Borg v Victoria University

THE FACTUAL BACKGROUND 5 Dr Borg's dispute with the University can be traced back to events which occurred in 2009. In that year Dr Borg and other staff members of the University accompanied a party of students on a trip to Malta. As a result of events which occurred during that trip Dr Borg, in 2010, lodged a complaint with the University's Human Resources Department, alleging that she had been bullied, harassed, discriminated against and victimised by other members of staff. The University engaged an independent investigator to enquire into Dr Borg's complaints. The investigator found that none of the allegations, made by Dr Borg, had been substantiated and he recommended that each be dismissed. 6 Dr Borg was dissatisfied with the outcome of the investigation and she prepared a written response disputing the investigator's findings and made further allegations of bullying against officers of the University's Human Resources Department. These allegations were investigated by a Deputy Vice Chancellor who concluded that they lacked substance. 7 Dr Borg then made a series of complaints against the University with external organisations. In February 2012 she lodged a complaint with the Fair Work Ombudsman. Having considered the complaint the Fair Work Ombudsman concluded that the University had not contravened the Act. 8 Later in that year she lodged a further complaint with WorkSafe alleging that the University had breached the Occupational Health and Safety Act 2004 (Vic) ("the OH&S Act") because she has been subjected to bullying in the workplace. In January 2013 WorkSafe advised Dr Borg that it did not consider that the University had breached the OH&S Act. Dr Borg was dissatisfied with this finding and lodged an appeal in the Victorian Civil and Administrative Tribunal ("the Tribunal"). The Tribunal struck out the application on 22 July 2013 on the ground that, at relevant times, Dr Borg was not an employee of the University. 9 During the period between 2010 and 2012 when Dr Borg's various complaints were being considered and dealt with, she continued to teach at the University pursuant to a series of sessional engagements. The last of those engagements concluded on 30 November 2012. 10 During January 2013 Dr Borg contacted Mr Norman and advised him that she was available to teach the IHR unit of study during semester 1 of that year. Shortly before the semester commenced Mr Norman decided that he did not need to engage her for the IHR unit of study and he did not make an offer to Dr Borg. Dr Borg considered that this refusal to employ her may have occurred because of her earlier complaints against the University and its staff.

THE EVIDENCE 11 In accordance with orders made in the course of directions hearings the parties filed affidavits on which they proposed to rely at trial. 12 Dr Borg filed four affidavits. Those affidavits had a considerable number of exhibits attached to them. 13 The University filed affidavits made by Mr Norman and by Ms Josie Parle who, at relevant times was General Manager Human Resources Partnership, in the University. Ms Parle's affidavit exhibited a number of documents, including some also tendered by Dr Borg. 14 A good deal of the material in the affidavits sworn by Dr Borg was objectionable for evidentiary reasons. Rather than deal with all of the potential objections at trial I chose, instead, to invite Dr Borg to give her evidence orally. This she did. She gave her evidence in an earnest and considered way. She was, at times, under some avowed stress in seeking to recall accurately relevant events. She impressed me as a good historian and a truthful witness. She sought to re-agitate the merits of some of her grievances against the University and its staff but, for the most part, she concentrated on relevant matters. 15 Although the affidavits filed on behalf of the University were far less prone to challenge on evidentiary grounds I directed that the University's witnesses should also give their evidence in chief orally. In part this was in order to ensure a parity of approach to both parties. I also considered it desirable to form an assessment of the University's witnesses, particularly when they were giving evidence for the purpose of rebutting the presumption raised by s 361 of the Act. 16 Many, but by no means all, of the documentary exhibits to affidavits were placed before witnesses and tendered in evidence.

