Hallmann v Southern Cross University

What are the Applicant's relevant disabilities?

1. The Applicant contends that he suffers numerous ailments, injuries and illnesses which disable him in various ways. Some of the conditions that are relevant to the claims he makes include that he suffered from a spinal injury, Myalgic Encephalomyelitis and Chronic Fatigue Syndrome with Fibromyalgia (ME/CFS) and jugular occlusion.
2. On 17 February 2023, the Applicant filed Points of Claim (the Points of Claim) which identified two conditions that he said he had at the time of the 2020 events, and on which he relied as being disabilities within the meaning of s 4 of the Anti-Discrimination Act 1977 (NSW) (the AD Act), namely ME/CFS and a spinal injury obtained during a 2015 car accident. The Respondent does not contest that each of those conditions was a disability within the meaning of s 4 of the AD Act and that the Applicant had those conditions at the time of the 2020 events.
3. Just before the resumed hearing of the matter in September 2025, the Applicant provided the Tribunal with reports from various health practitioners that listed many other health conditions that he now contends that he suffers. We do not need to have specific regard to those to decide the issues raised for determination by us.

What were the matters complained about in the original complaint?

1. Unlike what was set out in the Points of Claim, the original complaint identified three elements as the subject matter of the complaint. The first was an alleged failure to accommodate his disability, the second for victimisation of him for lodging a complaint about a failure to accommodate a disability, and the third, a failure to take into account of the effect of a disability.
2. None of these appear to raise any contention that he was subjected to direct discrimination. Rather, they suggest that there was a failure to accommodate a disability in a way which was appropriate and reasonable having regard to his disabilities, which were known to the Respondent at the time of the events that he complained about. That is, the complaints raised allegations of indirect discrimination on the basis of disability and allegations of victimisation.
3. The original complaint contended that the Applicant had become a doctoral student at the University in 2004, and the University was made aware of his disabilities at that time. The Respondent disputes that such knowledge existed at that time but concedes that, by the time the complained of events allegedly occurred in 2020, certain features of his disabilities were known to relevant staff employed by the University.
4. The Applicant contended that he became an employee with the University as a tutor and, in 2015, was involved in a motor vehicle accident as a result of which he suffered concussion, and injuries to his cervical, lumbar and thoracic spine.
5. The original complaint contended that after that accident, the compulsory third party (CTP) motor vehicle insurer procured an occupational therapist to conduct an examination of him to identify his needs. The resulting report is in evidence before us. The Applicant contended that Jess Watson (Ms Watson) was involved for the University after the 2015 accident, as the University's liaison person with the CTP insurer. His case in this Tribunal depends upon events which occurred in 2020 and 2021, which are said to have also involved Ms Watson. It also contended that the Applicant complained about the inadequacy of a new office chair that was provided to him by or through the CTP insurer in 2016. To the extent that there was a complaint about the events of 2015 and 2016, and it was not clear from the original complaint that he was complaining about events in those years, they were clearly out of time, were not referred to this Tribunal and are not the subject of this decision.
6. His original complaint then went on to identify what he called the "injury event". The injury event was said to have arisen out of the consequences of the COVID outbreak when, in March 2020, all staff from the University were sent home. He contended that between March and May 2020 he experienced increasing back and neck pain and had other associated symptoms and approached the Disability Unit at the University and was referred to Ms Watson.
7. His original complaint contended that the University provided no advice or offers of assistance to people working from home, conducted no review of home offices, and provided no advice about home office safety and no point of assistance for his injuries.
8. His original complaint contended that despite the lockdown and pandemic circumstances, the Respondent stood its ground in relation to providing him with a chair, refusing to provide him with any assistance until he had obtained a doctor's report, which he contends he could not do because the borders between the states were closed, flights could not be obtained, and he could only access a doctor in Melbourne and one in Brisbane and he was living in New South Wales. He also contended that his Brisbane doctor was suffering from ill-health and this meant he could not obtain and provide the requested medical report. He alleged then that in mid-June 2020 he petitioned the Vice-Chancellor for assistance because he was not getting the required assistance from the department where Ms Watson worked. An email to the Vice-Chancellor from him dated 20 June 2020 is in evidence. He contended that there had been no rational waiver of the requirement to obtain a doctor's report.
9. His original complaint said that the Respondent offered to attend his office at the University itself, but not at his home, to conduct a review of the seating and desk arrangements even without a medical certificate. He says that he rejected that offer because he had no such office at the University. He says that he then invited the Respondent to come to his home three kilometres from the University, to conduct a review of the seating and desk arrangements, but which was declined.
10. He contended that following his complaint, which is a reference to what he describes as his complaint to the Vice-Chancellor in his email of 20 June 2020, he lodged an incident report as a result of which the Respondent then lodged a workers' compensation claim in respect of his condition. He stated that after that claim was lodged, Ms Watson agreed to allow him to undergo a telehealth consultation with his doctor, which he then arranged and he then obtained a medical report.
11. He then went on at some length in his original complaint to describe what he identified as acts of victimisation. A detailed reference will be made to the allegations of victimisation later in these reasons. In short, they involve four elements.
12. The first victimisation event related to him being warned about signing himself off as a doctoral candidate when he was no longer a doctoral candidate. He contended that this warning was in retaliation to him making what he calls the 20 June 2020 complaint to the Vice-Chancellor and was meant to intimidate him. The person he originally alleged engaged in this victimisation was the University's HR Manager, Ms Farquhar.
13. The second victimisation event involved alleged conduct relating to the first victimisation event. This time it involved the University levelling a misconduct charge against him in September 2020, arising out of him using the expression "post doc" in some of his researcher profile material and, thus, misrepresenting himself as a successful PhD graduate who was employed by the University.
14. The balance of this part of his original complaint involved a review he sought, and was allowed, in relation to decisions about him misrepresenting himself as a candidate for, or being the holder of, a doctorate. He complained that Mr Brendan Pearce, an officer of the University, reviewed the decision of Ms Farquhar to partially uphold the finding in relation to him misrepresenting his doctoral candidacy. He complained in the original complaint that Mr Pearce was not an independent decision maker, and he did not act in good faith in conducting the review and making findings adverse to him about him misrepresenting his qualifications.
15. He alleges that the decision maker, Ms Farquhar, did not refer to, or take account of, his disability nor did Mr Pearce consider whether his disability could have resulted in an error by him leading to him misrepresenting his qualifications. The original complaint did not identify in any coherent way how not taking account of his disability constituted discriminatory conduct nor how, had it been taken into consideration, a different outcome would have been arrived at.
16. He does not contend that this second victimisation event was retaliatory for his email on the 20 June 2020 to the Vice-Chancellor. It is, nevertheless, described as conduct constituting victimisation and we have inferred that he does contend that it was retaliatory for his sending the email to the Vice-Chancellor.
17. The third event, also described in the original complaint as victimisation, concerned an investigation conducted by officers at the University into whether he had sworn untruthful statutory declarations to the workers' compensation insurer. Mr Hallmann conceded in the original complaint that he had made what he called "errors" in statutory declarations. The documents he swore were given to the insurer, and he claimed these errors were likely the result of his disabilities.
18. He contended that the very making of the allegation that he had misled the insurer was victimisation for his making the complaint to the Vice-Chancellor. That is, in the original complaint he was not alleging that it was the University's conduct of an investigation that was the act of victimisation. Rather, the alleged victimisation event was the University's making of an allegation that he had misled the University's workers' compensation insurer. The University's investigation was related to whether he had committed monetary fraud by knowingly claiming for and receiving workers' compensation payments, to which he was not entitled or in respect of which he had already been paid a fee for his services by the University, and had not actually been absent from work and losing income because of his health condition. He refused to participate in the investigation.
19. He then alleged in the original complaint that the University suspended him.
20. The crux of the third victimisation complaint seems to have been that the University's conduct in making allegations against him and conducting an investigation into whether he had misled the University's workers' compensation insurer, albeit an investigation which has never been concluded and did not make any adverse findings against him, were acts of victimisation in response to him making what he called his complaint to the Vice-Chancellor.
21. The fourth victimisation event, described in the original complaint under the heading "discrimination", related to the Respondent taking a heavy-handed approach in response to his medical conditions being exacerbated by having no proper chair at home, and the fact that he sought disability assistance, and that he had then complained to the Vice-Chancellor when he did not receive the assistance. His ultimate contention was that he has been victimised for complaining about the University's failure to accommodate his disability.
22. We cannot elicit from the original complaint any allegation that he was the subject of direct discrimination in relation to the circumstances in which the chair issue was dealt with, any of the investigations conducted or any of the findings that were made in relation to his doctoral candidacy or his claims to hold a doctorate, or in regards to investigating allegedly fraudulent conduct in his dealings with the workers' compensation insurer.

1. The matter was referred to the Tribunal on 17 December 2021 pursuant to s 93C(b) of the Anti-Discrimination Act (AD Act). Not all matters complained of were referred. Those that occurred before 18 March 2020, and were out of time, were not referred pursuant to s 89(b) of the AD Act. The President of ADNSW's report (the President's report) which accompanied the referral identified the referred claims in the following terms:

The complainant alleges that the Respondent failed to render him appropriate assistance and support via its disability unit when on 18 March 2020, he made a request for a suitable chair to provided, due to deteriorating back and neck pain.

The complainant further alleges that the Respondent failed to conduct an assessment of his home work space and insisted that he should provide doctor's report which he was unable to obtain at the time.

The complainant alleges that when he petitioned the Vice-Chancellor for assistance, he suffered various detriments via the conduct of Respondent's HR Director, who allegedly engaged in a in a fishing expedition to muck rake. The alleged detrimental conduct includes;

-Warning him to stop using PHD Candidate in his sign off and breaching his privacy:

-Levelling a misconduct charge against him in September 2020. that he had deliberately misrepresented himself as a PHD Graduate.

-Making a finding partially upholding the misconduct charge against him.

-Organising a review of the misconduct decision by a person that cannot be considered independent of the process

-Alleging that he deliberately misled the workers' compensation insurer with respect to hours worked

1. Doing the best we can in comparing the original complaint with what is in the President's report, we consider that the accepted grounds of complaint that were referred to the Tribunal were as follows:

(1) that between 18 March 2020 and 11 August 2021 the Respondent either indirectly or directly discriminated against the Applicant on the basis of his disability by failing to accommodate his disability when it failed to purchase him an ergonomic chair.

