The circumstances of the dismissal process
101 There is no doubt that Professor Gardner was well aware that Professor Hayward harboured animosity towards Professor Bessant. Professor Hayward's memorandum dated 18 March 2010 (see [45]-[46] above) made Professor Gardner well aware that Professor Hayward was keen to have Professor Bessant removed from the School. Although she regarded it as inappropriate that she should be called upon to deal with an issue of the kind raised by the memorandum, Professor Gardner did not say that she put it out of her mind when she came to make her subsequent decisions. Nor did she have any discussion with Professor Hayward about the inappropriateness of his approach. She spoke only to Professor Fudge, to tell him that she did not want to see a memorandum like that of 18 March 2010 on her desk again.
102 In April 2010, Professor Bessant met with Professor Gardner and gave an account of her complaints to that date, including complaints about intimidatory, authoritarian and bullying behaviour by Professor Hayward. According to Professor Bessant's evidence, Professor Gardner said that she would speak to Professor Fudge about these matters. Professor Gardner gave evidence about this meeting, to the effect that Professor Bessant was unhappy with the way she was being treated and with decisions being made in the School. Professor Gardner then sent an email to Professor Fudge, inviting him to meet with her about those issues. This was probably the beginning of the process leading to Professor Fudge's institution of new working arrangements for Professor Bessant (see [48] above).
103 In relation to one or more of her complaints of bullying by Professor Hayward, Professor Bessant made a request for the production to her of certain documents, pursuant to freedom of information legislation. The relevant officer of RMIT raised this request with Professor Gardner, concerning the seeking of an exemption from disclosure. If she had not already been aware that Professor Bessant had made complaints of bullying, Professor Gardner certainly became aware of them in this process.
104 Of course, knowledge of the existence of the matters that are alleged to have been reasons for the dismissal is not of itself sufficient to establish that those matters were taken into account in making the decision. The existence of such knowledge merely indicates the possibility that such matters were reasons for the decision. In the present case, there are other circumstances that lend support to the proposition that the matters alleged in the statement of claim were among the reasons for the decision to dismiss Professor Bessant. One such circumstance is the absence of any clear reasoning in linking the financial deficit in the Youth Work discipline with the choice to make Professor Bessant's position redundant, in any of the documents by which Professor Gardner's approval was sought as part of the process.
105 In his memorandum of 2 March 2011 (see [54]-[55] above), Professor Hayward expressed the case in support of the proposition that the Youth Work discipline was expected to incur a significant financial deficit during the year 2011. The calculations are in attachment 2 to the memorandum, and in the document that was designated as "not to be attached to the Business Case". The calculation was by taking the figure for "Income" and deducting from it the "Contribution margin/overhead", leaving a figure described as "Expenditure Target". There is then an item called "Expenditure". The difference between the Expenditure Target and the Expenditure is the deficit, which is said to be a budget forecast for 2011. I have already described the five options specified in this document and the "Preferred staffing estbalishment [sic] Option 1" (see [55] above). It is clear that, although the adoption of the proposed option 1, the removal of Professor Bessant and Dr Edwards, would give rise to a greater reduction of the deficit than any other option, it would still result in the Youth Work discipline running a deficit. Self-evidently, for the year 2011, the deficit would be much greater than the figure of $91,084 shown in the Options Table. Part of the year 2011 had already elapsed. Part of the expenditure on salaries and on-costs for the five members of the staff of Youth Work for that year had already been incurred. A good deal of time, and the expenditure of money, were needed to process redundancies. Nowhere in the document, or in the memorandum to which it is apparently mistakenly attached, is there any statement of the appropriate level to which the Youth Work discipline should be permitted to run at a deficit. Given that some subsidisation from elsewhere was to occur (as it did with other disciplines, which were subsidised by those disciplines that achieved surpluses), there is no statement as to the level of subsidy that would be appropriate. Viewed strictly in financial terms, a decision to dispense with at least two members of staff in the Youth Work discipline was to be made without any calculation of a desirable end point to be achieved.
