The orders of the primary judge be set aside and, in their place, it be ordered that:
Save for the adverse action claims relating to the issuing of the Final Written Warning and the issuing of the Serious Misconduct Allegations, the applicant's application otherwise be dismissed.
The matter be adjourned for a directions hearing before the primary judge on a date to be fixed in relation to the issue of the future progress of the matter in so far as it relates to those parts of the applicant's application that are not dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
By an amended notice dated 18 March 2024, the appellant, Dr Pilbrow, appeals from various parts of the judgment of the Federal Circuit and Family Court of Australia (Division 2) (the "FCFCOA") in Pilbrow v University of Melbourne [2022] FedCFamC2G 1001 (Deputy Chief Judge Mercuri; hereafter, the "Primary Judgment"). By that judgment, the FCFCOA rejected a number of contentions that Dr Pilbrow had advanced concerning the circumstances that culminated in the termination of her employment by the respondent, the University of Melbourne (hereafter, the "University"). Dr Pilbrow maintains that it erred in doing so and seeks relief in this court to correct that course.
Dr Pilbrow was dismissed from her position as a lecturer with effect from 27 February 2020, apparently - although, she maintains, not actually or solely - on the grounds of redundancy. By her application to the FCFCOA, she contended that her position had been made redundant and that she had been dismissed, in each case in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (the "FW Act"), in that each was actuated, or partly actuated, by the fact that she had made various complaints in relation to her employment. Additionally, she contended that she had been made the subject of misconduct allegations prior to her dismissal, the making of which was also actuated, or partly actuated, by her having made those same complaints.
For reasons that are the subject of analysis below, the learned primary judge rejected those contentions. In short, her Honour concluded that none of the people who decided to visit upon Dr Pilbrow the fates about which she complained was actuated, partly or otherwise, by the fact that she had made the complaints that she had made. In consequence, her Honour concluded that the University had not effected Dr Pilbrow's redundancy, her subjection to misconduct allegations or her dismissal in contravention of s 340(1) of the FW Act.
By the present appeal, Dr Pilbrow maintains that the primary judge was wrong so to conclude. In particular, she maintains that her Honour ought to have concluded that the University had failed to rebut evidential presumptions that arose by force of the FW Act. That is put in two ways.
First, Dr Pilbrow maintains that the University's "decision" (an unfortunate turn of phrase to which attention will shortly return) to make her position redundant and, thereafter, its decision to terminate her employment were, in each case, made, or materially influenced, by somebody that was not called to give evidence, namely the Dean of the University's Faculty of Medicine, Dentistry and Health Sciences, Prof Shitij Kapur. It is said that the learned primary judge was wrong to conclude that Prof Kapur had not relevantly participated in those decisions to a point that warranted interrogation of his state of mind; and, in consequence of that error, was wrong to conclude that the University had rebutted the statutory presumption referred to earlier.
Second, Dr Pilbrow maintains that the University failed properly to prove who it was that made, or relevantly influenced the making of, the decision to subject her to allegations of misconduct, and that such evidence as was called was not competent to rebut the statutory presumption that otherwise operated against the University. The learned primary judge's conclusion to the contrary, she says, was not open on the evidence.
Additionally, Dr Pilbrow submits that the learned primary judge's findings as to why adverse action was taken against her were products of error, in that they were not premised upon a proper assessment of all of the evidence and were not the subject of adequate reasons in the Primary Judgment.
For the reasons that follow, the appeal should be allowed in part. Respectfully, I consider that the leaned primary judge erred by concluding that the University had led evidence sufficient to rebut the statutory presumption that arose in connection with the second of the contentions summarised above. In fact, such evidence as there was failed to establish that Dr Pilbrow's subjection to misconduct allegations was not actuated by her having exercised a workplace right or workplace rights. The appeal should otherwise fail. As is already envisaged, the matter should proceed before the primary judge for the determination of remedial orders, albeit on a basis slightly expanded from that upon which her Honour settled.
[2]
Background facts
Relevantly for present purposes, there is little in the way of background fact that is controversial. The learned primary judge set out her findings in that regard in a careful and thorough summation within her reasons for judgment: Primary Judgment, [5]-[75]. It suffices to summarise them as follows.
Dr Pilbrow commenced her employment with the University in 2008, then as a casual tutor. In 2010, she was appointed to the role of lecturer, initially on a fixed-term basis and then, from July 2013, on an ongoing basis. It was from that role that she was dismissed with effect from 27 February 2020.
Dr Pilbrow was engaged within the University's Faculty of Medicine, Dentistry and Health Sciences. As might be appreciated, that faculty (hereafter, the "Faculty") was comprised of various "schools", one of which, at relevant times, was the School of Biomedical Sciences. That school (the "School") was itself comprised of a series of departments, one of which was known as the Department of Anatomy and Neuroscience. It was within that department (the "Department") that Dr Pilbrow worked as a lecturer. The terms upon which she was employed were subject to statutory instruments that were in force pursuant to the FW Act (or its predecessor): specifically at the time of her dismissal, an enterprise agreement known as the University of Melbourne Collective Agreement 2018 (the "EA").
At the times of relevance to this appeal, Dr Pilbrow reported to the Head of the Department, Prof Jennifer Wilkinson-Berka. Prof Wilkinson-Berka, in turn, reported to the Head of the School, Prof Fabienne Mackay. Prof Mackay was answerable to the Dean of the Faculty, Prof Kapur.
As a lecturer within the Department, Dr Pilbrow's focus (at least at the time that her employment ended) was topographic anatomy. She performed the role of subject coordinator for a single subject known as "Human Locomotor Systems". Additionally, Dr Pilbrow oversaw what was known as the Richard Berry collection of skeletal remains.
In her reasons for judgment, the learned primary judge was astute to set out what presents as Dr Pilbrow's unfortunate history of disputation or conflict with others within the School. I am fortunate to observe that none of that history bears upon the resolution of the appeal. That being so, it is unnecessary that I should attempt what would surely be the difficult task of improving upon her Honour's summary.
Instead, it suffices to note that, over the course of some time, Dr Pilbrow had occasion to make a number of complaints about various issues related to her employment. For present purposes, there is no dispute that she did so; nor that, by doing so in each instance, she exercised what the FW Act recognises (and what is described in more detail below) as a "workplace right". If not already apparent, the significance of those concessions will emerge throughout the course of these reasons.
It is, instead, necessary to focus upon the circumstances that set in train what ultimately culminated in the termination of Dr Pilbrow's employment. They trace back to May 2018 and a review that the Faculty commissioned in relation to the operations of the Department. That review made some recommendations, including with respect to the Department's research activities. Specifically, it recommended that the Department should focus its research energies on neuroscience, cell biology and developmental biology. Those were not areas within Dr Pilbrow's field of expertise.
Prof Wilkinson-Berka commenced in the role of Head of the Department in early May 2019. A few weeks later, she attended a meeting of the Department's Executive Committee, at which there was some occasion to consider the recommendations contained within the Faculty's review. The minutes of that meeting were admitted into evidence before the primary judge. They record as follows:
…
Jenny thought that Anthropological Research does not fit into any area of research conducted in the Department. Furthermore, after looking at financial data, there has not been any large income generated. Although, Anthropological Research is an interesting topic, Jenny's thoughts were that this area of research could not be linked to the key areas in the Department and would not generate substantial competitive grant funding. As such Jenny sought the Committee's feedback.
The members of the Committee discussed the following:
Anthropological research was conducted by our early researchers back in 1930s i.e. Richard Berry and very recently i.e. from 2009 to current. It was noted that this area of research has not grown since 2009 with no one being employed, no large grant income generated, except for $25K a couple of years ago and some Departmental funding contribution.
The incumbent was mainly employed to teach Topographical Anatomy.
A few students had completed their postgraduate studies in this area.
On numerous occasions, mentoring was provided to help the incumbent to pursue collaboration with the Department of History at the University but to no avail.
Anthropological research could have fitted in with Quentin Fogg's and David Aitken's research.
Anthropological research would have been potential Honours, Masters research project/s.
Anthropological research could be complemented within the Topographical Anatomy stream; however, it was questioned if the person can run the program viably.
In an evolutionary standpoint, Anthropological research is an interesting area of research and it does fit under the umbrella of Topographic Anatomy, however, the question was raised whether the incumbent can proceed to advance the research to the level that is viable as expected by the Department.
Anthropological research is very valuable as an engagement exercise to inform clinicians and also complement research in the Museum.
Not many researchers in the University who do similar research knew of the Anthropological research undertaken in this Department and it was noted that the incumbent has isolated themselves to the point that no potential research collaborations could have eventuated.
The incumbent has had various collaborations over the past years, whilst being Supervisor for PhD students, and for various reasons, these collaborations have not eventuated and as such it seemed to be problematic.
Jenny thanked the members for their feedback and comments. She queried on the core business and sustainability of this research area, regardless of personalities and future recruitments. As previously indicated, her strong view was that Anthropological research does not fit into the themes in the Department. She asked if there are any further comments from the members.
No further comment was made by the Committee to this statement.
…
In her reasons for judgment, the learned primary judge fairly summarised that evidence as follows:
204 Professor Wilkinson-Berka also gave evidence that on 21 May 2019, she convened an extraordinary meeting of the Executive Committee. At that meeting, she outlined her vision for the future research within the Department, and expressed concern about the viability of continuing with anthropology as part of the Department's research focus. The minutes of the Committee meeting are consistent with the evidence given by Professor Wilkinson-Berka. Professor Wilkinson-Berka's evidence is that she had formed a strong view about the future directions of the Department's research, and the committee meeting on 21 May 2019 reinforced that view.
Prof Wilkinson-Berka then (and, perhaps, had also earlier) had occasion to discuss her thoughts about the Department's research strategy with Prof Mackay. Prof Mackay endorsed the change in direction away from anthropological research; and it is apparent that the agreed understanding was the catalyst for the preparation of what has since come to be known as a "change plan". Prof Wilkinson-Berka was told - both by Prof Mackay and by a Senior Human Resources "Business Partner" within the University, Ms Neena Narsey - that the preparation of such a document would be necessary under the EA because the change in research focus would necessarily result in the University's no longer requiring Dr Pilbrow to serve in the role that she occupied.
The "change plan" was thus prepared. It comprised of a single-page document, headed "Change Plan - Department of Anatomy and Neuroscience". Under the heading "Purpose", the change plan identified its objective as being to "…address and implement recommendations from the 2018 department review commissioned by the Faculty of Medicine, Dentistry and Health Sciences and School of Biomedical Sciences". The document continued:
Professor Wilkinson-Berka formally commenced as Head of Department on the 4th May 2019. A special meeting of the Department Executive Committee was held on 21st May 2019 to review the Department's research strategy and consider the Review Report's recommendations. Consistent with the Review, the Executive confirmed the Department's research focus as:
Neuroscience
Cell Biology and
Developmental Biology
The area of anthropological research was specifically discussed. It was agreed that, while the department has had a significant history of staff associated with Anthropological Research, it no longer attracted significant funding and no longer fitted with the department's research strategy.
The change plan then addressed what it described as "Proposed Changes":
It is proposed to discontinue anthropological research in the Department of Anatomy and Neuroscience, as it is no longer consistent with the Department's research strategy.
Under the heading, "Implications for Staff of Proposed Changes", the change plan recorded as follows, namely:
This change will impact one Level B Teaching and Research academic position which will become redundant. This is the sole position undertaking anthropological research within the department. The teaching component of the role is of a standard type in terms of skill sets and can readily be absorbed by other staff of the department. The position is thus no longer required from either a research or teaching perspective. As the teaching load will be spread across a number of staff members, there will be no adverse impact on other staff. This role will not be replaced and is truly redundant.
[3]
The pleaded case
Unlike some before the FCFCOA, the trial before the learned primary judge proceeded upon formal pleadings. For reasons that will emerge, it is prudent to set out the case that Dr Pilbrow prosecuted.
By her amended statement of claim dated 25 November 2020, Dr Pilbrow relevantly alleged as follows:
On 12 August 2019 Dr Pilbrow attended a meeting with Professor Jenny Wilkinson-Berka, the Head of the Department.
…
In that meeting Dr Pilbrow was provided with a document entitled Change Plan.
Dr Pilbrow was told that [the University] had decided to make her position redundant in accordance with the Change Plan. (Redundancy Decision).
…
On 18 October 2019, Dr Pilbrow attended a meeting with Mr Caswell and Ms Karakiozakis. In that meeting, Mr Caswell:
a. alleged that Dr Pilbrow had engaged in serious misconduct (Serious Misconduct Allegation); and
…
…41. On 25 October 2019, Mr Caswell set out the Serious Misconduct Allegation in a letter to Dr Pilbrow.
Particulars
The allegation was that Dr Pilbrow was responsible for deleting digital files, such as teaching materials, practical class notes, assessments and course timetables from the [University's] Learning Management System (LMS). It was also alleged that she deleted those a second time, after they had been reloaded by the Department to the LMS.
[The University] extended Dr Pilbrow's termination date several times in the period 6 September to 24 December 2019.
Particulars
On 6 September 2019 Dr Pilbrow was notified that her employment would be terminated on the grounds of redundancy on 1 November 2019.
On 15 October 2019 Dr Pilbrow was notified that her employment would be extended to 14 November 2019.