In an application to amend the complaint, which the Applicant filed in 2025, he articulated the chair issue as being that the Respondent directly discriminated again him by failing to accommodate his disabilities when it failed to provide him with a chair in May or June 2020. He also made this allegation in paragraph 182 of his Points of Claim, although the allegation does not identify the factual or legal basis for it but merely recites the language of s 49B of the AD Act and contends that the University did what that section prohibits;

(2) the Respondent then indirectly discriminated against the Applicant by requiring him to comply with the Respondent's Employees with Disabilities Policy which the Applicant was unable to comply with because of his disability.

In the application to amend filed in 2025, the Applicant articulates the disability policy issue as constituting indirect discrimination against him by requiring him to comply with a requirement or condition which he was unable to comply with because of his disability. That is, the Respondent required the Applicant to comply with a policy of the University which required that he provide certain medical or other evidence, in circumstances where they were in the midst of a pandemic and he could not comply; and

(3) the Respondent then victimised the Applicant by subjecting him to various detriments because he allegedly made a complaint to the Vice-Chancellor on 20 June 2020 that he had been the victim of discrimination.

The difficulty in identifying properly articulated factual and legal claims

1. The Applicant's Points of Claim included many matters which were demonstrably outside the scope of the matters raised in the original complaint. The Points of Claim was 117 pages long, largely lacking focus on the factual and legal issues to be determined, and made numerous claims which were outside those referred to this Tribunal to be dealt with. It contained a large number of irrelevant allegations including, but not limited to, the Applicant's opinions about the conduct of the University's staff and its workers' compensation insurer in relation to his workers' compensation claim and the response of the University to that claim. It was, and remains, impossible to identify the issues to be determined by reference to the Applicant's Points of Claim.
2. Further, the claims made in the Points of Claim are articulated in the form of a narrative which, in large part, is a recitation of the 'story' that he wishes to tell about his treatment by the Respondent. It lacks focus on what issues he contends are material and lapses into stating matters of evidence. It makes claims for things that demonstrably were not accepted by ADNSW, including claims of bullying, harassment and vilification. It does not clearly set out what is relied upon as establishing the basis for the accepted claims. It sets out a long list of things he wishes to raise concerning the conduct of the Respondent from July 2020 until April 2022 even though the complaint was accepted on the basis of events over the period from 18 March 2020 to 11 August 2021 and only in relation to the three specific grounds set out earlier in these reasons.
3. The Applicant also filed numerous statements and filed some 2000 pages of documents in various folders. Those statements and other documents also did not focus solely on the issues referred to this Tribunal.
4. The difficulty for the Tribunal in identifying properly articulated factual and legal claims was reflected in the difficulty encountered by the Respondent in responding to the complaint. In the Points of Defence, which set out the University's position in relation to the Applicant's claim as the University understood it to be, the University was compelled to identify what it thought were the allegations it had to answer. It concluded, broadly, that the Applicant was alleging that the University: directly discriminated against him by failing to accommodate his disability because it failed to purchase him an ergonomic chair in June 2020; indirectly discriminated against him by requiring him to comply with a requirement or condition which the Applicant was unable to comply with because of his disability; and victimised the Applicant by subjecting him to various detriments because he allegedly made a complaint to the University's Vice-Chancellor on 20 June 2020. It is apparent from this formulation that the University struggled to identify whether direct and/or indirect discrimination were being alleged, and specifically what conduct was caught by what kind of allegation being made.
5. In his affidavit of 10 April 2025, the Applicant attested to being and having been a solicitor, it seems before his involvement with the University, and swears that in that role he had a history of providing advice and representation on discrimination in the context of both NSW and Commonwealth disability discrimination law in the educational context. He is now a practising solicitor in a law firm he operates in Queensland and has a practicing certificate entitling him to practice.
6. In respect of the hearing in Lismore, which was set down for 8, 9 and 10 September 2025 but which concluded on the evening of 9 September 2025, it had been made clear to the parties at earlier mentions of the matter that they were to manage the hearing so that it was concluded in every respect within those three days. That much was emphasised to the parties during the hearing of the matter on 30 June 2025 and reflected in the orders made on that date. Mr Hallmann's considerable experience in legal practice would have, or at least ought to have, led him to understand how these proceedings should be conducted, and the likely consequences of non-attendance at the hearing.
7. The Applicant elected not to attend the second part of the hearing, in September 2025, and it proceeded in his absence with the Tribunal tendering into evidence the statements of himself and his witnesses which he had previously identified as being those on which he relied. Some of what was within that material was successfully objected to by the Respondent, based on submissions filed on 17 March 2025, well before the final hearing. The statements which were admitted, subject to objections, included the statements of the Applicant dated 2 February 2021, 4 November 2021, 26 May 2022 ,11 September 2022, 21 January 2023 and 19 December 2023.
8. The material filed for the Applicant often referenced, without exhibiting, documents to which the statements referred. That material was also unfocussed and argumentative, and was not consistently referenced to contemporaneous objective evidence. Fortunately, the critical documents which evidenced the communications that relevantly passed between the parties is in evidence.
9. There was also admitted into evidence a statement of Jacqueline Watson dated 26 May 2022 and a statement of Anthony Olive dated 27 January 2021. All of the statements have been carefully considered by us and taken into account in arriving at our findings, notwithstanding that they may not be specifically referred to.

The proper approach to making findings of fact in this case

1. In assessing credibility, and the reliability of the evidence relied on by Mr Hallmann and his witnesses, as well as those called in the University's case, we have taken into account that the relevant events happened many years before witnesses gave their statements and gave sworn evidence at the hearing. It is unsurprising that memories have faded and that there are inconsistencies between what the Applicant says happened and what other witnesses say happened. Many of the relevant events were, however, recorded in contemporaneous reports, emails and text messages. In assessing credibility, and the reliability of the evidence, we adopt the observations and approach of Lee J in Transport Workers' Union of Australia v Qantas Airways Ltd [2021] FCA 873:

[16] Although this is an industrial case, as those experienced in commercial litigation are aware, in determining contested factual issues, what matters most is usually "the proper construction of such contemporaneous notes and documents as may exist, and the probabilities that can be derived from those notes and any other objective facts": Mealey v Power [2015] NSWSC 1678 (at [4] per Pembroke J). As Leggatt J (as his Lordship then was) said in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) (at [22]):

"... the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts."

[17] Whether, as Full Court recently observed (in Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126 (at [239] per Allsop CJ, Besanko and Middleton JJ), this approach is best seen as a helpful working hypothesis rather than a form of rule or general practice of placing little reliance on recollections is not something that matters for present purposes. What presently matters is that, at least in part, such an approach has an unstated assumption: that is, that the contemporaneous notes and documents that do exist emerged as the extemporaneous and unvarnished product of the conduct of internal dealings or communications between the contesting parties. The confidence that can be placed in the narrative that emerges from the contemporaneous record is increased when the relevant documents can be seen as the unfiltered and sufficiently complete record of what people were thinking and doing in "real time".

1. We also adopt the approach of Lee J in Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 at [763]:

This is an unusual case where there is a very comprehensive contemporaneous documentary record, including text and other messages and lengthy audio records. We know what people were saying (and can infer what people were thinking) by reference to real time records. I do not propose to accept representations, made at a high level of generality, about what was in a person's mind or what they said when the relevant state of mind or action is contradicted by facts otherwise established by the contemporaneous material, or particular circumstances in that reliable material point to its rejection. (Citation omitted.)

1. We approach our findings by treating the reports, emails and text messages as generally providing the most reliable and objective evidence of what witnesses were doing and thinking at the time the relevant communications were written, sent and received.

1. The matter has had a long procedural history in the Tribunal, some of which has been touched on already. It initially came on for a final hearing before us over two days on 30 and 31 October 2024 and was concluded over two days almost 11 months later in September 2025.
2. In May 2022 the Applicant was provided with a large body of internal records and correspondence from the Respondent through a notice to produce in the course of other proceedings before the NSW Personal Injury Commission (PIC). In September 2022, the Applicant was again provided with another body of those documents after requesting them through a summons in the current proceedings before the Tribunal.
3. As noted already, in February 2023, after multiple extensions of time, the Applicant filed his current Points of Claim, as well as over 2000 pages of 'supporting material' which included large collections of summonsed documents.
4. On 31 October 2024 we decided, after the first two days of hearing, to allow the Applicant three months to file an application to amend his complaint. That order was made directly in response to the Applicant's request that he be allowed to do so, his stated needs in relation to his medical conditions, and the time he said he needed to finalise and submit his application. After failing to comply with that order, he was given further accommodation and granted an extension to file any application and supporting material by 15 April 2025. He eventually filed the application a week after the 15 April 2025. That application was considered carefully and refused, and written reasons were published. That left the matters to be determined as being those which we have identified as having been referred here on 17 December 2021 by ADNSW.
5. The final hearing of the matter was set down for 8, 9 and 10 September 2025 and was heard in Lismore, where the Respondent conducts its main campus and some of its witnesses reside. When the matter was concluded in September 2025, the Applicant lived on Hope Island, just north of the most northern part of the Gold Coast, in Queensland. Material filed by the Applicant just before the hearing demonstrated that he had been regularly travelling some distance to Burleigh Waters in Queensland for various forms of medical treatment, albeit that he had very recently started attending treatment at a location nearer to his home.
6. At a hearing on 2 April 2025, at which the Applicant appeared, orders were made that the proceedings were listed for a further directions' hearing by audiovisual link (AVL) on 30 June 2025 and listed for final hearing at Lismore in person for three days commencing on 8 September 2025. It was also ordered, following direct consultation with and the sanction of the Applicant, that by way of accommodation sought by the Applicant for his medical conditions, the hearing would be conducted each day from 9.30am until 11.30am and then 1.30pm until 4.00pm each day, unless otherwise ordered at the hearing.
7. The Respondent was ordered to file and serve a trial plan for the hearing (a schedule proposing how the hearing would be structured including the timetable for witnesses) by 8 August 2025 and which was to ensure that the matter would proceed and be concluded in those 3 days. The Respondent filed such a plan, which contemplated in-person cross-examination of the Applicant. The Applicant was to file and serve his response to that trial plan by 15 August 2025. He did not file any document in response or communicate in any way that he had any issue with the plan prepared by the Respondent.
8. On the last working day before the hearing was to commence, namely Friday 5 September 2025, the Applicant filed a Request for permission to attend NCAT hearing by telephone or video and not attend in person. This application was opposed by the Respondent.
9. Prior to his filing that request, the Applicant had in ex-parte communications with the Tribunal Registry on 3 September 2025, asked to be provided with a teleconference link for the hearing. On 4 September 2025 the Registrar wrote to him referring to his email correspondence, which had been provided to us for review, and noted that orders made by the Tribunal on 2 April 2025, after a hearing which he attended, specifically by directions 2 and 3, provided that the matter had been listed for final hearing at Lismore in person for 3 days commencing on 8 September 2025. The Registrar noted further than by way of accommodations the Applicant had sought be made for his medical conditions with respect to the conduct of the hearing, the hearing would be conducted each day commencing 9.30am until 11.30am and then 1.30pm until 4.00pm each day, unless otherwise ordered at the hearing. The Registrar told Mr Hallman that as the matter had been set down for hearing in person with accommodations already made for his disability, arrangements for a teleconference link were, therefore, not required.
10. In dismissing his later formal application dated 5 September 2025 for permission to be allowed to attend the hearing by teleconference and not attend in person, the Tribunal's decision sent to the parties noted, inter alia, that the material filed by the Applicant demonstrated that he had recently regularly travelled from his home to Burleigh Waters for various forms of treatment and that his health conditions are of long standing. It further noted that the Applicant has a history of summarily disconnecting from hearings where he has been allowed to appear by AVL. The parties were advised that the matter would proceed on the Monday in accordance with the existing orders in place, which required the Applicant to attend in person for the hearing and be cross-examined and that otherwise the matter would proceed in accordance with the trial plan, which was filed by the Respondent, and which had not been identified as controversial by the Applicant. The parties were also advised that any applications of any kind which either party wished to bring may, if appropriate, be dealt with during the course of the hearing.
11. As noted earlier, the Applicant elected not to attend the hearing, which proceeded in his absence. Subject to objection, the Tribunal allowed into evidence the statements of the Applicant and his witnesses that he had previously identified as those on which he relied.

