Chen v Monash University

[2015] FCA 130

Federal Court of Australia|2015-02-27|Before: Mr J, Tracey J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2015-02-27

Before

Mr J, Tracey J

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

Introduction to Professor Guo (Allegation 27) 158 In early February 2011 Professor Simon had, according to Dr Chen, given her personal details to Professor Qipeng Guo, a Professor from Deakin University, for "no justifiable work-related reason." Dr Chen alleged that Professor Simon had done this because she had rejected his sexual advances. In her application, Dr Chen claimed that, in doing so, Professor Simon had engaged in victimisation. At trial this allegation was re-characterised by Dr Chen as sex discrimination. 159 In her complaint to the Commission Dr Chen said that she had become aware that Professor Simon had given her personal details to Professor Guo when Professor Guo approached her and said that he knew her through Professor Simon. Professor Guo, who was single, had hinted to her that "he wanted to develop personal relationship (sic) with [her] (even mentioned marriage, a very Chinese behaviour), suggested me to apply for a job from Deakin (sic)." 160 Professor Simon denied ever having disclosed any personal details about Dr Chen to Professor Guo. Professor Guo confirmed that this was the case. Furthermore, he deposed that he had never sought a sexual or personal relationship with Dr Chen. 161 I accept Professor Simon's denial.

[2]

False information about promotion application (Allegation 32) 162 Dr Chen alleged that Professor Simon engaged in sex discrimination, after she had rejected his sexual advances, by providing her with false information in relation to promotion applications and awards. Dr Chen claimed that Professor Simon "attempted to sabotage her academic development at various critical moments" including during the promotion round in 2011 because Professor Simon "provided a (sic) critically misleading advice … that disadvantaged her application materials." This advice related to whether she could place reliance on work done before she came to Monash. 163 This allegation was initially brought as one of victimisation but it was re-cast at trial. 164 Dr Chen had sought Professor Simon's advice when framing her application for promotion in 2011. Having read the draft Professor Simon advised Dr Chen not to rely too heavily on research undertaken by her prior to starting work at Monash. This he believed was in her best interests. This was because the University's promotion policy provided that a candidate for promotion who was employed by Monash at the same or a higher level than the position previously held could rely on achievements at that level of appointment at the previous university. Professor Simon understood that Dr Chen had not previously been employed at a level C (Senior Lecturer) position, and for that reason, advised her not to include the research she had undertaken prior to commencing at Monash. Otherwise Professor Simon had commented favourably on the contents of Dr Chen's application. She appeared to appreciate this at the time when she sent him an email thanking him for his assistance. 165 Professor Simon subsequently provided a written endorsement of Dr Chen's application. He strongly "support[ed] her promotion" and, in doing so, made favourable references to her teaching ability, her research and her broader service to the University. 166 No "sabotage" occurred. On the contrary Professor Simon did what he could to assist Dr Chen to obtain promotion. He did not engage in any sexual discrimination against her.

[3]

Relocation of Dr Chen to Southeast University (Allegation 35) 167 Dr Chen alleged that, following her rejection of Professor Simon's sexual advances, he discriminated against her on the ground of her sex by attempting to arrange for her to move to Southeast University in China. Dr Chen claimed that Professor Simon said words to the effect that "[y]ou don't fit into the community." This was said to have happened in mid-2011 after Dr Chen's promotion application had not been successful. 168 These allegations were denied by Professor Simon. They are not consistent with the documentary evidence. It was Dr Chen who had expressed a desire to leave Monash University because she had not been successful in obtaining research grants. She believed that "the unhealthy ARC system [had] badly slowed down [her] career development." She did not anticipate that there would be any significant "positive changes in the near future." 169 When Dr Chen had failed to obtain promotions in 2010 and 2011 she decided to apply for academic positions overseas, including at the Southeast University. She attributed her failure to obtain ARC grants as a lead researcher to "corruption" in the ARC. She was also resentful of the fact that some of her colleagues whom she regarded as being less worthy than herself (at least in teaching and publication) had been promoted when she had not. She did not, at that time, suggest that Professor Simon was in any way responsible for her inability to be promoted to Associate Professor. On the contrary, she valued his support sufficiently to nominate him as a referee when she made applications for positions at other Universities. It was "with regret" that Professor Simon agreed to write a reference for Dr Chen. Professor Simon gave evidence (which I accept) that he was concerned that Dr Chen might leave and was doing what he could to retain her at Monash. One important step that he took was to support her application for promotion outside the normal cycle. He also tried to persuade Dr Chen to stay by offering her "a kind of mini 'research accelerator'" with one of her students to assist her to obtain future ARC grants and promotions. 170 Dr Chen has failed to establish any factual foundation for these allegations.