On 5 November 2019 Dr Pilbrow was notified that her employment would be extended to 29 November 2019.
On 28 November 2019 Dr Pilbrow was notified that her employment would be extended to 6 December 2019.
On 6 December 2019 Dr Pilbrow was notified that her employment would be extended to 13 December 2019.
On 13 December 2019 Dr Pilbrow was notified that her employment would be extended to 20 December 2019[.]
On 18 December [2019] Dr Pilbrow was notified that her employment would be extended to 24 January 2020[.]
Finally, on 24 December 2019, Dr Pilbrow was notified that her employment would again be extended, and she would instead be terminated on the grounds of redundancy on 27 February 2020.
In accordance with the notice dated 24 December 2019, Dr Pilbrow's employment was terminated with effect on 27 February 2020 (the Dismissal).
…
The Redundancy Decision [and] the Serious Misconduct Allegation…are each adverse actions within the meaning of section 342(1) of the [FW] Act insofar as they each:
a. Injured Dr Pilbrow in her employment; and/or
b. Altered the position of Dr Pilbrow to her prejudice.
The Dismissal was adverse action within the meaning of section 342(1) of the [FW] Act.
…
By its defence of 9 December 2020, the University admitted all of the allegations extracted above.
Elsewhere, Dr Pilbrow's amended statement of claim sought to establish that she had made various complaints in relation to her employment; and that, by doing so, had exercised what s 341(1) of the FW Act recognises as "workplace right[s]". Those complaints were assigned defined terms, amongst them "the PDR Complaint", "the PDR Dispute" and "the Change Plan Dispute" (for present purposes, nothing turns upon their nature).
The pleading then sought to tie the exercise of those workplace rights to the "adverse actions" to which paragraphs 52 and 53 (extracted above) referred:
In the context of the 4 year history of complaints, including repeated complaints, set out at [13] above:
a. The Redundancy Decision was motivated by reason of, or for reasons including:
i. the PDR Complaint; and/or
ii. the PDR Dispute,
in breach of section 340(1)(a)(ii) of the [FW] Act.
b. The Dismissal was motivated by reason of, or for reasons including:
i. the PDR Complaint and/or
ii. the PDR Dispute,
in breach of section 340(1)(a)(ii) of the [FW] Act.
c. The Serious Misconduct Allegation was motivated by reason of, or for reasons including:
i. the PDR Complaint;
ii. PDR Dispute; and/or
iii. the Change Plan Dispute,
in breach of section 340(1)(a)(ii) of the [FW] Act.
…
Although not stated in terms, it is apparent that Dr Pilbrow intended, at least by paragraph 54 of her amended statement of claim, to constitute the making of the "Redundancy Decision", the effecting of "the Dismissal" and the making of the "Serious Misconduct Allegation" as, in each case, conduct that was attributable to - which is to say, conduct that was engaged in by - the University. The University was the only respondent to her suit.
The amended statement of claim did not identify material facts sufficient to explain how that attribution was put. Indeed, save insofar as it identified Mr Caswell as the person through whom the University made what was referred to as the "Serious Misconduct Allegation", the amended statement of claim did not identify the actors whose conduct was attributable, howsoever, to the University. To that reality, it will be necessary later to return.
The University denied that the adverse action that Dr Pilbrow alleged was occasioned, in part or otherwise, by her having exercised a workplace right or workplace rights. Thus were the battlelines drawn: at issue before the learned trial judge was not whether Dr Pilbrow had exercised workplace rights or been subjected to adverse action as she had alleged; but, rather and more simply, whether adverse action had been taken against her for a reason or reasons that s 340(1) of the FW Act proscribed.
[4]
The legislative framework
At this juncture, it is prudent to map out the legislative provisions upon which resolution of the appeal turns.
Part 3‑1 of the FW Act is entitled "general protections". Amongst other things, it provides for a suite of protections designed to safeguard the exercise of "workplace rights". One of those protections is provided for by s 340(1) of the FW Act, which provides (and, at all relevant times, provided) as follows:
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
…
(ii) has, or has not, exercised a workplace right; or
…
Section 342(1) of the FW Act defines "adverse action". It is unnecessary to rehearse that definition here. As has already been noted, it is not presently controversial that the University took adverse action against Dr Pilbrow by:
deciding to "…make her position redundant in accordance with the Change Plan";
alleging that she "…had engaged in serious misconduct"; and
terminating her employment.
Section 341(1) of the FW Act identifies (and identified) the circumstances in which a person might be understood to possess a "workplace right". In the absence of any dispute as to whether Dr Pilbrow possessed and exercised relevant workplace rights, it too can be ignored for present purposes.
Section 360 of the FW Act recognises that adverse action might be taken for a variety of reasons, including some unrelated to reasons that pt 3‑1 of the FW Act proscribes. In order to be actionable under pt 3‑1 of the FW Act, it is sufficient that relevant adverse action is taken for reasons that include such proscribed reasons.
Section 361 of the FW Act creates a rebuttable presumption concerning the proof, in any given case, of the reasons for which adverse action was taken. If, in an action alleging that conduct was engaged in in contravention of pt 3‑1 of the FW Act, a person is accused of having done something for a particular reason and the doing of that thing for that reason would constitute a contravention of that part, then it is presumed that the conduct was engaged in for the reason alleged, unless or until the person who engaged in it proves otherwise.
Section 539 of the FW Act is entitled "applications for orders in relation to contraventions of civil remedy provisions". Amongst other things, it identifies the provisions of the FW Act that qualify as "civil remedy provision[s]". Section 340(1) is amongst them and s 539(2) of the FW Act confers jurisdiction upon the FCFCOA to hear applications for relief relating to contraventions of that section. There is presently no issue about the jurisdiction of that court to try Dr Pilbrow's contentions, nor about this court's jurisdiction to consider an appeal from such a determination.
Where, as here, it is alleged that a body corporate has engaged in unlawful adverse action, s 793 of the FW Act serves to assist in attributing to it the conduct of the human agents through whom it acts and, in certain circumstances, the states of mind with which they do so.
[5]
The central issue before her Honour
Something might, at this point, be said of the two central issues that arose for consideration by the learned primary judge: who was it that visited the adverse action that was admitted and why did they do so? Before she could answer the latter of those two questions, her Honour first needed to determine the former. Only upon ascertaining whose conduct was relevantly attributable to the University could she then determine the ultimate issue that remained for her to determine: namely, did any of the relevant actors engage in that conduct because, or for reasons that included that, Dr Pilbrow had exercised a workplace right or workplace rights?
The first question assumes primary significance in this appeal because, insofar as concerns each of the three relevant species of adverse action referred to in her amended statement of claim - that is, the making of the "Redundancy Decision", the effecting of "the Dismissal" and the making of the "Serious Misconduct Allegation" - Dr Pilbrow's complaint is not that the learned trial judge erred by holding that none of the University's human agents was actuated, partly or otherwise, by any reason prohibited by s 340(1) of the FW Act. Rather and more simply, her complaint (at least insofar as concerns her first three appeal grounds) is that her Honour erred in failing to find that there were other people who effected or were involved in effecting the adverse action, whose states of mind were not proved. In the absence of that proof, Dr Pilbrow maintains, it was not open to the learned primary judge to conclude that the University had rebutted the statutory presumption to which s 361(1) of the FW Act gave effect.
[6]
The Primary Judgment
As has been recorded already, the learned primary judge determined that none of the people by whose conduct the University could be understood to have visited any of the three relevant species of adverse action was actuated or partly actuated to do so because Dr Pilbrow had exercised a workplace right or workplace rights. In so doing, her Honour was concerned to identify, in relation to each instance of adverse action, whose conduct was relevantly attributable to the University.
Insofar as concerned the "Redundancy Decision" - which she earlier defined as "…the decision to declare Dr Pilbrow's position redundant" - her Honour recognised the competing submissions that had been advanced before her. Specifically, the University had submitted that it was with Prof Mackay that "the ultimate responsibility" for that had rested; and that Prof Wilkinson-Berka had been "materially involved". Dr Pilbrow, however, had sought to impugn that submission as contrary to the evidence; and to constitute Prof Kapur as another agent responsible for the "Redundancy Decision". Her Honour identified that the "...issue to be determined therefore is whether [Prof Kapur] was, in fact, a decision-maker or whether he had a material involvement in the decision to declare Dr Pilbrow's position redundant."
The learned primary judge was then concerned to address the evidence that Dr Pilbrow held up as fatal to the University's submission. It repays to replicate what her Honour recorded (Primary Judgment, [101]-[105]):
101 In support of the proposition that Professor Shitij Kapur was the decision maker in relation to the redundancy, the applicant points to the evidence given by Professor Mackay, where in the course of cross-examination, the following exchange occurred:
Counsel for applicant: Whose decision was it, Professor Mackay, to change the research vision for the department?
Professor Mackay: Well, there's a …. review that informs the decision, there's the strategy of the faculty, there's the context, we were experiencing a context where we had a demographic contraction of students graduating from high school…
Counsel for applicant: Professor Mackay, I asked you whose decision it was. Whose decision was it to change the … research vision of the department…
Professor Mackay: It's a process … by faculty … so … at the end it has to be accepted by faculty.
Counsel for applicant: And … when you say 'faculty' … who do you mean?
Professor Mackay: The Dean.
Counsel for applicant: So the change to the research vision for the department was ultimately approved by the Dean?
Professor Mackay: Yes.
…
Counsel for applicant: Who made the decision to make Dr Pilbrow's position redundant?
Professor Mackay: I mean, the process did … you know, ultimately, I have a responsibility … but this is the outcome of the process.
Counsel for applicant: So you accept, do you, that it was your decision?
Professor Mackay: Supported by the Dean, yes.
Counsel for applicant: The Dean was a decision maker?
Professor Mackay: As much as I was, yes.
Counsel for applicant: Do you mean that you accept my proposition that the Dean was one of the decision makers in relation to the redundancy of Dr Pilbrow's position?
Professor Mackay: Yes. It's a consequence of the decision we've made as part of the review and the change of direction of the department. It's an academic decision, and the Dean is responsible for … yes, cutting the activities of the faculty, everywhere in the faculty. So he is responsible for any changes we make in academic units.
102 In the course of re-examination, the issue of the Dean's involvement in decisions relating to Dr Pilbrow's employment was re-visited. The following exchange occurred, initially in the context of questions regarding Professor Mackay's response to the anonymous donation proposed, which is discussed in further detail below:
Counsel for respondent: And what do you say about the suggestion that this was coming up with an alternate excuse or something that you made up?
Professor Mackay: No. I refute that. We are not responsible for reviews of department, which is dictated by the university process. These things had to happen every five years. We are taken through that. Every department gets discussion with the dean about the recommendations. They agree with the, you know, unavoidable impact of that was a thing that was pretty evidence already in 2018, but we were waiting for the head of department to drive that change.
Counsel for respondent: Now, you were asked questions before which led to you giving evidence about the dean?
Professor Mackay: Yes.
…
Counsel for respondent: In relation to the dean's decision-making or approval of the vision, are you aware what information was provided to … the dean?
Professor Mackay: … yes … we did a school report on a regular basis to the dean with every single change, every single operation or budget or whatever information, and he was informed of that … he was informed early on of the upcoming changes to the review process, and that's something he supported.
Counsel for respondent: And … to what extent was information provided to the dean about Dr Pilbrow?
Professor Mackay: No, we didn't discuss the specifics of staff with the dean. We discussed strategic matters, budget matters and direction.
Counsel for respondent: To what extent was the dean provided information about any complaint or dispute that Dr Pilbrow had raised?
Professor Mackay: Look, I don't think he … had any … considering the way I was managing this, he would know about it but until then I don't think he would know. I'm not sure if he would know. I don't know if … he was aware of that.
103 It is submitted for the applicant that Professor Mackay's evidence was unequivocal in so far as she answered in the affirmative when asked directly as to whether the Dean was one of the decision-makers in relation to Dr Pilbrow's redundancy.
104 However, when regard is had to the totality of Professor Mackay's evidence, I do not agree with that characterisation of her evidence. Professor Mackay's response to the direct question put by counsel for the applicant as to whether the Dean was a decision-maker in relation to the redundancy was qualified by the further statement that it was:
a consequence of the decision we've made as part of the review and the change of direction of the department. It's an academic decision, and the Dean is responsible for … the activities of the faculty … so he is responsible for any changes we make in academic units.
105 There is no suggestion in this evidence, or indeed in any other evidence given by Professor Mackay or by any other witness in this matter, that the Dean assessed Dr Pilbrow's suitability for redundancy or considered whether her position should be made redundant such that the state of his mind is a relevant factor in the court's determination of this matter. I accept that the acceptance of the review recommendations was likely a matter brought to the Dean's attention and which he agreed to, but as the applicant submitted, there was no specific recommendation in that review as to the need for Dr Pilbrow's particular position to be made redundant.
Ultimately, her Honour recorded the following conclusion about Prof Kapur's contribution to the University's decision to "make Dr Pilbrow's [position] redundant" (Primary Judgment, [111], [113]):
111 When regard is had to the totality of the evidence, I find that the people who were involved in the decision to declare Dr Pilbrow's position redundant were Professor Mackay and Professor Wilkinson-Berka. Whilst the evidence given by Professor Mackay in cross-examination, taken at its highest, might support a finding that the Dean was aware of the Department Review and Recommendations and approved those recommendations to the extent that they were consistent with the strategy of the Faculty overall, I find on the balance of probabilities that he did not have any involvement in the decision at the Departmental level to make Dr Pilbrow's [position] redundant, which was a consequence of the implementation of that Review and the Recommendations.