Direct and Indirect Discrimination on the ground of disability

1. Section 49B of the AD Act defines what constitutes discrimination on the ground of disability:

49B What constitutes discrimination on the ground of disability

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability; or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1)(a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog, which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability

(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability; or

(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to fact, is taken to be a characteristic that appertains generally to persons who have that disability.

(4) A reference in this section to persons who have a disability ("the particular disability")

1. The term "disability" is defined in s 4 of the AD Act as:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body: or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness; or

(c) the malfunction, malformation or disfigurement of a part of a person's body; or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction; or

(e) a disorder, illness or disease that affects a person's though processes, perception of reality. emotions or judgement or that results in disturbed behaviour.

1. Apart from repetition of the elements of s 49B in the Points of Claim, and the allegation in the Points of Claim of contraventions of s 49B (1)(a) and (b), Mr Hallmann did not focus on establishing any of the particular elements of s 49B, which sets out two distinct and different types of discrimination, usually referred to, respectively, as 'direct' and 'indirect' discrimination.
2. In Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (Waters), Dawson and Toohey JJ explained the difference between direct and indirect discrimination at 392:

"A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers' as opposed to white workers'

Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable."

1. These two definitions of direct and indirect discrimination have been held to be 'mutually exclusive', meaning a person cannot claim at the same time that they have been directly and indirectly discriminated against on the same facts: Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 at [13]-[16] per Bromberg J.
2. In the context of indirect discrimination, the terms "requirement" or "condition" in s 49B(1)(b) are given a broad, rather than technical, meaning; State of New South Wales v Amery [2006] HCA 14; [2006] 230 CLR 174 at [63]; Waters at 407 per McHugh J. However, for something to be a requirement or condition in relation to a matter it must be separate from that matter. A person imposes a requirement or condition when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed; Waters at 361 and 367 per McHugh J.
3. It is well accepted that the "term" alleged to have been imposed ought to be formulated with some precision; Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989-90) 168 CLR 165 at 185.

1. Mr Hallmann also alleges that the Respondent has subjected him to unlawful victimisation. Section 50 of the AD Act prohibits victimisation and provides as follows:

50 Victimisation

(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has-

(a) brought proceedings against the discriminator or any other person under this Act;

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act;

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act; or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person or by reason that the discriminator knows that the person victimized intends to do any of those things, or suspects that the person victimized has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

The May 2020 request for assistance with a chair for the Applicant's home office

1. The Applicant alleged that the Respondent was aware of his disabilities in the context of him starting his PhD candidature in 2004 and in the context of employment, in 2006 when it first received his resume, and at various points thereafter. The evidence is not clear on that issue. We need not decide that question because it is not controversial that the Respondent was aware of the disabilities by May 2020 when the Applicant made a request for assistance with a chair for his home office.
2. The Applicant states that in March 2020, when the COVID worldwide pandemic was declared, the Respondent emailed all tutors, including the Applicant, and advised them to stay home. He states that on 18 May 2020 he sought out assistance with a chair for his home office because of aggravation of his existing spinal injuries that, he contends, had been asymptomatic for at least four years before March 2020. He also contends that the Respondent failed to provide such accommodations, claiming that it had to adhere to a disability policy that required him to supply a report from a medical or other health practitioner despite, as the Applicant says, him being unable to access any medical practitioners because they were closed locally. He says that he underwent a telehealth appointment in relation to these matters for the first time on 1 July 2020.
3. The Applicant alleged that between 18 May 2020 and 1 July 2020, he warned the Respondent's WHS Manager that a failure to act with respect to the chair was aggravating his spinal injuries and, in turn, his disabilities and associated conditions, and his health was spiralling downwards. The Applicant says he warned that it would reach a point of no return. He contends that further warnings of decline were provided to the Respondent and the Respondent's insurer across the remainder of 2020.
4. The Applicant states that the Respondent's workers' compensation insurer, EML, funded a chair in about September 2020 but the chair was not suitable and, despite the Applicant's complaints, the Respondent ignored the requests for a different chair. He says that his conditions continued to deteriorate.
5. The Respondent's position is that it did not directly discriminate against the Applicant by failing to accommodate his disability in not purchasing him an ergonomic chair in June 2020 because the Applicant did not provide the University with appropriate medical or other evidence in accordance with its Employees with Disabilities Policy (Disability Policy) and that the Applicant's request for assistance under the Disability Policy was managed according to the Disability Policy and in the same manner that applied to any employee requesting assistance under the Policy. It contended that the University did not purchase equipment for any other employees who worked from home, including office chairs or ergonomic office chairs, and the University was not offering to and/or conducting in-home assessments by occupational therapists for employees.
6. The Respondent maintains that it did not indirectly discriminate against the Applicant by requiring him to comply with a requirement or condition with which the Applicant was unable to comply because of his disability, because it did not require the Applicant to obtain medical or other evidence from a health practitioner by making an appointment in-person. It's case was that although the Applicant advised the University that he was immunocompromised and could not attend his general practitioner in person or be accommodated on campus, in fact the Applicant was regularly attending campus from 15 May to 19 June 2020 when he said he could not attend the campus and that the evidence indicates that he attended telephone consultations with his general practitioner, Dr Bird, when the Applicant sought them.

What does the objective contemporaneous evidence show occurred?

1. We now turn to what the evidence shows occurred.
2. The University has three main campuses, located in the Gold Coast, Lismore and Coffs Harbour. It has around 890 full-time equivalent staff across professional and academic roles, as well as casual and sessional employees.
3. Ms Watson first commenced employment with the University in 2009 as a Workplace Health and Safety Advisor but left in 2013. In June 2015 she recommenced employment with the University, as its Workplace Health and Safety (WHS) Manager, and resigned from that role in June 2022. She is no longer with the University. We consider her to be a careful and reliable witness with no interest in the outcome of this proceeding.
4. In her role as WHS Manager, Ms Watson was responsible for oversight of the University's WHS team which formed part of the University's Human Resources function.
5. In addition to WHS she also had responsibility for the management of employees on who had workers' compensation injuries and dealing with workers' compensation claims with the University's workers' compensation insurer. This included managing claims and implementing measures that would prevent or mitigate injuries or illness to staff. Part of her responsibility to employees with workers' compensation claims was to ensure that they were safely returning to work and performing work in accordance with their current work capacity. This was guided by advice the employee provided from their treating medical practitioner.
6. Ms Watson swore, and we accept, that in order to safely manage an employee who had a work-related injury, has made a claim for workers' compensation, or has suffered some form of injury, it was seen as important for the University to be able to communicate with the employee and understand any restrictions or concerns so it can support any return to work. From a workers' compensation perspective, she would also try to provide employees with as many hours of work as they were capable of doing under their return-to-work plan, or the number of hours they were cleared to perform by their doctor.
7. Ms Watson was also the Disability Support Contact Officer for the University. In this role, she was the point of contact for University employees with a disability, including employees who requested assistance under the University's earlier mentioned Disability Policy.
8. She swore, and we accept, that the Disability Policy applied to all University employees and identified the University's commitment to make reasonable accommodations and/or adjustments for employees with disabilities, and the process to be followed when requests for assistance are received. The Policy also committed the University to provide equitable professional development activities for employees with disabilities.
9. The Disability Policy provided:

Access to Assistance

(11) In the first instance, employees who feel they may require assistance should contact the Disability Contact Officer in HR Services.

(12) Employees are required to provide the Disability Contact Officer with documentary evidence concerning their disability and the functional limitations it involves. Evidence may be provided by medical practitioners, psychologists and/or other relevant professionals as agreed to by the Disability Contact Officer. (emphasis added)

(13) If necessary, the Disability Contact Officer will arrange for professional advice to assist in assessing the employee's needs. This advice will specify: a. the nature of the disability/disabilities; b. the functional limitations placed on the employee by this disability; c. whether the disability is likely to improve or worsen in time and may require review; and d. the workplace adjustments necessary to assist the employee in dealing with their disability. In establishing these adjustments, the Disability Contact Officer may consult with the employee's supervisor to ensure that the adjustment suggested is both safe and suitable.

