication with her was “disrespectful/abusive”;

2. that during the Gloria Jean’s meeting, Dr Sharafutainova behaved in an aggressive manner towards her;

3. the reason she removed Dr Sharafutainova as her supervisor was because of her “bad attitude and no helpful collaboration with her thesis”.

Pinnacle Investigation

82. The University engaged external consultants, Pinnacle Integrity, to investigate the formal complaint. In the course of that investigation, Pinnacle interviewed Ms Vafa, A/Prof Holdsworth, Dr Sharafutainova, A/Prof Hogan, Professor Martin, Dr Xiajing Zhou and Dr Saadallah Ramadam.

83. Records of those interviews (if indeed they were made) were not produced in these proceedings. Neither Ms Vafa nor A/Prof Holdsworth had seen a copy of that report until it was produced by the University in answer to a summons issued at the request of Ms Vafa.

84. Pinnacle found:

1. there was no evidence to support Ms Vafa’s allegation that Dr Sharafutainova has engaged in any kind of misconduct. Those allegations were unsupported and lacked substance;

2. all but one of allegations about A/Prof Holdsworth were not proven. The proven allegation was that on several occasions A/Prof Holdsworth had poked Ms Vafa in the arm;

3. A/Prof Holdsworth’s proven/admitted conduct did not amount to sexual harassment because it was not of a sexual nature.

85. Nonetheless, Pinnacle was critical of some aspects of A/Prof Holdsworth’s conduct. Among other things, Pinnacle stated that it could be “considered as over-familiar and has the potential to cause discomfort” (greeting and farewelling Ms Vafa with a hug and a kiss) or demonstrated a significant lack of judgment (suggesting that he and Ms Vafa share accommodation in Ireland).

Assessment of credit: principles

86. In Campbell v Campbell [2015] NSWSC 784 (Campbell) Sackar J at [73]-[79] summarised the key principles which apply to the assessment of the credit of a witness:

1. where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties’ testimony, the trial judge’s assessment of the character of witnesses and the manner in which the witnesses give evidence are all matters of primary importance;

2. the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation;

3. in cases involving events which occurred long before the litigation, a court usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable, and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable facts, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine.

(Citations removed)

87. In Campbell at [75], Sackar J referred to the dissenting speech of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431:

“A witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

88. In in an oft-quoted passage, McLelland CJ in Eq (as his Honour then was) in Watson v Foxman (1995) 49 NSWLR 315 at 318, discussed the reliability of human memory:

“[H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

89. Commenting on the fallibility of human memory, Leeming JA in Nominal Defendant v Smith [2015] NSWCA 339 at [82] said:

“Although to some it may seem counterintuitive, I see no real difference between Ms Callister wrongly but genuinely believing that she could not have missed the black vehicle, and Mr Smith wrongly but genuinely believing that he did see the black vehicle. That is the nature of human memory. Writing extra judicially (P McClellan, “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655) Justice McClellan has observed (at 664 and 665) that memories are unstable and malleable and vulnerable to suggestion. I do not regard that as controversial. Nor do I read his Honour as regarding it as controversial. It is supported not merely by one’s ordinary experience but also by a body of psychological evidence.”

(Citations removed)

A: Sexual harassment complaint

Sexual harassment complaint: Statutory framework and principles

90. Section 23E(1) of the AD Act makes it unlawful for a member of staff of an educational institution to sexually harass a student at the institution.

91. The AD Act defines “sexual harassment” to mean:

22A Meaning of "Sexual Harassment"

For the purposes of this Part, a person sexually harasses another person if--

(a)   the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b)   the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

92. In a recent decision, the Court of Appeal (Bell P, Payne JA, McCallum JA) considered the construction and application of ss 22A and 22B of the AD Act: Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 14 (Yelda). (Section 22B of the AD Act makes it unlawful for an employer to sexually harass an employee.) The Court of Appeal held:

1. Whether conduct amounts to “other unwelcome conduct of a sexual nature” within the meaning of s 22A(b) of the AD Act is a question of fact having two parts ([34], [81]-[82] (Bell P and Payne JA), [125] (McCallum JA)):

1. whether the conduct is “unwelcome”, which must be determined by reference only to the complainant’s state of mind;

2. whether the conduct is “conduct of a sexual nature” is a question of fact, ascertained objectively.

