Parry v University of South Australia - [2022] FCA 49 - FCA 2022 case summary — Zoe

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Parry v University of South Australia

[2022] FCA 49

Federal Court of Australia|2022-02-03|Before: Charlesworth J

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Source facts

Court

Federal Court of Australia

Decision date

2022-02-03

Before

Charlesworth J

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

The application is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

CHARLESWORTH J 1 Christopher Parry was dismissed from his employment with the University of South Australia on 8 October 2019. He claims that he was dismissed because he had, or had exercised, a workplace right described as "a workplace right (an OH&S right) to take reasonable care to protect my own health and safety at work". Mr Parry alleges that his dismissal was an adverse action taken in contravention of s 340 of the Fair Work Act 2009 (Cth) (FW Act). He seeks an award of damages in the amount of $6 million, and other remedies. 2 The University does not dispute that the dismissal of Mr Parry from his employment was an "adverse action" as defined in the FW Act. At least on its pleaded case, it does not dispute that Mr Parry had a right to take reasonable care to protect his own health and safety at work and to make complaints or enquiries concerning his workplace safety. The University denies that it dismissed Mr Parry because he possessed or exercised any such rights. 3 I am satisfied that Mr Parry possessed workplace rights of the kind alleged by him prior to his dismissal, and that he had exercised those rights in the limited ways specified in these reasons. However, bearing in mind that the University bears the onus of proof on the question, I am not satisfied that Mr Parry was dismissed either because of his enjoyment of the relevant rights, or because of his exercise of them. On the material before me, I have concluded that Mr Parry was dismissed because of his failure or refusal to perform a task that the University perceived to be integral to his role. It is not disputed that Mr Parry did not perform the task. I have concluded that his failure or refusal to perform the task was not explained by or caused by his exercise of the workplace rights upon which this claim is based. I have concluded that the University's reasons for dismissing Mr Parry did not include any unlawful reason alleged in this proceeding. Given the narrow scope of the dispute, it is unnecessary to determine whether the dismissal of Mr Parry was otherwise in accordance with the law.

[3]

The Fair Work Act 4 Part 3.1 of the FW Act is titled "General protections". 5 Section 340(1) provides: (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. 6 Dismissal from employment constitutes "adverse action": FW Act, s 342(1), item 1. 7 For the purposes of Pt 3.1, a person takes action for a particular reason if the reasons for the action include that reason: FW Act, s 360. A reason will not be proscribed unless it is a "substantial and operative" reason in the employer's reason for (in this case) dismissing the employee: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500, Gummow and Hayne JJ (at [104]). 8 The expression "workplace right" is defined in s 341(1) of the FW Act as follows: Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee - in relation to his or her employment. 9 Section 361 of the FW Act provides: 361 Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 10 As Mason J said of the statutory predecessor to s 361, the purpose of the provision is to cast upon the respondent employer the onus of proving "that which lies peculiarly within his own knowledge": General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605 (at 617). 11 In Barclay, the High Court considered the application of Pt 3.1 of the FW Act in the context of an alleged contravention of s 346. It prohibits the taking of adverse action against an employee "because" the employee is a member of an industrial association or has engaged in industrial activity. French CJ and Crennan J said: 44 … The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains 'why was the adverse action taken?' 45 This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. … (footnotes omitted) 12 The onus cast by s 361 is to be discharged on the balance of probabilities in light of the established evidence: Barclay (at [62]). 13 In Tattsbet Ltd v Morrow (2015) 233 FCR 46, the Full Court approved of several first instance judgments of this Court in which it had been "treated as uncontroversial that the party making an allegation that adverse action was taken 'because' of a particular circumstance needs to establish the existence of the circumstance as an objective fact": Jessup J (at [119]), Allsop CJ and White J agreeing (at [1] and [140]). 14 The Court must have regard to the circumstances advanced by Mr Parry as being the reason (or at least a reason among others) for his termination. That is, the case be disproved by the University. The University does not have a more generalised onus to disprove that it contravened s 340 of the FW Act in ways not alleged by him. 15 Section 340 of the FW Act is a civil remedy provision: FW Act, s 539, item 11. This Court may make any order it considers appropriate if satisfied that a person has contravened, or proposes to contravene a civil remedy provision. The Court may, on application, order a person to pay a pecuniary penalty that it considers appropriate if it is satisfied that the person has contravened a civil penalty provision: FW Act, s 546.

[4]

This application 16 It is helpful at this stage to set out some uncontroversial facts. 17 The School of Health Sciences within the University provides education and training at a tertiary level to students in allied health and related fields of study. For teaching purposes, it keeps human cadavers and body parts principally for the demonstration of anatomy. They may be referred to as "Specimens". 18 There are two "wet laboratories" on separate floors within the anatomy division of the School for the demonstration of anatomy to students. The wet laboratories are closed hygienic spaces kept at a temperature of 16 degrees or lower and are conducted pursuant to a licence issued by the government agency SA Health. The School obtains advice from the School of Microbiology in relation to the care and maintenance of the Specimens. The temperature in the laboratory and associated spaces is externally monitored, usually resulting in a security alert if the temperature rises. 19 The Specimens were stored in rooms adjacent to each wet laboratory known as "wet rooms". To avoid confusion, I will refer each wet room as a specimen storage room. Access to each specimen storage room was limited to personnel who carried an electronic access card. Such access was monitored by facilities personnel situated elsewhere within the University. 20 In January 2019, the air conditioning in a specimen storage room failed during a heatwave. Temperatures rose to 21 degrees for a day, resulting in a yeast infection affecting the Specimens then in the University's possession and the destruction of the entire collection. Replacement Specimens were acquired in April 2019 from the University of Adelaide, where they had been embalmed. 21 Following that incident, changes were made to a Procedural Manual which specified the tasks to be undertaken by staff in the laboratories and the manner and frequency of their performance. Among the newly introduced procedures was a requirement of monthly swabbing of the Specimens to check for bacteria or other infection. At the time of Mr Parry's employment, that monthly task was allocated to his colleague Ms Candice Grubb. 22 Mr Parry was employed by the University under a series of short-term casual employment contracts from 7 May 2019. Were it not for his dismissal, the latest of Mr Parry's casual employment contracts would have expired on 3 March 2020. He was employed in the position of "Technical Officer" to provide laboratory support within the School at a rate of $41.97 per hour. The employment agreement provided that either party may terminate the contract by giving not less than twenty-four hours' notice to the other or, in the case of the University, payment in lieu of such notice. 23 Mr Parry's position was not advertised. Prior to his employment, Dr Nicola Massy-Westropp had met him on two occasions and had become aware of work he had done at Flinders University preparing and preserving animal bones. Mr Parry underwent training specific to the wet laboratories, delivered partly by Ms Grubb. 24 Mr Parry's duties included the handling of the Specimens, particularly to ensure that they were properly maintained so as to remain useful for the University's teaching purposes. 25 Upon the commencement of his employment, Mr Parry was provided with the Procedure Manual. It contained a table specifying the tasks to be performed by him, the frequency of the task and to some extent the manner in which the task was to be performed. Mr Parry was one of two Technical Officers undertaking the same duties in caring for Specimens stored in two different parts of the workplace. The other Technical Officer was Ms Grubb. 26 By the time that Mr Parry commenced his employment, a concern had arisen that the Specimens were omitting unsafe levels of formaldehyde. As explained below, during the course of his employment, Mr Parry expressed his concern about the issue, as well as his dissatisfaction with the University's response to it. 27 Mr Parry's employment was terminated by his manager, Dr Massy-Westropp, on 8 October 2019. 28 For two weeks prior to that time, Mr Parry had not entered the room in which the Specimens under his care were stored and had not undertaken tasks for their hydration and care as specified in the Procedure Manual. The reasons for his failure to do so are critical to the resolution of his claims.

[5]

Originating application and concise statement 29 Before commencing this proceeding, Mr Parry applied to the Fair Work Commission (FWC) to deal with the dispute. The FWC issued a certificate pursuant to s 368 of the FW Act, so fulfilling a pre-condition to the commencement of this claim. 30 The originating application relevantly states: The Applicant claims that: 1. I was dismissed for exercising a workplace right (an OH&S right) to take reasonable care to protect my own health and safety at work. The Applicant relies on sections 340 [sic] of the Fair Work Act 2009 The Applicant asks the Court for $6,000,000 Compensation. 1. This was my dream job, - Great hours, good pay, flexible hours, interesting, opportunities to learn in my fields of interest, minimal stress, opportunities for professional development and promotion, I enjoyed going to work and was easy to get to by public transport. 2. I had a bright future. 3. There is very little likelihood of any opportunity such as this one occurring again. 4. I gave up other employment in order to take this position. 5. Unisa needs an incentive to improve their approach to safety and they are turning over almost half a billion dollars a year. 6. There is now a gap in my hitherto very impressive resume that is difficult to explain. 7. After tax there will be enough left to restore my previous optimism, bright outlook and financial security. 31 Two observations may be made of the originating application. The first is that the claim is confined to an allegation of contravention of s 340 of the FW Act. Mr Parry has not sought to invoke any other provision of the FW Act relating to his dismissal, nor has he advanced any claim at general law founded in breach of his employment contract or other cause. The second is that the originating application contains no express reference to the imposition of a pecuniary penalty under s 546 of the FW Act, although it appears that some of the matters relied upon in support of Mr Parry's claim for compensation are not compensatory in their nature, and there is an express reference to specific deterrence. 32 Mr Parry filed a concise statement giving better particulars of his claim. He alleges that the University had taken inadequate steps to ensure his health and safety at work, particularly in relation to the levels of formaldehyde to which he was exposed in the workplace. He alleges that he raised his concerns with Dr Massy-Westropp both orally and in writing. He alleges that on 8 October 2019 he had a conversation with Dr Massy-Westropp in the following terms: 20.1: Just after 2:30pm Dr Nicola Massy-Westrop [sic] came into my office and said that the logs had been checked and that no-one had entered the specimen storage room for the last two weeks - then asked me to confirm. 20.2: I told her that was correct. 20.3: She then asked why the specimens were not being sprayed daily with hydration fluid. 20.4: I told her that since all dissection had been stopped for safety reasons I thought it wise to minimize my exposure, at least until the test results were in - and as the last two weeks were student free and no dissection was being done the specimens remained in a sealed cabinet in a very small sealed and un-ventilated room and not in need of hydration. 20.5: Nicola Massy-Westrop [sic] said she would have to think about it and left. 20.6: Ten minutes later she returned and said she would have to let me go because I hadn't followed the hydration protocol. 20.7: I said 'I feel this is all a little too convenient' - 'you mean the formaldehyde' she reflexively answered, then claimed it wasn't related. 20.8: This is a very unusual way for a uni to deal with performance issues and fire people. 33 As can be seen, Mr Parry alleges that he made it known to Dr Massy-Westropp that he had stopped attending to the care of the Specimens "for safety reasons" relating to his exposure to formaldehyde. If it be the case that Mr Parry refused or failed to attend to the care of the Specimens for reasons related to his health and safety, it would appear that his conduct in so acting would constitute the exercise of a workplace right of the kind alleged in his pleaded case. The right to cease work for safety reasons is sourced in (at least) s 84 of the Work Health and Safety Act 2012 (SA) (WH Act). 34 The trial proceeded on the basis that the workplace rights alleged to have been enjoyed and/or exercised by Mr Parry included not only his right to take steps to safeguard his own health and safety at work but also his right to make a complaint or enquiry, specifically concerning the health and safety issues arising in his workplace: FW Act, s 341(1)(c). The "complaint" aspect of the case was not expressly pleaded in Mr Parry's concise statement. However, I am satisfied that the University was given notice of the case it had to meet in this respect. Indeed, it met the case with a body of evidence specifically related to the question. 35 In its concise response, the University alleges that Mr Parry was obliged to undertake tasks prescribed in the Procedure Manual, and that those obligations had been expressly made known to him. It alleges (and it is not disputed) that in the two weeks leading up to his dismissal, Mr Parry had not entered the specimen storage room to attend to the care of the Specimens. The University denies that Mr Parry ever stated that his failure to attend to the Specimens was due to any concern that the performance of his duties would expose him to a serious risk to his health or safety. The University alleges that Mr Parry had not at any time notified it that he had ceased work due to any such concerns. It alleges Mr Parry's failure to attend to the Specimens amounted to a serious dereliction of his duties, which had the potential to cause serious and irreversible damage to them, and that his employment was terminated for that reason alone. It denies that the existence or exercise of the workplace rights mentioned above were the reason or part of the reason for the decision to dismiss Mr Parry. 36 The University also alleges that following Mr Parry's dismissal it became aware that he also failed to enter the specimen storage room to attend to the Specimens in accordance with the Procedure Manual in a number of earlier periods in June and July 2019, and that his conduct in failing to do so would also have warranted the immediate termination of his employment, so justifying the dismissal of this application on that alternative basis, or at least the denial of a financial remedy.