106 In the memorandum of 2 March 2011, Professor Hayward did include what might be said to be criteria for the selection of those who were to be made redundant. The memorandum said:
The following criteria may apply for selection of the applicants for potential redundancies :
• Academic Level B to E positions to be available for this process;
• the level of practice based skills and knowledge relevant to Youth Work;
• ability to teach practice skills and supervise work integrated learning placements in Youth Work
Self nominations will not automatically be accepted. The School retains the right of veto. The School will not necessarily accept any applications if the interests of the School and program would be thereby compromised rather than improved.
107 These criteria are vague. If the choice of option 1 in the attached document as the preferred staffing establishment had already been made, it is difficult to see how these criteria had been applied without staff having been given any opportunity to demonstrate how the criteria might have been applied to them. In the event, as there was no expressions of interest in voluntary redundancies, no occasion for choice of staff arose under the voluntary redundancy proposal.
108 I have referred in [65]-[69] above to the memorandum of Professor Hayward dated 28 June 2011, which was approved by Professor Gardner on 30 June 2011. That memorandum is entirely devoid of any reasoning that would support the choice of Professor Bessant's position as one of the two to be made redundant. As was the case with the memorandum of 2 March 2011, there is no statement, or calculation, of any desired or desirable amount by which the deficit in the Youth Work program was to be reduced. There is no attempt to quantify the extent to which subsidisation of that program from any source other than its own student income would be tolerated. In her evidence, Professor Gardner was dismissive of the notion that any such reasoning was required. She adhered to the proposition that, once it was apparent that the Youth Work program was incurring a substantial deficit, the choice of the level E position for redundancy was obvious.
109 I do not accept this proposition. More importantly, nor did the Redundancy Review Committee accept it. One of the defects in the process to which the Redundancy Review Committee drew attention was the absence of any criteria by reference to which Professor Bessant's position was chosen. It is highly likely in any university that a professor will be a more valuable asset to the university than will a lower level academic. It is precisely because ordinarily a professor will have one or more of a number of desirable qualities to a greater extent than a lower level academic that he or she will be paid more than the lower level academic. Those qualities will include such things as experience, research skills, teaching ability, administrative capacity, knowledge, breadth of vision and prestige. In determining the makeup of the staff profile for any university discipline, the cost of employing people at different levels will inevitably be only one factor. This reality was recognised to a limited extent in the memorandum dated 2 March 2011, by the inclusion of the brief and vague criteria to which I have referred in [54]. Those criteria were entirely absent from the memorandum of 28 June 2011. Even in financial terms, there was no expressed process by which Professor Hayward moved from the proposition that there was a substantial deficit in the Youth Work program to the proposition that Professor Bessant should be dismissed. Professor Gardner's evidence did not disclose such a chain of reasoning; she disputed the need for such reasoning at all.
110 One of the most disturbing aspects of this case is the absence of any contemporaneous account of the reasons of Professor Gardner for deciding that Professor Bessant should be made redundant. Professor Gardner justified this absence by saying that she is called upon to make many decisions every day and did not have time to record her reasons for all of them. This is undoubtedly the case, but the decision to make a professor redundant is not an every-day one and does differ from the ordinary run of administrative decisions within a university. The impact of the legislative provisions set out in [10]-[13] above is to give the recording of reasons for a decision to dismiss a person from employment a very high priority. Anyone with a background in the discipline of industrial relations, which Professor Gardner had, would understand the importance of recording reasons for dismissal. No such reasons were recorded. Professor Gardner did say that she had a discussion with Ms Gough in relation to the memorandum of 28 June 2011, and communicated her reasons to Ms Gough. Professor Gardner was not asked to give, and did not give, any evidence as to the content of any such conversation. Ms Gough was not called to give evidence at all. If the reasons given to Ms Gough were above-board, it is likely that evidence of the expression of them, at the time of the making of the decision to approve the memorandum of 28 June 2011, would have been given. The absence of such evidence suggests that the actual reasons given in the conversation would not have helped RMIT's case.