Issues to be determined

93. Two key issues must be determined:

1. whether the particularised conduct alleged by Ms Vafa occurred, and

2. whether any admitted or proven conduct amounts to sexual harassment within the meaning of the AD Act.

94. It falls to Ms Vafa to establish the facts alleged on the balance of probabilities.

95. Claims of sexual harassment are often cases of word against word. There is little independent or contemporaneous evidence to corroborate the respective accounts given by Ms Vafa and A/Prof Holdsworth. Nonetheless, there is broad agreement about several factual issues, including that:

1. on occasion, in greeting and farewell, A/Prof Holdsworth hugged and kissed Ms Vafa on each cheek;

2. on occasion, A/Prof Holdsworth touched Ms Vafa’s back and upper arms;

3. on occasion, A/Prof Holdsworth poked Ms Vafa on the upper arms;

4. A/Prof Holdsworth suggested to Ms Vafa that they share accommodation during the study trip to Ireland;

5. before Ms Vafa’s return to Australia in October 2017, A/Prof Holdsworth had not raised with Ms Vafa concerns about her progress with her PhD.

96. In addition, while there are some differences in their respective accounts, it is agreed that the Gloria Jean’s meeting became heated and emotionally charged. Dr Sharafutainova was left shell-shocked and in tears; Ms Vafa consulted a doctor and was told she had had a panic attack; A/Prof Holdsworth saw it as the “last straw” and the following day reported to Professor Martin that he was “over it”, “my health and well-being have suffered enough”.

97. Nonetheless, there are several disputed facts issues which are central to the determination of the complaint. In assessing the evidence about those issues, I am mindful of the following considerations.

98. First, neither A/Prof Holdsworth nor Ms Vafa is independent. Each has a motive to lie. A finding that A/Prof Holdsworth sexually harassed Ms Vafa is likely to have a devastating effect on his reputation and career. Equally, if her claims are true, a finding that he did not do so is likely to have an adverse effect on Ms Vafa.

99. Second, the events the subject of these proceedings occurred between three to five years ago. As observed by McLelland CJ in Eq (as his Honour then was) in Watson v Foxman human memory is fallible and, as a general rule, “the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene”. Not only do memories fade with time, so too may particular perceptions or impressions of events become accepted as fact.

100. Third, since they occurred, Ms Vafa and A/Prof Holdsworth have each given accounts about the disputed events: to the University, to Pinnacle, to the Board, to their lawyers and, possibly, family and friends. It is well-recognised that the telling and re-telling of events has the potential to distort memory: Longman v R (1989) 89 ALR 161 at 182 per McHugh J.

101. Fourth, for both A/Prof Holdsworth and Ms Vafa, it is apparent that these proceedings have been a stressful experience. During cross-examination each became upset from time to time. The emotive quality of the evidence has the potential to affect their capacity to “remember”: Longman v R at 182 per McHugh J.

102. Fifth, the conflicting accounts given by A/Prof Holdsworth and Ms Vafa about some of the disputed events may be attributable to their different perceptions of the same event. For example, it is entirely possible that Ms Vafa perceived that A/Prof Holdsworth hugged her “tightly” and that A/Prof Holdsworth did not.

103. Sixth, English is not Ms Vafa’s or Dr Sharafutainova’s first language. I am satisfied that each understood the questions put to them in these proceedings. Neither party suggested otherwise. I have taken into account that some of the more colourful statements made by Ms Vafa in these proceedings, such as that she was “tortured” by A/Prof Holdsworth may be attributable to her language difficulties rather than as argued for the respondents, a propensity to exaggerate or embellish.