(14) In assessing the assistance required, the inherent requirements of the position are considered. The inherent requirements of the job are those activities, conditions and practices that are essential to the job and consideration · must be given to whether the person could perform these requirements if reasonable adjustments were made to the work environment [for example, a person with vision impairment may be able to perform a clerical job with the assistance of voice-activated computer software].

(15) Supervisors may seek advice from HR Services to clarify the inherent requirements of a position. This is particularly important in the recruitment process to ensure that position descriptions and key selection criteria do not discriminate unlawfully against people with disabilities.

(16) The Disability Contact Officer will ensure that supervisors receive any relevant information concerning adjustments required to an employee's work environment or duties.

(19) Employees with disabilities who feel that their needs are not being met should discuss their concerns with their Supervisor, the Disability Contact Officer or the Head, Equity and Diversity without delay.

(20) If the employee believes a satisfactory solution has not been reached as a result of these discussions, they may elect to formalise their concerns in writing

1. Ms Watson said, and we accept, that she first became aware of Mr Hallmann when she first worked for the University between 2009 and 2013. She remembers that in 2016 he underwent a workplace assessment at the University, organised by the CTP insurer, in relation to injuries he sustained in a car accident. An occupational therapist's report was obtained in September 2016, and she recalled meeting with the person conducting the assessment at the University's Lismore campus sometime in 2016. She had also wanted to make sure that Mr Hallmann's workplace was set up appropriately for the injuries he had sustained following his car accident. She understood that Mr Hallmann suffers from ME/CFS.
2. The occupational therapist's report of September 2016 stated that Mr Hallmann had been referred to Empact Injury Management Services on 5 September 2016 by RACQ Insurance after he had been involved in a car accident in 2015. The report said the referral was for the purposes of undertaking an initial assessment to provide injury management recommendations, undertaking a workplace/ergonomic assessment, provide recommendations to facilitate Mr Hallmann's sustainable return to his pre-injury work duties, and provide recommendations regarding Mr Hallmann's then current functional abilities and limitations. Mr Hallmann was very critical of that report in his filed material.
3. Ms Watson said, and we accept, that Mr Hallmann did not make any requests for reasonable adjustment following the assessment in 2016. She became aware, however, from email correspondence with Mr Halmann at different times that he had been provided with a suitable chair by the University, which he gave away to a student, and he was also provided with a chair from a previous insurer which was not suitable for his needs. The WHS team did not have any records of Mr Hallmann advising that he had any disability. Ms Watson concedes that it is possible that he may have sought assistance as a student of the University, however students with disabilities are managed by a different unit and that information may not have been shared with her unit.

1. In mid-March 2020, in response to the beginning of the unprecedented COVID pandemic, the University transitioned all courses to online learning and encouraged staff who could work effectively from home to do so. There was a directive from the New South Wales Government that employees should work from home where possible. People were allowed to leave their home for reasons including to go to work if they could not work from home and for medical reasons.
2. Ms Watson's evidence, which we accept, is that the University developed a self-assessment tool which required staff to complete a checklist of items to ensure that their workspace at home was set up safely. If the University could not support employees to work safely from home or where an employee did not have an appropriate space at home, employees were requested to work on campus in a COVID-safe environment. This was to ensure that employees who did not have an adequate and safe set up at home could continue to work on campus. She swore that the University was not purchasing equipment for any employee who was requested to work from home. If employees did not have certain equipment, like computer monitors, keyboards, or office chairs, they were permitted to take home the equipment that they ordinarily used on campus so that they had a suitable workspace.

Events between the 18 May 2020 request for a chair and September 2020

1. On 18 May 2020, Mr Hallmann sent an email to the University's Disability Advisor, Ms Terry Kosack, asking her whether the University could assist him with a home office chair. Ms Kosack was the Disability Advisor for students, not staff. Ms Watson became aware of this email when she was copied into an email containing this email chain on 21 May 2020.
2. The 18 May 2020 email provided as follows:

'Howdy Terry How are you enjoying this work from home fun? I haven't stopped!! I have a query. As you know I have ME/CFS with Fibromyalgia. I also have a back injury from a car accident in 2015. Back then the insurer bought an office chair for me. It's a great chair for the right person - which is not me. It probably helps people with back injuries.

Can SCU assist me with a home office chair? Because I'm suffering pain presently. Before COVID hit the students I had began be online - So rarely in the office. I'm trying to find something that suits (that is soft, back support and high back, with a foot rest. I had one years ago but I gave it to my student as an incentive present when She graduated (long story - it's just one of those things I do to motivate them).

The one I have wasn't as good and it has lost its softness and has broken at the base. Unfortunate I'm not in the most financial position. I know SCU can assist staff with a disability - I've just never reached out and asked before. (sic)

1. On 18 May 2020, Mr Hallmann sent an email to another staff member, Ms Andrews from the Student Disability Unit, which directed her attention to his earlier email to Ms Kosack, and asked "could you assist me with an indication of what assistance can be provided to me with regards to an ergonomic/suitable office chair".
2. Ms Watson and Ms Andrews discussed the matter and decided that the most appropriate way to ensure Mr Hallmann had a safe and ergonomic workspace was for him to return to campus, where an ergonomic assessment of him could be conducted and suitable adjustments could be made. Ms Watson stated that they had decided they needed to ensure that Mr Hallmann stopped using the chair, which he was alleging was causing him to be suffering pain, until the University could find an appropriate alternative. The University was adopting measures to manage the safety of staff and students at home, while also attempting to accommodate the needs of staff, on a case-by-case basis, as the situation evolved.
3. Ms Watson gave evidence, which we accept, that Mr Hallmann was treated no differently to other staff in that respect. This decision was conveyed to Ms Donna Moffit who was the supervisor of Mr Hallmann's work unit. Ms Moffit's approval was required to conduct an assessment as her work unit would ultimately be responsible for funding any equipment modifications or adjustments needed. Ms Moffit then approved an assessment.
4. Ms Andrews, with approval of Ms Watson, sent an email to Mr Hallmann on 21 May 2020 telling him that WHS could assist with arranging an ergonomic assessment to determine suitable workplace adjustments to his on-campus workspace (not his home). Ms Andrews' email also said that because Mr Hallmann had identified that his home set up was not a suitable place for him to work safely at home, he would need to transition to working from campus where suitable adjustments could be made to support him. This was the University's approach to any employee who indicated they did not have a safe and appropriate place to work at home. That is, they were requested to return to work on campus.
5. Mr Hallmann replied on the same day to Ms Andrews and Ms Watson saying he was off campus due to COVID and his students are online. He then sent another email the same day saying:

I would appreciate a call so that we might discuss my actual circumstances and role in more detail. I think you have progressed to conclusions in haste, and regrettably they do not reflect the situation. I would summarise briefly:

1. I have no office on campus per se and no office will be provided for this role, being an ITAS tutor. We traditionally operate out of ITASS or at a time and place of the students choosing;

2. You have erred in your assessment. I did not identify that my home office was an unsafe environment. I identified that it required a reasonable accommodation for a disability in order make the environment more suited to that disability. I can assure you that the environment here will be more suited than on campus;

3. I am immunocompromised so attending campus will be a rarity in the current environment and I will not be taking up any proposal for a Campus based office environment when it can easily be accommodated at home - especially when my students are now all online, and especially when I am required to isolate. These are extraordinary times hence we have to adapt accordingly. A chair is a chair - it does the same job here as it would on campus in an office.

An assessment would not be imprudent. Any appointment with any individual would have to be carefully undertaken. I am limiting who I have contact with and I have ventured outside on very limited occasion. An appointment would have to be undertaken with an element of caution presently (noting that I acknowledge the risk locally is lower). I have the triple whammy of risk factors, being over 50, obese (thanks to my condition) and immunocompromised. Despite Dr Trump's best advice I am not taking hydroxychloroquine - I prefer to die of natural causes other than stable genius stupidity ;) Whilst the circumstances are a little unusual, with a little investigation and flexibility, I am confident we can fund a solution. Obviously as a long-term employee and one who has not immediate intention of going anywhere, this is an investment that will have long term effect. (sic)

1. Mr Hallmann was essentially agreeing with their idea that they should do an assessment on him but refusing to return to campus, saying he was immunocompromised and not attending campus except rarely. As was discovered later, his claim that he was not attending campus at this time was contradicted by his swipe card access records showed the card was being regularly used to enter rooms in campus buildings. Neither Ms Andrews nor Ms Watson were aware of this information about his card usage at the time so they could not challenge his statements.
2. We also note that the Applicant did not file any medical evidence to support his claim that he was immunocompromised during 2020 or since, or that he was unable to attend campus and perform his duties in a COVID-safe environment provided by the University.
3. Ms Watson gave evidence, which we accept, that she then decided as Mr Hallmann was a staff member, the WHS Unit, rather than the Student Disability Unit, should deal with Mr Hallmann's issues. As a result, she then decided to apply the Disability Policy requirements in clauses 11 to 16 that applied to all staff. Accordingly on 26 May 2020, she sent an email to Mr Hallmann that said:

'Thank you for your email and sorry for the delay getting back to you. As per the Employees with Disabilities policy, if you require access to assistance or a reasonable accommodation due to a disability you are required to provide documentary evidence concerning your disability and the functional limitations it involves.

This information can be provided by your GP or other relevant medical practitioner. We can then seek professional advice to assist in assessing what type of workplace adjustments are necessary to assist you while at work. If you have any further questions, please don't hesitate to contact me.

1. That email sought documentary evidence concerning his disability and the functional limitations it involved but did not specify that only a personal attendance on his doctor would suffice. As she explained in her testimony, the University would not purchase a chair without proper information because of the risk that the chair was inappropriate and could cause Mr Hallmann an injury or exacerbate any existing issues that he may have had.
2. Mr Hallmann replied saying:

My GP is located in Melbourne. My specialist is located in Brisbane BUT had a heart attached and then prostate cancer. I can see what he can do at this present time. I will state, however, I have been chasing him for a number of other issues since October, and not had a great deal of luck. You may be out of luck here.