…
113 There is no proper basis upon which to conclude that the Dean was involved in this decision. I therefore find that the individuals who had a material impact on the decision to declare Dr Pilbrow's position redundant were Professor Mackay and Professor Wilkinson-Berka. It is their motivations which are the subject of inquiry to determine whether they were actuated in their decision by a proscribed ground.
The learned primary judge then turned to assess the identities of those responsible for the "Dismissal Decision". Although not previously defined in her Honour's reasons for judgment, that reference can only be understood as - indeed, there is no dispute that it is a reference to - the decision of the University to terminate Dr Pilbrow's employment.
Again, her Honour recognised the competing submissions. The University contended that the decision to dismiss Dr Pilbrow from her employment went hand-in-glove with her redundancy; such that those who acted to bring about the "Redundancy Decision" should be understood also to be those who effected the dismissal to which it led. The learned primary judge recorded Dr Pilbrow's submission that "…in the absence of any specific evidence regarding who made the Dismissal Decision, the [University] cannot be taken to have discharged the reverse onus in relation to the Dismissal Decision".
Her Honour was disposed to accept that "…the decision to terminate [Dr Pilbrow's employment was] the natural consequence of the decision to make [her] position redundant and the absence of any redeployment opportunities proving fruitful." She went on (Primary Judgment, [128]-[129]):
128 There being no issue taken by Dr Pilbrow about the redeployment process and the fact that no alternative position was found for her in that process, the termination of her employment for redundancy was the natural consequence of the decision to make her position redundant in the first place. The Dismissal Decision therefore requires the same assessment of what actuated those who made the Redundancy Decision itself.
129 Therefore, the same individuals involved in the Redundancy Decision were involved in the Dismissal Decision and it is their motivations which must be considered.
Her Honour then proceeded to assess "[w]ho made the decision to issue the Serious Misconduct Allegations". At the outset, her Honour recorded (Primary Judgment, [130]-[131]):
130 The issue of who had a material effect on the decision to issue the Serious Misconduct Allegations is similarly complicated by the facts in this case and, in particular, the fact that no evidence is before the court as to any clear delineation of authority in dealing with serious misconduct allegations and in particular, who was authorised to consider whether to issue a letter setting out allegations of serious misconduct.
131 On the basis of the totality of the evidence, however, I find that each of Professor Mackay, Ms Karakiozakis and Mr Caswell each had a material effect on the decision to issue the Serious Misconduct Allegations letter to Dr Pilbrow. I come to this view for the following reasons.
After reciting the relevant chronology, the learned primary judge made reference (Primary Judgment, [137]) to the evidence of Mr Caswell:
137 In relation to the incidents which led to the issuing of the Serious Misconduct Allegations, Mr Caswell states:
Sometime during the afternoon of the 17 October 2019, I met with Professor Wilkinson-Berka and Ms Narsey to discuss the events of earlier that day [being a reference to the interaction with Dr Pilbrow when material was being moved from her lab]. At this meeting, I believe we also spoke about Dr Pilbrow having deleted a large number of files within the University's Learning Management System. I understood from this meeting that Professor Wilkinson-Berka endorsed further action by Human Resources being taken in relation to the alleged deletion of the files.
138 Mr Caswell goes on to give evidence that on 18 October 2019, he was advised that the individuals who had raised the file deletion issue were Associate Professor Fogg and Professor Hime. Mr Caswell deposes to having received an email on 22 October 2019 from Dr Pilbrow asking that the allegations against her be formalised and requesting that her IT access be restored. On 25 October 2019, Mr Caswell sent Dr Pilbrow an email attaching a letter setting out the Serious Misconduct Allegations.
Her Honour's attention then turned to the evidence given by Prof Mackay, whom the University had sought to constitute as the "sole decision-maker" responsible for "the Serious Misconduct Allegations". Her Honour observed (Primary Judgment, [140]-[142]):
140 The [University] concedes that Professor Mackay was a decision-maker in relation to issuing the Serious Misconduct Allegations. Indeed, it is submitted for the [University] that she was the sole decision-maker in that regard. For reasons previously discussed, in a case such as this, in determining why certain action was taken, the court can and must have regard to the factors which actuated each of the persons who had a meaningful effect on the decision to take the adverse action.
141 At paragraphs [42] and [43] of her affidavit, Professor Mackay relevantly says:
On 18 October 2019, Professor Wilkinson-Berka copied me into an email regarding a cyber-security incident involving the destruction of over 1,000 items of University property and Dr Pilbrow's suspension from duty. I was in New York at that time and I do not recall speaking with her. But I must have read the email because I remember I was shocked and angry when I learnt about the deletion of University files. … I was also copied into emails from the Human Resources Team about what was being done to update security … which I do recall reading at the time they were sent.
On 25 October 2019, Michael Caswell of the Human Resources Team sent an email to Dr Pilbrow with a number of attachments, including a letter alleging that Dr Pilbrow had engaged in serious misconduct. On that day, I was in Brisbane giving a presentation, having returned to Australia from New York. The process was being fully handled by the Human Resources Team. I strongly agreed with the process and I had no reason not to endorse the approach being followed by the Human Resources Team about how to handle the serious misconduct allegations or believe that the processes they followed had been inadequate. …
142 By reference to the 'Human Resources Team' in these paragraphs, I understand Professor Mackay to be referring primarily to Mr Caswell, supported by Ms Karakiozakis. Accordingly, I consider that Ms Karakiozakis and Mr Caswell both also had a material effect on the decision to issue the Serious Misconduct Allegations.
The learned primary judge also had regard to the evidence of Prof Wilkinson-Berka. Regarding the professor's affidavit evidence, her Honour observed (Primary Judgment, [144]-[145]):
144 At paragraph [62], Professor Wilkinson-Berka said:
Later in the afternoon of 17 October 2019, I met with Michael Caswell and Ms Narsey from the Human Resources Department and Ms Bain to discuss the events of the day. We discussed the deletion of the lecture materials, and I enquired what would happen next. … It was also clear for everyone in the meeting that the issue needed to be investigated and assessed by the University. While I did not know what specific process would be undertaken by the Human Resources Department, due to the apparently serious nature of deleting files from the University system, I considered it important that the matter be investigated to determine what had occurred.
145 Whilst Professor Wilkinson-Berka further states that she was not involved in the process of issuing the Serious Misconduct Allegations, it is clear from her evidence at paragraph [62], set out above, that her views of the matter had a material effect on the decision to issue the Notice of Serious Misconduct Allegations.
Her Honour also had occasion to consider the evidence of Assoc Prof Fogg. It was Assoc Prof Fogg who appears first to have learnt about the deletion of material from the University's information technology systems; or, at any event, to have escalated it as an issue worthy of consideration by Prof Wilkinson-Berka.
In light of that evidential landscape, the learned primary judge concluded (Primary Judgment, [149]) that "…Associate Professor Fogg had a material impact on the ultimate decision to issue the Serious Misconduct Allegations and, as such, his reasons for doing so must be considered in determining whether the [University] has discharged the onus of proof in section 361(1) of the FW Act in relation to the Serious Misconduct Allegations."
Her Honour went on (Primary Judgment, [151]) to find, "…on the totality of the evidence…that each of Professor Mackay, Ms Karakiozakis, Mr Caswell, Professor Wilkinson-Berka and Associate Professor Fogg each had a material effect on the decision to issue the Serious Misconduct Allegations letter to Dr Pilbrow."
The learned primary judge was then concerned to address a fourth instance of adverse action, with which the present appeal does not engage. It is unnecessary here to explore any of the conclusions to which her Honour was drawn in that regard.
Having identified the human agents of the University whose conduct visited the discrete instances of adverse action about which Dr Pilbrow complained, the learned primary judge then considered whether any of them so acted for reasons that s 340(1) of the FW Act proscribed. For present purposes, it suffices to record that her Honour was satisfied, on each count, that none of them did. It will be necessary later to examine those findings in more detail.
Ultimately, her Honour was satisfied that the University had contravened s 340(1) of the FW Act in one respect; but not in respect of any of the three ways upon which the present appeal focuses. Her Honour granted declaratory relief that recorded the former conclusion and otherwise dismissed Dr Pilbrow's application. The matter was adjourned for further hearing directed to questions of relief concerning the part of Dr Pilbrow's action that succeeded. That course was paused upon the initiation of this appeal.
[7]
The present appeal
The present appeal was commenced by notice dated 22 December 2022. With the University's consent - and in order to accommodate the possibility (perhaps near certainty) that the Primary Judgment was an "interlocutory judgment" for the purposes of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (as to which, see Monash Health v Singh (2023) 327 IR 196, [27]-[44] (Katzmann, Snaden and Raper JJ)), Dr Pilbrow was, on 31 March 2023, granted an extension of time and leave to appeal.
An amended notice of appeal dated 18 March 2024 was later filed with leave and is the originating instrument upon which the present appeal proceeds. By it, Dr Pilbrow seeks to prosecute four grounds of appeal, which it is convenient now to replicate (amendments and emphases original):
The primary judge erred by failing to find that the Dean of the Faculty of Medicine, Dentistry and Health Sciences, Professor Shitij Kapur, was a decision-maker in relation to the decisions made by the [University] to:
(a) make [Dr Pilbrow's] position with the [University] redundant; and
(b) terminate [Dr Pilbrow's] employment.
Particulars
Under cross-examination, the putative decision-maker admitted that the Dean was a decision-maker in relation to the decision to make [Dr Pilbrow's] position redundant: at [101].
Contrary to the findings of the primary judge, that evidence was not contradicted in re-examination: at [102].
The evidence of the putative decision-maker was unequivocal and, contrary to the findings of the primary judge, was not contradicted by the evidence as a whole: cf [104]-[113].
The primary judge erred by failing to find that, by operation of s 361 of the FW Act, the decisions to make [Dr Pilbrow's] position with the [University] redundant and to terminate [Dr Pilbrow's] employment were taken for the pleaded prohibited reasons, in contravention of s 340 of the FW Act.
Particulars
The Dean of the Faculty of Medicine, Dentistry and Health Sciences, Professor Shitij Kapur, was a decision-maker in relation to the decisions made by the [University] to make [Dr Pilbrow's] position redundant and to terminate her employment.
The [University] did not prove that the Dean did not have the pleaded proscribed intention.
By operation of s 361, the Dean is therefore presumed to have made the decision for the pleaded proscribed reasons.
The [University] admitted that [Dr Pilbrow] exercised workplace rights and that it took adverse action against her by making the decision to make her position redundant and by terminating her employment. Accordingly, if the Dean was a decision maker, and the [University] has failed to prove that he did not take the adverse action for the pleaded proscribed reasons, [Dr Pilbrow] has established the contravention of s 340 of the FW Act.
The learned primary judge erred by failing to find that there was no evidence that allowed the Court to make a finding about the identity of the decision-maker(s) who decided to issue the serious misconduct allegations and that, as a consequence, by operation of s 361, the decision to issue the serious misconduct allegations was made for the pleaded proscribed reasons.
Particulars
The evidence did not establish the identity of the person who made the decision to issue the serious misconduct allegations.
The primary judge erred by proceeding on the basis that the question of whether the adverse action was taken for a proscribed reason could be assessed by reference to the motivations of Professor Mackay, Ms Karakiozakis and Mr Caswell: [131] and Professor Wilkinson-Berka and Associate Professor Fogg: [151].
The failure of the University to establish who the decisionmakers were had the consequence that s 361 of the FW Act operated such that the serious misconduct allegations were presumed to have been made for the pleaded proscribed reasons.
The [University] admitted that [Dr Pilbrow] exercised workplace rights and that it took adverse action against her by making the decision to issue the serious misconduct allegations. Accordingly, if the University failed to prove the identity of the person who made the decision to issue the serious misconduct allegations and s 361 operates such that the serious misconduct allegations were presumed to have been made for the pleaded proscribed reasons, the primary judge should have found that the contravention of s 340 was made out.
Further or in the alternative to grounds 1, 2 and 3 above, the learned primary judge erred by failing to find that the decisions made by the [University] assess all of the evidence in determining whether the statutory presumption under s 361 of the FW Act was displaced, and by failing to provide adequate reasons for the conclusion that the decision-makers (as found) were not motivated by a prohibited reason, in connection with the decisions to:
(a) make [Dr Pilbrow's] position with the [University] redundant;
(b) terminate [Dr Pilbrow's] employment;
(c) issue the serious misconduct allegations.,
were not made for the pleaded proscribed reasons.
Particulars
The primary judge failed to make findings of fact having regard to all of the evidence, and the fact finding task miscarried.
The primary judge erred by failing to assess the reliability and the credibility of the evidence of each decision-maker found to be involved in making the redundancy decision, the termination, and the serious misconduct allegations.
The weight of evidence supports a finding that the relevant decisions were taken for reasons that included the pleaded proscribed reasons.
By failing to find that the relevant decisions were taken for reasons that included the pleaded proscribed reasons, the primary judge erred.