111 It was not until 28 October 2011 that there was any expression of reasons for the decision to make Professor Bessant redundant. That expression of reasons came not from Professor Gardner, but from Ms Gough. She wrote the letter of 28 October 2011, referred to in [74] above. In that letter, Ms Gough purported to confirm "that the job performed by you is no longer required to be performed by anyone." This was not a determination that Professor Gardner had ever made. Indeed, in her evidence, Professor Gardner rejected strongly any suggestion that she was obliged to consider what Professor Bessant was actually doing at RMIT at the time. As a result of the outcome of the Issues Resolution Committee process, the Settlement and Release Agreement of 29 April 2011 took Professor Bessant away from teaching duties in the Youth Work program (or anywhere else), and committed her to doing research only. Professor Gardner accepted that Professor Bessant's research was not limited to the field of Youth Work. She would not accept, however, that Professor Bessant should be regarded as having been placed in a different position from the one that was apparently being made redundant. Professor Gardner was clearly dissatisfied with the outcome of the Issues Resolution Committee process. She did not think that the Settlement and Release Agreement fitted with the strategic direction of RMIT. She dismissed that agreement as nothing more than an agreement in relation to Professor Bessant's work plan. She said that every academic had a work plan and that work plans could be changed from time to time. She ignored the fact that the Settlement and Release Agreement limited Professor Bessant's work to research work for a period of three years.
112 Rather than deciding that RMIT no longer wished the work actually being done by Professor Bessant to be done by anyone (which would have been a somewhat remarkable decision, given the importance of research to a university), both Professor Hayward and Professor Gardner maintained strongly that Professor Bessant's salary was irrevocably attached to the budget of the Youth Work discipline. The salary was dependent upon the income from students enrolled in that discipline, notwithstanding that Professor Bessant no longer had anything at all to do with teaching in that discipline. The irrevocable attachment of the salary to the particular budget line was said to exist despite the fact that Professor Hayward had moved into that budget line the 50% of Professor Bessant's salary that had previously come from another budget line. He had done so without any notice to Professor Bessant. He assented readily to the proposition that he could move half of Professor Bessant's salary into the Youth Work discipline, but maintained that he could not move any of it out of that discipline when the nature of her work changed, without any acknowledgement of the curious nature of such a proposition. Professor Gardner was well aware that some disciplines within the university were subsidised by others. She was also well aware that, in the year 2011, RMIT had a comfortable budget surplus, in the region of $53,000,000. Despite this, she was also resistant to the proposition that another source for Professor Bessant's salary within RMIT could have been found, and that finding such another source would have reduced the deficit in the Youth Work discipline without any need to make any position redundant. She described such a move as "the path to ruin". I have no difficulty accepting that excessive subsidisation of loss-making disciplines by those that manage to achieve surpluses would have financial consequences that were undesirable. I do not accept, however, that it was not possible for RMIT to meet Professor Bessant's salary, in order to avoid dismissing her on the ground of redundancy, when the reality was that she was no longer involved in any capacity in the discipline to the budget of which her salary was said to be tied.
113 By entering into the Settlement and Release Agreement of 29 April 2011, RMIT was making a change to what Professor Bessant was employed to do. She had already been removed as the discipline leader for the Youth Work discipline. By the Settlement and Release Agreement, she was removed from teaching responsibilities in that discipline and was given a research-only position, with additional funding to support it, which was not limited to research in the Youth Work discipline. If the question whether RMIT no longer wished the work being done by Professor Bessant in June 2011 to be done by anybody had ever been addressed by any decision-maker, it is difficult to see how the answer could have been that Professor Bessant was to be made redundant by the application of that test. When Ms Gough purported to confirm in her letter dated 28 October 2011 to Professor Bessant that the job performed by Professor Bessant was no longer required to be performed by anyone, she was stating a falsity.
114 Nor are the three paragraphs of reasons that Ms Gough set out in the letter of 28 October 2011 consistent with any other evidence as to reasons. The first of those reasons referred to "the falling student enrolments and the current financial difficulties". Falling student numbers had not been referred to as a reason for the redundancy previously. Indeed, Professor Hayward's memorandum of 28 June 2011 referred to the level of student demand as having been "steady over recent years." In her evidence, Professor Gardner did not claim to have relied on falling student numbers as a justification for her decision. Nor was it correct to say, as Ms Gough said in the third of the reasons advanced in her letter of 28 October 2011, that RMIT had considered Professor Bessant's teaching, research and leadership skills and experience and that of other relevant academics. The absence of any criteria relevant to those matters, applied in the selection of Professor Bessant for redundancy, was identified by the Redundancy Review Committee. Professor Gardner had certainly not applied any such criteria.