[6]

The conduct of the trial 37 Mr Parry was self-represented throughout this proceeding. At case management hearings prior to the trial, Mr Parry stated that it was his intention to call employees of the University (including the relevant decision-making personnel) to give evidence as part of his case. After receiving guidance from the Court, he later confirmed that he would not call those witnesses on the basis that they would be called by the University and made available for cross-examination by him. 38 Mr Parry made no application for orders in the nature of discovery prior to the trial. He did however put the University on notice that the authenticity of certain documents was in dispute. 39 Throughout the trial, Mr Parry maintained the position that his termination was the result of a conspiracy within the University to cover up health and safety concerns within the workplace, including by the falsification of documents and other evidence. 40 Mr Parry gave oral evidence in his case but did not call any other witness. Before summarising his evidence it is convenient to make some preliminary observations about the presentation of his case more generally. 41 In his evidence and submissions, Mr Parry also referred to the speed and manner in which he was dismissed. Whilst the procedural manner of the dismissal is relevant, it is to be borne in mind that his claim in this proceeding is confined to an allegation that the University contravened s 340 of the FW Act. The University was not required to answer any alternate case that might have sounded in a remedy, and the Court should not be understood as expressing any view in respect of them. 42 The Court provided Mr Parry with some guidance concerning the need to fairly put to the University's witnesses serious allegations he had made in the proceeding concerning the fabrication and alteration of evidence, but he did not confront the witnesses on that topic in an adequate way, if at all. At times, Mr Parry was argumentative with the University's witnesses, directing comments rather than questions to them. Given his status as a non-lawyer, he is not criticised for that. However, the overall result was that the evidence adduced in cross-examination was not helpful to his case and the University's witnesses were not challenged as robustly as they might have been by a legally trained person. Certain anomalies in the evidence given by the University's witnesses were not fully explored or exploited by Mr Parry and in due course it will be necessary to determine what should follow from that. 43 Another feature of the case is Mr Parry's firmly held opinion that the University's health and safety procedures were inadequate (including health and safety recommendations contained in an expert report it obtained for workplace purposes). In the course of the trial, Mr Parry sought to express his own opinion in respect of that issue in an attempt to prove the objective existence of a number of actual health and safety risks. The difficulty for Mr Parry in this aspect of the case is that it has not been established that he has the expertise (whether by way of formal qualifications or experience) upon which his opinions might be based. I have nonetheless had regard to that aspect of his evidence as demonstrating that he held genuine beliefs that the University had not done enough to provide him with a safe working environment. 44 It is not in dispute that the University itself had identified a health and safety issue relating to the formaldehyde used in the preservation of the Specimens. As will be seen, that issue had been identified shortly after the acquisition of the replacement Specimens and prior to the commencement of Mr Parry's employment, and steps were taken to investigate and resolve it. 45 Mr Parry's closing submissions were extremely brief and of little assistance to the Court. I have nonetheless attempted to discern the points raised by Mr Parry from that said by him throughout the trial, interpreting his submissions beneficially in light of his unrepresented status.

[8]

MR PARRY'S EVIDENCE 50 With the consent of the University, the Court prompted Mr Parry in the course of his examination-in-chief as to the topics he should address as part of his case. That procedure was adopted to provide guidance to Mr Parry as a self-represented litigant not having the assistance of a lawyer eliciting evidence from him. 51 Much of Mr Parry's evidence-in-chief was expressed in brief terms and otherwise at an unhelpful level of generality. He was repeatedly reminded that he should furnish his evidence with as much detail as the topic permitted. Toward the conclusion of his evidence-in-chief, Mr Parry was again reminded that it was his responsibility to ensure that he had given evidence in as much detail as possible. It was reinforced that the topics prompted by the Court should not be understood by him as limiting the topics he may wish to address as a part of his case. Toward the conclusion of his examination-in-chief, the hearing was adjourned to allow Mr Parry sufficient time to review the documents upon which he relied and to reflect upon any topics that may have been missed or that may require elaboration. 52 The Court received into evidence an affidavit sworn by Mr Parry on 21 July 2020, which had annexed to it the documents upon which he relied. The body of the affidavit confirmed Mr Parry's intention to rely upon the documents but otherwise contained no depositions of fact. 53 Among other things, the affidavit had annexed to it a bundle of materials relied upon by the parties in the FWC, including the complaint form lodged in the FWC by Mr Parry. The complaint form includes a statement comprising 37 paragraphs of asserted facts. The FWC documents include a response lodged by the University and a reply to that response in which Mr Parry asserted further facts. Also among the FWC documents are a written submission relied upon by the University and a written submission in response relied upon by Mr Parry, which also contained assertions of fact. 54 When given the opportunity to elaborate on his brief answers during examination-in-chief, Mr Parry pointed to the FWC documents and said that all that he wished to say was contained in them. It was explained to Mr Parry that it may not be sufficient to point to a bundle of materials without taking the Court to a particular document and explaining its significance. 55 Mr Parry then confirmed that he wished to rely on the facts asserted by him in the FWC documents for the purposes of their truth in this proceeding. The University did not object to the use of the documents in that way and the documents have been received in evidence for that purpose. They are out of court statements by Mr Parry the truth of which has been adopted by him in the course of his oral testimony. The documents are admissible for that purpose, however the weight to be attributed to the factual assertions contained in them is a different question. 56 When given the opportunity to elaborate on claims contained in the documents, for the most part Mr Parry declined. He said that the documents were "pretty self-explanatory". 57 In the paragraphs that follow I will summarise the effect of Mr Parry's evidence-in-chief both as given orally and as adopted from the FWC documents. I will attribute the evidence to one source or another only where it is necessary to do so. 58 Mr Parry said that he was originally employed on a three month contract under which he worked 30 hours per week. He said that when that contract expired, the University was very happy with his work and his contract was renewed for another six months. 59 Mr Parry was aware that before he commenced his employment with the University, some Specimens had been lost due to yeast infections following a power outage during a heat wave and because the University did not have an adequate back-up power supply. He said that "incompletely prepared" Specimens had been acquired to replace them. He claimed that the replacement Specimens were emitting unsafe levels of formaldehyde. 60 Mr Parry confirmed that part of his job involved the handling of the Specimens. He said that by the time he commenced his employment, other staff members at the University were complaining that fumes were coming off of the Specimens and burning their throats and eyes. Mr Parry said that at first he found the burning sensation to be mild, but it quickly became stronger. 61 In the FWC documents, Mr Parry said: I was also told to use latex gloves as the nitrile ones I should be using are too expensive and are only to be used if I have an allergy to latex. (students are told the same thing) I instantly developed an 'allergy'. 62 Mr Parry said that he supplied his own "P2 carbon impregnated mask" as an extra precaution. He said that he suggested a VOC meter to test formaldehyde levels and shortly after he had made that suggestion it had been decided by the University that testing would be carried out. 63 Mr Parry said that on 12 August 2019 he and others were tested for formaldehyde exposure. He said that the test sampling duration was not representative of the sort of levels he would be exposed to on a busy day. 64 Mr Parry said that dissection of the Specimens was suspended as a precautionary measure until the results of the tests came in. He alleged that in the ordinary course it ought to have taken about 24 hours to produce the results. In his FWC statement he said he began to suspect that test results were high and he decided to limit his own exposure to the Specimens as much as possible as a precaution until the results were made available. He said that as time went by, he had become more worried. He said that it "takes less than a day to get these test results" and that the University had "sat on the report" for six weeks. 65 Mr Parry said that he was given the results of the formaldehyde exposure tests on Thursday, 26 September 2019. He said that the tests showed that he had been regularly exposed to levels above the current standards, and expressed the view that the standards were outdated and were at that time due to be revised down to one third of their current levels. He said that he had told Dr Massy-Westropp that he was "very unhappy" about the numbers shown in the report during a cigarette break they shared outside of the laboratory building. 66 On Thursday 3 October 2019, Mr Parry attended a meeting with other laboratory staff and a chemical safety officer to discuss the outcome of the tests. 67 Mr Parry said that at that meeting a chemical safety officer (later identified as Mr Charles Nelson) had said "your levels are just a bit over the standards but you're wearing a mask so you'll be a bit under - you're safe". 68 On Sunday 6 October 2019 Mr Parry sent an email to Dr Massy-Westropp which he copied to Ms Grubb titled "last Thursday's meeting". The email states: Hi guys, I was very disappointed by last Thursday's meeting, particularly the disregard for our safety and the assertion that a P2 mask (not rated for anything) would PROBABLY be adequate protection until the proposed, more stringent, new safety levels are implemented - at which time they definitely wouldn't be anywhere near adequate but by then the problem has hopefully gone away. My approach to risk is to take all reasonable steps to minimize it - as opposed to what's the minimum we need to do to cover our arses legally and buy time at least until the outdated safety levels are lowered? To this end I found some surprisingly inexpensive respirator masks & cartridges rated to handle up to 37.5 ppm formaldehyde (50 x US Permissable Exposure Limit of 0.75ppm). I calculated these would be adequate by multiplying the highest recorded exposure (Candice, 2.31ppm) by 1.5 to account for the lack of any sensitivity, specificity, precision or accuracy details in the 'report'; and (call me a cynic if you will) probable operator bias. I then multiplied this value by 10 as an estimate of peak exposure level (admittedly a wild guess and erring on the side of caution - but as nobody seems interested in measuring these things my guess is the best we have) - and was left with an ~ 8.5% safety margin. Ventilation - Probably not best to have a chemist design your AC. Trying to boost positive pressure airflow by the addition of an extraction unit is not going to make very much difference and could even make the problem worse. Passive venting exclusively at near floor level will be a lot more effective, is cheap and easy to retro-fit just about everywhere. Guidelines are available in just about any 'How to vent a Lab' book. Remind me again, what the @#$% are we paying Charles for? See you next week. Chris 69 Mr Parry did not receive a reply to his email. The following Monday (7 October 2019) was a public holiday. 70 On Tuesday, 8 October 2019, Mr Parry was rostered on a so-called "split shift", with a morning shift ending at 11:30am, and an afternoon shift commencing at 2:30pm. He said that when he commenced work that day Dr Massy-Westropp avoided him by arriving after a class in the laboratory was due to start. He said that around 2:00pm he received a text message from his partner as follows: problems at lab. nicola just rang o415 number 71 Mr Parry returned to the workplace for his afternoon shift at 2:30pm. In the FWC documents, he gives the following account of what occurred upon his return: At just after 2:30pm Nicola Massy-Westrop [sic] came into my office and said that the logs had been checked and that no-one had entered the specimen storage room for the last two weeks - then asked me to confirm. I told her that was correct. She then asked why the specimens were not being sprayed daily with hydration fluid. I told her that since all dissection had been stopped for safety reasons I thought it wise to minimize my exposure, at least until the test results were in - and as the last two weeks were student free and no dissection was being done the specimens remained in a sealed cabinet in a very small sealed and un-ventilated room and not in need of hydration. Nicola Massy-Westrop [sic] said she would have to think about it and left. Ten minutes later she returned and said she would have to let me go because I hadn't followed the hydration protocol. I said 'I feel this is all a little too convenient' - 'you mean the formaldehyde' she reflexively answered, then claimed it wasn't related. I packed up and left. 72 Mr Parry also dealt with this critical conversation in his oral evidence-in-chief, although not in wholly consistent terms. He said that at 2.30pm Dr Massy-Westropp had come to him and said that the electronic access records had been checked and that it appeared that he hadn't been hydrating the Specimens on a daily basis as required by the Procedure Manual. He said that he had explained to Dr Massy-Westropp that there was "no need for them to be hydrated" and that she had said she would take some time to think about it and left. In that part of his evidence, Mr Parry did not state that he told Dr Massy-Westropp he had not attended to the Specimens because of concerns about his exposure to formaldehyde. He said that just under ten minutes later, Dr Massy-Westropp returned and said that she had to "let me go because I hadn't been following the procedure manual". He said that he had "suggested that it was all a bit too convenient" and that Dr Massy-Westropp had said "oh no, it's not the formaldehyde". When given the opportunity to elaborate on his oral evidence in respect of this conversation, Mr Parry declined. He repeated that he relied on the material he had lodged in the FWC. 73 Mr Parry said that the Specimens were stored in a hermetically sealed container in a hermetically sealed room and that opening the doors to the room would needlessly expose them to the risk of infection. 74 Mr Parry said that he had subsequently been offered a sum representing two days' pay, "presumably in lieu of notice". 75 Mr Parry said that the facilities at the University were not built for the purposes that they were used for. He alleged that ventilation in the wet laboratories was inadequate and went on to explain why he considered that to be so. Mr Parry said that until the testing mentioned in his evidence, no monitoring of formaldehyde had been done. He alleged that staff and students at the University were still being exposed to unacceptable levels of formaldehyde. 76 Mr Parry said that there was no damage caused to the Specimens and denied that they had not been properly hydrated. 77 Mr Parry referred to the Procedure Manual that he had been given at the commencement of his employment. He said that the version of the Procedure Manual that had been provided by the University to the FWC was a version that had been created two hours after the time of his dismissal. He pointed to a printout of the properties of that document, evidencing the time it was first created. On the basis of that material, he alleged that the records of the University had been falsified for the purpose of defeating his claim. 78 Mr Parry said that the Procedure Manual (as in force at the relevant time) included the following description of a task delegated to him: Note: Unigram antibacterial. Clean germs on Wet Specimens from human handling, spray directly on specimen Time: Once every couple of days. 79 Mr Parry said that the fair interpretation of that "somewhat ambiguous sentence" was that he would not be required to clean germs on Specimens during times when they were not being handled for teaching or other purposes. He said that as at 8 October 2019, the Specimens had not been handled by humans for more than two weeks (it otherwise emerging in evidence that there was a mid-semester break in the two weeks leading up to Mr Parry's dismissal). 80 Mr Parry otherwise denied that the Procedure Manual imposed any requirement that he visually inspect and hydrate the Specimens on a daily basis. Mr Parry denied that it was necessary to attend to the Specimens daily in any event. 81 Mr Parry relied on additional records which he said showed that Dr Massy-Westropp had not called him on his own mobile number on the morning or afternoon of 8 October 2019. I understand that evidence may have been adduced to rebut a statement of Dr Massy-Westropp in the FWC to the effect that she had telephoned Mr Parry. 82 Mr Parry relied on an exchange of text messages passing between him and his partner after the meeting on 3 October 2019. His partner asked "HOW IT GO? THEY SHOOT THE MESSANGER? [sic]". Mr Parry replied "Priority 1: business as usual Priority 2: anything to keep the staff / students safe - as long as it doesn't fuck with priority 1". 83 Mr Parry said that it was his belief that he had been "fired … for requesting the right safety equipment (including by his email of 6 October 2019) and not being happy about continuing business as usual" in relation to the levels of formaldehyde emitted from the Specimens. 84 On the topic of remedies, Mr Parry said that his job at the University was his "dream job" representing an opportunity that would not present itself again. He said that he used to wake up every morning looking forward to going to work and that he previously had a bright future. He said that he had given up other employment to take up the position. He said that the University needed an "incentive" to improve their approach to safety and that the amount he sought in compensation would act as a deterrence. 85 He said that there is now a "gap in what was hitherto, a very impressive resume". He said if his name was "Googled", the search results would not show his brilliant problem solving ability anymore, but instead would show information about this proceeding, rendering him unemployable at any university or anywhere else again. 86 Mr Parry confirmed that he had been employed at a casual rate of more than $40 per hour. He said he hadn't been able to secure new employment, and he hadn't been "too fussy". He said that at 53 years of age his termination had been a "career-ender".