[8]
Principles to be applied
The present appeal proceeds by way of rehearing. In an appeal of that nature, the power of an appellate court to interfere with a primary judgment is exercisable only insofar as it was the product of error: Allesch v Maunz (2000) 203 CLR 172, 180 [23] (Gaudron, McHugh, Gummow and Hayne JJ). In ascertaining whether or not it was, an appellate court must:
…conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.
See: Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 686-687 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ).
Findings of fact that are based, even only in part, upon a trial judge's impression of a witness or the credibility of his or her evidence, though afforded appropriate deference, are not beyond the reach of correction on appeal: Fox v Percy (2003) 214 CLR 118 ("Fox v Percy"), 128 [29] (Gleeson CJ, Gummow and Kirby JJ). The same degree of deference need not apply to factual findings made by inference: Lee v Lee (2019) 266 CLR 129, 148-149 [55] (Bell, Gageler, Nettle and Edelman JJ).
In this matter, the statutory presumption created by s 361(1) of the FW Act looms (and loomed) especially large. As has been noted, the learned primary judge concluded that none of the people that she considered were responsible for visiting upon Dr Pilbrow the three species of adverse action with which this appeal engages was actuated by a reason prohibited by s 340(1) of the FW Act. Dr Pilbrow charges her Honour, in part, with having erred by limiting her consideration to those people. She maintains that there were others whose states of mind were left unexplored by the evidence; and that, in the absence of evidence to the contrary, they (or, more accurately, the University) must be presumed to have acted for the prohibited reason or reasons that Dr Pilbrow alleged.
Dr Pilbrow's case concept is a familiar one. Successful general protections suits sometimes succeed not because there is an evidential basis positively to conclude that adverse action was taken for a reason or reasons proscribed by pt 3-1 of the FW Act; but, rather, because the court is persuaded that, by neglecting to call evidence about the state of mind of someone who is thought to have played some role in taking it, a respondent has failed to rebut the presumption cast against it by s 361(1) of the FW Act.
What might or might not suffice as sufficient involvement in the taking of adverse action is not always easy to discern. Rebutting the statutory presumption established by s 361(1) of the FW Act requires that a respondent lead (and that a court accept) evidence as to why adverse action was taken. More accurately, it requires proof of what did not actuate the action in question, which is a task most often discharged by proving what did. In a matter alleging adverse action in contravention of s 340(1) of the FW Act, a respondent must positively establish that an applicant's possession or exercise of workplace rights did not factor in any substantial or operative way as a reason for its decision to take the action that it took: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, 617 (Mason J).
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (hereafter, "Barclay"), the High Court had occasion to consider how an employer might rebut the statutory presumption. French CJ and Crennan J (with whom Gummow and Hayne JJ agreed) observed (at 517 [44]-[45]) (references omitted):
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. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer…
To similar effect, Heydon J took the view that "…[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action": Barclay, 544 [140]. His Honour observed (at Barclay, 546 [146]):
146 To search for the "reason" for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for "unconscious" elements in the impugned reasoning of persons in Dr Harvey's position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention…
Similarly, in Construction, Forestry Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 ("BHP Coal"), French CJ and Kiefel J (with whom Gageler J agreed in the result; Hayne and Crennan JJ dissenting) observed (at 249 [7]):
7 The focus of the inquiry…is upon the reasons for…taking the adverse action. This is evident from the word "because"…and from the terms of s 361. The inquiry involves a search for the reasoning actually employed... The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences.
Gageler J was drawn to a similar observation. Referring to Barclay, his Honour noted (at 267 [85]):
85 …The unanimous holding in that case was that, read in the context of ss 360 and 361 of the Act and of its legislative history, the word "because" in s 346 of the Act connotes the existence of a particular reason as an operative and immediate reason for taking adverse action. Where the adverse action taken is in consequence of a decision made by a responsible individual within a corporation, the existence or non-existence of a particular reason as an operative and immediate reason for taking that adverse action turns on an inquiry into the mental processes of that individual.
For some time, the observations of the High Court in Barclay and BHP Coal were thought to have extinguished the understanding that had previously taken hold in this court that the search for a respondent's reasons for taking adverse action might require exploration beyond the mental processes of those who visited it. In recent years, however - and at least insofar as concerns the conduct of bodies corporate - this court has breathed life back into the notion that "unconscious" influences might also be relevant in assessing the motivations that actuate corporate decision making: Australian Red Cross Society v Queensland Nurses' Union of Employees (2019) 273 FCR 332, 347-348 [90]-[91] (Greenwood, Besanko and Rangiah JJ); Wong v National Australia Bank Ltd (2022) 318 IR 148 ("Wong"), 156-157 [25]-[26] (Katzmann, Charlesworth and O'Sullivan JJ); Qantas Airways Ltd v Transport Workers' Union of Australia (2022) 292 FCR 34 ("Qantas"), 98 [221], 99-100 [225]-[226] (Bromberg, Rangiah and Bromwich JJ).
I have had occasion respectfully to express some doubt about the correctness of those decisions: Serpanos v Commonwealth of Australia [2022] FCA 1226 ("Serpanos"), [112]-[123] (Snaden J). Whether those doubts are well-founded is irrelevant presently. The principles that emerge from the case law as it currently stands are clear (even if their application occasionally is not): in assessing the reasons that animated conduct amounting to adverse action, a court must interrogate not merely the state or states of mind of the person or people who engaged in that conduct; but also that of others whose contribution to it rose beyond a threshold level. That threshold level has been described as "indispensable" (Elliot v Kodak Australasia Pty Ltd (2001) 129 IR 251), "material" (Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166, Qantas) and "'significant', 'plainly important', 'major', 'substantial' or 'essential'" (Wong).
It was for that reason that the learned primary judge was concerned to identify what actuated not merely those who made the decisions about which Dr Pilbrow complains; but also those who were "materially involved" in, or had a "material impact" or "material effect" on, their making.
With those principles recited, attention can turn now to the appeal grounds that Dr Pilbrow advances.
[9]
Ground 1(a) and 2: Prof Kapur and the "Redundancy Decision"
Grounds 1(a) and 2 of Dr Pilbrow's amended notice of appeal are related. The former charges the learned primary judge with having erred by "failing to find" that Prof Kapur "…was a decision-maker in relation to the [decision to] make [Dr Pilbrow's] position with the [University] redundant". The latter necessarily presupposes acceptance of that primary proposition. If the court presently were to accept that Prof Kapur was such a decision maker, it will follow that (a) the University's failure to lead evidence from him as to why he engaged in whatever conduct sufficed to cast him in that role should necessarily have led her Honour to conclude that it could not rebut the statutory presumption established by s 361(1) of the FW Act; and, more specifically, that (b) her Honour's conclusion to the contrary was wrong.
Some preliminary observations might be made about the way in which ground 2 is expressed.
The first concerns its description of Prof Kapur as a "decision-maker in relation to…decisions". One might speak of a person as "a decision maker" in the same way as one might refer to "a taxi driver" or "a guitar player". It is a noun phrase that denotes, usually (and here) within a defined context, that the person in respect of whom it is employed assumes or assumed a particular role. It is not a term of art.
Second, the third paragraph of the particulars subjoined to ground 2 is wrong. Section 361(1) of the FW Act does not (and did not) operate so as to presume any state of mind on the part of Prof Kapur. It is to be borne in mind that Prof Kapur was not a respondent to Dr Pilbrow's action, nor was he alleged to have done anything in contravention of any provision of pt 3-1 of the FW Act. The only such respondent - and the only "person" against which the statutory presumption operated - was the University.
That invites some comment about how Dr Pilbrow framed the charges that she levelled below. It might be recalled that, insofar as concerned what ground 1(a) describes as the University's "decision[ ]to…make [Dr Pilbrow's] position with the [University] redundant", Dr Pilbrow's amended statement of claim alleged that she had been "…told that [the University] had decided to make her position redundant in accordance with the Change Plan". It was that decision (or, perhaps, the communication of that decision) that was said to constitute "adverse action"; and it was later alleged that it "was motivated by reason of" Dr Pilbrow's having exercised certain workplace rights.
Dr Pilbrow's pleading thus did not elaborate beyond the conclusory proposition that the University had engaged in conduct (namely, the making or communicating of a decision). It did not plead the material facts upon which that conclusion necessarily rested, specifically:
that the act in question inhered in the conduct of a particular person or particular people;
that that person or those people did what they did on behalf (and as officers, employees or agents) of the University; and
that, by operation of s 793(1) (or, perhaps, some principle of law), the conduct in which he, she or they engaged was, for the purposes of the FW Act, also conduct in which the University engaged.
That want of clarity did not animate the University. It was content baldly to admit that it had subjected Dr Pilbrow to adverse action as she had alleged (albeit in the conclusory way to which I have adverted). On the state of the pleadings, then, there was no particularity as to the human agents who were responsible for the conduct (as opposed to the state or states of mind) that was alleged and admitted. It was not obviously Dr Pilbrow's case that Prof Kapur was one of them; but nor was it obviously the University's case that he wasn't.
That position was not improved upon by the written outline of submissions that Dr Pilbrow filed prior to the trial. Instead, she there complained that the University had "…not pleaded who the decision-maker was" (presumably in respect of any of the species of adverse action with which her suit engaged). I should pause to note, to the extent that it might not axiomatically be apparent: the identity of those who made the decisions (which is to say, engaged in the conduct) of which Dr Pilbrow complained was not a matter that the University was obliged to plead. With the benefit of hindsight, it may be that a more specific, rather than bald, admission to what was alleged could have assisted in avoiding some of the problems that now present; but the University was entitled to defend the claim in the way that it did.
Regardless, Dr Pilbrow's submission went further to complain that the identities of those responsible were not apparent from the University's affidavit material either. By its outline of submissions filed prior to the trial, the University identified the seven witnesses from whom it intended to call evidence "[t]o discharge its reverse onus in s 361(1) of the [FW] Act". Prof Kapur was not one of them.
There was, then, at the time of the trial, some want of transparency about how it was that the University was alleged to have engaged - and admitted that it did engage - in conduct apt to constitute what the amended statement of claim defined as the "Redundancy Decision". Perhaps it could be observed - admittedly, from a position of hindsight-assisted comfort - that the parties could have addressed that lack of clarity prior to the trial. In saying so, I acknowledge the forensic choices that might have led to that state of affairs and don't intend any criticism of anybody.
Acknowledging all of that, the learned primary judge was, I think, correct to approach the question in the way that she did: namely, by allowing the parties to examine and cross-examine as they saw fit and to decide the factual question on the evidence as it thereby fell. The question that arises on appeal under ground 1(a) is whether the factual conclusion that she drew about Prof Kapur's involvement in the "Redundancy Decision" was attended by error.
Something should be said about that turn of phrase, "Redundancy Decision". Conceptually, redundancy is not something upon which one decides. It is a state that arises in consequence of other circumstances. One can no more decide that a position is redundant than one may decide to feel cold: in either case, the state either exists or it does not exist. Perhaps for that reason, the learned primary judge, in her reasons, preferred to refer (albeit not without occasional and minor deviation) to the University's decision to "declare" Dr Pilbrow's position redundant: in other words, to record its recognition of that state of affairs.
Construing the case as pleaded and admitted in that way is a matter of some significance. Dr Pilbrow seeks to fix upon the evidence that Prof Mackay gave under cross-examination as to who it was that decided to "…change the research vision of the [D]epartment" (above, [51]). To my eye, however, Prof Mackay's evidence was not especially revealing. It is apparent that, insofar as she attributed conduct to Prof Kapur, she did so primarily (and perhaps solely) in relation to the decision that had been made to "change the research vision of the [D]epartment". That the Dean of the Faculty had some role to play in that change of focus seems very close to, if not quite obviously, uncontroversial. Indeed, it might surprise more had it been otherwise.
Acknowledging as much, though, is not to equate the "change [in] research vision" with the "Redundancy Decision" (or, perhaps more precisely, the decision to declare Dr Pilbrow's position as one that the University no longer required). Indeed, during Prof Mackay's cross-examination - and immediately after establishing that "…the change to the research vision for the [D]epartment was ultimately approved by [Prof Kapur]" - counsel for Dr Pilbrow put to her that the "…change in research strategy did not automatically mean Dr Pilbrow's position would be made redundant". That, it is fair to say, was met with a degree of confusion from Prof Mackay, who responded as follows:
I'm putting to you that that's just not true. You didn't have to make her position redundant?---Well, that's not true. That's not true. If you're not prepared to support a field of research or a field of - an academic field, you - you know, it doesn't make sense to keep those positions, you know, live. It should be fine if you abandon, you know, a particular activity, then automatically the position as such to that activity are redundant.
Brief persistence with that issue didn't go anywhere. Counsel was then moved to change focus to "[w]ho made the decision to make Dr Pilbrow's position redundant". Again, that was met with a measure of confusion. Prof Mackay's initial answer was that "…the process did". It was at that point that the evidence upon which Dr Pilbrow fixes was given, namely:
So you accept, do you, that it was your decision?---Supported by the Dean, yes.
The Dean was a decision maker?---As much as I was, yes.
Had the evidence stopped there, there might be much to commend the proposition that Prof Kapur "was a decision maker" insofar as concerned "the decision to make Dr Pilbrow's position redundant". Indeed, Dr Pilbrow's submission on appeal is that Prof Mackay's evidence cannot be understood in any other way.