DR BORG'S EVIDENCE 17 In 2009 the University organised a Malta study tour. Planning commenced early in the year. Students were to be accompanied by a number of staff members. Dr Borg assumed that she would be one of those staff members but, initially at least, she was not included in the group. Later in the year it was decided that she would go and that she would provide welfare support to the students. 18 The trip took place between 21 November and 15 December 2009. In the course of the tour a number of incidents occurred in Malta which led to friction between Dr Borg and other staff members of the touring party. Dr Borg considered that these events constituted bullying, harassment, discrimination and victimisation. 19 On 21 May 2010 Dr Borg made a formal written complaint about these matters to the University's Director of Human Resources. Dr Borg asked for a full investigation of her complaints. She was advised that her complaints would be dealt with under the University's Staff Issue and Complaint Resolution Policy. She was provided with a copy of that policy and raised no objection to the complaints being dealt with in the manner proposed. 20 The University appointed Mr Gary Rothville as "Conciliation Officer" under the policy. This title is something of a misnomer given that the policy provides for the Conciliation Officer to conduct an inquiry and, if he or she is unable to resolve the issues in dispute between the parties, to prepare a written report and make recommendations to a "Principal Officer" of the University about how the dispute should be resolved. 21 Mr Rothville interviewed the staff members against whom Dr Borg had made accusations and Dr Borg herself. He did not interview some third parties whom Dr Borg had said might be in a position to confirm aspects of her complaints. 22 After the interview, but before Mr Rothville reported, Dr Borg sent him an email in which she thanked him for his "compassion and understanding" in his conduct of the inquiry. 23 On 20 July 2010 Mr Rothville provided the University with a written report in which he recommended that all of Dr Borg's complaints should be dismissed. A copy of the report was provided to Dr Borg. She was dissatisfied with it and prepared a detailed written response which she provided to the "Principal Officer" Professor Alan Farley. Having considered Dr Borg's objections, Professor Farley determined that Mr Rothville's recommendations should be implemented. Professor Farley did not interview persons nominated by Dr Borg as potential corroborators of her account of events and explained his reasons for not doing so. 24 Dr Borg remained dissatisfied and sought the intervention of the Vice Chancellor. The Vice Chancellor advised Dr Borg that she had exhausted all avenues of appeal within the University and that, if she wished to pursue the matter further, she would be required to lodge an appeal with the Victorian Ombudsman. 25 Dr Borg then embarked on a series of applications for external review. Reference has already been made to these applications. In each case, Dr Borg was unsuccessful. 26 Dr Borg said that she had taught the IHR subject for 10 years and had a reasonable expectation of doing so again in 2013. 27 To this end she sent an email to the former unit co-ordinator, on 25 January 2013, in which she said that she was available to teach the IHR subject in 2013. The email was copied to Mr Norman. Later that day Mr Norman replied saying that he would give Dr Borg "an update next week, concerning your interest in this area." He did not do so. 28 Having heard nothing further Dr Borg sent another email to Mr Norman on 21 February 2013. She noted that she hadn't heard from him. She continued: "Austin I would appreciate it if you can send me a reply. I understand that you are the co-ordinator of this subject. If I am not teaching this subject I would like to know why." 29 On the following day Mr Norman responded thanking Dr Borg for her expression of interest. He continued: "At this stage, I cannot confirm any teaching for you in this unit. If the situation changes, as I get a clearer picture of demand for this unit on Monday, then I will contact you again about this expression of interest that you have lodged with me." Mr Norman made no further contact with Dr Borg. 30 Under cross-examination Dr Borg said that she had known Mr Norman as her supervisor since 2011. At no time had there been any animosity between them. She said that they got along well. Dr Borg said that she had never spoken to Mr Norman about her 2010 complaint to the University or her subsequent external complaints.

MR NORMAN'S EVIDENCE 31 Mr Norman had taught at the University since 1985. The IHR unit formed part of what was known as the International Hospitality Management Program. Enrolments in that program had fallen from about 190 to 75 between 2010 and 2013. The result was that fewer staff were needed to teach the subject. Some full time staff members had "taken redundancy" and the number had dropped from four to one (Mr Norman) by 2012. 32 When planning for the teaching of the unit in the first semester of 2013 Mr Norman did so in the expectation that there would be between 70 and 75 enrolled students. There would be one lecture and three tutorials per week. The semester was due to start on 25 February. In the early part of February Mr Norman was contemplating doing some teaching in the unit himself because it was necessary for him to achieve 100 workload points in the year as a full time member of staff. In the course of February, he was allocated co-ordination responsibilities in some additional units for which he attracted workload points. This meant that he no longer needed to obtain points for teaching part of the IHR unit. He had arranged for Ms Emma Hall to give the lectures in the unit and, in the week starting 18 February 2013, had determined that he would invite Ms Veronika Viera-Belicka to give the tutorials. Ms Viera-Belicka was a sessional employee. She had already been engaged to teach in another unit which Mr Norman was co-ordinating. She asked him whether she might have some extra hours. He decided to offer her the tutoring work in the IHR unit because she was qualified and it would mean that he then only had to assume administrative responsibility for one sessional teacher. There was no additional work available for Dr Borg. 33 Mr Norman gave evidence that he had taught with Dr Borg since 2011. They had what he described as a "good" and "cordial" relationship. There had been no conflict between them. He had recommended her for engagement as a sessional employee in 2011 and 2012 in subjects he co-ordinated. One of these subjects was IHR in which Dr Borg had tutored in semester 2 of 2012. 34 Dr Borg's contract for academic sessional employment during the second semester of 2012 was put to Mr Norman. It showed that he had recommended Dr Borg for employment in his capacity as subject co-ordinator and his recommendation had been approved by the School Manager of the School of International Business. The contract had a commencement date of 23 July 2012 and an end date of 30 November 2012. It provided for Dr Borg to teach "Human Relations" during specified hours and prescribed hourly rates of pay. Provision was also made for Dr Borg to perform related work such as marking and student consultations. Mr Norman explained that it was for subject co-ordinators to recommend particular persons for employment as sessional teachers. 35 Mr Norman recalled that, in about July 2012, he had had a discussion with Dr Borg about marks which had been given to a student whom Dr Borg had taught. In the course of their conversation Dr Borg had made a passing mention of a bullying complaint that she had made arising out of events which had occurred on a trip to Malta. Mr Norman had not previously heard of any such complaint and she told him nothing of the circumstances which gave rise to it or about the manner in which it had been dealt with. 36 Mr Norman also recalled that, later in 2012, he had had a discussion with a member of the University's staff who dealt with occupational health and safety matters. He had spoken to this staff member about obtaining a better screen for his computer. In the course of their discussion the other staff member had mentioned that Dr Borg had made a complaint relating to occupational health and safety. Mr Norman was not interested in pursuing the matter and changed the subject. 37 Mr Norman expressly denied that his decision not to offer teaching work to Dr Borg in semester 1 of 2013, had been influenced in any way by the fact that Dr Borg had earlier made a complaint relating to the alleged misconduct of other staff. This evidence was not challenged when Mr Norman was cross-examined.