This is a specific need BUT with my condition, I can't just use anyone. I note that I have a history with the disability unit from my time in my PhD. This is not new to SCU. (sic)

1. On 29 May 2020, Mr Hallmann sent Ms Watson another email which read as follows:

I previously had a shoddy racq OT assessment. I refer you to 14.8. For the record, I had/have poor range of movement and reports showing that. She downplayed my existing condition. She didn't assess my home office at all. No trial of chairs was ever arranged. They arranged a chair from LOW and it is not fit for my needs. Does this help?'

1. Mr Hallmann's email attached a copy of an Initial Assessment Report completed by an occupational therapist in September 2016 for RACQ Insurance after he had been involved in a car accident in 2015. Although it is not stated explicitly, Mr Hallmann appears to have wanted and expected Ms Watson to accept statements made about his condition 4 years earlier with which he did not agree. Ms Watson stated that accepting evidence from an outdated assessment was not appropriate. At the hearing, she swore that she could no longer recall the contents of that report.
2. She decided that the occupational therapy report from 2016 did not provide the information needed about Mr Hallmann's disability, his functional limitations, or any information about the type of chair that was appropriate for Mr Hallmann. The occupational therapist in that report had said that, in order to clarify Mr Hallmann's work capacity, he should be referred to an occupational physician to clarify his diagnoses and provide any referrals for investigation of his spinal injury/priapism. The report also referred to an ergonomic chair but did not provide any information about what sort of ergonomic chair would be suitable.
3. On 11 June 2020, Ms Watson sent an email to Mr Hallmann which stated:

As previously stated, to request accommodations through the University Disability Policy, you must provide 'documentary evidence concerning your disability and the functional limitations it involves. Evidence may be provided by medical practitioners, psychologists and/or other relevant professionals as agreed to by the disability contact officer.

The reason we require this information is to ensure we are providing the most appropriate accommodations to support your condition.

The OT report you provided is not sufficient. Firstly, the report is over 4 years old. Secondly, it suggests you must see an Occupational Physician to clarify any diagnosis and provide referrals for further investigations. Finally, they state the impracticalities of recommending a chair due to the nature of your role and unpredictability about the locations of your tutoring sessions.

I understand you are having difficulties obtaining the required medical information, however we do need this prior to purchasing any workplace equipment

1. We observe that this email set out the required information and from whom this information could be obtained. That is, the information should provide evidence in relation to his disability and any associated functional limitations, and that evidence could be provided by either a medical practitioner, a psychologist, or another relevant professional as agreed with the disability contact officer. We find that the email did not require or suggest the he must attend a medical practitioner, or medical specialist or any other clinician, in person to obtain the required information.
2. Over a week later, on 19 June 2020, Mr Hallmann sent Ms Watson an email in reply saying:

I have copied the Vice-Chancellor into these communications. I note that I have now been attempting to obtain assistance for two months. I reiterate - I require an assessment of my premises (as was advised from the outset). l do not have any office at the University - even if I did, it is not suited in these current circumstances. The majority of my students are online (with all of them now online for Semester 2). I reiterate the following points:

1. We are in the middle of a COVID19 crisis. Circumstances are radically different to the norm;

2. My Infectious Diseases and Internal Medicine Specialist is recovering from a serious heart attack, followed by prostate cancer surgery. He is immunocompromised. I am immunocompromised. He is based in Brisbane. The border is closed. He is currently not attending to patients. He is unavailable to me.

3. My Musculoskeletal and Rehabilitative Physician retired.

4. My GP is based in Melbourne - I cannot attend him. I cannot fly (I am immunocompromised)

5. I cannot be accommodated on campus. Again - immunocompromised and in high risk group (due to being over 50 and overweight as well);

6. It is the University's obligation to make reasonable accommodations. Reasonable takes account of the circumstances in which the request is made. Attendance of campus is not a reasonable accommodation in the current environment. These are exceptional circumstances. There needs to be an alternative approach here. I am working from home - hence the assessment needs to occur at home;

7. You state the OT report is out of date. The OT report is evidence of the need. The solution is arrived at by working with me to assess the home office and to make accommodations to the need. There is nothing that an Occupational Physician can add to this discussion. It is a matter of finding what works, together. That is a reasonable accommodation.

Respectfully, doing nothing, as you have so far, is not an option. I have been with SCU for 14 years. I am still finalising my PhD with SCU. I previously had a chair, paid for by the Disability Unit (now long since stolen when the PhD study area was closed down), based on medical evidence supplied long ago. SCU is well aware of my needs. The issue is finding a solution.

1. One of the matters relevant to the victimisation claim concerns the way that email was signed off. We note that the email of 19 June 2020 was copied to an email address for the Deputy Vice-Chancellor (Academic) but not to the Vice-Chancellor.
2. The email of 19 June 2020 contained Mr Hallmann's email signature block which said he was a PhD Candidate of the University's School of Exercise Science and Sport Management. Ms Watson did not know that Mr Hallmann was a PhD student until she read that email. That led her to make enquiries as to whether his request would, in fact, be better dealt with by the Student Disability Unit. She forwarded Mr Hallmann's email to Ms Sharon Farquhar, Director of HR Services, to seek her advice on the issue given it now appeared Mr Hallmann was also a student of the University and he had claimed that he had copied the Vice-Chancellor into the correspondence.
3. Ms Watson swore, and we accept, that she did not understand the email to be making a complaint, to either the Deputy Vice-Chancellor (Academic) or the Vice-Chancellor, that he had been the victim of discrimination of any kind. This email did, however, set in train a sequence of events that led to investigations being conducted into Mr Hallmann's activities.
4. Ms Watson later learnt that Mr Hallmann had emailed the Deputy Vice-Chancellor (Academic) in error and he later sent his original email and a covering email to Adam Shoemaker, the Vice-Chancellor himself. The covering email from Mr Hallmann to the Vice-Chancellor on 20 June 2020 said:

I had meant to copy you in on this email below. I am having exceptional difficulty obtaining some assistance with get a chair at home that accommodates both my long-term illness (ME/CFS) and back injury from a 2015 car accident.

No disrespect to Jess, but she is not accounting for the reality of a covid 19 environment, nor the limited access to doctors, nor the fact I have no office, nor the fact I can't regularly attend the office without risk (even if l had one), etc, etc. she is adhering to a policy that wasn't designed for this reality.

I've been very respectful in circumstances of excessive delay on what is a simple request. It merely requires some slight adjustments to thinking.

I would be grateful if you could intervene and ask Jess to asses my home office and accommodate the need for adjustment.

1. Under the provisions of s 50 of the AD Act, which defines victimisation, for the Applicant to succeed in his claim to have been victimised as a result of him sending that email to the Vice-Chancellor (as distinct from the version he sent to Ms Watson, the Deputy Vice-Chancellor (Academic) and others) he needs to show that the treatment he claims to have been subjected to thereafter was done on the ground that he had brought proceedings, alleged that the University or any other person had committed an act which, whether or not the allegation so states, would amount to a contravention of the Act, or done anything under or by reference to the Act, or that the discriminator knows that the Applicant intended to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
2. We find that the email sent to the Vice-Chancellor was a request made to the Vice-Chancellor to intervene and request that Ms Watson assess the Applicant's home office. It communicates his view that Ms Watson was adhering to a policy which was not "designed for this reality" - that is, the COVID pandemic. Nowhere in the email does he allege that either Ms Watson, or the University or any other person, is discriminating against him on the grounds of his disability, either his ME/CFS or his back injury or any other disability. Further, he does not allege that any perceived delay or inaction by Ms Watson had taken place on the ground of his disability.
3. The Respondent referred us to the decision of the New South Wales Court of Appeal in Chi v Technical and Further Education Commission [2012] NSWCA 421 where the Court found that an alleged complaint was not of the kind contemplated in s 50(1)(c) because, although the complaint involved an allegation of different treatment, it did not attribute these to a racial attribute or provide a foundation for the discrimination. As this case turned on its own particular facts, we do not find it of further assistance in determining the present matter.
4. We find that the email to the Vice-Chancellor was never sent to Ms Watson or Ms Farquhar and there is no evidence that either of them was aware of its content during 2020 or 2021. Even if they had been aware of its content, we find that neither of them understood it to be an allegation of discriminatory conduct, either on the basis of disability or otherwise, nor suspected that Mr Hallmann intended to bring any such claim.
5. The same is true of the content of the email that he sent to Ms Watson and others earlier on 19 June 2020. We find that neither Ms Watson nor Ms Farquar understood Mr Hallmann's email to them to be an allegation of discriminatory conduct, nor suspected that he intended to bring any such claim. The email contended that it was the University's obligation to make reasonable accommodations and that reasonable takes account of the circumstances in which the request is made. Mr Hallmann further contended that attendance on campus was not a reasonable accommodation in the environment at that time.
6. From Ms Watson's perspective at that time, Mr Hallmann had not provided any medical or other evidence regarding his disability or its functional limitations and instead was requesting that an in-home assessment be undertaken at his home. She did not have any current information about what his current condition was or what was causing his back pain. She also had no information regarding what type of chair Mr Hallmann required. We find that she then decided that, to assist Mr Hallmann, she would suggest that he organise a telehealth appointment to get the information he required.
7. So, on 25 June 2020, she sent an email to Mr Hallmann saying:

I appreciate your frustration, however, please understand the requirement for medical evidence is there for a reason. We can't just go out and purchase you a chair without the documentary evidence regarding your disability and the functional limitations from a medical practitioner. As I have previously stated in my emails this is to ensure we do not purchase the wrong equipment and potentially aggravate your condition.

This requirement is University policy and is the same requirement for all staff who are requesting accommodations under our disability policy. I appreciate the difficulties you are having seeing your specialists though you should be able to get this information from a GP and many practices are currently offering telehealth services.

Alternatively, if you are unable to provide the information we require for accommodations under the University's disability policy, I can pass your request to Anthony Olive and see if your Work Unit has any chairs available for you.'