[9]

New Qualification for Early Career Researcher Award (Allegation 42) 185 In January 2012 Dr Chen lodged an internal complaint about what she considered to be the unacceptable behaviour of Professor Simon and others. It was later made to the Commission. Dr Chen alleged that, following her complaint to the University in November 2011, Professor Simon and Professor Rudman engaged in sex discrimination by imposing a new criterion for the award of the Early Career Researcher Award. Dr Chen contended that the purpose of this change was to prevent her from receiving the award. 186 This award had been available for many years and had been based on the applicant's achievements over the previous five years. In 2012, Professor Simon announced that the award would be for research conducted between 2009 and 2011 inclusive. Dr Chen believed that this change reduced her chance of winning the award. This was because she had a number of publications in 2007 and 2008 and two "high-impact" publications in 2008 and 2012. Dr Chen contended that she was one of two academics in her department who were eligible for the award and that the change only applied to her department. 187 On 19 March 2012 Professor Simon advised all staff in the department that the change had been made. Dr Chen immediately queried the accuracy of this advice. This led to some email exchanges between Professors Rudman and Simon which led them to the view that the five year criterion continued to apply. Almost immediately Professor Simon sent an email to all departmental staff advising that the award was for research completed within the previous five years and not the three year period earlier advised. On the following day Professor Simon sent an email to Dr Chen advising her that she was correct in her understanding of the relevant period. 188 It is evident that both Professors Rudman and Simon had made a mistake. Once it was drawn to their attention by Dr Chen and they had made inquiries they promptly corrected the error. Dr Chen was so advised. She suffered no prejudice. 189 Both Professors Rudman and Simon denied that their mistake about the eligibility criterion for the award was intended to or did disadvantage Dr Chen. I accept their denials. 190 This allegation lacks any factual basis.

[12]

iPad sperm game (Allegation 15) 196 On 31 May 2010, Dr Chen attended a discussion day with members of the Department of Material Engineering. She alleged that Professor Davies sexually harassed her when he escorted her away from other members of the department to show her a game on his iPad. Dr Chen recalled that the objective of the game was to drag what she said was sperm through water to one of the four boxes located in the corners of the screen. This was done using an iPad pen. 197 Dr Chen asserted that this incident caused her distress and humiliation and that she felt threatened by Professor Davies' conduct. 198 Professor Davies gave evidence that he had taken delivery of a new iPad about four days before the meeting. He had downloaded a game called "Harbour Master". It depicted boats moving across a screen towards harbours. In the course of the day Professor Davies said that he had demonstrated his iPad's functionality to a number of those present. Dr Chen may have been one of these but he did not single her out or take her aside to show her the iPad. He said that he could not have moved any images on the screen by using an iPad pen because he did not have one on the day of the meeting. 199 Dr Chen made no contemporaneous complaint about Professor Davies' alleged conduct. She did, however, produce what she said was a contemporaneous note depicting a drawing of the screen image which she said she had made at the time. I harbour considerable reservations about this evidence. This "note" was not produced to the Commission when she made her complaint. It was first produced as an attachment to her application to the Court which was filed on 28 February 2013. 200 Once the University was seized of this allegation it arranged for Professor Davies' iPad to be subjected to forensic examination. That examination found no evidence of a "sperm game" ever having been downloaded on Professor Davies' iPad. The purchase history of items which he had downloaded was also examined and found no purchase of such a game. 201 Dr Chen was unable to identify any game which met the description of the one she said she had viewed on Professor Davies' iPad. 202 I am not satisfied that Professor Davies ever showed Dr Chen the "sperm game" on which this allegation is founded. I consider that it is far more likely that the game which Dr Chen saw on the iPad screen was the Harbour Master game. She has reconstructed an innocent event which caused her no concern at the time and has misused it in an attempt to malign Professor Davies. I reject the allegation.