MS PARLE'S EVIDENCE 38 Ms Parle gave evidence about the University's policies which applied at the time that Dr Borg made her complaint in 2010 and the processes which were in place to implement those policies. 39 Dr Borg cross-examined Ms Parle about these policies and procedures. Dr Borg suggested that there had been various deficiencies in the processes adopted to deal with her complaint. She suggested that the University had proceeded under the wrong policy, that no attempt had been made at mediation and that her complaint had, in the end, been left unresolved. She specifically attacked a number of the conclusions reached by Mr Rothville and the phrasing of some of his findings.

DR BORG'S ADVERSE ACTION CLAIM 40 Dr Borg's principal claim was that the University had contravened s 340(1) of the Act by taking adverse action against her because she had exercised a workplace right to complain to the University and the external bodies about the conduct of the other members of staff. 41 There was no dispute that Dr Borg had exercised a workplace right within the meaning of s 341(1)(c) of the Act. What was in issue was whether the University had taken "adverse action" against her and, if so, whether such action had been taken "because" she had exercised a workplace right. 42 Relevantly, s 342(1) provides that adverse action is taken by an employer against an employee if the employer dismisses the employee or injures the employee "in his or her employment" (Item 1) or the adverse action is taken by a prospective employer against a prospective employee if the prospective employer refuses to employ the prospective employee (Item 2). 43 In final submissions Dr Borg also sought to rely on Items 1(c) and (d) in s 342(1). These deal with alteration of the position of the employee to the employee's prejudice and discrimination between the complainant and other employees of the same employer. 44 Dr Borg's claims changed and evolved as the case progressed. There were material differences in the claims which she made in her original and amended statements of claim, her contentions of fact and law and the manner in which she opened her case at trial. 45 In final submissions her case under s 340(1) was, as I understood it, put as follows. Dr Borg submitted that she had been dismissed (or resigned) in March 2013 because she had made her 2010 complaint and the follow-up complaints to external bodies. She argued that she had "remained in the system" until March 2013 when the University determined to close her email account. By this I took her to mean that her name and employment details had been retained on the University's records system despite the fact that she had not taught since November 2012. She said that she had resigned because, in March 2013, she was so traumatised by the way in which her complaint had been dealt with, both internally and externally, that she would not have been able to take up a teaching position even had it been offered to her. This appeared to be a constructive dismissal claim although it was not so expressed. 46 Dr Borg also sought to rely on Item 2 in s 342(1) as a prospective employee who had been denied employment by the University as a prospective employer. She did not rely on this provision in the alternative to Item 1. 47 Dr Borg identified Mr Norman as the person who had either dismissed her or had refused to employ her. She also sought to attribute the decision to the unnamed person who had closed her email account on 12 March 2013. This latter contention may immediately be rejected. A decision to terminate Dr Borg's email account was, if anything, a consequence of the decision not to re-engage her. It did not have the effect of bringing her employment relationship with the University to an end. 48 In order to better understand the legal characterisation of the decision taken by Mr Norman in February 2013 it is necessary to examine closely Items 1 and 2 of the definition of "adverse action" in s 342(1) of the Act. They provide that: "342(1) The following table sets out circumstances in which a person takes adverse action against another person. Meaning of adverse action Item Column 1 Column 2 Adverse action is taken by … if … 1 an employer against an employee the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer. 2 a prospective employer against a prospective employee the prospective employer: (a) refuses to employ the prospective employee; or (b) ….