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Cross-examination 87 In cross-examination, Mr Parry presented as a defensive and prevaricating witness, at times resorting to sarcasm at other times denying the occurrence of events that he later acknowledged had occurred. It became plain in the course of the trial that Mr Parry firmly believes that personnel at the University had formed a conspiracy against him, and that belief pervaded the responses he gave in cross-examination. In considering his impression as a witness, it is appropriate to make some allowance for the circumstance that he was a self-represented litigant burdened with the task of presenting his own case at trial. I have concluded that Mr Parry's case was undermined by the content of the evidence given by him in the course of cross-examination, particularly concerning his reasons for not attending to the hydration and care of the Specimens on a daily basis. I have concluded that his unguarded responses in his oral evidence are to be preferred to his written versions of certain events set out in the FWC documents, particularly the content of his conversations with Dr Massy-Westropp on 8 October 2019. His demeanour in cross-examination (as opposed to the content of his responses) is not generally weighed against him in the resolution of disputed facts. However, in his substantive responses, Mr Parry did present as a person convinced of the superiority of his own opinions over those with whom he had dealings in the workplace concerning the care of the Specimens. That feature of his evidence supports the finding I have made about his reasons for not hydrating the Specimens. It also reinforces my view that his unguarded responses in oral testimony should be preferred over any inconsistent factual assertion in the written statement he prepared for the FWC. 88 Mr Parry confirmed that before commencing his employment, he had participated in job interviews in which it was explained to him that his primary responsibility was to maintain the Specimens. He confirmed that was in fact one of his responsibilities and that it was "pretty high up" on his list of priorities. 89 Mr Parry said that at the time of his interview he had told the interviewer he was "underemployed". He said that at that time he had undertaken casual work supervising exams. He confirmed that work would arise every three or four months. He admitted that work was not being done at the time of his job interview. When it was put to Mr Parry that he was in fact unemployed at the time of his job interview, he said that he couldn't remember. He later confirmed he had been unemployed for six months prior to his employment with the University. 90 Mr Parry confirmed that he did not hold any tertiary qualifications, but he had done "lots of courses, lots of study and lots of hands-on experience". He said that he had a Certificate IV in work health and safety, but couldn't remember when that was obtained. 91 Mr Parry confirmed that there were two wet laboratories in his workplace (situated on the second and third floors of a building). He agreed that soon after his employment commenced he was made responsible for maintaining the facilities on the second floor. 92 Mr Parry confirmed that he had undergone an "anatomy dissection experience induction" process with the head of Technical Services, and then with Ms Grubb. He confirmed that Ms Grubb was a more experienced peer in relation to the duties he had to perform. He agreed that Ms Grubb had demonstrated a process known as "fogging", using a machine to spray a fine mist of microbicides in the laboratory and the specimen storage room. He recalled Ms Grubb asking him to fog the Specimens so that she could observe whether he was doing it correctly. When it was put to Mr Parry that he had shut the door to prevent Ms Grubb seeing what he was doing, Mr Parry said that was possible but he did not remember. Mr Parry denied that he had otherwise been blunt with Ms Grubb during the course of his employment. He said that toward the end of his employment, Ms Grubb may have resented him being there and that she may have felt undervalued, but he otherwise denied any hostility between them. 93 Mr Parry said he had been provided with a copy of the Procedure Manual when he commenced employment and understood and knew that it was also accessible by him on a shared computer drive. He understood that the Procedure Manual was to be used in the performance of his duties. He denied that it was updated from time to time during the course of his employment. 94 Mr Parry agreed that the Procedure Manual included a table titled "Specimen daily tasks", which included a task concerning hydration in the wet laboratory. His cross-examination on that topic proceeded as follows: Counsel: Do you agree that it was a daily task of yours to hydrate the specimens in the wet lab? Mr Parry: According to the manual, yes. But they would normally be used on a daily basis … Counsel: Did you think you knew better? Mr Parry: I did. Counsel: And you felt you didn't have to do it because it wasn't, in your view, necessary? Mr Parry: That's correct. Counsel: Okay. But you didn't tell anyone that you weren't doing it before the day you were dismissed did you? Mr Parry: No. Because no one else would think it necessary anyway. I didn't tell anyone I needed to breathe everyday either. Counsel: And you didn't ever suggest that the procedure manual should be amended in that regard, did you? Mr Parry: No. If we had to put every piece of common sense in the procedure manual it would be very long. 95 Considered in its proper context Mr Parry's stated belief that the Specimens did not require daily hydrating is to be understood as relating to periods when the Specimens were not in daily use. 96 Mr Parry acknowledged that the requirement to hydrate the Specimens daily was specified in the original version of the Procedure Manual as well as in a later version. He did not dispute that records of access to the specimen storage room showed that prior to 8 October 2019 the room had last been accessed by him on 20 September 2019 (some 18 days prior). 97 When asked whether it formed a part of his task to visually inspect the Specimens on a daily basis, he denied that was the case. He confirmed that he did have to "look" at the Specimens, but said "there's a difference between looking and visually inspecting". He then acknowledged that he was required to inspect the Specimens to ensure that they were in a satisfactory condition. He agreed that the Specimens had to be carefully stored and looked after so that they would remain useful to staff and students. 98 Mr Parry was asked about an incident in September 2019 when he had been spoken to about the cleaning chemical known as F10. When asked whether Ms Grubb had told him she was aware that he had not been using F10, Mr Parry replied "Complete rubbish". He denied that the issue had been raised with him. He then said that he had expressed a view that F10 should not be used because "you just get very patchy distribution". It was put to Mr Parry he had had a discussion with Ms Grubb in which he expressed the view that a chemical named Unigram should be used, and in which she said that the cleaning protocol with F10 was due to yeast problems. Mr Parry replied "No. All rubbish". 99 Mr Parry then acknowledged that he had contacted the managing director of the company that supplied Unigram who had told him that Unigram was better, and that he had conveyed that to Ms Grubb. He acknowledged that he had a conversation with Dr Massy-Westropp about F10. Mr Parry was shown an email from Dr Massy-Westropp to him referring to a meeting she had had with him on the topic. Mr Parry said he could not remember receiving it. He described Dr Massy-Westropp's account of their meeting on that topic as a fabrication. 100 Later in cross-examination Mr Parry explained that he had familiarised himself with "all the stuff we would be using" including by contacting Unigram and doing his own Google research. It is plain from his evidence that Mr Parry indeed held the opinion that F10 was ineffective. He then acknowledged that he did have a conversation with Ms Grubb about whether F10 should be used to clean the trolleys to kill yeast, but could not say when that conversation took place. He denied that he had ceased using F10 in the performance of his tasks. 101 Mr Parry acknowledged that in mid-September 2019, Ms Grubb may have had a concern that he had not been using the fogging machine, because she had observed that the machine had not been moved from its usual place. He described notes taken by Ms Grubb recording her dealings with him as "vindictive ramblings". 102 Mr Parry described the University's approach to dealing with the formaldehyde issues as reckless. He repeated his complaint that "someone sat on" the testing report for six weeks. Mr Parry said that he did not accept that the report was prepared by an "expert". He said words to the effect that he knew better than the author of the report. That belief is made plain in his email to Dr Massy-Westropp of 6 October 2019. 103 It was put to Mr Parry that the calculations he had used in that email included him using a multiplier of 10 to justify his conclusions about the appropriate personal protective equipment (PPE). When asked whether that was an unsound scientific method, Mr Parry accepted that the multiple was a "guess", but that he was erring on the side of caution. 104 Mr Parry confirmed that he wore a "P2 mask" when carrying out his duties because he considered there was no such thing as a safe level of formaldehyde. 105 Mr Parry said that the meeting was attended by the author of the report, Mr Ganyk Jankewicz, a Senior Occupational Hygienist, Adelaide Exposure and Health, University of Adelaide, who explained what the chemical measurements meant and the recommendations he had made, including that the staff wear carbon-impregnated P2 masks. Other recommendations included the continuation of investigations into the cause of the "gassing" issue, and that the cabinets in which the Specimens were stored be left open for a period of time on each occasion before the Specimens were accessed by staff. 106 It was put to Mr Parry that he had not raised anything at the meeting about the inadequacy of PPE. Mr Parry disagreed. 107 Mr Parry was asked about his assertion in his FWC documents that he had been asked to wear latex gloves unless he had an allergy, and that he had "instantly developed an 'allergy'". Mr Parry acknowledged that he had pretended to have an allergy so as to provide a basis for wearing a better standard of gloves. He said "Yes, I'm a nasty, evil person telling that lie". 108 Mr Parry was then asked about electronic access records for the specimen storage room on 8 October, the day his employment was terminated. He acknowledged that the records showed the first access to the specimen storage room occurring at 11.51am. He admitted that he had not entered the specimen storage room on that day. He accepted that the access records showed that the specimen room had otherwise last been accessed on the afternoon of 20 September 2019. 109 Mr Parry acknowledged that Dr Massy-Westropp appeared anxious and tense during their conversation on 8 October 2019. He said that he had explained to Dr Massy-Westropp that he did not consider it necessary to hydrate the Specimens on a daily basis because they had not been required for teaching purposes during a semester break. His responses in cross-examination around that topic included the following: Counsel: And I suggest the reason why you explained was because the bodies hadn't been needed for teaching, so you left them closed up in the cabinets? Mr Parry: Yes. Counsel: That is that you had formed a view that they didn't need to be hydrated daily; correct? Mr Parry: Yes. Counsel: And that's why you weren't doing the hydration daily? Mr Parry: Absolutely. Counsel And is that when Dr Massy-Westropp told you, 'That is unacceptable. I need to go and think about what to do?' Mr Parry: Yes. Counsel: And I think you accept that's the first she would have known that you weren't hydrating daily; correct? Mr Parry: No. No. Counsel: How could she have known otherwise? Mr Parry: Well, they wouldn't have needed hydrating, so why should she expect me to be hydrating them. Counsel: But it was in the manual to do it daily, wasn't it? Mr Parry: Yes, it was in the manual. That doesn't mean - Counsel: And you had never told her you weren't following the manual in [that] respect, had you? Mr Parry: I don't think [she] would have expected me to follow the manual or anyone else. 110 Mr Parry repeated his assertion that the real reason he was dismissed was that he had raised concerns about his health and safety, particularly by requesting better PPE and raising concerns about the levels of formaldehyde. 111 He repeated his assertion that Ms Grubb had falsified a version of the Procedure Manual, so evidencing that she was a part of a conspiracy against him. 112 Mr Parry acknowledged that the requirement set out in the Procedure Manual to carry out hydration of the Specimens first thing in the morning and again before leaving for the day had not changed. He agreed with the proposition that if others had a different view about the necessity to hydrate the Specimens daily, he knew better. He said the reason provided for his dismissal was a silly technicality, because daily hydration of the Specimens was not important. 113 Mr Parry said he assumed that Dr Massy-Westropp had been directed, by others at the University, to dismiss him and then to lie about the reasons for the dismissal. 114 Mr Parry acknowledged that there were other periods of time in June and July 2019 when he had not attended to the hydration of the Specimens. His cross-examination in respect of those occasions proceeded as follows: Counsel: So other occasions where you decided - without telling any other employee, you decided that you would not carry out your duties in accordance with the manual; correct? Mr Parry: There were odd days, yes. When exams were being held or the specimens stayed safely encased. Counsel: Where again you decided you …. Mr Parry: And yes, I did. Counsel: You decided you knew better, your choice 'I'm not going to do it'; is that correct? Mr Parry: Yes. Counsel: Why didn't you tell anyone? Mr Parry: Because it was so obvious I didn't need to. Counsel: How could it be obvious? No one could know? Mr Parry: Why - why would I hydrate something that couldn't possibly need hydrating? I wouldn't feel the need to tell that to someone. Counsel: Does it occur to you in hindsight that that was foolish? Mr Parry: No.