1. That email clearly invited him to take advantage of a doctor currently offering telehealth services to obtain information about his condition. He did not directly respond to what that email said. His next response was a two-sentence email which, in effect, indicated that he was abandoning his requests for the University to provide him with accommodations for his disabilities and that he would go elsewhere. It said he would instead lodge it as an "an incident" and that he would lodge a workers' compensation claim instead. Ms Watson quite properly took this email to mean that instead of pursuing his request for a reasonable adjustment under the Disability Policy, Mr Hallmann was making a workers' compensation claim which would mean the issue would be dealt with elsewhere. She replied by saying, in effect, that she would pass on the notification to the insurer but would still remain interested in case he wished to seek accommodations under the Disability Policy in the future:

Thanks for letting me know. I will submit a notification with our insurer on your behalf and they will be in touch with a claim number. While you are seeing a medical practitioner to discuss your workers' compensation claim, could you please ask them to supply some written medical advice regarding your requirements for a chair in case you wish to seek accommodations under the disability policy in the future.'

1. The evidence shows that within days Mr Hallmann had managed to see his doctor, Dr Bird, and obtain a medical Certificate of Capacity and report on 1 July 2020. We find that he held this information back from Ms Watson for four weeks until 29 July 2020. Although the report from Dr Bird contained the information that Ms Watson had been asking for since mid-May 2020, the issue was now not hers to resolve.
2. Dr Bird's certificate said that Mr Hallmann was fit for work up to 15 hours per week from 1 July 2020 to 1 October 2020. Dr Bird's report also stated what chair he needed and why:

He needs a chair that supplies adequate support for his lumbar spine and cervical spine and neck, that allows him to elevate his legs (for orthostatic intolerance) and allows for the fact his ME/CFS with Fibromyalgia can be exacerbated by sitting for long periods. The chair needs to recline, elevate feet, be soft, supportive and have wheels. He needs other office adjustments as recommended by the OT.

He needs physiotherapy and chiropractic to settle symptoms and maintain or ameliorate deterioration. He needs occupational therapist assessment of home and office to assess needs as a result of the exacerbation, needs ergonomic seating suited to injury/ illness. May need an ergonomic desk arrangement.

1. Mr Hallmann sent the report to Ms Watson with an email that said that, to date, there had been no occupational therapy assessment by the insurer and that the details of the chair are what she required. She replied saying that the claims management providers for icare workers' compensation insurance had advised her that they were awaiting information from his doctor. He replied, copying in the insurer, saying the claims' management providers had made this much harder by working at a snail's pace and saying that the purpose of the workers' compensation system is supposed to be rapid intervention to facilitate a return to work but that had not occurred. He did not invite her to treat it as the University's issue to decide.
2. Despite there being no continuing request for a chair by Mr Hallmann, after discussion with Ms Farquhar, Ms Watson decided that given Mr Hallmann had now provided documentary evidence about his disability, its functional limitations and details about the chair, the University would try to organise an in-home assessment by an occupational therapist. She thought this would assist, given Mr Hallmann had been requesting an assessment in relation to his request under the Disability Policy. On 17 August 2020 Ms Watson wrote to Mr Hallmann saying that, with his permission, she would like to go ahead with an occupational therapy assessment of his home workstation and, if he was happy to proceed with this, she would have someone contact him directly to arrange a time for this assessment.
3. He wrote two emails back rejecting this offer and saying they could use an occupational therapist of his choosing that the insurer had been told about. He asserted that the University had needed to work "outside the box" to avoid what had happened, and it had failed. He suggested that he did not actually want anyone attending his home during the pandemic and now wanted an assessment conducted online.
4. Ms Watson was by now confused, given that throughout the exchange of correspondence with Mr Hallmann he had never been able to provide any medical or other supporting information, or any names of professionals to undertake this assessment by telehealth. Mr Hallmann had also been adamant this assessment be undertaken at his home and he was now refusing to allow that to happen. Ms Watson said, and we accept, that she felt frustrated as it appeared that every time she offered an option to help Mr Hallmann he had an issue or a reason why it would not work and would not provide information to let her support him.
5. The following day, on 18 August 2020, she wrote a long email to Mr Hallmann essentially remaking the offer to help and explaining her position. He wrote a lengthy email back saying, inter alia, that he did not choose to make a workers' compensation claim, although he did in fact make such a claim. He asserted that the University was attempting to direct blame his way. He stated that he was now prepared to use the University's chosen occupational therapist.
6. Ms Watson then arranged for in-home occupational therapy assessment. A report was produced by the occupational therapist and Ms Watson proceeded to research appropriate chair options for Mr Hallmann. Ms Watson stated that she found it difficult to find a chair that aligned with the recommendations of the occupational therapist and also had the functions that Dr Bird had outlined in his workers' compensation certificate because the chair had to have multiple functions, including to recline and also have a footrest. Eventually, Ms Watson located a chair online which she thought might be suitable for Mr Hallmann.
7. Ms Watson then wrote to Mr Hallmann a detailed email suggesting he trial a particular hire chair she had identified and asked if he wanted her to go ahead and arrange it. He rejected that suggestion saying the chair was completely unsuitable for him. After further emails Mr Hallmann then sent her a further email with a link to the website of 'Lismore Office Warehouse' for a 'ZQ Hyper Sport Gaming Racing Chair' and told her that it might be worth trialling.
8. Ms Watson contacted Lismore Office Warehouse and was told they had the chair in stock and was provided with details for Mr Hallmann to contact them so that he could trial the chair. She explained to Mr Hallmann that if the chair was suitable, she would arrange for it to be hired for him. He replied saying he had tried the chair in the showroom and it seemed to provide the support and options he required and he would like to trial it at home. Ms Watson proceeded to organise the hire of the chair for him.
9. The chair was delivered to Mr Hallmann on 11 September 2020. On 23 October 2020, the hire of the chair was extended until 6 November 2020. After that point, the provision of any chair to Mr Hallmann was managed by the workers' compensation insurer in relation to his claim. Although Mr Hallmann claimed in his statements there the chair was unsatisfactory, there is no evidence indicating this. Even if there were issues with the chair, after 6 November 2020 this was a matter for the insurer, not the University, to resolve.

1. As stated earlier, it is possible, though not certain, that Mr Hallmann is claiming he was subjected to direct discrimination.
2. For a claim of direct discrimination to succeed he would need to show that the refusal to provide him with the chair, or any of the treatment to which he states he was subjected and which he claims adversely affected him, was conduct engaged in because of his disability. There is, however, no evidence which establishes that any of the events that occurred, and about which he complains, was because of his disability.
3. The Respondent submits that its treatment of Mr Hallmann in the ways he describes could not, and did not, discriminate against him on the ground of his disability, and it treated him no less favourably than in the same circumstances, or in circumstances which are not materially different, the Respondent treats or would treat a person who is not impaired in the way Mr Hallmann was. We accept these submissions.
4. The Applicant has not experienced any less favourable treatment compared to a person in the same circumstances who did not possess his disability because the University was not purchasing specialised or ergonomic equipment for employees who were requested to work from home between May and August 2020. The University was also not organising in-home assessments for employees who requested that the University purchase them specialised or ergonomic equipment. Even if such a request for in-home assessment was able to be entertained, as ultimately it was, for a purchase of this kind the University would have required the same level of medical or other clinical evidence and justification from someone who did not possess the Applicant's disability.
5. Further, we find that the reason or reasons for the treatment which the Applicant alleges was less favourable (that is, the resistance to the provision of an ergonomic chair on the basis that he contended it should be provided) was not his disability. It was because the Applicant did not provide the information required by the Disability Policy, as well as the numerous other grounds which Ms Watson described in her evidence, none of which was on the ground of his disability.
6. We also find that Mr Hallmann's willingness to have an in-home assessment was not consistent and it is doubtful that, even if the University had been willing to organise an in-home assessment earlier than it ultimately was, that this would have led to a different outcome.
7. We find that the Applicant has not established that he was treated less favourably on the ground of his disability. Further, we find that even if he had been treated differently, or in the way he insists he should have been, that it is unlikely to have resulted in the Applicant being provided with an ergonomic chair that the Applicant found suitable earlier than he was provided with one on 11 September 2020.

Findings in relation to indirect discrimination

1. At paragraph 151 of his Points of Claim, Mr Hallmann alleges that the University required him to comply with a requirement that other employees of the Respondent could comply with. He identifies four elements.
2. First, he contends he was required to attend campus for an assessment when he was immunocompromised while other employees were provided with an in-home assessment. Second, he contends he was required to physically attend a medical practitioner when his disability and immunocompromised state meant he could not attend in person.
3. We find, as a fact, that he was not required to attend campus for an assessment and that other employees were not provided with an in-home assessment. We do not accept that he was immunocompromised in a way that meant he could not comply with a requirement to attend on campus for an assessment, even if such a requirement had been imposed. We also reject his contention that he could not physically attend a medical or other relevant health practitioner or otherwise obtain a report from one without attending in person. He could do both if he chose to, if not initially, then eventually.
4. The Applicant sent an email to the University on 25 May 2020 stating that he was immunocompromised and attending campus would be a rarity and he was limiting who he had contact with and he had ventured outside on very few occasions. Later, on 19 June 2020, the Applicant sent an email to Ms Watson which stated that he could not be accommodated on campus because he was immunocompromised and, in his view, his attendance at campus was not a reasonable accommodation. We accept the objective evidence that his swipe access card records establish that during the same period that the Applicant was telling Ms Watson that he could not attend campus, he had been attending campus regularly and using his swipe card to access rooms in buildings on campus restricted to staff. Those records show, and we find, that he had in fact attended campus on 15 May 2020 for at least two hours, on 2 June 2020 for at least four hours, on 3 June 2020 for almost seven hours, on 12 June 2020 for almost seven hours, on 15 June 2020 for almost an hour and on 19 June 2020 for five hours.
5. Third, he contends that he was subjected to a requirement to obtain a local medical practitioner for the purposes of a physical assessment and report for the Disability Policy. We find that the University did not require him to physically attend his general practitioner or any other health practitioner. The Applicant was directed to comply with the appropriate and reasonable requirement under the Disability Policy that documentary evidence concerning his disability and functional limitations must be provided by either a medical practitioner, psychologist or other relevant professional as agreed to by the Disability Contact Officer. On the evidence, we find that no direction was ever given to the Applicant that this evidence must be provided after an in-person appointment with his general practitioner, or by making an in-person consultation with any particular medical or health practitioner, local or otherwise.
6. Fourth, he contends that he was required to see a non-treating practitioner organised by the University who would not understand his condition, would not believe his condition, or would say abusive, derogatory or demeaning comments about his condition. There is, however, no evidence that the University required Mr Hallmann to see any specific medical or health practitioner. Specifically, we find that there is no objective evidence capable of acceptance that the University required or preferred him to see a non-treating practitioner rather than a treating practitioner.
7. In our view Mr Hallmann has not established the central requirement to prove his claim of indirect discrimination. That is, he has not proved that he had to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply.
8. For the claim to succeed, the Applicant's inability to comply in this context must be some incapacity to comply, not merely an unwillingness or a preference for other outcomes. A claim that the requirement gives rise to an inconvenience, or that a person would prefer alternatives, does not satisfy this element; Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987; (2002) 123 FCR 561, 575-6.
9. In Hurst v State of Queensland [2006] FCAFC 100; (2006) 151 FCR 562 the Full Court of the Federal Court of Australia held at [134] that:

In our view, it is sufficient to satisfy [the requirement that the person "is not able to comply"] that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can "cope" with the requirement or condition. A disabled person's inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage.