49 As can be seen the definition has a number of elements. Each item starts by identifying the legal status of the persons who are or may be involved in the adverse action. Next, the status of the actor is identified. The nature of the adverse action which is covered by each Item is then set out. 50 Although Dr Borg's argument appeared to proceed on the assumption that she could establish her case under both Items 1 and 2, these Items are mutually exclusive. 51 A person cannot, simultaneously, be an employee and a prospective employee of the same employer. The terms "employee" and "employer" bear their ordinary meanings: see s 335. At common law an "employee" is a person who is party to an existing contract of employment (or service) under which he or she is engaged to serve an employer: see, for example, Attorney-General (NSW) v Perpetual Trustee Company Ltd (1952) 85 CLR 237 at 299-300 (Kitto J). A good deal of case law has developed in order to distinguish contracts of service from other legal relationships: see, for example, Irving M, The Contract of Employment (LexisNexis Butterworths, 2012), Chapter 2. It is not necessary to explore this case law in detail because it was common ground that the sessional, fixed term, contracts under which Dr Borg had taught at the University since 1997 were contracts of service. The question for determination is whether Dr Borg was still an "employee" in January and February 2013. 52 The introduction of the adjective "prospective" in Item 2 confines the operation of the Item to parties who may, in the future, enter into an employer/employee relationship. So much is reflected in the type of conduct which appears in Column 2. It is not contemplated that a prospective employer could do any of the things appearing in paragraphs (a), (b), (c) and (d) of Item 1. Thus, for example, a prospective employer could not dismiss a prospective employee. 53 In my view, Dr Borg was a "prospective employee". In January and February 2013 she was not a party to a contract of employment with the University. Her previous contract was expressed to remain in force until 30 November 2012. On that day the contract was terminated in accordance with its terms: cf Victoria v The Commonwealth (1996) 187 CLR 416 at 520. No further contract had been entered into. The fact that Dr Borg remained "in the system" did not mean that she had an on-going contract of employment. The retention of details relating to Dr Borg's former employment for administrative or other purposes did not give rise to a new contractual relationship. 54 Such an approach is consistent with the provisions of the Act dealing with unfair dismissal. For these purposes a person will not be taken to have been dismissed if the person had been employed under a contract of employment for a specified period of time and that period had expired: see s 386(2)(a) of the Act. 55 As a result I do not consider that Item 1 in the table subjoined to s 342(1) applied to Dr Borg. 56 The first question is whether the University, as a prospective employer, refused to employ her. It did. Mr Norman's decision not to recommend her engagement or to offer her a contract to teach during the first semester of 2013 constituted adverse action under Item 2. 57 The contentious question is whether that adverse action was taken "because" Dr Borg had earlier exercised a workplace right to make a complaint about her treatment by other employees. The University will have contravened s 340(1) if it is established that her exercise of a workplace right comprised "a substantial and operative" reason for its decision: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 522-3 (French CJ and Crennan J); 535 (Gummow and Hayne JJ). Section 361 of the Act creates a statutory presumption that adverse action was taken for a proscribed reason unless the University proves otherwise: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 at [191]-[192]. In order to do that it relied on the evidence of Mr Norman who had made the relevant decision: see Barclay at 524 (French CJ and Crennan J); 542 (Gummow and Hayne JJ). 58 Mr Norman denied that his decision not to recommend Dr Borg for further employment by the University was influenced in any way by the fact that she had earlier made complaints about her treatment by the University and some staff members. This denial is not determinative: Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [61] (Bromberg J). It must be considered in the light of all relevant circumstances: Barclay at 517 (French CJ and Crennan J); 542 (Gummow and Hayne JJ). 59 It was Mr Norman's responsibility to determine how many lectures and tutorial classes should be offered in the IHR unit in semester 1 of 2013. In early February of that year he was anticipating that between 70 and 75 students would be enrolled in the subject. In order to cater for these numbers there was to be one lecture and three tutorials offered per week. By mid-February Mr Norman had decided that Ms Hall would be the lecturer. At about the same time he had been approached by Ms Viera-Belicka who had asked him for additional teaching hours. He had agreed that she could conduct some, at least, of the tutorials. He was still contemplating the possibility of himself taking one of the tutorial groups in order to ensure that he achieved the required number of teaching hours. In the week starting 18 February he became aware that he had been allocated other co-ordination responsibilities which would ensure that he had the requisite number of hours. As a result he determined that Ms Viera-Belicka would take all three tutorial groups. 