[14]

Failure to accept one of Dr Chen's prospective students as a PhD candidate (Allegation 28) 203 Dr Chen alleged that Professor Davies sexually discriminated against her by failing to allow one of her prospective students to enrol for a PhD degree. 204 In March 2011, Dr Chen was approached by a prospective, self-funded Chinese candidate for postgraduate studies. Professor Davies, who, at that time, was the Associate Dean responsible for research activities, was involved in establishing the equivalency of the student's credentials in order to determine whether he qualified for postgraduate studies at Monash University. This was necessary because the student had an undergraduate degree from a Chinese university. His qualification had to be compared with that of an Australian undergraduate qualification. Professor Davies initially considered that, in order for approval to be granted, it was necessary that the student have the equivalent of a first class honours Australian undergraduate degree. A degree of that quality would have attracted a scholarship to pursue doctoral studies at Monash University. Professor Davies assessed the student's qualification as equivalent to an honours (class 2 - division B) Australian degree and, therefore, refused to admit the student to doctoral studies. Dr Chen queried this decision. She understood the minimum entrance level required by the University was H2B. Dr Chen was aware of several students, including one of her own past PhD students, who had been approved with an H2B equivalency. 205 Professor Davies reconsidered his decision in the light of Dr Chen's query. He took further advice and made further inquiries. The result was that, on 9 May 2011, he approved the student's admission as a PhD candidate at the University. In the meantime, however, the student had decided to pursue his studies elsewhere. 206 During evidence Dr Chen refined her complaint to one of undue delay. She accepted that she would not have made the allegation if the student had come to Monash under her supervision. 207 No basis exists for the allegation that Professor Davies' conduct in dealing with the student's application involved any sexual discrimination by him against Dr Chen.

[16]

Professor Davies' failure to consider a scholarship for a prospective PhD student (Allegation 31) 212 In June 2011, Dr Chen was approached by a prospective PhD student, Surendra Jain, who was seeking a scholarship to undertake a second PhD. He had completed a PhD in computer modelling of carbon and proposed to complete a second PhD in tissue engineering. Professor Davies objected to the granting of the scholarship on the ground that there was a Faculty policy which prevented students who were attempting their second PhD from applying for a scholarship. As a result, Dr Chen had been unable to recruit this candidate and she was forced to forgo supervision of another PhD candidate. 213 Dr Chen argued that the Monash Research Graduate School Scholarships policy provided that, where the area of study for a second PhD degree is significantly different from the first, a scholarship could be considered in relation to the second course. Dr Chen requested a copy of the Faculty policy on scholarships and consulted with Ms Cassandra Meagher, the Faculty co-ordinator of Monash University Scholarship applications. This occurred in October 2011. Dr Chen alleged that Ms Meagher was not aware of the Faculty policy which had been cited by Professor Davies. Dr Chen alleged that Professor Davies' conduct constituted sexual discrimination. She further alleged that Professor Davies had applied arbitrary versions of the University policy in respect of two of her PhD students because she had confronted him about the iPad game. She asserted that the loss of her two PhD students contributed to the denial of her promotion application in 2011. 214 The Faculty policy on which Professor Davies relied when he made his decision was, as he said, that scholarships would not be offered to students who were undertaking studies towards a second PhD degree. Professor Davies' decision gave effect to this policy. The fact that another Faculty administrator was unaware of it is of no moment. 215 Professor Davies denied that his decision was influenced in any way by Dr Chen's gender. I accept his denial.

