Shum v Southern Migrant and Refugee Centre Inc

1. This litigation has a regrettably long and complex history, commencing in this court in 2018. The proceedings have involved multiple parties and an array of alleged contraventions of the FW Act. The respondents have been legally represented by solicitors and counsel and the applicant has represented herself throughout.
2. The first instance proceeding was heard in the (then) Federal Circuit Court of Australia over eight days during 2019. A significant body of evidence was received by the Court in the form of affidavits, documents and oral testimony. The primary judgment was delivered in February 2020. Ms Shum was partially successful.[2]
3. The respondents appealed and the applicant cross-appealed. The appeal also appears to have been a complex and difficult exercise, conducted over two days before Snaden J during 2021. It is not presently necessary to traverse the grounds, suffice to say the respondents were substantially successful and Ms Shum's cross-appeal was allowed in part.
4. For the reasons given in Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481, Snaden J set aside the orders of the primary judge and ordered that a new trial be remitted to this Court, on the following confined issues:

(a) whether Southern Migrant and Refugee Centre Inc (SMRC) terminated its employment of Ms Shum in contravention of s 340(1) of the FW Act;

(b) if it did, whether either of Mr Brian Oates or Mr Travis Heeney was (or both of them were), for the purposes of s 550 of the FW Act, involved in that contravention such that he or they might be taken also to have engaged in or committed it;

(c) to the extent that any such contraventions are established, what, if any, relief should be granted in consequence; and

(d) what, if any, relief should be granted in consequence of SMRC having dismissed Ms Shum contrary to the requirements of s 117(2) of the FW Act.

1. Given the complex issues in this case, the questions of liability and relief have been bifurcated. These reasons deal with remittal issues (a) and (b) only.

1. Issues (a) and (b) of the remittal are to be determined within the "General Protections" framework prescribed in Part 3-1 of chapter 3 of the FW Act.
2. Section 340(1) of the FW Act precludes "adverse action" being taken by a person against another because, amongst other things, that other person has exercised, or purported to exercise, a workplace right. It provides (relevantly):

(1) A person must not take adverse action against another person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

1. Section 341(1) defines the circumstances in which a person has a workplace right, including that:

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee - in relation to his or her employment.

1. Section 342(1) sets out a table which defines "the circumstances in which a person takes adverse action against another person" (original emphasis). Item 1 in that table provides that adverse action is taken by an employer against an employee if the employer dismissed him or her, injured him or her in his or her employment, altered his or her position to his or her prejudice or discriminated between him or her and other employees.
2. Sections 360 and 361 facilitates proof by an applicant of a claim of adverse action in two ways.
3. First, section 360 recognises that some adverse action might be taken for a variety of reasons, including some unrelated to the reasons which Part 3-1 proscribes. Section 360 provides that, for the purposes of Pt 3-1 of the FW Act, "a person takes actions for a particular reason if the reasons for the action include that reason". Accordingly, an applicant who alleges adverse action will succeed if it is found that a prohibited reason was a substantial and operative reason for the other's conduct, even if there were also other non-prohibited reasons.
4. Secondly, section 361(1) creates a rebuttable presumption, expressed as follows:

361 Reason for action to be presumed unless proved otherwise

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

1. It would be rare if ever possible for an employee to be able to prove the reason or reasons which actuated an employer to do what it did. The purpose of the rebuttable presumption is to throw onto respondents the onus of proving that which is peculiarly within their knowledge.
2. As applicant, Ms Shum must prove each of the workplace rights, the possession or exercise of which she claims was a reason for the employer's conduct. She must also prove the "adverse action" relied on - which here is not denied by the respondents. The onus otherwise rests with the respondents.
3. At the risk of repeating myself, by operation of ss 360 and 361 the court must presume that the adverse action was taken for the prohibited reason(s) alleged by Ms Shum unless the SMRC positively establishes that the action was actuated by a non-prohibited purpose or purposes. In order to "prove otherwise", SMRC must persuade the court to the requisite civil standard that the exercise of workplace rights by Ms Shum did not factor in any substantial or operative way as a reason for its decision to terminate her employment.
4. In this case, the first respondent, SMRC is a body corporate. The allegation of unlawful adverse action (the termination of Ms Shum's employment for a prohibited reason) is directed to it. A corporation has no conscience which is separate from that of its human actors. Because of the presumption in s 361 it is not necessary for Ms Shum to plead the identity of the persons whose states of mind are to be attributed to SMRC.
5. Where, for the purposes of the Act, it is necessary to establish the state of mind of a body corporate, including a person's knowledge, intention, opinion, belief or purpose and the reasons for any such intention, opinion, belief or purpose, it is enough to show that, first, the conduct was engaged in by an employee of the body corporate within the scope of his or her actual or apparent authority and, secondly, that the employee had the relevant state of mind: s 793(2).
6. The statutory presumption and the onus on the employer to discharge it are central to the determination of Ms Shum's claims. Ms Shum's allegations against SMRC necessarily involves an exploration of the body corporate's knowledge, intent and purpose through the state of mind of its human actors including, but not necessarily limited to, the second and third respondents, Mr Heeney and Mr Oates.
7. Section 550 of the FW Act concerns accessorial liability. It establishes that a person will be taken to have contravened a civil remedy provision if he or she is "involved in" another person's contravention. A person is "involved in" another's contravention of a civil remedy provision if (amongst other possibilities) he or she "... has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to..." the other persons contravention.