Respectfully, however, I do not accept that Prof Mackay's evidence must so be understood. Asked whether Prof Kapur "…was one of the decision makers in relation to the redundancy of Dr Pilbrow's position", Prof Mackay's evidence, although initially affirmatory, was qualified. She stated:
It's a consequence of the decision we've made as part of the review and the change of direction of the department. It's an academic decision, and the Dean is responsible for - yes, cutting the activities of the faculty, everywhere in the faculty. So he is responsible for any changes we make in academic units.
That qualification reflects the observation made earlier about the syntactic disagreement that is inherent in the notion that one might "decide" to make a position redundant. Understood in its proper context, Prof Mackay's evidence was that Dr Pilbrow's position was redundant because that was the consequence of the Department's altered "research vision". The latter was something that Prof Kapur surely approved; but so to acknowledge is not to accept that that approval should serve, in a sense recognised in authority, to constitute him as a person responsible for visiting upon Dr Pilbrow the adverse action of which she complained.
The learned primary judge was alive to the dichotomy. In that regard, it is prudent to repeat what has already been recorded. Her Honour reasoned (Primary Judgment, [111]):
111 Whilst the evidence given by Professor Mackay in cross-examination, taken at its highest, might support a finding that the Dean was aware of the Department Review and Recommendations and approved those recommendations to the extent that they were consistent with the strategy of the Faculty overall, I find on the balance of probabilities that he did not have any involvement in the decision at the Departmental level to make Dr Pilbrow's [position] redundant, which was a consequence of the implementation of that Review and the Recommendations.
Respectfully, that reasoning is sound.
There is another point to be made about Prof Mackay's evidence. It is a question of fact whether or not Prof Kapur did things that might suffice to constitute him as a person who was relevantly involved in the making of the "Redundancy Decision" (and, thereby, was somebody whose state of mind required interrogation in order that the University might rebut the statutory presumption erected by s 361(1) of the FW Act): Qantas Airways Ltd v Transport Workers Union of Australia (2023) 412 ALR 134, [107] (Steward J). Although she was asked to and did proffer her opinion as to whether Prof Kapur "was one of the decision makers in relation to the redundancy of Dr Pilbrow's position", Prof Mackay was not asked to and did not elaborate upon what she observed of Prof Kapur's conduct. Other than that he approved the Department's change in "research vision", she did not say anything about what he did or did not do in connection with Dr Pilbrow's position. The foundation for her conclusory opinion that he was a "decision maker" (or one of them) was left unexplored.
There can be no doubt that the decision to alter the Department's "research vision" - a decision in the making of which Prof Kapur undoubtedly participated, probably at a level of some significance - was one that bore critically upon Dr Pilbrow's fate. In a general protections context, however, that does not suffice to constitute it as conduct that visited the adverse action here complained of.
In Serpanos, I had occasion to consider a raft of authorities that have examined that conceptual distinction between circumstances that animate adverse action and circumstances that bear only contextually upon its visitation. Referring to BHP Coal and the decision of this court in Construction, Forestry, Mining and Energy Union v Endeavour Coal (2015) 231 FCR 150, I said that that distinction:
280 …is not always easy to recognise; but the authorities acknowledge it nonetheless. In BHP Coal, for example, it was not Mr Doevendans' advancement of union views, claims or interests that got him into trouble; what got him into trouble was that the way that he advanced them was offensive. In Endeavour Coal, Mr McDermott was not moved from his weekend roster because he took sick leave; he was moved because of his unreliable attendance record. That was so even though the latter was very clearly a product of the former.
281 There are many other like authorities in which context was similarly distinguished from the reasons for which adverse action (or its statutory predecessors) was taken. In Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 (Branson J), an employer was charged with having dismissed the crew members of a vessel that it sold to a related company; and having done so because they were entitled to the benefit of an award. The purpose of the sale was to permit the vessel to be re-flagged and integrated into the group's international fleet. Doing so meant that the group would be freed from award burdens imposed in respect of Australian crew members; and that it would, thereby, be able to realise additional profits. Branson J found that the employer was motivated by its desire to reduce costs; and not, as the applicant union had alleged, by the crew's entitlement to the benefit of the award. That was so notwithstanding the impact that the application of the award had on the cost-effectiveness of the Australian crew.
282 Similar reasoning was adopted in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34, 83 [295] (R D Nicholson J). In Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232, Finkelstein J (dissenting in the result but with whom, on this point, Merkel J agreed) noted (at 286 [199]) that:
…to decide whether an employee has been unlawfully dismissed, it is necessary to ascertain the true motive for, or purpose of, the dismissal. If there is some legitimate reason for the dismissal, such as the desire to avoid bankruptcy or the need to maintain a profitable operation, the dismissal will be lawful. It matters not that the cause of the impending bankruptcy or the unprofitable trading is the high rate of wages payable under an award or certified agreement. That is to say, although the benefits produced by an award or certified agreement have caused the problem which the employer seeks to address, that does not necessarily make those benefits the "reason" or motive for his act.
283 Likewise in Australian Workers' Union v John Holland Pty Ltd (2001) 103 IR 205 (Goldberg J), an employer that dismissed a union member in order to facilitate the end of industrial action that a rival union had organised to protest his employment was, nonetheless, held not to have done so because of his union membership. That was so despite the fact that the industrial action had been organised because the employee was a member of the applicant union. Equivalent reasoning was employed more than two decades earlier in Wood v City of Melbourne Corporation (1979) 26 ALR 430 (Smithers J).
Though not precisely analogous, similar reasoning can be applied here. By approving the change in "research vision", Prof Kapur can and should be understood to have charted a course that led ultimately to the redundancy of Dr Pilbrow's position and the termination of her employment with the University. But he cannot, by that alone, be understood to have been relevantly involved in the making of the "Redundancy Decision"; that is, to have decided (or otherwise to have borne upon the decision) to make "… [Dr Pilbrow's] position redundant in accordance with the [c]hange [p]lan", as the pleadings put it.
Respectfully, the learned primary judge was correct to observe that there was no evidence (including in, as I have already noted, anything that Prof Mackay conceded during her cross-examination) to show that Prof Kapur was involved in anything other than what might conveniently (if not correctly) be described as high-level, strategic planning. There was, in particular, no evidence that he was involved in any decision made in relation to Dr Pilbrow.
On the contrary, it was tolerably clear on the evidence that the decisions that were made about Dr Pilbrow were made at the level of implementation. Having decided (and/or been told) that the Department's focus would change, it was left to Prof Mackay and Prof Wilkinson-Berka to address how that change should manifest practically. It was in that regard that the redundancy of Dr Pilbrow's position came into focus; and it was in that regard that the "change plan" came into being. On the evidence, there is no suggestion that Prof Kapur played any roles in those processes that might suffice to have required the interrogation of his state of mind.
None of that should be understood to doubt that the decision to change the Department's "research vision" was very likely conduct that itself qualified as "adverse action" that the University might be understood to have taken "against" Dr Pilbrow. It was open to Dr Pilbrow to allege as much (assuming, of course, that she had a proper basis for supposing that it was taken for a reason or reasons proscribed by pt 3-1 of the FW Act). An allegation pitched clearly at that level could well have obliged the University to call evidence from Prof Kapur in order that it might rebut the statutory presumption established by s 361(1) of the FW Act. At the least, it would have made clear that Prof Kapur's state of mind would bear upon the determination of what Dr Pilbrow could have alleged. Perhaps, in that universe, the University might have led evidence from him. Perhaps the outcome would have been different. Perhaps not. It is unhelpful (and, much more, unnecessary) to speculate; but I make the observation nonetheless to illustrate what might have been possible had the pleadings touched precisely upon that issue. Again, I intend no (and would hope not to have conveyed any) gratuitous or unequal criticism in saying so.
Ground 1(a) of Dr Pilbrow's amended notice of appeal is not made good. Insofar as concerns what it describes as the University's decision to "make [Dr Pilbrow's] position with the [University] redundant", ground 2 must also fail.
[10]
Ground 1(b) and 2: Prof Kapur and the "dismissal"
To a significant extent, ground 1(b) of Dr Pilbrow's amended notice of appeal resolves on bases equivalent to those identified in respect of ground 1(a). If Prof Kapur was relevantly involved in the "Redundancy Decision", then he should likely also be thought to have been involved in the decision to effect the "Dismissal". The University did not contend otherwise.
The reverse is also true. As I have found that Prof Kapur did not relevantly contribute to the making of the "Redundancy Decision", there is no reason to think (which is to say, no evidence or submission to suggest) that he might nonetheless have relevantly contributed to the effecting of the "Dismissal".
But Dr Pilbrow's complaint under ground 1(b) extends further: she contends that the learned primary judge erred by concluding that the "Dismissal" was a "natural consequence" of the fact that her position was redundant. Instead, Dr Pilbrow maintains that her Honour was obliged to but did not "determine who dismissed Dr Pilbrow and why". In the absence of evidence to the contrary, it is said that her Honour would, had she traversed that path, been led to conclude that Prof Kapur was relevantly involved in the University's decision to effect Dr Pilbrow's dismissal.
Key to that submission was the correspondence that Dr Pilbrow received on 6 September 2019 (above, [25]). It is to be recalled that, by that letter - which was signed "[o]n behalf" of Prof Kapur - the University purported to give notice that Dr Pilbrow's employment would terminate unless an alternative position could be found for her. It is a matter of record that no such alternative presented and no issue about the University's efforts in that regard was raised below or on appeal.
There is a logical attraction to Dr Pilbrow's submission. Her dismissal was no less the "natural consequence" of the redundancy of her position than that redundancy was the natural consequence of the Department's change in "research vision" (although, equally as plain in each case, one bore strongly on the other). Ordinarily, one might be slow to find that the reasons for one are the reasons for the other.
Here, though, there is no proper basis to find (by inference or otherwise) that Prof Kapur did anything that might suffice to implicate him in the making of the decision to terminate Dr Pilbrow's employment. Aside from the correspondence of 6 September 2019, which was signed on his behalf, there is no evidence to suggest that Prof Kapur engaged in any conduct specifically in relation to Dr Pilbrow.
Moreover, and on the evidence that was before the learned primary judge, the conclusion that Dr Pilbrow's dismissal was the natural consequence of the "Redundancy Decision" (or, otherwise, the reality that her position was redundant) is sound. It is to be borne in mind that the two events were more or less simultaneous. It was at the meeting of 12 August 2019 that Dr Pilbrow was told that her position was redundant. She was invited to and did offer some thoughts about the "change plan" that had led to that situation, following which the University was moved to send the 6 September 2019 correspondence.
That Dr Pilbrow's employment did not, in fact, terminate until February 2020 is neither here nor there. It is plain that the decision to terminate it was made on or prior to 6 September 2019. It was inextricably linked - temporally and substantively - with the reality that her position was no longer required. Without wishing to labour what was earlier described as a point of syntactic disagreement, it seems clear enough that the University's "decision" to "make" Dr Pilbrow's position redundant could more aptly be described as a decision to terminate her employment for reasons of redundancy (subject, of course, to the exploration of redeployment options). So understood, it is not difficult to see why the primary judge considered that the decision to terminate Dr Pilbrow's employment was made (or relevantly influenced) by the same people who made (or relevantly influenced) the "Redundancy Decision". Respectfully, her Honour did not err by proceeding on that basis.
What, then, ought to be made of the fact that the 6 September 2019 letter that Dr Pilbrow received was (or was purported to be) signed on behalf of Prof Kapur? In short: nothing. The evidence about who it was that prepared that correspondence - and even, perhaps surprisingly, about how it came to bear Ms Karakiozakis's signature - was less than clear. But howsoever that might have been, there was nothing in the evidence sufficient to substantiate the proposition upon which grounds 1(b) and 2 now rest: namely, that Prof Kapur had some involvement in the preparation of the correspondence, or in the effecting of its subject matter (namely, Dr Pilbrow's dismissal).
The learned primary judge's finding that Dr Pilbrow's dismissal was the "natural consequence" of the University's "Redundancy Decision" was not in error. Respectfully, her Honour was correct to observe that the "…Dismissal Decision therefore requires the same assessment of what actuated those who made the Redundancy Decision…"
It follows that ground 1(b) of Dr Pilbrow's amended notice of appeal is not made good. Insofar as concerns what it describes as the University's decision to "terminate the appellant's employment", ground 2 must also fail.
[11]
Ground 3: the serious misconduct allegations
As has already been noted, the learned primary judge concluded that it was by the collective conduct of Prof Mackay, Ms Karakiozakis, Mr Caswell, Prof Wilkinson-Berka and Assoc Prof Fogg that the University decided to make the "Serious Misconduct Allegation". By her third ground of appeal, Dr Pilbrow charges the primary judge with having erred by so concluding.