[17]

Incorrect advice about quantitative performance standards (Allegation 33) 216 Dr Chen alleged that she was "purposefully" given the wrong quantitative performance standards before she made her promotion application in June 2011. The person against whom this allegation is brought is unclear. In Dr Chen's application to the Court this allegation was levelled only against Professor Davies. During cross-examination, on 11 March 2014, Dr Chen asserted that she brought the allegation against Professor Davies and Monash University. In her amended application, dated 16 May 2014, she claimed that Professor Davies and Professor Sridhar were both involved in the alleged conduct. 217 At trial, Dr Chen asserted that Professor Davies and/or Professor Sridhar attempted to sabotage her academic development by instructing Ms Lyn Broadstock, the Faculty's promotion co-ordinator, deliberately to give Dr Chen the wrong performance standards. Dr Chen alleged that this conduct discriminated against her of the grounds of her sex. 218 In the middle of 2011 Dr Chen was preparing her promotion application. She had sought information relating to the "quantitative standards" which candidates were required to meet. The standards related to the amount of research funding which a candidate had attracted. 219 On 9 June 2011 Mr Broadstock sent Dr Chen a document which set out "performance measures". She told Dr Chen that the document contained the standards which had been approved by the University. It was common ground that the information contained in the document was not correct. 220 Dr Chen was concerned that she had not been given the correct advice and she raised the matter with Professor Simon. Professor Simon took the matter up with Professor Davies. Professor Davies subsequently advised him that Ms Broadstock may have distributed the wrong document and advised that the "correct version had been approved by the faculty board" and was to be found "at the academic promotions link and is attached to this email." Professor Simon then wrote to Dr Chen advising her that: "It turns out that [Ms Broadstock] may have given you the wrong [document] (supplied mistakenly or something common to her). The link I gave is correct." 221 Dr Chen responded by sending Professor Simon an email in which she said that: "…I am grateful to you, who gave me a hand and patiently, gentle-manfully and firmly pulling me out of the puddle which myself was not aware that I was in. I owe you big thanks!" 222 Dr Chen was given incorrect advice by Ms Broadstock. This occurred inadvertently. There is no evidence to suggest that the advice was given at the direction of Professor Davies or anyone else. As soon as Dr Chen had queried the accuracy of the information which had been supplied to her, Professors Davies and Simon made inquiries. They discovered the error and immediately corrected it. Dr Chen was in no way prejudiced. 223 There is no factual basis for this allegation of discrimination.

[21]

Failure to promote (Allegation 36) 230 As already recounted, in June 2011, Dr Chen applied for an academic promotion from Senior Lecturer to Associate Professor. Professor Davies was a member of the promotion committee in that year. Dr Chen asserted that she had what she described as "a history of conflict between [herself] and [Professor] Davies", including: The incident with the iPad "sperm game" (Allegation 15); Professor Davies treatment of two of Dr Chen's proposed PhD candidates (Allegation 31); and An unpleasant conversation between Dr Chen and Professor Davies about the disapproval of a self-funded PhD student (Allegation 28). 231 Dr Chen understood that, under the Monash University Diversity Policy, applicants who met some, but not all, of the criteria in research, education or service might still be eligible for promotion. Dr Chen considered herself to be an academic who had provided great service to the University. She did not believe that proper consideration was given by the committee to the Diversity Policy when deciding to reject her application and deny an appeal. She also noted that her research student numbers were reduced because Professor Davies erred in initially refusing to admit the applicant for entry to a PhD course. 232 Dr Chen complained that she was aware of at least three other (male) candidates from other departments of the Faculty who were promoted in 2011. She considered that her performance was as valuable to the University as that of the other candidates who received promotions. She noted that she had achieved excellent scores in the Unit Evaluation Report and MonQueST, a student evaluation report. Dr Chen alleged that Professor Davies and Monash University engaged in direct sex discrimination against her by treating her less favourably than they would a male in the same or similar circumstances. She further alleged that three members of the 2011 promotion committee, including Professor Davies, had conflicts of interest when considering her application. She asserted that Professor Davies interfered with her promotion application. 233 Professor Davies gave evidence that he was a member of the Promotions Committee in 2011. There were eight other members. Dr Chen's application had been considered in detail on its merits. The Committee had voted by a majority (7-2) against promotion. The majority view was that the application had been made "too early" in Dr Chen's career. While she had established a good teaching record she had not demonstrated a capacity to attract research funding. 234 Professor Davies could not recall how he voted but confirmed that he had considered voting for and against Dr Chen. He denied that his decision had in any way been influenced by extraneous factors. In particular, up until that time, Dr Chen had said nothing to him about the iPad "sperm game". She had raised that issue with him for the first time on 17 October 2011. Professor Davies also said that it was not unusual for first applications for promotion to be unsuccessful. 235 Dr Chen sought to challenge the refusal through a University appeal process. She relied on what she claimed to have been a procedural irregularity. She made no complaint of sexual discrimination. 236 There is no evidence to support Dr Chen's allegation that either Professor Davies or the University discriminated against her on the grounds of sex when dealing with her promotion application. The complaint must be rejected.