60 At the time at which he made these decisions he was aware of Dr Borg's interest in teaching the IHR unit. She had so advised him by email on 25 January 2013. 61 Mr Norman could have handled Dr Borg's request to teach the IHR unit in 2013 much more sensitively than he did. He responded to her January email by promising her a response the following week but did not honour this promise. Some time between then and the week starting 18 February he had been approached by Ms Viera-Belicka. He had agreed to her taking tutorials in the IHR unit. When Dr Borg contacted him again, on 22 February 2013, Mr Norman well knew that he had filled both the lecturing and tutorial positons in IHR and he knew who the lecturer and tutor were to be. Despite this he ignored Dr Borg's request to be advised of the reason that he had chosen not to recommend her for sessional work in the unit. 62 In seeking to explain his dealings with Dr Borg at this time Mr Norman was disposed to emphasise the uncertainty created by the possibility that he might have had to take one of the tutorial groups. This uncertainty may have meant that he was not in a position to provide Dr Borg with a definitive response to her request for sessional work before the last week of February. By the end of February there remained a remote possibility that an unexpectedly high student enrolment might have created a need for a fourth tutorial each week. That said, by the time Mr Norman contacted Dr Borg on 22 February 2013, all the then available teaching hours in the subject had been allocated. It would have been better had he provided this information to Dr Borg at the time. His failure to do so was attributable, in my view, to a natural reluctance to disappoint Dr Borg and to have to explain to her the real reason that he had chosen to engage Ms Viera-Belicka in preference to Dr Borg. He had done this because he had already offered Ms Viera-Belicka sessional work in another subject and it suited his convenience to only have to deal with one sessional teacher. 63 Mr Norman's failure adequately to explain the position to Dr Borg led her to suspect that he may have been actuated by another reason, namely, that she had made complaints, against other members of staff, to the University and to external bodies. There was, in my opinion, however, no factual basis for this suspicion. 64 Although Dr Borg had a difficult relationship with those members of staff against whom she had levelled complaints, both Dr Borg and Mr Norman agreed that they had enjoyed a good professional relationship since 2011. During this time Mr Norman had, on more than one occasion, recommended that she be offered sessional employment to teach in subjects which he was co-ordinating. 65 So far as Dr Borg was aware Mr Norman had no knowledge of her previous complaints when he made his decision in February 2013. Certainly, she had, according to her evidence, not discussed the matter with him at all. It was Mr Norman who recalled that Dr Borg had made brief mention to him of having lodged a non-specific bullying complaint arising from events which had occurred during the Malta study trip. He knew none of the details. Mr Norman also gave evidence that an officer of the University's occupational health and safety staff had made passing mention of a claim made by Dr Borg in the course of a conversation relating to another matter. Mr Norman had not been interested and changed the subject promptly. 66 I accept Mr Norman's evidence that his decision not to recommend Dr Borg for employment in the first semester of 2013 was not in any way influenced by the fact that she had earlier made complaints against other members of staff. His substantial and operative reasons were, firstly, that it suited his convenience as a co-ordinator in multiple subjects to only have to deal with a single sessional teacher and, secondly, that Ms Viera-Belicka had already been engaged in that capacity in another subject and was available and qualified to conduct the tutorials in IHR. As a result there was no work available for Dr Borg. 67 For these reasons I do not consider that the University failed to engage Dr Borg to teach during the first semester of 2013 for any proscribed reason and, particularly, not because she had earlier made complaints against other members of staff to the University and external bodies. The University has displaced the presumption raised by s 361 of the Act.

OTHER MATTERS 68 In the course of her submissions Dr Borg made reference to her right to be able to work in a safe workplace. In this context she referred to protective provisions in two Victorian Acts (the EO Act and the OH&S Act) and to the common law. She did so, as I understood it, in developing a foundation for damages claims, relying on paragraph (b) of Item 1 in the definition of "adverse action". For reasons which I have already sought to explain I do not consider that Item 1 had application in the circumstances of the present proceeding. I would add that, in any event, Dr Borg failed to establish any basis upon which this Court could have dealt with applications made in reliance on the two Acts or some, unspecified, common law action.

DISPOSITION 69 The application must be dismissed. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.