115 Indeed, in her evidence, Professor Gardner rejected the proposition that she had applied the criteria that were finally drafted in the context of conciliation in Fair Work Australia, and were specified in the draft agreement attached to the letter of 23 September 2011 (see [72] above). The draft agreement specified the criteria that were said to have been used to determine the staffing requirement of the Youth Work program. As well as the financial structure, those criteria referred to qualifications, teaching and other experience in relevant areas, experience as a program director or equivalent or a senior role in field work delivery, and a relevant research profile. According to his evidence, Professor Hayward certainly did not rely on this range of criteria. They are not reflected in the brief and vague criteria in his memorandum of 2 March 2011. They are nowhere to be seen in his memorandum of 28 June 2011. Nor do they match the supposed reasons given by Ms Gough in her letter of 28 October 2011. The criteria presented to Deputy President Hamilton with the letter dated 23 September 2011 appear to have been created by somebody to answer the obvious criticism that there had been no criteria applied in the choice of the position of Professor Bessant as the one to be made redundant. If there had been criteria of the kind specified in September 2011, there is every reason to suppose that Professor Bessant would have fared well if judged honestly by reference to them.
116 The last chapter in the quest for actual reasons for the decision to dismiss Professor Bessant from her employment by reason of redundancy is Professor Gardner's letter to Professor Bessant dated 19 March 2012. This is the only occasion on which Professor Gardner herself expressed any reasons for any of the decisions involved in the process. For this reason, I have set out the full text of the letter in [88] above. An examination of that letter shows that Professor Gardner was forced to deal with issues that did not involve finances only. It must be said, however, that she attempted to bring back every issue she did discuss to the question of finances. She was forced to deal with the issue of the absence of criteria. It is instructive to examine how she did so. In the first place, she made it quite clear that the criteria that had been advanced as a result of the conciliation process in Fair Work Australia had not ever been used to determine that Professor Bessant's position was the one to be made redundant. Professor Gardner was driven to relying on a criterion that did not relate to finance when she asserted that someone other than Professor Bessant was capable of leading the Youth Work program. She rejected the proposition that the criteria ought to have included matters related to the development of post-graduate programs, supervision of graduate students, mentoring of academic staff or the development of the discipline of Youth Work. She purported to endorse the decision of Professor Hayward that Youth Work should have a "practice-based" focus (a reference to the brief and vague criteria set out in his memorandum of 2 March 2011, which were not repeated in his memorandum of 28 June 2011). Professor Gardner rejected the proposition that the Settlement and Release Agreement of 29 April 2011 provided Professor Bessant with immunity from redundancy, without looking at any other effect that that agreement might have had on the position. In other words, she continued to ignore the reality of the position in which Professor Bessant had been placed by that agreement. She also ignored Professor Bessant's appeal to the spirit of that agreement.
117 In a number of respects, this letter is unsatisfying as an explanation of Professor Gardner's reasons. It did not fill the gap between the proposition that there was a compelling financial imperative to effect significant savings in the Youth Work budget and the proposition that Professor Bessant's position had to go. It did not deal at all with the question whether, given the role that she was by then performing, Professor Bessant could have her salary attributed to some budget line within RMIT other than the budget line for the Youth Work program. It did not confront squarely the question of selection criteria, in the event that it had been determined that a redundancy or redundancies were necessary. This is somewhat surprising in light of the Redundancy Review Committee's recognition of the essential lack of fairness in the way in which Professor Bessant was chosen.
118 It is also worth mentioning that the Redundancy Review Committee also provided a report in relation to the decision to make Dr Edwards redundant. After reviewing her decision in relation to Dr Edwards, Professor Gardner decided to reverse it. This decision makes it abundantly clear that there was no pursuit of an optimal level of savings, and no determination of an optimal level of subsidisation of Youth Work. Professor Hayward's original preferred option of making both Professor Bessant and Dr Edwards redundant, ostensibly for financial reasons, was not adopted in the end. It was only Professor Bessant who was made redundant.