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Mr Parry's employment and duties 122 Dr Massy-Westropp said that Mr Parry's duties included those set out in the Procedure Manual, which dedicated tasks to laboratory technicians. 123 The version of the Procedural Manual in force at the time of Mr Parry's employment is subtitled "Technical Officer, Anatomy Laboratory", which corresponds with Mr Parry's position. It contains a number of tables. Table 1 is titled "CLEANING AND TIDYING". It specifies that items in the "wet room" were to be cleaned on arrival and before leaving for the day, as well as after every practical session, using solutions referred to as Unigram and F10. Table 5 is titled "SPECIMEN DAILY TASKS". It includes an item titled "Hydration" relating to the "Wet Lab". The notes to that item states: Wet specimens in cool room must be sprayed every day. Wet specimens in wet lab when used for teaching, must be covered by plastic cover and sprayed with hydro fluid to ensure constant hydration and they don't dry out. (There are small handheld spray bottles for individual specimens and a pump to do the cabinet) 124 The final column of the item specifies the frequency for the performance of the task in relation the specimen storage room as follows: Cool Room: Daily (preferably at end of day) Wet lab: Covered when not in use Wet lab: Sprayed with hydro fluid every hour (ask tutors to do this, if you can't) 125 Dr Massy-Westropp said that the Specimens required additional hydrating at times when they were out of the specimen storage room. Her evidence in that regard was consistent with other tasks specified in the Procedure Manual which required the Specimens to be covered and rehydrated between sessions, with spraying to occur "every couple of hours". 126 Dr Massy-Westropp said that she had not been informed at any time prior to 8 October 2019 that Mr Parry was not attending to the hydration tasks specified in the Procedural Manual on a daily basis. 127 In cross-examination Dr Massy-Westropp rejected the suggestion that because the cabinets in the specimen storage room were hermetically sealed, it was impossible for them to dehydrate such that it was not necessary to attend to them during periods when teaching was not taking place. She said that it was necessary for the trays to be wiped and the Specimens disinfected regularly. She denied that the specimen storage room was perfectly sealed and said that the cabinets were designed for liquids to drain from the bottom of them. She said that the Specimens would dry in the cabinets if not hydrated, just as food might dry out in a refrigerator when not covered.

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Formaldehyde 128 Dr Massy-Westropp said that she and Ms Grubb commenced work skinning and dissecting the replacement Specimens acquired in April 2019. She said that she became "dubious" while dissecting because she was getting "teary-eyed", that Ms Grubb had reported the same and that they had noticed the smell of formaldehyde. She said that at first she doubted there was an issue because other staff members were not reporting the same problems. Dr Massy-Westropp said that in June 2019 she sought occupational health and safety advice from within the University about the issue. She said that the University's chemical safety officer, Mr Nelson, recommended that the levels of formaldehyde be measured by an external party. She said that she felt strongly about obtaining expert advice about what was wrong and what needed to be done. 129 Dr Massy-Westropp said that the Specimens remained in use for teaching demonstration purposes because of assurances given by the University of Adelaide. 130 On 12 August 2019, an occupational hygienist took measurements from Mr Parry and Ms Grubb, the employees having the most exposure to the Specimens. Six weeks passed before a report on the issue was provided to Mr Parry. The author of the report is Mr Jankewicz. Whilst the report is in evidence, it is not in a form that is admissible for the purpose of receiving it as opinion evidence, nor was it relied upon by the University for the truth or correctness of the opinions expressed in it. It nonetheless shows that the report was prepared and received and that the recommendations contained in it were made and received by Dr Massy-Westropp. 131 Dr Massy-Westropp said that when she received the report, she did not fully understand its content and so asked to meet with the consultant who prepared it to discuss its implications for the handling and storage of the Specimens. 132 Dr Massy-Westropp said that during his employment Mr Parry wore a face mask of his choosing which he had said was more comfortable. She said that she was not aware of any other issue informing his choice of mask.

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The events of 8 October 2019 137 Consistent with Mr Parry's evidence, prior to 8 October 2019, Dr Massy-Westropp was not told by Mr Parry that he had not been attending to the hydration of the Specimens on a daily basis. She denied otherwise being aware of his failure to do so. 138 Dr Massy-Westropp said that on 8 October 2019 her first class was due to commence at 9:00am. She said that in accordance with her usual practice she chatted informally with Mr Parry before the class and that he was seated at his computer at the time. She could not recall what they discussed. 139 Dr Massy-Westropp said that following the completion of her class, she was approached by Ms Grubb who reported that she had gone into the specimen storage room to attend to the monthly swabbing of the Specimens and that she was concerned that the room was warming up. Dr Massy-Westropp's evidence as to the time of her exchange with Ms Grubb was imprecise. Access records relating to the specimen storage room showed that Ms Grubb first entered the room at 11.51am on that day. When shown that record, Dr Massy-Westropp acknowledged that her discussion with Ms Grubb must have occurred after that time and corrected an earlier statement that the exchange had occurred as her class ended. 140 Dr Massy-Westropp said that a facilities manager, Ms Trudi Clarke, was contacted. She said that she entered the wet storage area to check on the Specimens with Ms Grubb but could not recall if Ms Clarke was in attendance at the same time. She said that she noticed that the specimen storage room and the Specimens were dry, which signified to her that they had not been hydrated. Dr Massy-Westropp said that she understood Ms Clarke had contacted the building monitoring service within the University. She said Ms Clarke reported back to her that the specimen storage room had not been accessed for about two weeks. 141 Dr Massy-Westropp said that she looked for Mr Parry to discuss the issue with him but could not find him. She said that she made contact with Mr Parry's partner by telephone, informed her that there was a problem at the laboratory and enquired as to Mr Parry's whereabouts. Mr Parry's partner responded that Mr Parry was due back at work in 20 minutes. It became apparent in the course of evidence that Dr Massy-Westropp was not aware that Mr Parry had been rostered to work a split shift and so was not required to be on duty between 11.30am and 2:30pm. I do not consider anything of moment turns on that misunderstanding, however, it does explain why Dr Massy-Westropp was seemingly frustrated at the time that she could not locate Mr Parry in the workplace. 142 Dr Massy-Westropp did not profess to have an exact recollection of the timing of events, including as to when Ms Clarke became involved relative to her own attendance in the specimen storage room. The electronic access records show attendances in the specimen storage room prior to 2.30pm, which generally align with her evidence that she entered the room before her conversations with Mr Parry when he returned for his afternoon shift. 143 Dr Massy-Westropp said that she found Mr Parry sitting at his computer and said to him that nobody had entered the wet laboratory for just over two weeks. She said that to her shock Mr Parry replied that he had not been in the room because the bodies hadn't been needed for teaching and were sealed within the cabinets. Dr Massy-Westropp said that she would need to "go away and think about this". She said that when she returned to her office, she decided that she could not trust Mr Parry and that she wanted him to leave immediately. She said that she telephoned Ms Todd and said that she wanted Mr Parry to leave and that Ms Todd had said to wait a moment while she spoke to somebody in Human Resources. Dr Massy-Westropp said that Ms Todd then called her back and confirmed that she could dismiss Mr Parry. Dr Massy-Westropp said that she asked Ms Todd to accompany her but Ms Todd was unable to do so because she had a meeting. 144 Dr Massy-Westropp said that when she returned to Mr Parry he started to talk to her about masks he had found. She said that she interrupted him and said "I'm sorry Chris, we can't have you working here", and that Mr Parry had said something to the effect that the timing was a little too convenient. Dr Massy-Westropp said that she referred to the "gassing problem" and said words to the effect that the University was "getting to the bottom of it". She said that at that point Mr Parry started to walk away and she thought it best not to follow him. 145 Dr Massy-Westropp said that she had not received a call from the building monitoring services to alert her to the rise in temperature in the specimen storage room. She said that repairs had been carried out to the air conditioning unit supplying the specimen storage room and that the work was completed by the time that she left for the day. In cross-examination it was put to Dr Massy-Westropp that the access logs to the room showed that the room had not been entered for air conditioning repairs on the afternoon of 8 October 2019. Dr Massy-Westropp explained that the air conditioning unit was not housed within the room itself but was accessible from the ceiling. In cross-examination she denied a suggestion by Mr Parry that the discovery of a fault in the air conditioning system on that day was a "made up story". 146 Dr Massy-Westropp said that dismissing Mr Parry created stress for the staff because she was due to fly overseas on the following day, leaving the School understaffed by her absence and the absence of Mr Parry.