1. Even if different requirements had been imposed on Mr Hallmann than were imposed on others without his disability, we find that the Applicant has not shown that these requirements were ones with which he was not able to comply. In simple language, Mr Hallmann chose not to comply with the requirement but that was not because he could not comply. Ultimately his conduct, once he had lodged the workers' compensation claim, showed that he was able to comply with the requirements. This is evidenced by the fact that he did comply quickly and this led directly to him receiving his desired office chair.
2. Even had we come to a different view, and different requirements were imposed on Mr Hallmann than others without his disability, Mr Hallman has not shown that they were unreasonable in the circumstances of this case.
3. The question of reasonableness is a question of fact. It is an objective question and not based on the Applicant's own subjective preferences. The proper approach to the question of "reasonableness" is to judge the reasonableness of the requirement or condition, not the reasonableness of the decision to require the person to comply with it; Nojin v Commonwealth of Australia [2011] FCA 1066, [85].
4. In determining whether or not indirect discrimination had occurred, the Tribunal should first consider the requirement itself - that is, independently of any alternative. The reasonableness of the condition or requirement is then to be considered with regard to the alternatives; State of Victoria v Schou [2004] VSCA 71; (2004) 8 VR 120 at [26]- [27]. The "reasonableness" of a requirement or condition will be determined by weighing all relevant factors, which will differ from case to case; Commonwealth Bank v HREOC [1997] FCA 1311; (1997) 80 FCR 78, 111.
5. It has often been accepted that the test of "reasonableness" is less demanding than one of necessity but more demanding than a test of convenience. It is an objective test, which requires the Tribunal to weigh the nature and extent of the discriminatory effect against the reasons said to favour the requirement. All of the circumstances of the case must be taken into account; Secretary, Department of Foreign Affairs and Trade v Styles and Anor [1989] FCA 342; (1989) 23 FCR 251, 263 (Bowen CJ and Gummow J); Waters v Public Transport Corporation, 395 (Dawson and Toohey JJ).
6. In other words, the test involves the Tribunal determining the reasons a Respondent was said to have insisted on the requirement or condition. Then, it must consider whether the requirement can be objectively justified as reasonable in all of the circumstances.
7. The requirement that we find the Applicant was asked to comply with was the requirement to provide the University with documentary evidence concerning his disability and the functional limitations that it involves. This was a reasonable requirement because the University believed it needed that information to ensure it purchased equipment suitable to the Applicant's particular needs and which would not cause injury or exacerbation of a pre-existing condition and to accommodate the Applicant's disability, and that belief had a reasonable basis for the reasons Ms Watson explained in her evidence.

Findings in relation to victimisation - the misrepresentation as a PhD candidate and graduate

1. The first alleged act of victimisation involved Mr Hallmann being warned about signing himself off as a doctoral candidate when he was no longer a doctoral candidate and this warning being in retaliation for him making what he calls the 20 June 2020 complaint to the Vice-Chancellor. The person alleged to have engaged in this victimisation was the University's HR Manager, Ms Farquhar.
2. The second alleged act of victimisation involved conduct related to the first allegation about signing himself off as a doctoral candidate but this time it was the levelling of a misconduct charge or warning to him in September 2020 arising out of him using the expression "post doc" in some of his researcher profile material and, thus, misrepresenting himself a successful PhD graduate who was employed by the University. Mr Hallmann alleges that bringing this charge or warning was in retaliation for him making what he calls his 20 June 2020 complaint to the Vice-Chancellor.
3. An associated alleged act of victimisation involved Mr Brendan Pearce, Manager of Industrial Relations, reviewing the decision of Ms Farquhar to partially uphold the allegation in relation to the Applicant's doctorate candidacy. He complained that Mr Pearce was not an independent decision maker and did not act in good faith in conducting the review and making findings adverse to him about him misrepresenting his qualifications.
4. As we identified earlier, the University became aware that the Applicant may have been misrepresenting his status as a PhD candidate, or indeed as even a PhD recipient, when Ms Watson forwarded an email to Ms Farquhar seeking advice in relation to assisting the Applicant with his request for an ergonomic chair. The Applicant was seeking assistance as an employee but had indicated in his email and in his email signature that he was also a PhD student.
5. Ms Farquhar gave evidence, which we accept, that she did not know Mr Hallmann personally and they have never met. When she received the email from Ms Watson she made enquiries to confirm whether the Applicant was a student, for the purposes of determining by whom the Applicant's request for a chair should be handled. She did this by sending an email enquiry to Ms Helen Walton, Manager, Graduate School, to confirm that Mr Hallmann was a PhD student, as he had represented in his email to Ms Watson in his email of 19 June 2020. The Graduate School is responsible for administering the University's PhD courses. When told he had not been a student at the University since 2011, Ms Farquhar sent an email to Ms Walton providing her with a copy of Mr Hallmann's email signature regarding his PhD candidature and expressed her view that this could be a disciplinary matter as it appeared that, in his capacity as an employee of the University, Mr Hallmann was misrepresenting himself as a current PhD candidate.
6. We find that Mr Hallmann ceased being a PhD candidate at the University in or around 2011.
7. Ms Farquhar wrote to Mr Hallmann and requested that he cease representing himself as a PhD candidate. She noted that University records indicated Mr Hallmann's PhD enrolment ceased in 2011 and his candidature was not current. He was told that the University considered that his email signature did not accurately reflect his affiliation with the University and it respectfully requested that he cease using the title of PhD candidate of Southern Cross University and was told that any further misrepresentation of his affiliation as a PhD candidate may result in disciplinary action in accordance with his obligations as a University staff member under the Code of Conduct. He replied saying that that he was a lapsed candidate who is still working towards submission of his PhD thesis and he continued to work periodically on this. Mr Hallmann also stated that 'the sign off is accurate', however he would defer to her view on this and that he did not intend to deceive. Because of that response, the University undertook an investigation as it held concerns that, given the Applicant's response, he was also misrepresenting himself in other contexts.
8. The University's enquiries discovered additional publicly available instances where Mr Hallmann had stated he was completing a PhD or even held a PhD. Ms Farquar was concerned that Mr Hallmann had been misrepresenting his affiliation with the University.
9. Ms Farquhar gave evidence, which we accept, that academic qualifications are taken very seriously in the University sector, as is misrepresenting qualifications someone might hold or progress towards those qualifications. A PhD is generally considered the highest postgraduate achievement that can be earned.
10. On 25 September 2020, the University sent a letter to Mr Hallmann outlining allegations that Mr Hallmann had consistently and inappropriately misrepresented his affiliation with the University (variously as a PhD candidate, PhD Graduate, and Post Doc) on the public record. Mr Hallmann's letter in reply responded to each allegation including where the University alleged Mr Hallmann had misrepresented his affiliation with the University. It also outlined his view that having to address these matters was motivated by the fact that he complained about the workers' compensation matter (this matter is discussed later in these reasons) and because of his email sent to the Vice-Chancellor on 20 June 2020. There was, however, no evidence at that time that this was the motivation or reason. That remains the position.
11. In January 2021, Ms Farquhar sent a letter to Mr Hallmann containing her findings in relation to the matter in which he was told that, on the balance of probabilities, it was accepted that Mr Hallmann was acting under a misapprehension that he was a current PhD student, that none of the allegations relating to Mr Hallmann representing himself as a PhD candidate were substantiated, and that the only allegation that was substantiated related to Mr Hallmann stating on his 'Academia.org' profile that he was a 'SCU Exercise Science Post Doc'. She directed Mr Hallmann to take action to amend all records which did not accurately reflect that Mr Hallmann was not a PhD candidate or hold a PhD.
12. Ms Farquhar warned Mr Hallmann that "if you do not make the amendments as required, or there are further similar breaches of the Code of Conduct, your casual contract may be terminated, effective immediately (with no notice necessary)".
13. Mr Hallmann had no right of appeal or review of the decision to issue him with a warning letter, however, he asked for one and a decision was made to give him one, in good faith, given his response to the outcome. The review was ultimately undertaken by Mr Pearce, who we find considered all the information provided in relation to the issue, as well as a further response by the Applicant outlining submissions in relation to the review. Mr Pearce found adversely to Mr Hallmann.
14. We reject the contention by Mr Hallmann that Mr Pearce determined there were insufficient grounds to change the previous findings of Ms Farquhar in her 18 January 2021 letter. Mr Pearce was satisfied that Mr Hallmann's misrepresentations were a serious breach of the University's Code of Conduct. Although he was not satisfied with Mr Hallmann's explanations for other allegations (which Ms Farquar had originally found were not substantiated), he decided that because time had passed and for other reasons no further action should be taken. That is, only the former direction and warning would stand and no further internal consideration or review of the matter or action against Mr Hallmann would take place in relation to those matters.
15. Mr Pearce's findings communicated to Mr Hallmann were as follows:

I am satisfied that the material supports the finding in response to allegation d) that you misrepresented your affiliation with SCU on the Academia.edu website profile during your employment with SCU and this misrepresentation is a serious breach of the SCU Code of Conduct.

Further, upon review of the relevant material, including your submissions, I am not satisfied with your explanation for the misrepresentations set out in allegations a), b) and c). Were I conducting the initial investigation today on the papers, I would have found each of those allegations were substantiated and consistent with a pattern of behaviour in which you misrepresented your qualifications.