119 The lack of a clear and cogent process of reasoning, leading to the conclusion that Professor Bessant needed to be made redundant, at any stage of the lengthy and detailed process, is a major factor pointing to the conclusion that there may well have been reasons other than those that were expressed for the making of that decision. Before determining whether this conclusion is valid, it is necessary to examine a couple of other issues.
120 A significant factor in this case is the manner in which Professor Gardner acted in relation to the process that led to the dismissal of Professor Bessant. As I have already found, Professor Gardner was well aware that Professor Hayward wished to have Professor Bessant dismissed from her employment for reasons that were entirely unconnected with the financial difficulties faced by the Youth Work discipline. The personal nature of the conflict between Professor Hayward and Professor Bessant, which included the complaints Professor Bessant had made about Professor Hayward, was well-known to Professor Gardner at least from her receipt of Professor Hayward's memorandum of 18 March 2010 (see [45]-[46] above). In such circumstances, on receiving Professor Hayward's memorandum of 2 March 2011 (which was clearly directed to securing the ultimate removal of Professor Bessant) and his memorandum of 28 June 2011 (which sought her approval of the removal of Professor Bessant), it might have been expected that Professor Gardner would take steps to ensure that the "business case" that was being made was not designed to conceal an ulterior motive on the part of Professor Hayward. Professor Gardner did no such thing. In each case, she signified her approval of the proposal for voluntary redundancies, and of the subsequent proposal for the redundancy of Professor Bessant, swiftly. In relation to the second proposal, she did not undertake anything like the examination of the documents which she said she undertook following the receipt of the Redundancy Review Committee's report. In justification of her failure to investigate whether Professor Hayward was hiding his true motives behind the "business case", Professor Gardner gave evidence that she was concerned only with the question whether the financial case stood up in its own terms. In other words, on her own evidence, Professor Gardner was not concerned with the possibility that Professor Hayward was using the financial case as a pretext to seek the dismissal of Professor Bessant for reasons of his own. Professor Gardner's approach was not that of the impartial decision-maker.
121 Professor Gardner's reaction to the report of the Redundancy Review Committee is also significant. Her evidence is that she was surprised by the findings of the committee. This was the first occasion on which a Redundancy Review Committee had made findings critical of one of Professor Gardner's decisions in relation to the redundancy of an employee. Despite the finding of the Redundancy Review Committee that the process in relation to Professor Bessant had been unfair, Professor Gardner did not see any need to have the process conducted again. Although she spent some time in Indonesia following her receipt of the report, she did not consider delegating the decision to anybody else. There is no doubt that she could have done so. Clause 3.14 of the Enterprise Agreement defines "Vice-Chancellor" to mean the Vice-Chancellor of RMIT or her or his nominee. Her evidence indicates that Professor Gardner did not wish the ultimate decision on Professor Bessant's case to fall into the hands of anybody else.
122 Professor Gardner's approach to the issues raised by the report of the Redundancy Review Committee was to reject its findings. Both her evidence and her letter of 8 November 2011 (see [76] above) made clear her determination that there should be no criteria for the selection of the appropriate person or persons to be made redundant. She rejected unequivocally the proposition that the reality of Professor Bessant's position, following the Settlement and Release Agreement of 29 April 2011, should have been taken into account. Professor Gardner made it clear that she did not like the terms of that agreement. As far as she was concerned, it did not fit within the strategic plan of RMIT. She characterised the agreement as nothing more than a work plan for Professor Bessant, which could be altered at any time, notwithstanding the three-year duration of the agreement. It appeared that Professor Gardner was determined to keep the focus on the narrow issue of the financial case, because a widening of the considerations might have made it obvious that her original decision to make Professor Bessant redundant should not have been made.
123 Professor Gardner's letter to Professor Bessant of 16 February 2012 (see [81] above) is also revealing. The choice of a partial, instead of a total, reopening of the process, with Professor Gardner retaining control of it and seeking to limit the matters on which Professor Bessant would make submissions to her, suggests that Professor Gardner was committed to making Professor Bessant redundant. She was attempting to put out of her way the issues raised by the Redundancy Review Committee, without having to consider their substance, because a proper process might have resulted in a different decision.