Credibility of witnesses

104. Each party has attacked the credibility of their opponent’s witnesses.

105. The respondents argued that Ms Vafa and Dr Shirvanimoghaddam were unreliable witnesses. With respect to Ms Vafa, the respondents highlighted several examples which they contend demonstrate that her evidence was self-serving and that, on each re-telling, became more embellished, inconsistent and incredible. In addition, the respondents point to the evidence given at the request of Ms Vafa by psychologist, Ms Sarah de Vedle. Ms de Vedle undertook psychometric testing and concluded that Ms Vafa was “very much above average” in the measure of impression management and self-deception, which may indicate dishonesty.

106. Ms Vafa, on the other hand, argued that both A/Prof Holdsworth and Dr Sharafutainova were unreliable witnesses. Ms Vafa pointed to several inconsistencies between the accounts given by A/Prof Holdsworth to Pinnacle and in these proceedings. Pointing to A/Prof Holdsworth’s refusal to acknowledge the significant power imbalance between himself and her, Ms Vafa contends that it should be inferred from that “absurd position” that A/Prof Holdsworth lacks judgment and self-awareness and that has coloured his evidence. With respect to Dr Sharafutainova, Ms Vafa argues that her close working relationship and acknowledged friendship with A/Prof Holdsworth, together with Dr Sharafutainova’s evident antipathy towards her, has rendered her an unreliable witness.

385. On 10 May 2018, Ms Vafa lodged an appeal with the Office of the Vice-Chancellor and President of the University in relation to the Pinnacle investigation and the review conducted by the University’s Complaints unit of that investigation. In addition, Ms Vafa appealed the review conducted by the Complaints unit into various issues she had raised, including the University’s decision that it was unable to award her a dual degree, and the alleged inadequate supervision and support provided to her in conducting her PhD research.

386. In a letter dated 5 July 2018, the University’s Vice-Chancellor and President, Professor Caroline McMillan, informed Ms Vafa that she had considered and dismissed her appeal. Professor McMillan gave detailed reasons for her decision.

Findings

391. The criticisms made by Ms Vafa about the Pinnacle investigation are, in effect, an expression of disagreement with the facts found by Pinnacle and forensic decisions made by Pinnacle about the conduct of that investigation. The premise on which allegation (b) rests is not established.

392. The basis for the assertion that the University failed to “carry out any, or any proper, investigation” of Ms Vafa’s internal complaint is unclear. The evidence suggests otherwise. Professor McMillan gave detailed reasons for her decision. Again, the allegation appears to be an expression of disagreement about the outcome of the appeal.

393. The premises on which allegations (b) and (h) rest is not established.

394. These allegations are not substantiated.

Allegation (c):

“In about November 2017 to about March 2018, Jeffrey Hogan failed to exercise reasonable efforts to find a suitable alternative supervisor for Ms Vafa.”

395. After meeting with Ms Vafa on 16 November 2017, A/Prof Hogan contacted three potential supervisors and gave their names to Ms Vafa the following day.

396. In January 2018, Ms Vafa contacted Professor Peter Stanwell who was then studying in the USA. He agreed to act as Ms Vafa’s supervisor. On 1 February 2018 the University formally approved that arrangement.

397. There is no evidence to suggest that between the time A/Prof Hogan gave Ms Vafa the names of the three potential supervisors and Ms Vafa commenced negotiations with Professor Stanwell, Ms Vafa requested A/Prof Hogan for further assistance to find a replacement supervisor.

398. But even if, for argument’s sake, it is suggested that the steps taken by A/Prof Hogan to assist Ms Vafa to find a suitable supervisor were inadequate, the evidence does not support a finding that, prior to Professor Stanwell’s appointment, A/Prof Hogan was aware of Ms Vafa’s complaint of sexual harassment.

399. Without evidence of such a nexus, this allegation must fail.

Allegation (d):

“On or about 16 November 2017, Jeffrey Hogan informed Ms Vafa that her PhD candidacy would be terminated unless she was able to secure a new supervisor and new project within about 3 weeks, which was an unreasonable requirement.”

400. On 16 November 2017, A/Prof Hogan notified Ms Vafa that if she was unable to find a replacement supervisor within one month, she would be asked to show cause as to why her candidature should not be cancelled, citing the Rules Governing Higher Degrees by Research (the Rules) issued by the University. Section 49 of those Rules authorises the Dean of Graduate Research to terminate candidature where the candidate is no longer able to undertake the agreed research project because “the candidate is unable to be supervised by appropriate supervisors and alternative supervisors cannot be found after reasonable efforts by the relevant officers”. The Rules, however, do not stipulate that the alternative supervisor must be found within a month.