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Behavioural issues 147 Dr Massy-Westropp said that she was made aware of concerns about Mr Parry's behaviour in the workplace prior to the day of his dismissal. She said that the concerns were raised by Ms Grubb who came to Dr Massy-Westropp "numerous times" in an upset state. 148 The first concerns were raised during Mr Parry's induction. Ms Grubb reported that Mr Parry had addressed her in a dismissive way. She reported that Mr Parry had shut the door while using the fogging machine so that she could not observe whether he was performing the task properly. 149 Dr Massy-Westropp said that in September 2019, Ms Grubb had reported that Mr Parry had not been performing his disinfecting duties in the wet laboratory. Dr Massy-Westropp said that she raised the issue with Mr Parry who had said he did not feel it was necessary to use F10 in the fogging machines and that he considered another chemical (Unigram) alone to be more effective and long lasting. 150 On 13 September 2019, Dr Massy-Westropp raised the issue concerning F10 and Unigram in an email sent to Ms Grubb and Mr Parry. The email stated that Unigram did not kill yeast and confirmed the University's protocol that both chemicals were to be used. That email is in evidence and I accept that it was sent by Dr Massy-Westropp to both Ms Grubb and Mr Parry. 151 At 4:11pm on the day of Mr Parry's dismissal Dr Massy-Westropp forwarded her email of 13 September 2019 to Ms Todd. The message above the forwarded correspondence states (without alteration): Raewyn After Candice told me that Chris was not using F10, I spoke with him, because both chemicals are used in our protocols. He said that unigram had a longer kill time so used it, and I then said, let me research that. Apparently Unigram kills for longer than F10 but the effect on yeast isn't known, said the unigram manufacturing manager Bob Carlitty. Below is the follow-up memo for Chris after the F10 had not been used. I meet with him on his own, as Candice wrote and follows the protocol, so he agreed to use both chemicals and I saw him fogging F10 later that very day. 152 Dr Massy-Westropp said that she did not have a clear recollection as to why she had sent the email. She said that the email demonstrated that she thought Mr Parry's behaviour in relation to hygiene in the workplace was worrying, which she said "related to the reason for dismissal that had been done that day".

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Alleged reasons for dismissal 153 Dr Massy-Westropp said that she was solely responsible for making the decision to dismiss Mr Parry and denied suggestions by Mr Parry that other unidentified people within the University had suggested that he be fired. 154 Dr Massy-Westropp said that she dismissed Mr Parry because he had not attended to hydrating and disinfecting the Specimens on a daily basis. She denied that she dismissed Mr Parry because he had exercised a workplace right to protect his health and safety at work. She denied that issues concerning formaldehyde levels in the workplace played any part in her decision. She repeated that Mr Parry had been dismissed because he had not given the Specimens the care they deserved. 155 She said that she expected that if somebody claimed they could not perform a "very essential task" they would need to say so, and that if they did perform the task they would be expected to follow safety recommendations. 156 On 15 October 2021 Dr Massy-Westropp drafted an email that was intended to be sent to Mr Parry but was never sent to him. She sent the draft to Ms Todd on that day and asked whether Ms Todd thought it acceptable that she send it to Mr Parry. Her draft email to Mr Parry was in the following terms: Dear Chris, I'd still like to discuss with you the events of last week if you wish, but also understand if you don't want to have any sort of exit interview. I didn't get to explain all of it to you as you walked away when we were last talking, which I understand. On Tuesday mid-morning, Candice went into the BJ2 cold storage to take routine swabs. She noticed immediately that it was warm in the room and on opening the cabinet the air was warm. When she informed Facilities management, and me, I was unsure how you hadn't noticed this already. I assumed that your first task after a long weekend, longer as you weren't rostered on Friday, would be to check on the welfare and attend to the hydration of our specimens. We asked facilities management to issue us a record of all temperatures over the last weeks of that cold room, worried in case the temperature had risen before unknown to us. With that report came the information that there had been very few entries to the area since before midsemester break. I asked them to double check thinking this was wrong. I also checked with you and was truly shocked that you had decided to leave the specimens without hydration and visual checking. We made protective wear available for these duties to be performed, and would have expected you to use these daily. You did suggest that my asking you to leave was related to the gassing investigation, but it was not related. The gassing issue will be solved as we all have interest in protecting ourselves, academic staff spend hours in the wet area over one week of practical classes as well as technical staff. My asking you to leave was based on your decision not to perform daily care of the cadavers as was prescribed in the job description for our lab. If you want to discuss it please let me know, Nicola 157 An email chain that follows indicates that Ms Todd consulted with another person within the Human Resources Department of the University and then told Dr Massy-Westropp not to send the email to Mr Parry. In her email, Ms Todd said that she had spoken to Mr Parry about the finalisation of his employment and that she had "documented everything and this is all in his file". She concluded "We just need to be careful in our communications at this point". 158 Dr Massy-Westropp said that she sent her email to Ms Todd because on the day she had told Mr Parry to leave he was upset and angry. She said that she thought the email might provide Mr Parry with an explanation as to why she had made the decision. She said at the time that she sent the email to Ms Todd, Mr Parry had not made any complaint about his dismissal. 159 The University relies on this email exchange as evidence of a contemporaneous and/or business record made by Dr Massy-Westropp of her reasons for dismissing Mr Parry. In determining the weight that should be given to the email, I do not accept Dr Massy-Westropp's statement that Mr Parry had not made any complaint about his dismissal. On either party's case it is plain that after being told he was dismissed Mr Parry alleged that the decision was a "convenient" measure by the University, which on any reasonable view must be taken to be a reference to (at least) the formaldehyde issue that had been discussed at the meeting on the prior Thursday and the subject of complaints in Mr Parry's email of the prior Sunday. Dr Massy-Westropp was plainly conscious that Mr Parry harboured a belief that his dismissal was related to the issue. I consider that she drafted the email to Mr Parry to continue the conversation on that very topic and to dissuade him of that view. Given the context in which it was prepared, I am not satisfied that the email should be given any weight in the University's case whether as a prior consistent statement or otherwise as a contemporaneous record of Dr Massy-Westropp's state of mind. I do not consider it to be reliable evidence of Dr Massy-Westropp's state of mind at the time that she told Mr Parry he had to leave. 160 In her oral evidence Dr Massy-Westropp confirmed that she could not understand how the gassing issue could be related to her asking Mr Parry to leave, "because the gassing issue was in no way his fault". She said that the gassing issue occurred because of a series of errors that occurred in the embalming process. She said that it was Ms Grubb who first identified the problem, that Mr Parry had played no role in alerting her to the issue, and that there was a team of experts responsible for solving it. 161 In cross-examination, Dr Massy-Westropp denied Mr Parry's general allegation that he was "fired against a background culture where safety and staff training isn't valued". She responded to questions concerning the sufficiency of PPE in the laboratory (particularly gowns, eye goggles and masks) and as to the use of flammable liquids in the workplace and as to the management of the formaldehyde issue. 162 Dr Massy-Westropp said that Mr Parry's failure to hydrate the Specimens caused them to become drier and harden and that they had yellowed in colour. 163 Dr Massy-Westropp denied that the decision to dismiss Mr Parry had anything to do with the email he had sent two days earlier. She denied a suggestion that the "speed of the conversation" on 8 October 2019 suggested that there had been some previous planning around the decision. She said: … the two things that made me decide immediately that you had to leave were, first - first, Trudi [Clarke] suggesting that no one had been in to care for the specimens over two weeks or more. Initially, I doubted this, but once I had spoken to you, received the shock that you agreed that no one had been in to hydrate the specimens, I acted immediately, and in my mind there was - there was no other course but to immediately ask you to leave. 164 Mr Parry put to Dr Massy-Westropp that his complaint about the lack of safety in the workplace would at least have contributed in small part to the decision to terminate his employment. Dr Massy-Westropp responded that if a person had a safety concern, the right response would be to report it as an incident or risk report to Occupational Health and Safety personnel. She said that that was what Ms Grubb had done when the formaldehyde issue arose, and that she had encouraged Ms Grubb to make that report. She again denied that Mr Parry's concerns about workplace safety contributed to his dismissal.