As with grounds 1 and 2, some attention should focus upon the pleadings. In the proceeding below, Dr Pilbrow alleged that the "Serious Misconduct Allegation" amounted to adverse action that the University had taken against her in contravention of s 340(1)(a)(ii) of the FW Act (above, [35]). "Serious Misconduct Allegation" was defined in the amended statement of claim to mean the allegation that Mr Caswell made at the meeting that Dr Pilbrow attended with he and Ms Karakiozakis on 18 October 2019 (above, [29]). It is apparent - and not obviously in contest - that the adverse action of which Dr Pilbrow complained lay in the communication of the suggestion that she had been complicit in the deletion of files related to the Principles of Human Structure course that she had previously coordinated. That communication assumed two forms: initially, it was put to her orally by Mr Caswell at the 18 October 2019 meeting; later, it was put in writing by means of correspondence dated 25 October 2019 (above, [29]).
Although not stated in terms in her amended statement of claim, it is apparent that Dr Pilbrow intended - and, indeed, the trial proceeded on the basis - that the making or communicating of the "Serious Misconduct Allegation" was conduct that was attributable to - which is to say, was engaged in by - the University. Indeed, that must obviously be so given that the University was, as has been noted, the only respondent to her suit.
It is to be recalled that, by its defence, the University admitted that the "Serious Misconduct Allegation" amounted to adverse action that it had taken against Dr Pilbrow (above, [33]). The only controversial aspect of the case advanced against it in respect of the "Serious Misconduct Allegation" concerned whether it was adverse action that the University had taken against Dr Pilbrow in contravention of s 340(1) of the FW Act.
As with the "Redundancy Decision" and "the Dismissal", the amended statement of claim did not identify material facts that might have sufficed to explain how the University was said to have done what was alleged. Indeed, as with the other instances of adverse action, Dr Pilbrow's pleading did not elaborate beyond the conclusory proposition that the University had engaged in conduct against her in contravention of s 340(1) of the FW Act. It did not plead, for example, that the conduct in question inhered in the conduct of identified human agents, nor that those people were, in fact, acting in their capacity as agents, such that their conduct was attributable to the University by operation of s 793(1) of the FW Act (perhaps amongst other ways).
Again, however, that want of particularity did not animate the University. As with the other adverse action pleas, it was content baldly to admit that it had taken adverse action against Dr Pilbrow in the form of the "Serious Misconduct Allegation" (one presumes, to be more precise, by communicating it to her in the ways that it did). On the pleadings, then, it was not Dr Pilbrow's case that the University's conduct lay in the conduct of any specified employee or agent (possibly excepting Mr Caswell); nor was it the University's case by way of defence that its conduct lay only in the conduct of employees or agents that it identified. The pleadings were silent on that question of attribution.
That is a matter of some significance. A respondent that is alleged to have taken what it accepts is adverse action - and to have done so in contravention of s 340(1) of the FW Act because it is said to have been actuated by a reason or reasons there proscribed - must, if it is to defeat the charge, establish that it did not do what it did for the reasons that are alleged (or for reasons that include those reasons). In the case of a corporate respondent, which (at least in the present context) is capable of acting only through others, that necessarily requires proof of who it was that did or did not do the things that constitute whatever is the corporate conduct in question.
Thus, having admitted that the "Serious Misconduct Allegation" amounted to adverse action that it had taken against Dr Pilbrow, the University's successful defence of her allegation that it was taken in contravention of s 340(1) of the FW Act hinged upon proof of two things: first, the identity of the person or people through whom it relevantly acted; and, second, the innocent state or states of mind that relevantly actuated that person or those people. The latter, naturally enough, could not be proved absent proof of the former.
By her third appeal ground, Dr Pilbrow complains that the learned primary judge wrongly failed to find that the evidence before her did not permit of proof as to who it was that decided to make the Serious Misconduct Allegation. What is advanced is reasonably straightforward: if the evidence as it fell before the learned primary judge did not permit of a finding as to who decided to make the Serious Misconduct Allegation, it necessarily follows that the University was unable to rebut the presumption erected against it by s 361(1) of the FW Act.
In her reasons for judgment, the learned primary judge did not, in terms, make any finding as to who it was that decided, on behalf of the University, to make the "Serious Misconduct Allegation". Instead, her Honour was moved to consider that each of Prof Mackay, Ms Karakiozakis, Mr Caswell, Prof Wilkinson-Berka and Assoc Prof Fogg had a "material effect" on the making of that decision.
Respectfully and for the reasons that her Honour identified, that conclusion seems eminently defensible, if not unimpeachable. By its very nature, however, it is more inclusive than determinative. It is one thing to conclude that a nominated person has engaged in conduct that, perhaps within the regrettably nebulous bounds of principle established by authority (above, [78]), is sufficient to attribute his or her state of mind to a corporate respondent in respect of adverse action taken by it against an applicant. It is another to conclude that he or she did so exclusively of anybody else.
In the present case, the evidence as to who within the University made the decision to subject Dr Pilbrow to the "Serious Misconduct Allegation" was less than precise. Again, I should be clear that I do not say so by way of criticism: it is to be recalled that the evidence of the events of October 2019 was given several years after they transpired, and it could hardly surprise that there might be some gaps in recall. Nonetheless, those gaps pose some difficulties for the University.
It appears that Assoc Prof Fogg was the point at which the process that culminated in the making of the allegation began. He had occasion to raise the deletion of course files with Prof Wilkinson-Berka, and to liaise with the University's information technology personnel to work out what, precisely, had transpired. Prof Wilkinson-Berka appears to have taken the issue up with Mr Caswell and Ms Narsey, the latter of whom then appears then to have brought it to the attention of Ms Karakiozakis.
Prof Wilkinson-Berka seems to have brought Prof Mackay into the equation, albeit perhaps only on the same day that Dr Pilbrow was first informed of the "Serious Misconduct Allegation". It is worth repeating the evidence that Prof Mackay gave about her involvement in the University's decision. In her affidavit, Prof Mackay deposed as follows (emphases added):
On 18 October 2019, Professor Wilkinson-Berka copied me into an email regarding a cyber-security incident involving the destruction of over 1,000 items of University property and Dr Pilbrow's suspension from duty. I was in New York at that time and I do not recall speaking with her. But I must have read the email because I remember I was shocked and angry when I learnt about the deletion of University files…I was also copied into emails from the Human Resources Team about what was being done to update security…which I do recall reading at the time they were sent…
On 25 October 2019, Michael Caswell of the Human Resources Team sent an email to Dr Pilbrow with a number of attachments, including a letter alleging that Dr Pilbrow had engaged in serious misconduct. On that day, I was in Brisbane giving a presentation, having returned to Australia from New York. The process was being fully handled by the Human Resources Team. I strongly agreed with the process and I had no reason not to endorse the approach being followed by the Human Resources Team about how to handle the serious misconduct allegations or believe that the processes they followed had been inadequate…
It is also prudent to repeat the observations of the primary judge. After referring to the above extract, her Honour reasoned as follows (Primary Judgment, [142]):
142 By reference to the 'Human Resources Team' in these paragraphs, I understand Professor Mackay to be referring primarily to Mr Caswell, supported by Ms Karakiozakis. Accordingly, I consider that Ms Karakiozakis and Mr Caswell both also had a material effect on the decision to issue the Serious Misconduct Allegations.
Respectfully, the evidential foundation underpinning those observations is unclear. It is apparent from Prof Mackay's evidence that the University's human resources personnel were involved at a level of some intimacy with the potential airing of misconduct allegations against Dr Pilbrow. But it is less clear who, precisely, was cast in that role.
Mr Caswell and Ms Karakiozakis both gave evidence at the trial. Mr Caswell told the court that he could not recall who within the University had made the decision to investigate the serious misconduct in which Dr Pilbrow was alleged to have engaged. He recalled that he had had occasion to discuss with his own manager, Mr Sean Hogan, at least some detail about the deletion of course files that was the subject of his 18 October 2019 discussion with Dr Pilbrow (including about whether or not the information that he had to hand at that point might suffice to constitute serious misconduct). It was also a topic that he discussed with Ms Karakiozakis; but he could not recall whether he had discussed it with anybody else within the University. Under cross-examination, he gave the following evidence:
Who made the decision to issue the allegations of serious misconduct on 23 October - 25 October - my apologies, 2019?---I don't recall who made the decision.
Was it your decision?---I don't recall who made the decision.
So, possibly, it was your decision. Possibly, it was somebody else's?---I don't recall.
Did you have delegated power to issue allegations of serious misconduct to an employee?---Yes, yes.
And you didn't need approval or authority from that person's line manger to do so?---I don't recall how the delegated authority operated.
If a line manager had - I withdraw that. If a line manager was the person who had asked for Human Resources' assistance with issuing allegations of serious misconduct, would that be recorded in writing, typically?---Possibly, via email.
Are you aware of any such document in relation to the decision to issue allegations of serious misconduct in this case?---No.
Later, it was put to Mr Caswell that the "…decision to issue allegations of serious misconduct was [made by] the head of school". Again, Mr Caswell could not remember. Significantly, Mr Caswell gave the following evidence about his discussions with Mr Hogan:
In your discussions with Mr Hogan, what was the basis upon which the two of you concluded that there was a basis for serious misconduct?---That there had been deletion of files being used by students that were required by those students for their studies and there at the time, that there had been multiple deletions. And there was a statement by Quentin Fogg that there was multiple deletions.
Ms Karakiozakis's evidence was similarly indistinct (I say again intending no disrespect). She told the court that she had not been involved in drafting the allegations that were contained in the correspondence of 25 October 2019 (above, [29]). She explained that her involvement in the prosecution of misconduct allegations against Dr Pilbrow was limited to her attendance at the meeting of 18 October 2019 and her provision of "pieces of information to the employee relations team in relation to those allegations".
Asked specifically about who it was that had decided to make the allegations that were levelled against Dr Pilbrow, Ms Karakiozakis's evidence was as follows (emphasis added):
…I believe it was a decision of the committee, and then it was corresponded to others, and by others, I mean the faculty and the department by, I believe, either Sean Hogan or Michael Caswell, but I can't remember exactly how that came through. But we were directed, as in the faculty were directed, that this is where it had landed, if that makes sense, for the allegations and the investigation had - you know, where it had got to.
So we're talking about the same thing, I'm talking about the allegations issued on 23 [sic] October 2019, the letter that was sent telling Dr Pilbrow - - -?---I apologise. Not - not the decision, sorry. The actual allegation, sorry. I believe that was by the employee relations team, but I couldn't say whether that was Sean or Michael Caswell - Sean Hogan or Michael Caswell.
All right. So either Mr Hogan or Mr Caswell made the decision to issue those charges?---Allegation, yes.
The landscape that emerges from the extracts replicated above is anything but clear. On the evidence of Prof Mackay, it seems apparent enough - and, indeed, it accords with ordinary experience to assume - that the decision to make the "Serious Misconduct Allegation" was one that was handled by the University's human resources (or, perhaps, "employee relations") team. But, as the above extracts make clear, the evidence did not suffice to identify who, within that team, was relied upon to that end. Neither of those whom the primary judge identified - Mr Caswell and Ms Karakiozakis - was able to say who it was that made the decision. Again, intending no disrespect, the evidence as it fell posed as many questions as it answered.
Reviewing the evidence as I have summarised it, it is clear that, at the conclusion of the trial, considerable - indeed, I think, insurmountable - uncertainty attended as to who within the University had decided to level the "Serious Misconduct Allegation". Perhaps for that reason, the learned primary judge did not attempt in her reasons to isolate the particular decision maker or decision makers. Respectfully, however, that was an essential prerequisite to the University's discharge of the presumption established against it by s 361(1) of the FW Act. As has already been noted, it was not possible for the University to rebut that statutory presumption without first proving how and by whom the decision to communicate the "Serious Misconduct Allegation" was made.
Respectfully, her Honour was wrong to proceed as she did. On the state of the evidence, it was not possible for her to find that, insofar as concerned the "Serious Misconduct Allegation", the University had discharged the presumption to which s 361(1) of the FW Act gave voice. Necessarily, that ought to have led her Honour to conclude - and, with respect, she was wrong not to conclude - that the "Serious Misconduct Allegation" was, as Dr Pilbrow alleged, adverse action that the University took against her in contravention of s 340(1) of the FW Act.
Appeal ground 3 should, thus, be upheld.
[12]
Ground 4: Inadequacy of reasoning and reasons
By her fourth ground of appeal, Dr Pilbrow submits that the learned primary judge's findings as to the motives that animated the adverse action that the University took against her were improperly reasoned and not adequately explained. In short compass, the ground proceeds as an attack on what is said to be her Honour's failure to consider or address what Dr Pilbrow advanced as the reason that actuated (or partly actuated) the conduct in which the University engaged.
Before the primary judge, Dr Pilbrow sought to erect a narrative consistent with what she had alleged as to why the University made the "Redundancy Decision", effected her dismissal and made the "Serious Misconduct Allegation". By her fourth ground of appeal, she complains (as an alternative to the first three grounds) that the learned primary judge wrongly failed to consider it or explain why she didn't accept it. It is said, instead, that her Honour made the findings that she made about the University's motives otherwise than upon consideration of all of the evidence.
Before exploring Dr Pilbrow's complaint in detail, something should be said of the primary judge's obligations. In actions alleging adverse action contrary to provisions within pt 3-1 of the FW Act, courts are obliged to determine, first, whether the conduct complained of transpired; and, if it did, whether it has been proved that it did not transpire for whatever proscribed reasons are alleged. The task for a respondent of proving that none of its conduct was actuated by a proscribed reason must "…be discharged on the balance of probabilities in the light of all the established evidence": Barclay, 523 [62] (French CJ and Crennan J); Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421, 451-452 [112]-[116] (Bromberg J, with whom Mortimer and Anastassiou JJ relevantly agreed).