124 Professor Gardner's approach to the processes involved in making Professor Bessant redundant suggests that she was setting out to achieve a pre-determined result and would not allow herself to be diverted by anything that might prevent that result from being achieved.
125 The final question to be determined is whether Professor Gardner was in truth the sole decision-maker in relation to the redundancy of Professor Bessant. The case put by counsel for the NTEU and Professor Bessant was that Professor Gardner was doing no more than rubber-stamping the recommendations of Professor Hayward in his memoranda of 2 March 2011 and 28 June 2011. The argument was that Professor Gardner's mind was therefore tainted by whatever unexpressed reasons Professor Hayward had. This case is not so simple, however. It is clear from the evidence that Professor Gardner had her own views about the financial issues raised by Professor Hayward and that she acted on those views. It happened that those views coincided with the views expressed by Professor Hayward in his memoranda, but it does not follow that Professor Gardner was merely rubber-stamping Professor Hayward's views. Further, following the receipt of the Redundancy Review Committee report, Professor Gardner had more issues to deal with. If she had not made her own decision up to that time, she certainly did so before the final determination that Professor Bessant's redundancy was to proceed.
126 Of greater significance are the roles of Professor de la Harpe (as the substitute for Professor Fudge) and Ms Gough. In her evidence in relation to the memorandum of 2 March 2011, Professor Gardner did not advert to the fact that Professor Fudge had not signed the memorandum himself. Her evidence was directed to explaining how what she assumed to have been the signature of Professor Fudge, and the signature of Ms Gough, came to be on the document, preceding her own signed approval. She said:
There's a standard industrial process and a process that's followed inside the university in which the case has to be examined, it has - you know, financials have to be done which usually involves the finances group. It has to be worked out in the school. It has to come through the college and the college itself has, with the Pro-Vice-Chancellor, a planning and resources manager who's usually also looking at it. It has to go through the director of human resources. That's to, you know, ensure that it is actually appropriately within human resources policy and then it comes to me.
Professor Gardner explained that Ms Warrender was not required to sign herself. Her function was to advise the Pro Vice-Chancellor, who would consult her. As to Ms Warrender, Professor Gardner said she did not sign "because she's not the decision-maker. She's the adviser." She then said of Professor Fudge:
he is the decision-maker because if he doesn't endorse it, it can't - it won't come to me.
...so the head of school has to have the endorsement of the Pro-Vice-Chancellor.
Professor Gardner also accepted the proposition that if the Executive Director, Human Resources did not sign the document, it would not come to her either.
127 In relation to the memorandum of 28 June 2011, the evidence was not as detailed, but Professor Gardner did assent to the proposition that the memorandum did "come to you in the same way as you indicated before?" That memorandum was also signed by Professor de la Harpe, who was deputising for Professor Fudge at the time.
128 The evidence makes it very clear that Professor Gardner took no step to investigate the reasons why Professor de la Harpe and Ms Gough signed the memoranda in question. She relied entirely on them. In those circumstances, whatever reasons Professor de la Harpe and Ms Gough had for making their decisions that were an essential part of the process leading to the ultimate decision to make Professor Bessant redundant are reasons of RMIT for that ultimate decision. This follows from the proposition that, without Professor de la Harpe and Ms Gough deciding to keep each memorandum on its path to Professor Gardner, no ultimate decision could be made.
129 Professor de la Harpe and Ms Gough did not give evidence. There is no evidence as to what their reasons for making those decisions were. Professor de la Harpe's signature on the memorandum dated 2 March 2011 is not accompanied by any date. Given that the memorandum is dated 2 March 2011, and Ms Gough's signature is dated 9 March 2011, it is possible that Professor de la Harpe, as Professor Fudge's deputy, had significant consultations with Ms Warrender as Professor Gardner said the process required (see [126] above). The passage of the memorandum dated 28 June 2011 was much swifter. On the same day as it was dated, Professor de la Harpe and Ms Gough both signed it. This is not indicative of lengthy consideration by either of them. It is true that the memorandum of 28 June 2011 has information in the footer on the first page, suggesting that comments from Ms Warrender had already been incorporated into it. It may be that additional consultation by Professor de la Harpe with Ms Warrender was unnecessary. The speed with which the memorandum was dealt with gives rise to disquiet about the seriousness with which the matter was treated.