[20]

Raewyn Todd 167 At the time of Mr Parry's employment Ms Todd was the manager of the School. She was responsible for the School's teaching, research and clinical spaces, including the anatomy laboratories. 168 Ms Todd conducted an interview with Mr Parry prior to his employment. She said that during the interview she told Mr Parry that the purpose of his position was to care for the Specimens in one of the two anatomy laboratories, to undertake cleaning and to set the laboratory up for teaching. She said that Mr Parry underwent four induction sessions. 169 Ms Todd said that in September 2019 Ms Grubb raised some concerns with her about Mr Parry not following procedures, particularly around the cleaning protocols in the laboratory. She said that Ms Grubb appeared upset and concerned. Ms Todd said that she raised the issue with Dr Massy-Westropp, that Dr Massy-Westropp had said she was concerned to hear it and that she would have a word to Mr Parry about it. 170 Ms Todd gave evidence of a telephone call she said she received from Dr Massy-Westropp at about 2.30pm on 8 October 2019. She described the content of the call as follows: So I had a phone call from Nicola, and it was around about 2.30 on that afternoon saying, 'Look, I'm really sorry to do this to you, Raewyn', and I went, 'Okay. What's happened this time', not, you know, it's just that there was always sort of little things that would … pop up around me in admin over the years, and she said, 'I've just found out that there is - there was an issue in the anatomy lab this morning and the temperature had raised up to 20 - 20 degrees - and there was an error on the digital readout'. So presumably Candice had seen that in the morning and had notified either facilities or a facilities unit or Nicola. And she said that the facilities unit had investigated and found out that there hadn't been any access to the wet lab during the break, so that was through the electronic access system. And she said she was - she said, 'I just can't believe this, Raewyn'. She was - she was mortified, she was hurt, she was upset. She said that she hadn't spoken to Chris at that point, but she said that she needed to but she wanted to basically end the contract that day. So I just said to her at that point, you know, 'Look, just don't do anything yet, I will just notify HR or PTC and we will go from there'. 171 When asked what happened next, Ms Todd responded: So what happened next, I did speak to Emily who is HR person and just said, look, this has happened, and she had a couple of questions and just saying, 'Look, you know, has Nicola raised that - has there been an issue before, and has she evidenced that she has actually spoken to Mr Parry about that'? So that - that email went back to Nicola. So then I was - I was waiting for Emily to get back to us after Nicola had responded. Nicola responded saying to provide some evidence that there had been a discussion. And later that afternoon, it was around 4.30 - around about that time that I got this phone call from Nicola saying that she was really upset, she was hurt, she was furious, she sort of felt let down, and she said, 'I've spoken to Chris and he has admitted that he hadn't been into the wet lab to look after the bodies because, you know, he thought it was best that the - the doors were just kept shut'. So she was really, really upset. And she had a conversation with Chris to say - and that was a heated conversation - and she walked out of the room - from my recollection of what she said, she walked out of the room, thought about it, she walked back in and she had ended Chris' contract. 172 In cross-examination, Ms Todd confirmed that there had been two phone calls with Dr Massy-Westropp. The first at 2.30pm (although she could not be exact about the time), after which she had contacted Ms Emily Hardy from Human Resources. Ms Todd said that it was late in the day before Ms Hardy responded. She said that Dr Massy-Westropp had dismissed Mr Parry before Ms Hardy responded to her with recommendations about what to do. 173 In cross-examination, Mr Parry did not raise the issue of any discrepancy in the evidence of Dr Massy-Westropp and Ms Todd as to the sequence of events on 8 October 2019, discussed later in these reasons. 174 Ms Todd confirmed that she had an email exchange with Dr Massy-Westropp on 15 October 2019 concerning the draft email to Mr Parry. She said that she referred to being careful in communications with Mr Parry because of advice she had received from Human Resources. Ms Todd confirmed that the "file" referred to in her email was a communications file she had kept in relation to Mr Parry. When Mr Parry called for production of the file, Ms Todd stated that she had forwarded her communications with or concerning Mr Parry to the Human Resources Department within the University to be placed on a file relating to his employment more generally. 175 In response to the call for production of the Human Resources file, the University produced three emails. Mr Parry did not tender any of them. 176 Ms Todd was shown a Centrelink record prepared by the University in which there is no reason stated for the termination of his employment. Ms Todd said she could not explain why no reason had been stated by the University on the form for the termination of employment. She said that it was "out of her remit".

[21]

Candice Grubb 177 Ms Grubb confirmed that she authored changes to the Procedure Manual which set out the duties of persons employed as Technical Officers (namely herself and Mr Parry). She said that whilst the Procedure Manual had undergone some changes, the main duties prescribed in it had not changed. She confirmed that she had provided a copy of the Procedure Manual to Mr Parry on a USB drive at his request. 178 Ms Grubb said that it was important to hydrate the Specimens because if they were allowed to dry out, they could not be used for learning and must be cremated. She confirmed that soon after he commenced his employment Mr Parry became solely responsible for the care of the Specimens in the level 2 specimen storage room. 179 Ms Grubb said that during Mr Parry's induction she demonstrated how to mix the chemicals and hydrate the Specimens. She explained to Mr Parry that she would observe him perform the task to make sure it was done correctly. She said that when she gave the equipment to Mr Parry, he closed the door so that she could not observe him perform the task. 180 Ms Grubb said that it became difficult to provide Mr Parry with instruction more generally, which had caused her to become anxious because it formed a part of her responsibility to show him what to do. She said that during an induction session at which she was present, Mr Parry had been told that she was responsible for showing him what to do, and that Mr Parry had replied that he already knew what to do and did not need her to show him. 181 Ms Grubb started taking notes of her observations of and dealings with Mr Parry and his partner, who worked in the laboratories on a volunteer basis. She said that she found it difficult to converse with them both. She said that her technical adviser had suggested that she write down what was happening and how she was feeling. Mr Parry's challenge to the authenticity and reliability of Ms Grubb's notes is dealt with elsewhere in these reasons. 182 Ms Grubb said that she had a discussion with Mr Parry about the use of F10 for the purpose of preventing yeast infections in the Specimens. She said to Mr Parry that he could use Unigram for cleaning, but emphasised that F10 should be used for the control of yeast. Mr Parry responded that he didn't want to use F10 because he thought only Unigram should be used. Ms Grubb said that caused her to be concerned because the loss of prior Specimens to yeast infection had been "quite traumatic". Ms Grubb recorded in her notes that Mr Parry "continued to do his own thing". 183 Ms Grubb said she reported the conversation to Dr Massy-Westropp and with her supervisor. She said that there was a meeting about the issue but could not recall what was said. Ms Grubb recorded in her notes that she gathered evidence about the use of F10 to control yeast which she provided to her technical supervisor and to Dr Massy-Westropp. 184 Ms Grubb recalled receiving the email on 13 September 2019 from Dr Massy-Westropp concerning the use of F10. Her notes include an entry stating that on that day Mr Parry had discussed the email with her, and that he had also complained to her about the delay in the results for the formaldehyde tests. 185 Ms Grubb confirmed that the issue concerning levels of formaldehyde first arose in around April 2019 when she and Dr Massy-Westropp noticed their eyes were stinging when dissecting the newly acquired Specimens. She said that she first made enquiries about the use of goggles to address the problem but later worked with the University's chemical manager (Mr Nelson) to prepare a risk assessment. She confirmed that Mr Nelson had recommended that the Specimen cabinets be left open for a time before the laboratory technicians then attended to their daily duties. 186 Ms Grubb attended the meeting of 3 October 2019 to discuss the formaldehyde test results. She could not recall what Mr Parry said at the meeting. 187 Ms Grubb said that on 8 October 2019 she went into the specimen storage room on level 2 to perform monthly sampling of the Specimens and noticed that there was a temperature issue. She said that she first contacted personnel in charge of controlling and monitoring the temperature before then reporting the issue to Dr Massy-Westropp. Ms Grubb observed that the Specimens were dry and discoloured and it appeared that they hadn't been hydrated. 188 Ms Grubb said that the maximum time that the Specimens could be left without hydration was three days. She said she was not previously aware that Mr Parry had not been performing the task daily. 189 Ms Grubb said that she prepared different versions of the Procedure Manual in preparation for the proceeding in the FWC together with a printout of the properties for each version so that the date of their creation could be identified. She said that she provided those documents to the University's solicitors and that she did not decide which versions should be included in the documents sent to the FWC. 190 When cross-examining Ms Grubb, Mr Parry did not challenge her version of events in any significant way. Ms Grubb's evidence is not otherwise contradicted or called into question by any of the material adduced on either party's case. She gave her evidence in a straight forward and polite manner. I consider her to be an impressive witness in respect of all of the matters within her knowledge. I prefer the evidence of Ms Grubb over that of Mr Parry on the limited topics in which their accounts are in conflict. I accept the account of her activities on 8 October and in respect of her prior dealings with Mr Parry and Dr Massy-Westropp.

[22]

Authenticity of documents 191 As should now be apparent, Mr Parry's case was that the discovery of temperature problems in the specimen storage room was a story concocted by the University as a ruse to conceal the real reason for his dismissal. He submitted that there was a conspiracy of actors within the University who wanted him gone because he had agitated issues concerning health and safety in the work place. In the prosecution of that case, Mr Parry took issue with the authenticity of a number records and alleged that oral evidence had been concocted. I now explain why none of Mr Parry's challenges to the authenticity of documents has merit or significance. 192 Mr Parry was particularly fixated on the circumstance that in the conciliation processes before the FWC, the University had provided a version of the Procedure Manual that post-dated the termination of his employment by a little over two hours. He submitted that the document had been "fabricated". Mr Parry did not challenge evidence of Ms Grubb to the effect that she produced updated versions of the Procedure Manual and that she was responsible for printing a page displaying the properties of versions of the document. 193 I accept Dr Massy-Westropp's evidence that she selected the most recent version of the Procedure Manual for provision to the FWC because she thought that was the appropriate document. The fact that the latest version had been created shortly after Mr Parry's dismissal was not concealed from him, nor from the Court. The date of its creation is made plain on the properties printout prepared by Ms Grubb which are accompanied the document. 194 I accept Mr Parry's submission that the version sent to the FWC was not the version that was in force at the time of his employment. To the extent that the FWC had any role in considering documents, it ought to have been provided with the earlier version of the Procedure Manual. But nothing of substance turns on that. 195 In resolving critical issues concerning the content of Mr Parry's duties, it is plain that the hydrating and cleaning tasks dedicated to Mr Parry included those described earlier in these reasons. During cross-examination, Mr Parry acknowledged the content of the Procedure Manual as it applied to him included a specification of the frequency that cleaning and hydration tasks were to be performed. Mr Parry has not demonstrated that the provision of a later version of the Procedure Manual could have any bearing on the resolution of that objective question. If Dr Massy-Westropp provided an incorrect version of the Procedure Manual, it has not been demonstrated that her decision to do so was accompanied by a malign purpose, nor that it should adversely affect her credit in this proceeding. No malign purpose is apparent from an examination of the differences between the documents referred to in the course of evidence. And, critically, Mr Parry made admissions in the course of giving evidence as to the content of the Procedural Manual that applied to him, before explaining his reasons for ignoring it. The content of the Procedure Manual in force at the relevant time is not the subject of controversy. 196 Mr Parry also took issue with the authenticity of the email exchange between Dr Massy-Westropp and Ms Todd on 15 October 2019 in which they discussed the draft of an email that Dr Massy-Westropp wanted to send to Mr Parry. On the evidence of Dr Massy-Westropp and Ms Todd, I am satisfied that the message to Mr Parry was indeed prepared by Dr Massy-Westropp and sent to Ms Todd for approval. For reasons already given, I have determined that Dr Massy-Westropp's draft email to Mr Parry should be given little weight. The email itself has not been shown to have been "fabricated" if what is meant by that is a concocted document created after the date that appears on its face. 197 The legal nature of Mr Parry's challenge to Ms Grubb's notes is somewhat unclear. His description of the notes as "vindictive ramblings" may at the very least be understood as a challenge to the truth of the matters recorded in them. However, he did not raise a clear objection to the admissibility of the notes, whether by reference to the conditions for the admission of a prior consistent statement or otherwise. Despite receiving guidance from the Court, Mr Parry did not put to Ms Grubb in cross-examination that the matters recorded in the notes were a fabrication devised as part of a conspiracy against him, nor did he put to her that the notes were not taken contemporaneously with the events to which they relate. More broadly, Ms Grubb's oral evidence as to her dealings with Mr Parry was not effectively challenged in cross-examination. In many respects it is consistent with Mr Parry's own evidence. Mr Parry did positively not deny that he closed the door on Ms Grubb during his induction training session. He gave evidence in his own case about his belief that the University was using the wrong solutions to treat the Specimens. After some prevarication he acknowledged that he had discussions with Ms Grubb about it. He frankly admitted that he had not attended to the hydration of the Specimens, critically between his last access of the specimen storage room on 20 September 2019 and his dismissal on 8 October 2019. He did not challenge Ms Grubb on her evidence that she entered the specimen storage room to swab the Specimens on 8 October and he did not challenge her evidence as to what she observed and what she did on that day. To the extent that Mr Parry challenged the authenticity of Ms Grubb's notes, I reject the challenge. I find that the notes are a reliable contemporaneous record taken by Ms Grubb as events unfolded in the workplace. At the very least, they are admissible to rebut Mr Parry's broad allegation of conspiracy, which by implication involves an oblique attack on Ms Grubb's credit as a co-conspirator. In the result, I would accept Ms Grubb's oral evidence as reliable in any event, even in the absence of her contemporaneous notes. 198 Mr Parry tendered records of his personal mobile telephone usage in an apparent attempt to demonstrate that Dr Massy-Westropp had not called him on 8 October 2019 when he was away from the workplace. I do not consider those documents to bear in any material way on the outcome of his claims. It is plain from text messages adduced by Mr Parry himself that Dr Massy-Westropp had indeed managed to reach his partner on a different number, and that his partner had conveyed the essence of that contact to Mr Parry himself. The question of which telephone number used by Dr Massy-Westropp to contact Mr Parry's partner is not significant. There is no dispute that a message got through to Mr Parry that there were "problems" at the laboratory. The timing of the call may inform the sequence of events, including Dr Massy-Westropp's first entry into the specimen storage room on 8 October relative to her contacting Mr Parry's partner, but that is a matter for submissions and does not go to prove the fabrication of documentary evidence.