401. Given that it was the end of the academic year, requiring Ms Vafa to find a replacement supervisor within a month appears to be unreasonable. Nonetheless, for the reasons discussed above the evidence does not support a finding that when A/Prof Hogan informed Ms Vafa of that requirement that he was aware of Ms Vafa’s allegation of sexual harassment. It follows that this allegation must fail.

Allegation (e):

“On or about 24 November 2017, Jeffrey Hogan and/or other responsible employees of the University refused to approve and/or support the extension of Ms Vafa’s scholarship on the basis of exceptional circumstances”

402. I understand this allegation to relate to the email sent on 24 November 2017 by A/Prof Hogan in answer to a question from Ms Vafa about whether it was possible for her scholarship to be extended if there was a delay in finding a supervisor. A/Prof Hogan advised that there was no provision for a scholarship to be extended beyond three and a half years, and a six-month extension could only be given in exceptional circumstances.

403. As is apparent from their email exchange, A/Prof Hogan was simply providing information in answer to a question from Ms Vafa. No decision was made or action taken by A/Prof Hogan. In my view it could not be said that by providing that information, A/Prof Hogan subjected Ms Vafa to loss or damage.

404. But in any event, given my finding that on 24 November 2017 A/Prof Hogan was unaware of Ms Vafa’s complaint of sex harassment, this allegation must fail.

Allegation (f):

“From about December 2017, the University restricted Ms Vafa’s access to her office, research equipment and other personal equipment stored on the University’s premises.”

Allegation (g):

“In about January 2018, after Ms Vafa raised concerns about her wellbeing and safety on campus, the University failed to provide her with appropriate support.”

Allegation (j):

“Between about October 2019 and about March 2020, the University failed to properly investigate and address Ms Vafa’s allegation that a fellow student of the University, Nigel Walters, had used Ms Vafa’s work without her permission and without acknowledgement of her work.”

405. For convenience, I deal with Allegations (f), (g) and (i) together. While unrelated, they suffer from the same defect. Ms Vafa has not produced direct or indirect evidence, or made any substantial argument, which might assist me to determine on what basis a “reasonable and definite inference” could be drawn that one of the reasons for any of the alleged detriments was that Ms Vafa had made complaints about A/Prof Holdsworth and/or the University.

Allegation (i):

“In or about July 2018, the University failed to provide Ms Vafa with equipment that had been purchased to support her research, being a new PC and key.”

406. Ms Vafa claims, contrary to the evidence given by A/Prof Holdsworth and corroborated by Professor Johnston, that she was not provided with a new Alienware PC and key (see Allegation (h) as against A/Prof Holdsworth). If, for argument’s sake it is assumed that those alleged facts are established and a detriment was suffered, I am again without an evidentiary basis connecting the detriment and the complaints about A/Prof Holdsworth and/or the University. The allegation fails for that reason.

Allegation (k):

“In about March 2020, the University delayed Ms Vafa’s thesis examination and/or provided for a thesis examination timeframe of 12 weeks whereas the usual timeframe is 8 weeks.”

407. The alleged conduct falls outside the temporal scope of the second complaint, as determined by the President of the Anti-Discrimination Board (26 October 2018 to 31 December 2019). Therefore, I do not have power to determine this allegation.

408. In any event, A/Prof Kylie Shaw gave unchallenged evidence that students are advised that examination of a thesis can take between three to six months. Nor was it suggested to A/Prof Shaw that one of the reasons for the purported delay was because she had made complaints about A/Prof Holdsworth and/or the University.

Ms Vafa is found guilty of misconduct

Allegation (k):

“Or or about 6 September 2018, the University issued Ms Vafa with a Notice of Alleged Misconduct.”

Allegation (l):

“On or about 3 October 2018, the University determined that Ms Vafa had breached a Student Conduct Rule and imposed a penalty upon her.”