130 So far as reasons of Ms Gough are concerned, it might be said that they are contained in her letter dated 28 October 2011 (see [74] above). I have already commented on the differences between these reasons and those advanced by Professor Gardner, and on the inconsistency of Ms Gough's reasons with what actually occurred. One further aspect of the letter of 28 October 2011 is worthy of attention. It is the disclaimer. Ms Gough asserted that the decision "is in no way a consequence of any actions taken or complaints made against the University by you in relation to alleged bullying, discrimination, injury or inappropriate conduct in relation to your workplace or other rights." On the one hand, this disclaimer might give comfort that Ms Gough was not motivated by the reasons alleged in the statement of claim, to the extent that she made her decision. On the other hand, the disclaimer might give rise to disquiet about the process. It demonstrates that, at least in the mind of Ms Gough, the fact that Professor Bessant had made various complaints in the exercise of her workplace rights was something that might have been regarded as having a connection with the decision to make her redundant. If all of the deciding minds involved in the process of making Professor Bessant redundant had been free of reasons that would have been unlawful by virtue of s 340(1)(a) of the Fair Work Act, if they had been operative reasons, there would have been no need to protest innocence. It may be that, in the course of the process leading to the ultimate decision to make Professor Bessant redundant, Ms Gough had discovered that Professor de la Harpe or Professor Gardner did have in mind the workplace rights of Professor Bessant. Knowing that a decision based in part on those workplace rights would have been in contravention of s 340(1)(a) of the Fair Work Act, Ms Gough may have thought it necessary to act to reassure Professor Bessant that this was not the case. These suggestions are merely speculation, however, because Ms Gough was not called to give evidence. She did not therefore substantiate the proposition that the letter did set out her own, or anybody else's reasons. Certainly, she did not provide evidence that her own mind, the mind of Professor Gardner, or the mind of Professor de la Harpe was free of any consideration of the workplace rights of Professor Bessant as operative reasons for the decision.
131 My conclusion that RMIT has not satisfied the onus of proving that the reasons alleged in the statement of claim were not among the reasons for the dismissal of Professor Bessant is based not only on the failure of Professor Gardner to give explicit evidence that none of those reasons was operative in her decision. My conclusion is based in part on the fact that Professor Gardner's own evidence contains indications that she had reasons other than those to which she referred explicitly. It is based on the absence of any clear expression of a connection between the financial deficit in the Youth Work discipline and the choice of Professor Bessant as the one who should be made redundant. This includes the absence of the expression, or the application, of any criteria by reference to which the making of that choice occurred. My conclusion is based in part on the refusal of Professor Gardner to confront the reality of the position Professor Bessant was occupying as a result of the Settlement and Release Agreement of 29 April 2011 and the unconvincing insistence, that although her connections with the Youth Work discipline had been severed, her salary was irrevocably attached to the budget of that discipline. It is based in part on the apparent determination of Professor Gardner to ignore her knowledge of Professor Hayward's animosity towards Professor Bessant, which was based on Professor Hayward's views as to Professor Bessant's conduct, which included the making of various complaints against him, and to attempt to confine herself to the financial case. It is based in part on Professor Gardner's apparent determination to retain control of the process and to minimise the impact of the defects in that process to which the report of the Redundancy Review Committee drew attention, so that she could ensure that her own decision prevailed. Finally, it is based in part on the fact that Professor Gardner's decisions would not have been made without decisions on the part of each of Professor de la Harpe and Ms Gough to forward to Professor Gardner the memorandum of 28 June 2011, without which Professor Gardner would not have been called upon to make any decision at all. The failure to call either Professor de la Harpe or Ms Gough to give evidence means that RMIT has failed to demonstrate that their decisions, which were an essential part of the decision to make Professor Bessant redundant, were not made because of the reasons alleged in the statement of claim.
132 The decision to dismiss Professor Bessant from her employment was therefore made in contravention of s 340(1)(a) of the Fair Work Act. The dismissal amounted to adverse action, which was taken because Professor Bessant had, and had exercised, and proposed to exercise, workplace rights.