To clarify, I am not satisfied you misunderstood your status as a Ph.D. candidate. In my view, in your initial response you submit on one hand that you were at all times a Ph.D. candidate but at the same time submit that you knew your candidature had lapsed. I do not consider that those submissions sit comfortably together.

I concluded that you knew were not a Ph.D. candidate but chose to maintain this representation. However, as I understand you have made efforts to cease any ongoing misrepresentations and there has now been a significant effluxion of time since the initial complaint. For those reasons, I will not make a formal finding in this regard and do not recommend any further action is taken beyond the original warning and direction of remedial action. As such, only the former direction and warning shall stand.

1. We accept that Mr Pearce was an independent decision maker and did act in good faith in conducting the review and making findings adverse to Mr Hallmann about him misrepresenting his academic qualifications.
2. We find that there is no credible evidence that Ms Farquhar, Mr Pearce, or anyone who was engaged in any of these events for the University, subjected Mr Hallmann to any detriment as a result of him having petitioned the Vice-Chancellor for assistance. We find that they were genuinely motivated and did not engage in victimisation of him.

Findings in relation to victimisation - the investigation into monetary fraud in receiving workers' compensation payments

1. The fourth alleged act of victimisation to be derived from the Points of Claim was making an allegation that he had misled the University's workers' compensation insurer, and the University conducting an investigation into whether he had committed monetary fraud in relation to receiving those workers' compensation payments to which he was not entitled or in respect of which he had already been paid by the University a fee for his services. He alleged in the original complaint that the University had suspended him and were conducting an investigation into his dealings with the insurer but that he had refused to participate in the investigation.
2. The Points of Claim do not coherently articulate what is it that he contends is the foundation for this claim or how he is seeking to show that making that allegation against him was on the ground that he had written to the Vice-Chancellor on 20 June 2020 seeking assistance with the provision of the chair.
3. As we have already found, Mr Hallmann had made a workers' compensation claim which Ms Watson was handling on behalf of the University. Ms Watson swore, and we accept, that when an employee lodges a workers' compensation claim, the University provides a 12 month pay history to EML, its workers' compensation insurer. This is so they can calculate the weekly average earnings for the person making the claim. If an employee has a claim approved, the University will develop a suitable duties plan to assist in their rehabilitation and safe return to work. For casual employees, or employees with varied weekly hours, such as Mr Hallmann, the University pays the employee for the hours worked, and the insurer then pays the difference between their normal earnings and the amount they have been paid by the University for hours worked. The employee is required to provide payslips or evidence of their earnings to the insurer so that the insurer can calculate the amount of money to be paid to the employee to 'top up' the difference. Mr Hallmann was providing statutory declarations to evidence his earnings instead of payslips.
4. When Mr Hallmann filed his workers' compensation claim in or around August 2020, he declared that he was earning $4,500 per week through multiple employers or other sources. When Mr Hallmann lodged his workers compensation claim, the University was also provided with medical certificates from his medical practitioner, Dr Bird, which set out the number of hours per week that Mr Hallmann was capable of working.
5. We find that Ms Watson tried unsuccessfully to obtain information from Mr Hallmann about how many hours he was working for other Universities so that she could ensure that the number of hours he was working for the University was safe and in accordance with the number of hours certified by Dr Bird. She sent emails to EML in relation to Mr Hallmann's claim, in which she also asked for information on how many hours on average Mr Hallmann was working for other employers, to ensure that the University was not placing him at risk. The responses from the insurer were unhelpful.
6. It was Ms Watson's understanding that Mr Hallmann was still being issued contracts in respect of students who requested him to be appointed as their tutor at this time, and the University did its best to manage the workload being given to Mr Hallmann while his workers' compensation claim was ongoing and his capacity for work remained restricted.
7. We find that in or about June 2021, Ms Watson was contacted by EML which advised that Mr Hallmann had not been claiming any hours worked for the University and asked why the University was not providing suitable duties to lower the financial impact on its premium. Ms Watson was also provided by EML with a statutory declaration made by Mr Hallmann relating to his earnings reported in 2020. When she reviewed the statutory declaration, she noticed that Mr Hallmann had said he had not worked for the University at times when she knew he had a contract for tutoring a student.
8. On 16 June 2021, Ms Watson sent an email to the supervisor of the unit where Mr Hallmann worked, to clarify whether Mr Hallmann was providing any tutoring to a student as per his casual contract because he had not claimed any hours on his timesheet or reported any hours worked to the workers' compensation insurer. She received a reply attaching two pay claim forms which Mr Hallmann had provided to his supervisor that day. One pay claim was for tutoring Mr Hallmann conducted in September 2020 and the other pay claim was for tutoring for a different student which was conducted in April 2021.
9. We find that Ms Watson then developed a concern that Mr Hallmann had not accurately reported his earnings to EML. She was concerned that this would mean that EML would be paying him an additional amount to 'top up' his wages but Mr Hallman was now seeking to be paid by the University for work hours in respect of which he had already received workers' compensation payments. She sent an email to EML and requested they confirm whether any of the hours claimed for payment from the University were declared in Mr Hallmann's weekly statutory declarations. EML then confirmed to her that Mr Hallmann had declared in his statutory declaration that he had not undertaken any hours of work for the University for the hours for which he was now claiming to be paid by the University.
10. In consequence, Ms Watson referred the issue to the University's Workplace Relations team to determine what should happen in relation to the issue.
11. On 12 July 2021 Ms Farquhar sent Mr Hallmann a letter to advise him that the University would conduct an investigation into the allegation and that he would need to participate in the investigation, and issued him with a direction not contact other University employees. Although Ms Watson was not involved in conducting the investigation, and it was not her decision to commence the investigation, she provided assistance to the University to enable its investigation to occur. After 17 August 2021, Ms Watson had no further involvement in the investigation.
12. We find that there is no evidence, either direct or circumstantial, that Ms Watson or anyone else who engaged in any of these events for the University, subjected Mr Hallmann to any detriment as a result of him petitioning the Vice-Chancellor for assistance. We find that they were genuinely motivated by a concern that Mr Hallmann had not accurately reported his earnings to EML and did not engage in victimisation of him in acting as they did.
13. Following Mr Hallmann being sent the letter by Ms Farquar, Mr Pearce became aware that Mr Hallmann had contacted the University's workers' compensation insurer and another University employee about the matter, in breach of the direction contained in Ms Farquhar's letter not do so and to maintain confidentiality.
14. On 21 July 2021, Mr Pearce engaged an external investigator to investigate the allegations regarding potential misrepresentation to the University's insurer by Mr Hallmann. The investigator was also instructed to investigate an additional allegation that Mr Hallmann had breached the direction in Ms Farquhar's letter to keep the matter confidential.
15. On 3 August 2021, Mr Pearce received a copy of the Investigation Report (the Investigation Report) from the external investigator. The Investigation Report considered statutory declarations provided to the workers' compensation insurer by Mr Hallmann and pay claims submitted by Mr Hallmann to the University and noted a range of apparent discrepancies. The Investigation Report did not make final findings as to whether the allegations were substantiated as the report was to be provided to Mr Hallmann so that he could provide information and responses to questions the investigator wished to put to him.
16. We find that Mr Pearce then determined that Mr Hallmann no longer had a casual employment contract with the University to provide tutoring. As such, he was not currently employed by the University. As he was not an employee, the University had no power to compel him to participate in an investigation or to issue him with a lawful and reasonable direction to participate. Because Mr Hallmann's employment had ended, and he refused to participate in the investigation, the University decided to discontinue the investigation.
17. We find that Mr Pearce, representing the University, determined that the allegations were sufficiently serious to warrant an investigation. The decision was based on serious and genuine concerns that the allegations, if substantiated, amounted to a serious breach of the University's Code of Conduct. We find that there is no evidence, either direct or circumstantial, that the University subjected him to any detriment in relation to the engagement of the external investigator to investigate the allegations as a result of him having petitioned the Vice-Chancellor for assistance. We find that Mr Pearce and Ms Farquhar, as representatives of the University, were genuinely motivated by concerns as to whether there had been a serious breach of the University's Code of Conduct and did not engage in victimisation of him in acting as they did, either in response to his email to the Vice-Chancellor or for any other reason.

1. In relation to each of these alleged acts of victimisation, the University submits that, apart from any other basis it has to resist the claims, the detriment required to be shown must be real and substantial detriment, and that it did not subject Mr Hallmann to any real and substantial, or other than trivial, detriment. It submits that because the outcome from the investigation into his misrepresentation of his affiliation as a PhD candidate was that he was only asked not to suggest he was a PhD candidate and that, although the subject of allegations, he was not suspended and there was no penalty for his conduct but merely given a warning not to do something he should not have been doing in the first place, that he was not subjected to any real or substantial detriment.
2. The Respondent submits that the findings of Mr Pearce are in a similar category - that is, Mr Hallmann was merely given a warning. It submits that the findings which resulted in his suspension, although conceded as detriment, was not of substance because he no longer worked for the University and the suspension was therefore moot.
3. We were not referred by the Respondent to any authority on this issue of whether this was real and substantial, or other than trivial, detriment.
4. We accept that detriment in this context can mean loss, damage or injury to the person but that it must be real, and not trivial, and be something that a reasonable person would consider to be a detriment. In our view, conducting an investigation into a person in respect of which that person is subjected to adverse allegations, and is called on to justify, explain or provide an excuse for their conduct, irrespective of the outcome of that investigation, is capable of being a detriment which is other than trivial. We accept that it can be stressful, time consuming, and disruptive to a person's health and welfare, to be subjected to such investigations, and even the fact that an investigation has been commissioned may affect a person's reputation. In our view, the nature, subject matter, duration, and outcomes, of the investigations in this case, and the review of the findings of one of them, was to subject Mr Hallmann to detriment.
5. We have determined, however, that because of the other findings we have made - that is, that no victimisation occurred because the conduct was not engaged in on any of the grounds contemplated by s 50 of the AD Act - it is not necessary for us to finally resolve the issue of whether the detriment was real and substantial.

Disposition in relation to the Applicant's complaints of discrimination and victimisation

1. On the basis of the evidence before us, and the findings we have made, the Applicant's complaints of discrimination and victimisation have not been established.
2. Orders:

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.