A primary judge's obligation to provide adequate reasons for judgment is well established. It was essayed as follows in TechnologyOne Ltd v Roohizadegan (2021) 309 IR 262, 301-302 [107]-[113] (Rangiah, White and O'Callaghan JJ):
107 The principles in relation to the obligation of courts to provide adequate reasons were also not disputed.
108 A trial judge's reasons must "as a minimum … be adequate for the exercise of a facility of appeal". See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 260 (Kirby P), 268-269 (Mahoney JA) (Soulemezis); Beale v Government Insurance Offıce (NSW) (1997) 48 NSWLR 430 at 444 (Meagher JA) (Beale). Failure sufficiently to expose a path of reasoning is an error of law. See Soulemezis at 280 (McHugh JA).
109 A judge is not obliged to spell out every detail of the process of reasoning to a finding, but it is essential that he or she expose the reasons for resolving a point critical to the contest between the parties. See Soulemezis at 259 (Kirby P), 270 (Mahoney JA), 280 (McHugh JA).
110 The reasons must do justice to the issues posed by the parties' cases. See Moylan v The Nutrasweet Co [2000] NSWCA 337 at [61] (Sheller JA, Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments have been understood and accepted. See Soulemezis at 279 (McHugh JA). And it is also necessary that the primary judge "'enter into' the issues canvassed and explain why one case is preferred over another". See Jones v Bradley [2003] NSWCA 81 at [129] (Santow JA, Meagher and Beazley JJA agreeing).
111 As Samuels JA said in Mifsud v Campbell (1991) 21 NSWLR 725 at 728, "… failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge … may promote a sense of grievance in the adversary and create a litigant who is not only disappointed but disturbed" (internal quotations omitted). And as Basten JA said in Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479 at [7]:
7 Because there is no means of interrogating a judge as to his or her intellectual processes, evidence that issues were not addressed can usually only be demonstrated by reference to the reasons. Thus, on the assumption that the judge addressed in the reasons all material matters, the absence of reference to a particular matter may allow the inference that it was not addressed and determined (citing Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [129]-[130] (Hayne J).
112 Further, "[w]here conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to." See Beale at 443 (per Meagher JA).
113 Finally, "bald findings on credit, where there remain substantial factual issues to be dealt with, may not constitute an adequate compliance with the judge's common law duty to provide the parties, and the appellate court, with the basis of his decision". See Palmer v Clarke (1989) 19 NSWLR 158 at 170 (Kirby P, Samuels JA agreeing).
In Fox v Percy , Gleeson CJ, Gummow and Kirby JJ observed (at 132 [41], reference omitted) that, "[n]o judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another" (see also Minister for Immigration v SZVFW (2018) 264 CLR 541, 556-557 [33] (Gageler J)).
In determining that the University did not (save for the one exception with which the present appeal does not engage) take adverse action against Dr Pilbrow for a reason or reasons proscribed by pt 3-1 of the FW Act, the primary judge had occasion to consider the motivations by which various of its officers had been actuated when doing what each of them did. Of relevance for present purposes are the conclusions reached on that front in respect of the conduct of Prof Wilkinson-Berka and Prof Mackay.
In thorough and carefully-reasoned passages in her judgment, the learned primary judge traced the evidence of both as to why they were minded to do what they each did. In the case of Prof Wilkinson-Berka, her Honour had occasion to identify multiple evidential references en route to her ultimate conclusions. Relevantly, her Honour determined as follows (Primary Judgment, [211]-[214], [219]; references omitted):
211 I accept Professor Wilkinson-Berka's evidence about what motivated her decision-making which led to or had a material impact on the ultimate decision to declare Dr Pilbrow's position redundant. Ultimately, I accept that this decision was based on the view Professor Wilkinson-Berka had formed about the extent to which anthropology research, and the funding that such research was likely to attract into the future, fit within the future vision and direction that she saw for the Department.
212 It is clear that Dr Pilbrow did not agree with this assessment, but ultimately, it is not for this court to assess or determine whether that was the correct view, or indeed whether another Head of Department would have taken a different view about the future of the Department. The issue is whether the workplace rights which Dr Pilbrow had exercised were the reason (or part of the reason) that actuated Professor Wilkinson-Berka's decision making and actions. I find that they were not and I find that Professor Wilkinson-Berka was not motivated by the fact that Dr Pilbrow had raised the PDR Complaint, the PDR Dispute or indeed any of the other matters that Dr Pilbrow had raised about the way in which her employment had been managed by the University.
213 In coming to this view, I have had regard to the totality of the evidence, including the way in which the Donation issue was handled by the respondent. Dr Pilbrow submitted that the Donation, if accepted would have allowed Dr Pilbrow to acquit the research funding issue which had been raised against her. In response, Professor Wilkinson-Berka disagreed with this proposition and said:
... The donation is small. ... It's more about the type of grant that you're receiving, whether you're the chief investigator. So no, I don't think that if the donation had been accepted and it ... was very small, it would have been a minor addition.
214 I accept Professor Wilkinson-Berka's evidence that the Donation, and whether or not to accept it, was not a factor which played into her decision about the future research direction of the Department. I accept that she made a decision based on her view that anthropological research was not a good fit within the Department. I accept that she was not motivated by reason of any workplace right exercised by Dr Pilbrow in coming to this view and that having come to this view, the consequence was that Dr Pilbrow's position was declared redundant.
…
219 Having regard to the totality of the evidence, I find on the balance of probabilities that the reason for the decision to remove anthropological research from the Department's future vision was based on Professor Wilkinson-Berka's view that it was not a good fit with the future direction of the Department and that as a result, Dr Pilbrow's role would be declared redundant. I accept Professor Wilkinson-Berka's evidence, which was not shaken throughout her cross-examination, that the basis of this reasoning was not influenced by any complaint that Dr Pilbrow had made, including any of the workplace rights pleaded and admitted by the parties.
Insofar as concerned Prof Mackay, her Honour reached equivalent conclusions (Primary Judgment, [227]-[230], [233]-[238]):
227 On the totality of the evidence, I find that Professor Mackay was not motivated at all by any workplace right which Dr Pilbrow exercised. Rather, I find on the balance of probabilities that she agreed to the Change Plan for the Department on the basis that it was consistent with Professor Wilkinson-Berka's vision for the future strategy for the Department, a strategy which Professor Mackay agreed with.
228 In relation to the Donation issue, Professor Mackay maintained in cross-examination that as Head of School, she considered whether to approve all donations. In doing so, she said that she considered various factors including whether the donation gave rise to a potential conflict of interest, whether the purpose of the donation was sufficiently clear so that the funds could be properly administered and whether the person who receives the funds has the appropriate performance record to ensure that there is a means of managing potential reputational risks.
229 Professor Mackay maintained in cross-examination that she did not reject the Donation as part of a scheme to remove Dr Pilbrow from the Department. In the context of Professor Mackay's handling of the Donation issue, the following exchange occurred:
Counsel for applicant: It was part of a scheme, Professor Mackay, to come up with a false reason to refuse this donation that also allowed you to end Dr Pilbrow's employment in the department?
Professor Mackay: No. Those are two different processes. There's a process around performance appraisal and a process around - a university process around a review of a department is completely different. And I don't - they're not complaining you know … We're not stopping performance of staff because we're having another process. They work in parallel, but they have an impact on our decisions.
230 I accept Professor Mackay's evidence in this regard.
…
233 In relation to the issue of the implementation of the 2018 Review and Recommendations, Professor Mackay conceded in cross-examination that she probably did discuss ceasing the funding of anthropological research as part of the bigger strategy to support research in fields that were sustainable. She also agreed that no action was taken to implement the 2018 Review and Recommendations until Professor Wilkinson-Berka joined the University.
234 She did not concede, however, that they discussed how to make Dr Pilbrow's role redundant or that this was due to her complaints about the performance management process. She maintained that her discussions with Professor Wilkinson-Berka about the 2018 Review and Recommendations was 'a strategy decision' and 'nothing to do with performance'.
235 It was put to Professor Mackay that the reference in her email to Professor Wilkinson-Berka of 19 August 2019 to being 'almost there' was that they were almost at the point of being able to terminate Dr Pilbrow's employment. Professor Mackay did not accept this. She said 'No. It means … it's a process we're doing. It's lengthy. It is complicated and we're bringing it to an end'.
236 In this context, the following exchange then occurred:
Counsel for applicant: And you're bringing it to an end without giving any genuine consideration to the matters that Dr Pilbrow has raised?
Professor Mackay: No, that's not true. This is what … the response will be … will be made. That is what the sentence above says. We're going to draft a response.
237 Professor Mackay also did not accept that the use of the words 'blah, blah, blah' in this email was indicative of the lack of consideration given to the issues raised by Dr Pilbrow. Rather she said, 'I'm not an HR expert, so I don't know what the answer is going to be, but it has to be, you know, following a proper process'.
238 Having regard to the totality of the evidence, including Professor Mackay's express evidence about what motivated her in the decision to agree with the proposed changes in research priorities for the Department, I find on the balance of probabilities that she did not act for a reason which was or included any of the workplace rights pleaded and conceded in these proceedings. In particular, I have had regard to the fact that there were a number of different processes being undertaken in relation to Dr Pilbrow. Largely, these were process which were implemented by the Head of Department with assistance from members of the Human Resources Department. I accept Professor Mackay's evidence on the balance of probabilities that the various complaints made by Dr Pilbrow did not motivate her decision in relation to the research focus for the Department.
Dr Pilbrow is critical of the primary judge's reasoning. She maintains that there were circumstances arising from evidence not referred to in the passages replicated above that ought to have featured in her Honour's thinking; and that ought to have borne upon her assessment of the University's reasons for taking adverse action against her (and, in particular, those of Prof Wilkinson-Berka and Prof Mackay).
That submission focuses, in part, upon some evidence concerning Prof Mackay. It is convenient to replicate what Dr Pilbrow set out in her written appeal submissions (references omitted):
The [Primary Judgment] makes no reference to the email from Professor Mackay on 8 May 2019, the earliest written record of the proposed restructure, which directly contradicts [that Professor Wilkinson-Berka, the new Department Head, initiated the restructure leading to the redundancy to give effect to her 'vision' for the Department excluding anthropology]. The context to this email was that, in 2018, Dr Pilbrow underwent a performance development review process. Among other things, [the University] contended that Dr Pilbrow was required to secure a certain amount of research funding. Dr Pilbrow complained about the review process and later lodged a dispute. In early 2019, a donation was offered to Dr Pilbrow's laboratory. On 8 May 2019, Dr Pilbrow emailed Professor Mackay and asked her why the donation had not been accepted. In seeking advice about how to respond, Professor Mackay wrote that she could not risk the funds being wasted on "some useless project" and "I could respond exactly this but then she will come back to the donor with some explicit project and we will be in trouble. Or we could say that the purpose of the funds related to work that is not relevant to SBS, we do not work on anthropology" (emphasis added). At the time Professor Mackay sent that email, the school did work on anthropology. Professor Mackay did not refer to this email in chief.
In concluding that Professor Mackay was not motivated by Dr Pilbrow's complaints, the primary judge accepted that she refused the donation to avoid "a potential conflict of interest" and to manage "potential reputational risks". The primary judge does not refer to Professor Mackay suggesting the restructure as a way to justify refusing the donation or failing to disclose her conduct in evidence in chief.
Some context is required. In late 2018, Dr Pilbrow was the subject of a performance improvement plan. One of the complaints levelled against her concerned her efforts in securing research funding for the Department. Dr Pilbrow took issue with the assessment of her performance and, in doing so, is to be understood to have exercised a "workplace right". That, she alleged, was one of the reasons why the University indulged in the "Redundancy Decision", made the "Serious Misconduct Allegation" and dismissed her from her employment.
In February 2019, Dr Pilbrow announced that she had secured an anonymous donation totalling $15,000.00. It is apparent that the timing and nature of that donation raised at least some suspicion in the mind of Prof Mackay (the particulars of which needn't here be examined). In early May 2019, Dr Pilbrow was told that the donation would not be accepted, following which she sought from Prof Mackay an explanation as to why. That request was made by email. Following its receipt, Prof Mackay had occasion to write to Ms Narsey (one of the University's human resources officers) about it in the following terms (errors original):
Dear Neena
I will need help here. I did not authorise release of the funds because the purpose for the funds is unknown to me and I cannot risk the reputation of the University on having fund wasted on some useless project or activity that is not relevant to [the School]. Will not respond until the triennial is done
Thank you for advice
I could respond exactly this but then she will come back to the donor with some explicit project and we will be in trouble. Or we could say that the purpose of the funds related to work that is not relevant to [the School], we do not work on anthropology
Thank you for any guidance
It was said before the primary judge that that email of 8 May 2019 disclosed the first signs of any suggestion that the Department would abandon the anthropology work in which Dr Pilbrow was engaged. Only days later, Prof Wilkinson-Berka - freshly installed as the new head of the Department - decided to "change the research vision", which was then endorsed at an extraordinary (which is to say, out of schedule) meeting of the Department's Executive Committee (above, [17]-[18]).