Allegation (m):

“On 22 October 2018, the University failed to uphold her appeal of the determination.”

409. On 13 March 2018 Ms Fairlie informed Ms Vafa of the outcome of the Pinnacle Inquiry, relevantly that:

1. the complaint of sexual harassment was not substantiated; and

2. the allegation that she had been poked in the arm as a form of rebuke was substantiated.

410. In July and August 2018, Ms Vafa sent a series of emails to over 20 members of University staff to the effect that her complaint of sexual harassment against A/Prof Holdsworth had been upheld by the University.

411. After reviewing that correspondence, Professor Liz Burd, then Pro-Vice Chancellor of the University, concluded that Ms Vafa’s claims were false. Citing correspondence received from Ms Vafa in which she stated that she disagreed with the conclusion reached by Pinnacle that she had not been sexually harassed and challenged the definition of sexual harassment used by Pinnacle, Professor Burd concluded that Ms Vafa understood that Pinnacle had found her complaint of sexual harassment not proven.

412. Professor Burd formed the view that Ms Vafa’s behaviour contravened the University’s Student Conduct Rule, as it “adversely impacted the reputation of the University and a staff member”.

413. On 6 September 2018, the University issued Ms Vafa a show cause notice and invited her comment on its preliminary finding that: (i) she had falsely claimed that her complaint of sexual harassment had been substantiated, and (ii) that conduct constituted “non-academic misconduct” under the Student Conduct Rule. In addition, the University informed Ms Vafa that several risk mitigation measures had been put in place to reduce the possibility of her “encountering situations that you claim make you feel unsafe”:

1. A/Prof Holdsworth had been instructed that the Hunter building was Ms Vafa’s work area. He had agreed not to access it;

2. A/Prof Holdsworth’s place of work was the Physics building and she was directed not to access that building;

3. A/Prof Holdsworth and Ms Vafa were not to have contact with the other.

414. In a detailed response to the University, dated 19 September 2018, Ms Vafa disagreed that she had falsely claimed that her complaint of sexual harassment had been substantiated. In addition, Ms Vafa claimed that on 13 March 2018 Ms Fairlie informed her that her complaint had been upheld. In these proceedings, Ms Fairlie refuted that claim and stated that when she met with Ms Vafa in March 2018, she had read out each of the findings made by Pinnacle. Ms Fairlie stated that, based on Ms Vafa’s response at the time, she was confident that Ms Vafa had understood the information conveyed. In addition Ms Fairlie pointed to the written report given to Ms Vafa confirming that Pinnacle found her complaint of sexual harassment not proven.

415. In a letter dated 3 October 2018, the University advised Ms Vafa that a decision had been made that by falsely claiming her complaint of sexual harassment had been substantiated she had breached the Student Conduct Rule and any further breach might result in the termination of her enrolment at the University.

416. Ms Vafa appealed against that decision. The University dismissed that appeal.

Conclusion

417. Ms Vafa did not make any submissions to explain the basis for her contention that one of the reasons the University found her guilty of misconduct and dismissed her appeal was that she had made complaints about A/Prof Holdsworth and/or the University. This allegation is not substantiated.

Allegation (o):

“Between November 2017 to present, the University has failed to appropriately address Ms Vafa’s concerns about her candidacy and program.”

418. Ms Vafa has made several allegations about the University’s purported failure to address her concerns about her candidacy. She has not identified which of those concerns were not addressed by University staff nor, more to the point, which of those concerns were not addressed because she had made complaints about A/Prof Holdsworth and/or the University.

419. Allegation (o) is not established.

Allegation (p):

“Between November 2017 to present, the University has failed to facilitate the provision to Ms Vafa of a statement of technical expertise from A/Prof Holdsworth.”

420. For the reasons discussed in relation to Allegation (h) as against A/Prof Holdsworth the premise on which this allegation is based is not established.

Allegation (q):

“Between March 2018 and May 2019, the University’s employees have made disparaging remarks about Ms Vafa.”