[23]

Mr Parry's workplace rights 199 It is not controversial that Mr Parry raised a complaint or enquiry about his conditions of work affecting his health and safety, specifically by his expressions of frustration at the meeting of 3 October 2019 and in his email to Dr Massy-Westropp of 6 October 2019. The frustration expressed at the meeting related, at least, to the delay in the provision of the formaldehyde testing results. 200 I am satisfied that Mr Parry had a right in the nature of a workplace right to raise a complaint or enquiry about the safety of formaldehyde emitted from the Specimens, and I am satisfied that he in fact exercised that particular workplace right by his expression of frustration at the meeting and by his email communication of 6 October 2019 relating to, among other things, the adequacy of PPE. His evidence that he raised such topics with Dr Massy-Westropp in a cigarette break was not directly challenged and I proceed on the basis that additional discussion occurred. 201 An issue arises as to whether Mr Parry made complaints or enquiries about his safety at work at the meeting other than to express frustration about the delay. Mr Parry's evidence that he raised other safety topics at the meeting was disputed by Dr Massy-Westropp, and Ms Grubb had no recollection of the words Mr Parry had said. In the result, I do not consider much turns on that question. The undisputed fact is that following the meeting Mr Parry made his views about the topic abundantly and abruptly clear by his email to Dr Massy-Westropp. I am satisfied that even if Mr Parry raised additional matters at the meeting, they would have been the same matters raised in his email. The email left Dr Massy-Westropp in no doubt that Mr Parry was dissatisfied (rightly or wrongly) with the University's approach to the formaldehyde issue and that he did not agree with Mr Jankewicz's opinions. Proof that Mr Parry said similar words in the course of the meeting to my mind would add little to the factual context in which the dismissal occurred. 202 I am also satisfied that Mr Parry possessed a right to take steps to protect his health and safety at work, including a right to decline to perform his duties for safety reasons. 203 I am satisfied that he took steps to safeguard his health more generally by wearing a protective mask of his choosing when handling the Specimens and by wearing gloves of a kind that he considered to be suitable for the task. I am satisfied that he was aggrieved by the University's conduct in supplying latex gloves which he considered to provide inadequate protection. However, rather than address that grievance head-on with the University, his self-help solution was to lie about having an allergy so that he could be provided with gloves that he perceived might afford better protection. 204 As identified earlier in these reasons, Mr Parry's statutory right to cease work for safety reasons is conferred under s 84 of the WH Act. Section 86 of that Act provides: A worker who ceases work under this Division (otherwise than under a direction from a health and safety representative) must - (a) as soon as practicable, notify the person conducting the business or undertaking that the worker has ceased work under this Division unless the worker ceased work under a direction from a health and safety representative; and (b) remain available to carry out suitable alternative work. 205 The parties did not address the Court on the consequences for the right to cease work under s 84 of the WH Act in cases where the obligation under s 86 is not discharged. It is unnecessary to resolve the question in this proceeding, as will be explained. 206 It is also unnecessary to resolve a legal argument advanced by the University to the extent that for a workplace right to exist it must have its source in a statute and not in the general law of tort. As I understand it, the argument was raised in answer to any suggestion that might be put by Mr Parry that he was dismissed because he wore PPE. I do not consider Mr Parry gave adequate notice to the University that his claim was founded on the exercise of a workplace right in that particular way, irrespective of whether the right be founded in statute or the general law of tort. If I am wrong about that, for the reasons given below I am satisfied that the University has proven, to the requisite standard, that the operative reasons for the dismissal did not include Mr Parry's exercise of a right to safeguard his health by wearing PPE of his choosing. 207 On Mr Parry's own admission, he did not attend to the daily hydration of the Specimens from his last recorded access to the specimen storage room on 20 September 2019 until the date of the termination of his employment. For reasons that will now be explained, I have concluded that Mr Parry's conduct in failing to attend to the Specimens did not constitute the exercise of a workplace right to cease work. 208 As has been mentioned, Mr Parry relied upon a statement he prepared for the purposes of conciliation processes in the FWC for the truth of its content, and he gave oral evidence covering the same subject matter. The two accounts differ. The FWC statement contains an assertion to the effect that Mr Parry did not attend to the Specimens for reasons that included the protection of his health and safety in respect of the formaldehyde issue. However, in his oral testimony, Mr Parry did not state that his decision not to attend to the Specimens was related to his concerns about the formaldehyde. I consider the more reliable evidence to be the unguarded responses Mr Parry gave orally in the course of the trial. The exchanges extracted at [94] and [109] above demonstrate an attitude of supreme confidence on Mr Parry's part as to the correct and necessary procedures for the care of the Specimens. It demonstrates that he had no regard for the Procedure Manual and did not consider himself bound to comply with it because he "knew better". 209 I conclude that Mr Parry's belief that it was not necessary to attend to the hydration of the Specimens during times when they were not being used for teaching purposes was genuinely and firmly held. To the extent that he made admissions that he had not attended to the hydration of the Specimens on a daily basis at other times, the concessions were explained by the same belief - namely that at those times, the Specimens remained stored in hermetically sealed cabinets and so it was not necessary to attend to them. The earliest occasion of his failure to attend occurred in June 2019, shortly after his employment commenced. On his own evidence, Mr Parry believed that it was "common sense" that the Specimens did not require attention and that he knew better than the requirements stated in the Procedure Manual on the topic. He considered that to be so obvious that it was unnecessary to tell anybody what he was doing (or, more precisely, what he was not doing). 210 It was not suggested by either party that Mr Parry omitted to attend to the Specimens during semesters when teaching was occurring and it appears to be accepted that Mr Parry did attend to the Specimens during teaching periods. The circumstance that he did not express safety concerns as a reason not to do so during the teaching periods further reinforces my view that his failure to perform essential duties during the mid-semester break was a manifestation of his supreme confidence about the correctness of his scientific opinions, rather than any apprehension about his safety. 211 My conclusion that Mr Parry failed to attend to the Specimens because he considered it unnecessary for their care is further reinforced by the evidence of his conduct in the workplace more generally. I accept Ms Grubb's evidence that Mr Parry was not amenable to training by her, and that he had closed the door on her so that she could not provide him with instruction as to the use of the fogging machine. I am satisfied that Mr Parry did indeed form his own view that the University's protocols for disinfecting the Specimens with a mixture of F10 and Unigram were wrong, and that he indeed expressed those views, resulting in Dr Massy-Westropp's email direction on 13 September 2019. I am satisfied that his arrogance further manifested itself in his employing a multiplier of 10 in the calculations he performed in his 6 October email to support his argument that the University's PPE was inadequate. 212 The dealings evidence the same attitude that manifested itself in Mr Parry's failure to attend to the Specimens over the mid-semester break. Mr Parry freely acknowledged that he thought he knew better than the University as to the proper procedures for the care of the Specimens. I am satisfied that is the reason why he failed to attend to them. 213 Mr Parry did not have a workplace right to refuse to attend to the performance of his duties merely because he subjectively believed their performance was not necessary. That is so irrespective of whether he is right or wrong in his subjective beliefs. 214 In addition, I am satisfied that when asked by Dr Massy-Westropp about his non-attendance in the specimen storage room, Mr Parry did not respond in terms that suggested any connection between his non-attendance and his concerns for his health and safety, whether related to the levels of formaldehyde or otherwise. Consistent with his oral evidence, I am satisfied that Mr Parry responded to Dr Massy-Westropp's query with words to the effect that he did not consider it necessary to hydrate the Specimens during the mid-semester break. Again, it is not necessary for this Court to determine whether Mr Parry's beliefs are correct. It is sufficient to find that his views about what was or was not necessary explained his failure to attend to the Specimens in the mid-semester break, and that that was the explanation he provided to Dr Massy-Westropp. The stated explanation (and the actual explanation) did not include any concern about his health and safety. I consider it more probable than not that the explanation Mr Parry gave to Dr Massy-Westropp was consistent with his oral evidence given at trial on the topic: he did not perform the task prescribed in the Procedure Manual because of his beliefs about what was necessary for their care. 215 It is against those objective facts that the allegations of contravention against the University are to be resolved. It is for the University to establish on the balance of probabilities that the dismissal of Mr Parry was not for a reason that included the possession or exercise of the workplace rights alleged by him.

[24]