Before her Honour, Dr Pilbrow posited that the "change in research vision" was something that the University had hastily cobbled together as an artifice behind which it might disguise its real objective, namely the non-acceptance of the donation that Dr Pilbrow had secured and, ultimately, her removal from the Department. At the appeal, counsel for Dr Pilbrow explained the attack on the University's stated reasons as follows:
It has got to do with the motivations of the university for acting as it did, because its case is the change of vision developed by Professor Wilkinson-Berka was because she had an independent view she didn't want to work on anthropology…but, in fact, the first documentary record of the idea that, "We don't work on anthropology", is the email of Professor Mackay, which is she has gone to human resources and said, "I need help. What can we say to justify the decision I've made? Hey, we could say we don't work on anthropology".
Two weeks later, we've got a meeting at which Professor Wilkinson-Berka says, "I've got this change of vision and maybe we won't work on anthropology". The very next day, Dr Pilbrow is told, "We don't work on anthropology. We're not taking your donation. We will be in touch". Then we have a change plan and a redundancy. So it bore on whether the innocent explanation offered by the university was, in fact, the real explanation. It was a full-throated challenge to that innocent explanation…
Additionally, Dr Pilbrow sought to impress upon the primary judge the haste with which Prof Wilkinson-Berka had sought and received executive endorsement for her "change in research vision". Under cross-examination, Prof Wilkinson-Berka conceded that the issue "could have waited" and it was not controversial that the meeting of the Executive Committee had been convened out of session (that is to say, additionally to the schedule upon which those meetings usually transpired) and without any supporting papers.
By appeal ground 4, Dr Pilbrow complains that the primary judge, in assessing why it was that the University took the adverse action that it took, either did not consider any of the circumstances summarised above; or, if she did, did not adequately explain in her reasons why she did not accept the theory that Dr Pilbrow had advanced as to the University's reasons.
Further, she complains that the Primary Judgment is conspicuously lacking in any consideration of the credibility of the University's witnesses (specifically, Prof Mackay and Prof Wilkinson-Berka).
Respectfully, I do not accept that the primary judge erred in either of the ways advanced by appeal ground 4.
Insofar as concerns Dr Pilbrow's case concept - namely, that the Department's change in research focus was a fig leaf designed as a way of justifying the non-acceptance of the donation that Dr Pilbrow had secured - I am not persuaded that that was something of which the learned primary judge can be thought not to have taken account. From her Honour's reasons for judgment, it is apparent that she was alive to the suggestion. The Primary Judgment contains several references to the "Donation issue". At Primary Judgment [102], for example, her Honour replicates passages from Prof Mackay's oral evidence, specifically about "the suggestion that [her response to the anonymous donation] was coming up with an alternate excuse or something that you made up". Likewise, her Honour expressly accepted Prof Wilkinson-Berka's evidence that the donation did not bear upon her decision about the Department's future research direction (Primary Judgment, [214]). Insofar as concerned Prof Mackay, her Honour accepted as true the position that she had maintained during cross-examination: namely, that "…she did not reject the Donation as part of a scheme to remove Dr Pilbrow from the Department" (Primary Judgment, [229]-[230]).
Those findings are sufficient to address the entirety of Dr Pilbrow's challenge by appeal ground 4. Concluding as she did, her Honour must (indeed, can only) be understood to have accepted that the issue of the donation did not factor into the decisions that the University made as to Dr Pilbrow's position. Although the asserted haste with which the Department's Executive Committee came to endorse Prof Wilkinson-Berka's change in research focus does not expressly feature in her Honour's reasoning, it is necessarily subsumed in a finding of greater generality (specifically, about the donation's irrelevance to those decisions).
The primary judge was not obliged to explain why it was that she was minded to accept the explanations that Prof Mackay and Prof Wilkinson-Berka gave for their actions. It is, as Dr Pilbrow accepts, implicit in her Honour's reasons that the evidence about those explanations was accepted as credible. In other circumstances, it might have been possible that the theory that Dr Pilbrow advanced could have persuaded the primary judge that the innocent explanations given by the University's witnesses were, in truth, not credible and ought not to be accepted. Nonetheless, it must be borne in mind that what she posited was no more than that: a theory. Nothing in her "full-throated challenge" rose beyond the level of speculation. Nor could it have: it was plainly not possible for Dr Pilbrow to lead evidence of her own as to the subjective reasons that formed in the minds of others.
The primary judge's obligation was to answer the question in respect of which Dr Pilbrow had proffered her theory - namely, whether the University had shown that it did not take any adverse action for a reason or reasons proscribed by pt 3-1 of the FW Act - upon consideration of all of the evidence that was capable of bearing upon it. Respectfully, her Honour did not fail to do so.
It follows that appeal ground 4 must fail.
[13]
Disposition
The appeal should succeed in part. The primary judge's orders should be set aside and, in their place, there should be equivalent orders relating to both the "issuing of the Final Written Warning" and the "issuing of the Serious Misconduct Allegations". It is unnecessary to make any binding declaration of right as to the latter. Doing so would not achieve anything not already achieved by the orders that I will make and by the reasons for which I will make them (see, in that regard, Fair Work Ombudsman v Doll House Training Pty Ltd (No 2) [2024] FCA 811, [133] (Goodman J) and the observations that I made, and to which his Honour there referred, in Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (The Beams Lift Case) (No 2) [2024] FCA 779, [32]-[34]).
No doubt in light of the constraints imposed by s 570(1) of the FW Act, neither side seeks any order for costs; and, for now at least, none shall be made.
I certify that the preceding one hundred and sixty-eight (168) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.
The change plan was the subject of discussion at a meeting that took place between Dr Pilbrow and Prof Wilkinson-Berka on Monday, 12 August 2019. At that meeting, Dr Pilbrow was told that the University "…had decided to make her position redundant in accordance with the [c]hange [p]lan".
Upon invitation, Dr Pilbrow and her union, the National Tertiary Education Union, responded to the change plan. It is unnecessary here to particularise that response. It suffices to note that Dr Pilbrow resisted the course that had been charted for her.
On Friday, 6 September 2019, Dr Pilbrow and her representative, Mr Corey Rabaut, met with Prof Wilkinson-Berka and Ms Narsey. There, she was given correspondence notifying her that her employment with the University would terminate on 1 November 2019. The text of that correspondence assumes some importance and should be replicated (excluding formalities; errors and emphases original):
Dear Dr Pilbrow,
I write to notify you that the University has determined that the position of Lecturer - Topographic Anatomy which you hold in the School of Biomedical Sciences is redundant pursuant to clause 1.40.1 of the University of Melbourne Enterprise Agreement 2018 ('Agreement') due to structural changes within the department of Anatomy and Neurosciences within the School of Biomedical Sciences.
This means that your employment will terminate on 1st November 2019 at the end of an eight (8) week notice period which commences on 6th September 2019 ("Notice Period'). The University will provide you with the opportunity to be considered for redeployment into a "suitable alternative position" or an "alternative position" (see explanation below). If you do not wish to be considered for redeployment, you may request early separation within the Notice Period by completing and returning the nomination section of this letter.
The procedure for redundancy, including the identification of redeployment opportunities, is set out at clauses 1.40, 1.41 and 1.42 of the Agreement. Redundancy entitlements for academic staff are set out at clause 2.21 of the Agreement.
Redeployment
If you do not request early separation, you will be considered for redeployment into either a suitable alternative position or an alternative position.
A suitable alternative position (as defined at clause 1.41.2 of the Agreement) means a position that on an overall basis, draws upon your skills, competencies and experience without diminishing your classification, work capacity, status, salary or equivalent career progression, and that does not unreasonably extend your usual travel time.
An alternative position (as defined at clause 1.41.3 of the Agreement) means any vacant position that you elect to accept that does not fall within the meaning of "suitable alternative position" and may include a part-time position.
If redeployment has not been achieved at the expiry of the Notice Period and you have not otherwise secured another position within the University, your employment will terminate. On termination you will receive a redundancy payment calculated in accordance with the Agreement unless:
• You have been offered ongoing employment with the University in suitable alternative employment whether or not you have accepted such an offer; or
• You have agreed to accept an alternative position within the University.
Early separation
If you do not wish to be considered for redeployment, you may request early separation (i.e. your employment will terminate prior to the expiry of the Notice Period). If you request early separation, your employment will end on a date prior to the expiry of the Notice Period as agreed between you and the University and you will be paid in lieu of the remaining balance of the Notice Period in addition to a redundancy payment calculated in accordance with clause 2.21 of the Agreement.
Redundancy Payment
In accordance with clause 2.21.1 of the Agreement (and subject to the matters set out above), on termination you will receive 22 weeks' salary, plus three weeks' salary for every completed year of continuous service to the maximum of 52 weeks. The maximum amount of Redundancy Pay is equivalent to 74 weeks' salary.
You will also receive payment in respect of any accrued but untaken annual leave and pro-rata annual leave loading and accrued long service leave.
All redundancy payments will be calculated based on your salary (including fortnightly paid Agreement based allowances and loadings, but excluding superannuation) at the date of cessation of employment. Please note that redundancy payments and payment of any untaken leave and pro-rata annual leave loading on termination do not attract superannuation contributions.
Support services
The University's Employee Assistance Program is available to all staff. This is a confidential counselling service where you can speak to an experienced counsellor face-to-face or over the phone. For more information on how to access this service go to https://staff.unimelb.edu.au/health-safety-wellbeing/employee -assistance-program.
Engagement after redundancy
I also wish to advise you that a person who has received a redundancy payment cannot be re-employed at the University in the 'same job'. The term 'same job' includes a role that is identical to the role held by the staff member prior to termination of their employment and any role that whilst not identical is substantially the same involving similar duties to be performed within the same department at the same or similar classification level to the role held by the staff member prior to termination.
If you have any queries in relation to this letter please contact Lindsay Karakiozakis People and Culture Deputy Director on (03) 8344 5725 or via email on lindsay.karakiozakis@unimelb.edu.au
Yours sincerely,
On behalf Professor Shitij Kapur
Dean, Faculty of Medicine, Dentistry and Health Sciences
That correspondence was signed "[o]n behalf" of Prof Kapur. The letter bore the signature of Ms Lindsay Karakiozakis, the University's Deputy Director of People and Culture; although perhaps as a result of its having been scanned and inserted (her evidence was that she could not recall - but also that that would not have been unusual).
As it happens, Dr Pilbrow's employment did not come to an end on 1 November 2019. Instead, her tenure was extended a couple of times in circumstances that needn't here be explored. It is a matter of record that Dr Pilbrow's employment actually came to an end on 27 February 2020.
In October 2019, there was a further development. On or about Friday, 11 October 2019, another academic within the Department, Assoc Prof Quentin Fogg, was informed by some of his students that a large number of files relating to a course that Dr Pilbrow had previously coordinated, Principles of Human Structure, had been deleted from the University's information technology infrastructure.
It appears that some within the University - and it will be necessary later to explore who - attributed the deletion of those files to Dr Pilbrow. On Friday, 18 October 2019, she was summoned to a meeting with representatives of the University's Human Resources team, namely Ms Karakiozakis and Mr Michael Caswell (the University's Associate Director of Workplace Relations). There, it was put to her that she had been responsible for the deletion of files related to the Principles of Human Structure course (which appears to have been known by the code, "ANAT20006"). That was formalised by means of correspondence prepared and provided to Dr Pilbrow on or around Friday, 25 October 2019, which in part read as follows, namely:
Background
A. On or around 11 October 2019, Associate Professor Quentin Fogg was informed by students enrolled in subject ANAT20006 that they were unable to access subject materials and were receiving "invalid link" messages when trying to access the materials through the University Learning Management System (LMS).
B. On or around 11 October 2019, Associate Professor Fogg reloaded files identified by students as returning an invalid link. Associate Professor Fogg received further emails from students over the following days indicating that the files Associate Professor Fogg had reloaded were again returning an invalid link. A major assessment for ANAT20006 was due on 16 October 2019 and students enrolled in the subject could not complete the assessment without the documents that were now unavailable on the LMS.
C. During the week commencing 14 October 2019, the Learning Resources Team (LRT) for the Department of Anatomy and Neuroscience undertook a detailed review of the LMS to determine which files had been deleted, and by whom (Investigation).
D. Through the LRT, Associate Professor Fogg became aware that the files relevant to subject ANAT20006 had been deleted from the LMS by user ID vpilbrow (Deleted Files). We confirm that user ID vpilbrow is the user ID assigned to you by the University for use of its information technology system.
E. The Deleted Files included teaching materials, practical class notes, assessments and course timetables, and the digital platform interactions which are necessary to allow students and staff to navigate the course LMS.
F. The consequence of this action is that students were significantly disadvantaged at a time when they were completing work for assessment that may result in requests for special consideration.
G. The Investigation further identified files relating to ANAT30007, a semester 1 subject, had also been deleted from the LMS by you.
H. The deletion of these files requires significant rebuild of the LMS and restoration of the deleted files.
…
Ultimately, it appears that the allegations raised against Dr Pilbrow were resolved. How that might be is not something that bears upon the resolution of this appeal. For now, what is significant is that allegations were made on behalf of the University and, so Dr Pilbrow maintains, their making was actuated, or partly actuated, by the fact that she had exercised one or more "workplace rights".