421. I have proceeded on the assumption that the purported disparaging remarks the subject of this allegation are those identified in Ms Vafa’s first affidavit at [78]-[82]. Those remarks were made by Ms Fairlie, Professor Burd, Ms Jarvie and Ms Savy.

422. It was not suggested to Ms Fairlie or Professor Burd, that the offending remarks they made were related in some way to the complaints made by Ms Vafa. As with Allegation (o), Ms Vafa has not made any submissions which might assist me to understand the basis upon which an inference could be drawn that one of reasons that any of above employees made those remarks was that Ms Vafa had made a complaint about A/Prof Holdsworth and/or the University.

Allegation (r):

“In about 2018, the University unilaterally assigned Ms Vafa a co-supervisor, Suzanne Snodgrass, without consultation with or agreement from Ms Vafa.”

423. On 22 February 2018, Ms Vafa was informed by the University that, effective from 1 February 2018, changes had been made to her supervisory arrangements: her principal supervisor (50%) would be A/Prof Stanwell and co-supervisor (10%) would be A/Prof Suzanne Snodgrass.

424. A/Prof Stanwell had recommended A/Prof Snodgrass’ appointment. He stated that he did so to enable data collected from a project he was working on with A/Prof Snodgrass to be used by Ms Vafa in her research. He stated that the intellectual property and expertise A/Prof Snodgrass had shared with him in relation to that data made it necessary for a small proportion of Ms Vafa’s supervision to be shared between himself and A/Prof Snodgrass.

425. In cross-examination, A/Prof Stanwell disagreed with the proposition that he had not discussed with Ms Vafa his recommendation about A/Prof Snodgrass prior to her appointment.

426. Further, A/Prof Stanwell stated that when he agreed to take on the role of Ms Vafa’s principal supervisor, he had no knowledge of her complaint about A/Prof Holdsworth. He stated that in his experience of supervising honours, masters and PhD students since 2013 conflict between supervisors and students is not uncommon. He stated he only became aware of Ms Vafa’s complaint in these proceedings.

Findings

427. I understand the purported detriment in relation to this allegation to be A/Prof Stanwell’s alleged failure to raise with her his recommendation that A/Prof Snodgrass be appointed, before that appointment was made. For current purposes I will assume but not decide that, as claimed, Ms Vafa first learned of that appointment on 22 February 2018.

428. I accept A/Prof Stanwell’s claim that he was unaware of Ms Vafa’s complaints about the University and A/Prof Holdsworth when he decided to recommend A/Prof Snodgrass’ appointment. He gave a plausible explanation for recommending A/Prof Snodgrass’ appointment. There was no evidence to cast doubt on it. I have not been referred to any material which might assist to explain the basis for the assertion that the decision to appoint A/Prof Snodgrass, or the manner that appointment was made, was related in some way to the complaints Ms Vafa made about A/Prof Holdsworth.

429. Allegation (r) is not proven.

Summary

430. The complaint of victimisation made against the University is not substantiated.

Orders under s 108 of the AD Act

431. Ms Vafa made detailed submissions about the appropriate form of orders to be made under s 108 of the AD Act. Those submissions were made on the assumption that the complaint would be substantiated. In circumstances where a single allegation of sexual harassment is proven in my view the parties should be given a further opportunity to make submissions about the appropriate form of orders.

432. In my view the matter can be adequately addressed “on the papers” by brief written submissions without the need for a further hearing as permitted by s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

433. The parties are requested to confer and to provide the Tribunal with an agreed timetable within two weeks of the date of this decision. In addition they are requested to advise whether in their view the matter can be adequately dealt on the papers.

Orders

1. Allegation 8 of the complaint of sexual harassment as against A/Prof Holdsworth is substantiated. The balance of the complaint of sexual harassment as against A/Prof Holdsworth is not substantiated and is dismissed.

2. The complaint of sex discrimination as against the University is not substantiated and is dismissed.

3. The complaint of sex discrimination as against A/Prof Holdsworth is misconceived and is dismissed.

4. The complaint of victimisation made against the University is not substantiated and is dismissed.

5. The complaint of victimisation made against A/Prof Holdsworth is not substantiated and is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 24 May 2022