The reasons for dismissal 216 I will first address Mr Parry's submission that the University's discovery of the temperature issue in the specimen storage room on 8 October 2019 was a concocted story, devised to conceal an unlawful reason for his dismissal. 217 As already mentioned, Ms Grubb was not challenged in her evidence that she entered the relevant specimen storage room on 8 October for the purpose of conducting monthly swabbing of the Specimens. That evidence was not otherwise contradicted by Mr Parry and he has put forward no other reason to question it. Mr Parry expressly acknowledged that he had not informed anybody at the University that he was not attending to the hydration of the Specimens on a daily basis, such that any problems with the rising temperature could not have been identified by him. I have no difficulty in concluding that Dr Massy-Westropp first became aware of Mr Parry's non-attendance in the specimen storage room when Ms Grubb reported that the room temperature had risen and when Ms Clarke reported what had been learned from the electronic access logs. 218 The circumstance that these discoveries occurred on the first working day after Mr Parry sent his email on 6 October 2019 is explained by that circumstance and does not reveal the existence of a conspiracy on the part of personnel within the University. There is of course no suggestion that Mr Parry's failure to enter the room was the cause of the increase in temperature in the specimen storage room. However, it was the increase in temperature that provided an immediate occasion for enquiries to be made about access to the room, and for Dr Massy-Westropp to question Mr Parry on that topic on that same day. I am satisfied Dr Massy-Westropp's decision to question Mr Parry about his access to the room was not motivated by the fact that he had sent the email on 6 October 2019 complaining about the University's handling of the formaldehyde issue. There was an obvious factual basis for questioning Mr Parry about a critical issue concerning his duties that first arose for Dr Massy-Westropp's consideration on the morning of 8 October. 219 Both Dr Massy-Westropp and Mr Parry said that they had two short conversations. Mr Parry said that there was a period of about ten minutes between each of them. That is consistent with Dr Massy-Westropp's version of events, in which she returned to her office, resolved to dismiss Mr Parry, telephoned Ms Todd about it, then returned to Mr Parry to inform him of the termination of his employment. 220 On Mr Parry's own evidence, in the first conversation he informed Dr Massy-Westropp that he had not hydrated the Specimens because he did not consider it necessary to do so, including because the Specimens were stored in sealed cabinets and were not required for teaching. On his own evidence, Dr Massy-Westropp responded in terms that made it plain she considered that to be unacceptable and that she appeared tense and anxious. I accept Dr Massy-Westropp's evidence that she was shocked to hear that Mr Parry had not attended to the Specimens. I consider Dr Massy-Westropp had every reason to expect that the Procedure Manual would be followed by Mr Parry, particularly in the absence of Mr Parry informing her that he did not consider it necessary to do so. Dr Massy-Westropp's overall responsibility for the care of the Specimens was such she subjectively considered Mr Parry's failure to hydrate them to be particularly egregious. 221 The University's evidence about the sequence of events on 8 October 2019 otherwise invites further scrutiny. There are a number of discrepancies between the evidence of Dr Massy-Westropp and Ms Todd that are left unexplained. They include: (1) Ms Todd said that she received a telephone call from Dr Massy-Westropp before Dr Massy-Westropp had any discussion with Mr Parry about his non-attendance in the specimen storage room. However, Dr Massy-Westropp's evidence was that she called Ms Todd after Mr Parry told her that he had not attended to the Specimens and that she asked for confirmation that he could be dismissed on that basis. (2) Dr Massy-Westropp said that she asked Ms Todd whether Mr Parry could be dismissed and that Ms Todd had called back and confirmed that he could be. She said that she asked Ms Todd to attend with her, but Ms Todd declined because she had a meeting. Ms Todd gave no evidence of any such conversation. Her evidence was that she made enquiries of a person in Human Resources and that Dr Massy-Westropp called back to inform her that she had dismissed Mr Parry before the advice from Human Resources was received. Ms Todd did not state that she advised that Mr Parry could be dismissed at any time before the dismissal in fact occurred. 222 The circumstance that neither Dr Massy-Westropp nor Ms Todd were cross-examined or re-examined about these discrepancies has the consequence that they are left unexplained. In closing submissions, Mr Parry made no reference to them. Counsel for the University minimised their significance without attempting to explain how they might be reconciled. 223 In the result, I have concluded that the evidence of Dr Massy-Westropp concerning her reasons for dismissing Mr Parry should be accepted, notwithstanding the discrepancies as to the sequence of communications to which I have referred. I am satisfied that she subjectively considered Mr Parry's non-attendance on the Specimens to justify his dismissal and I am satisfied that she had an obvious reason to form that belief. That is because Mr Parry's principal task was to maintain the Specimens and because the University's expectations as to how that should be done had been made clear to him via the induction process and the Procedure Manual. I have found that Mr Parry did not himself express any connection between his non-attendance on the Specimens and any health and safety concerns when asked for an explanation by Dr Massy-Westropp. I have preferred his oral evidence to be the most reliable in respect of what he said. It is to be preferred to any inconsistent account given in his written statement provided to the FWC. 224 There is of course a strong temporal connection between the existence of complaints about workplace safety issues and the dismissal of Mr Parry. However, considered as a whole, the evidence shows that Dr Massy-Westropp had herself been instrumental in having the health and safety issues investigated by an external consultant from the University of Adelaide. Mr Parry's allegation that "someone sat on" the report finds no support in the evidence, and I accept that the report was made available to staff within the School once it was obtained by Dr Massy-Westropp. Dr Massy-Westropp involved the staff in a discussion about its contents and Mr Parry was given the task of researching and acquiring masks in accordance with its recommendations. On the totality of the evidence, I am satisfied that the reasons for Mr Parry's dismissal did not include the circumstance that he had expressed frustration about the delay in the receipt of the report or anything said by him at the meeting or in his email of 6 October 2019, or any like complaints that might have been made at an earlier time. 225 I have given some consideration to the question of whether the behavioural issues that had previously been reported to Dr Massy-Westropp may have influenced her decision to dismiss Mr Parry. Relevant to that question is the circumstance that on the day of the dismissal Dr Massy-Westropp forwarded to Ms Todd her email to Mr Parry and Ms Grubb about the use of Unigram. The circumstances might suggest that Dr Massy-Westropp considered Mr Parry to have some history in determining for himself what his duties should or should not entail and that she considered the circumstances warranting his dismissal were a further manifestation of attitudes she believed he had previously displayed in the workplace. However, any infiltration of the perceived past behavioural issues into Dr Massy-Westropp's reasoning would not have the consequence that the University contravened s 340 of the FW Act. In unilaterally deciding that Unigram was a sufficient solution for the disinfection and hydration of the Specimens, Mr Parry was not exercising or purporting to exercise a workplace right, nor did that aspect of the case feature in his pleaded allegations against the University in any event. 226 I do not accept Mr Parry's submission that the speed at which his two conversations with Dr Massy-Westropp occurred was indicative of a degree of pre-planning. As discussed above, I am satisfied that the events of 8 October 2019 were precipitated by Dr Massy-Westropp's discovery (made genuinely for the first time that day) that Mr Parry had not hydrated the Specimens on a daily basis whilst on duty, and that she reacted immediately to the seriousness of that state of affairs as she genuinely assessed it. I accept her evidence that she was shocked by Mr Parry's response and the emotionally heightened atmosphere in which her decision was made. 227 Whether or not Mr Parry was afforded a fair opportunity to answer allegations of non-performance or to speak against a proposed decision to dismiss him is not an issue that arises for determination in this proceeding. He does not allege breach of contract, unfair dismissal or any cause of action other than an alleged contravention of s 340 of the FW Act by reference to health and safety issues. To be clear, I am not asked to decide the objective question of whether Mr Parry's failure to hydrate the Specimens was conduct sufficient to justify the lawful termination of the employment contract and I should not be understood as expressing any view on the topic. 228 In light of the discrepancies to which I have referred, Dr Massy-Westropp's evidence that she received advice from Ms Todd before dismissing Mr Parry is not supported by the evidence of Ms Todd, and indeed is contradicted by it. However, as I have mentioned, Mr Parry has not made submissions to the Court as to the consequence that should follow from that discrepancy. I do not consider the discrepancy to provide a sufficient basis for rejecting Dr Massy-Westropp's evidence going to the critical issues in respect of which the University bears the burden of proof. On the balance of probabilities I am satisfied that Dr Massy-Westropp as the sole decision-maker. 229 Mr Parry's allegation that his dismissal was actuated by a motivation to cover up health and safety issues in the workplace more generally has been disproved by the University. Whilst a health and safety issue concerning formaldehyde had plainly arisen, the evidence considered as a whole discloses that there was no attempt by the University to conceal from any person the fact that the issue had arisen or the steps being taken to resolve it. The formaldehyde issue was one that affected all employees and all of them were entitled and indeed expected by Dr Massy-Westropp to take steps to safeguard their health and safety in response to it. The circumstance that Mr Parry wore a mask of his choosing was not alleged by him to be a basis for the decision to terminate his employment. I am satisfied that his choice of mask was of no moment to Dr Massy-Westropp. And, as I have said, Dr Massy-Westropp was at no time advised that Mr Parry had ceased the performance of any of his duties for any reason connected with his health and safety in the workplace more generally. 230 Mr Parry's case that there were other health and safety issues affecting the workplace or a "culture" of bad practices within the laboratories amounted to little more than bare allegations put in cross-examination which were met with bare denials. He did not adduce evidence in his own case sufficient to support an objective finding that there was a "culture" of the kind alleged, nor to show Dr Massy-Westropp's denials on that topic to be false, nor to show that Mr Parry had made complaints or enquiries on the various issues during the course of his employment that came to Dr Massy-Westropp's attention. 231 I do not consider the absence of any reason for Mr Parry's dismissal on Centrelink documentation to take the matter any further. 232 In closing submissions, Mr Parry said that the paucity of documentary evidence adduced as part of the University's case supported a finding of contravention. However, Mr Parry did not seek an order for discovery at the pre-trial stage, notwithstanding that he was encouraged prior to the trial to familiarise himself with the rules of the Court. A date was fixed by which such an application should be made and in that way the opportunity to have subpoenas issued was made known to him. No application for leave to issue a subpoena was made. 233 Having received further guidance from the Court, Mr Parry did make a call for production of the "file" to which Ms Todd referred in her evidence. Mr Parry commented on the paucity of the material returned on the call for production, but took the matter no further. He did not expressly allege that the University was in breach of the production order, nor did he seek to further cross-examine any witness on the topic. The paucity of the file may suggest that the University's record keeping leaves a great deal to be desired, but of itself that does not assist Mr Parry to establish those matters in respect of which he bears the onus of proof, nor does it alter my conclusion about the reason for his dismissal. 234 Having regard to the evidence as a whole, I am satisfied that the University has discharged the burden cast upon it under s 361 of the FW Act so as to rebut the statutory presumption. On the balance of probabilities, I am satisfied that the reason for Mr Parry's dismissal was Dr Massy-Westropp's conclusion that he had failed to attend to duties she considered to be of utmost importance to his role. The reasons did not include any reason sanctioned by s 340 of the FW Act, whether directly or indirectly, as alleged by Mr Parry.

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ISSUES UNECESSARY TO DECIDE 235 It follows that it is unnecessary to consider the alternative basis for dismissal put forward by the University. For completeness however I will make the findings necessary to explain why I would have rejected the University's case on that topic on the facts. 236 In my view, the written record upon which the University relied does not establish that Mr Parry was rostered to work on the days on which he is recorded as having failed to attend the specimen storage room in June and July 2019. I do not consider that record of itself to disclose a failure to perform a duty attending Mr Parry's role. 237 Mr Parry made admissions that for some periods between July and September 2019 he did not attend to the Specimens on a daily basis at times when they were not in use for teaching purposes. I accept that admission at face value, although it is lacking in detail as to the duration of his periods of non-attendance. I accept that the discovery of that failure may well have provided a lawful basis to give Mr Parry appropriate directions and warning, just as he had been given directions when it became apparent that he did not consider it necessary to use F10 when performing hydrating and disinfecting tasks in the wet laboratories. The University has not established that the duration of the prior admitted instances of non-attendance were significant, nor that it would have had a lawful basis to terminate the employment contract immediately by reference to them, consistent with the terms of the contract and the FW Act. Whilst it appears that there were other issues concerning Mr Parry's behaviour in the workplace, the University did not put forward those issues as a basis for denying that his employment contract would not in the ordinary course have been renewed upon the date of its expiry in March 2020. I do not consider these issues would have affected the Court's assessment as to the availability or quantum of any remedy, had the alleged contravention been established. 238 My conclusions as to liability render it unnecessary to quantify any remedy to which Mr Parry would have been entitled had a contravention of the FW Act been established. However, for completeness, I will make the factual findings necessary to explain why Mr Parry would not have been entitled to any significant award of compensation damages. 239 Mr Parry did not forgo any other employment in order to take up the casual position with the University. He ultimately admitted that he was effectively unemployed. There is insufficient evidence to support Mr Parry's assertion that he had an impressive resume. His career history is largely unknown. The evidence is lacking in detail as to any reasonable attempts Mr Parry has taken to secure alternative employment, whether on a casual, part-time or full-time basis. Whilst he perceives that his reputation was affected by his dismissal, the asserted impact was not established on the evidence adduced by him. Had he been entitled to a remedy, on the facts I do not consider an award of damages should exceed Mr Parry's ordinary expected earnings through to the date of expiry of his employment contract in March 2020. That period to my mind coincides with the time by which Mr Parry might reasonably be expected to secure alternative employment following his dismissal on 8 October in the previous year. 240 There is otherwise no proper factual basis for an award of compensation in the amount claimed. It is unnecessary to decide whether his prayer for relief should be interpreted to include an application for the imposition of a civil penalty. 241 The application will be dismissed and the parties heard as to the appropriate order for costs, given the limited costs power conferred under s 570 of the FW Act. I certify that the preceding two hundred and forty-one (241) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.

Parry v University of South Australia

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