[24]

Rejection of alternative application for promotion (Allegation 40) 243 Dr Chen alleged that Monash University, through the actions of Professor Sridhar, engaged in sex discrimination on 13 December 2011 when he rejected her request for an accelerated promotion. Dr Chen alleged that Professor Sridhar said words to the effect: "[The committee] cannot accept the fact that whenever we make a decision against you, there is always a big appeal … We expect you to accept the decision and move on, … whether it is fair or not is not the point. The decision is that we do not want to revisit". 244 Academic promotion at Monash University was normally dealt with annually when applications were made and considered. Provision was made for promotions to occur, in exceptional circumstances, outside this cycle. Typically, this would occur when the University was seeking to retain the services of an academic who had been made an offer by another institution. 245 Dr Chen sought to obtain promotion through this process late in 2011. Having considered her application Professor Sridhar wrote to her on 11 December 2011 advising her that "[i]n circumstances where you were so recently considered for promotion and had a full opportunity to put the merits of your application to the relevant promotions committee, I see no justification for me to initiate a request for a counter offer even if you are made an offer by another institution." Two days later Dr Chen had a meeting with Professor Sridhar to discuss his decision. Unbeknown to Professor Sridhar Dr Chen tape recorded the conversation. The words attributed to Professor Sridhar appear on a transcript of the recording. 246 A reading of the full transcript puts Professor Sridhar's remarks in context. He was seeking to persuade Dr Chen to look forward rather than dwell on her unsuccessful promotion application. There is certainly an element of frustration with Dr Chen's persistence in pursing her promotion claim. What is significant, however, for present purposes is that there is not the slightest suggestion, in the course of the conversation, that Professor Sridhar's decision was in any way based on sex discrimination. The allegation lacks substance.

[26]

Incorrect statements about Dr Chen's research performance in 2011 and 2012 (Allegations 34 and 45) 253 Dr Chen alleged that, following her complaints, Professor Rudman had made a number of factually incorrect statements about Dr Chen's research performance in her 2011 and 2012 reports. These reports were a critical part of an applicant's promotion application. Dr Chen raised this issue with Professor Rudman. The reports were later revised. Dr Chen alleged that Professor Rudman discriminated against her by reason of her sex by incorporating the errors in his original report. 254 The 2011 report was written by Professor Rudman in about July of that year. 255 Professor Rudman gave evidence that he had sought to write a report which fairly assessed Dr Chen's research work. He provided a draft to her and she told him that the report contained certain errors. Having been so advised Professor Rudman made appropriate corrections. Those corrections were made before the report had been considered by the Promotions Committee. The errors had no impact on Dr Chen's promotion application. 256 Even before the corrections were made, the report was generally positive and favourable to Dr Chen. 257 There is no basis for any suggestion that, the errors, made by Professor Rudman, were attributable to sex discrimination. In particular, Professor Rudman was new to the University and Dr Chen's first complaints about sexual discrimination were not made until 5 October 2011, well after the errors were made. Furthermore, Professor Rudman corrected those errors. 258 The 2012 research report, prepared by Professor Rudman, also contained some errors. Again Dr Chen pointed them out and, again corrections were made before the report was considered by the Promotions Committee. 259 Professor Rudman gave evidence that he had sought to write a report that accurately and fairly assessed Dr Chen's work. When the mistakes were drawn to his attention he corrected them. He denied that the errors were attributable to sex discrimination. 260 I accept Professor Rudman's denial. The contrary assertion is fanciful. Professor Rudman acknowledged that he had made some mistakes and corrected them. He sat as a member of the Promotions Committee in 2012. He voted in favour of Dr Chen's promotion. She was promoted.

Parties

Applicant/Plaintiff:

Chen

Respondent/Defendant:

Monash University

Legislation Cited (6)

Human Rights and Equal Opportunity Act 1986(Cth)

Pt IIB Racial Discrimination Act 1975(Cth)

Human Rights and Equal Opportunity Commission Act 1986(Cth)

Evidence Act 1995(Cth)

Sex Discrimination Act 1984(Cth)

Racial Discrimination Act 1975(Cth)

Cases Cited (7)

PROCEDURAL HISTORY 4 The jurisdiction of the Court to deal with Dr Chen's complaint is conferred by s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HR Act"). Under Part IIB of that Act it is necessary, before approaching the Court, that an applicant lodge a complaint with the Commission. The Commission must then consider the complaint. If, having done so, the President determines to terminate the complaint advice to this effect is given to the applicant. A proceeding in the Court may then be commenced. 5 Section 46PO of the HR Act provides that the unlawful discrimination alleged in any application commenced in the Federal Circuit Court or this Court must either be the same as the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same acts, omissions or practices that were the subject of the terminated complaint. This Court has held that this provision prevents a complainant from relying, in a proceeding in the Court, on any act of unlawful discrimination which occurred after the relevant complaint had been lodged with the Commission: see Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 (Katz J); Maghiar v State of Western Australia [2002] FCA 262 at [18] (French J); Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [68] (Weinberg J); Crvenkovic v La Trobe University [2009] FCA 374 at [11] (Tracey J). 6 Dr Chen made her first complaint to the Commission on 26 December 2011. She amended her complaint on 26 July 2012. The Commission, having considered the complaint and the amended complaint, determined that "there [was] no reasonable prospect of the matter being settled by conciliation." It terminated the complaint. 7 After the Commission's determination Dr Chen commenced the present proceeding in the Federal Circuit Court. The proceeding was referred to this Court by order dated 19 August 2013. 8 There was a delay of some weeks between the conclusion of the evidence and the hearing of final submissions. During that period Dr Chen sought to further amend her application to allege other acts of discrimination and harassment by some of the respondents. The conduct about which she complained had taken place during and after the part of the trial during which evidence was received. These additional complaints had not been referred to the Commission. For this reason I refused Dr Chen leave to further amend her application.

CAUSES OF ACTION 9 As already noted Dr Chen's case at trial was that she had been the victim of either sexual discrimination or harassment on numerous occasions. She alleged that the conduct which she objected, in each case, contravened the Sex Discrimination Act 1984 (Cth) ("the SDA"). She sought declarations and monetary and other relief in respect of this conduct. 10 Prior to trial Dr Chen had also alleged that some of the alleged misconduct constituted victimisation under the SDA or racial discrimination under the Racial Discrimination Act 1975 (Cth). Reliance on these provisions was abandoned at the outset of the hearing. 11 Section 94 of the SDA creates a criminal offence of committing an act of victimisation against another person. Such an act is taken to have been committed if the offender acts to the detriment of a complainant because that person had complained about conduct proscribed by the SDA. Dr Chen accepted that the Court could not entertain claims of victimisation because victimisation is a criminal offence and the Court lacks jurisdiction to deal with such charges: cf Walker v State of Victoria [2012] FCAFC 38 at [98] (Gray J, with whom Reeves J agreed). The respondents did not oppose these allegations being dealt with as sex discrimination claims which formed part of a course of conduct on the part of the University.

(1938) 60 CLR 336

(2000) 105 FCR 573

(2008) 167 FCR 537

[2009] FCA 374

[2006] FCA 1325