1. In this remitted proceeding Ms Shum, again presses her allegations that SMRC contravened s 340(1) of the FW Act by taking adverse action against her because of or for reasons which included her possession or exercise of one or more workplace rights. Ms Shum also seeks relief in relation to an unpaid entitlement to notice under s 117 of the FW Act.
2. Ms Shum seeks compensation for economic and non-economic loss suffered by reason of her dismissal. She also seeks a declaration that SMRC contravened the FW Act and orders for civil penalties to be imposed in respect of the contravention. Ms Shum also seeks relief against Mr Oates and Mr Heeney for their involvement in the prohibited conduct.
3. After hearing the parties in case management hearings, the issues to be determined emerged fairly clearly. It was not necessary for the rehearing to proceed upon any earlier or amended pleadings. To assist the parties and to provide a "relevance framework", I fashioned five questions to which evidence and submissions would be directed at the rehearing:

(e) Did the Applicant, during her employment, possess or exercise or propose to exercise any and if so what workplace right/s within the meaning of s 341(1) of the FW Act?

(f) By reference to the workplace rights identified above, what does the Applicant contend were the prohibited reason or reasons for the First Respondent's termination of her employment? (i.e., what is the Applicant's hypothesis as to the reason/s for her dismissal?)

(g) Assuming the First Respondent denies that any of those prohibited reasons were reasons for its termination of the Applicant's employment, what does the First Respondent contend were the reason/s for the Applicant's dismissal? (ie how does the First Respondent meet the Applicant's hypothesis?)

(h) If the termination of the Applicant's employment by the First Respondent was for a prohibited reason or reasons which included a prohibited reason, were Mr Heeney and/or Mr Oates involved in that contravention within the meaning of section 550 of the FW Act?

(i) If the termination of the Applicant's employment was for a prohibited reason or reasons, what relief does the Applicant seek from the Court?

1. Each of the parties was invited to file Points of Contention directed to those five questions. They each did so and the competing Points of Contention thereafter acted as a practical form of pleading.

1. This matter required extensive case management, numerous directions hearings and many interlocutory rulings. Case management was particularly challenging, with frequent disagreements between the parties about substantive and procedural issues.
2. The hearing was to proceed de novo on the remittal questions and orders were made for the parties to file their evidence-in-chief on affidavit. At their suggestion and in the hope of finding some economy, I permitted the parties to identify and adopt relevant evidence from affidavits read at the first trial. Given the very substantial body of evidence which had been advanced before the primary judge, it seemed to me at the time, but perhaps not now in retrospect, that the adoption of previous affidavits would be an efficient and cost-effective way of bringing the matter to trial. I had anticipated that the parties would file further affidavits only to supplement the evidence previously filed.
3. Unfortunately, it proved to be otherwise. Much of the evidence in the first proceeding dealt with claims and issues which were not relevant to the remitted case. There were also findings made by the first trial judge about certain purported workplace rights which were adverse to the applicant and not disturbed on appeal. This meant that any reliance on previously filed affidavits had to be screened for relevance.
4. Arguments about relevance dogged these proceedings from beginning to end. Hundreds of objections were raised by the parties challenging the admissibility of the others' old and new evidence. The parties were invited to make submissions in support of their respective objections and the court was put to the massive task of ruling upon them. It was a significant and onerous burden, made all the more difficult by Ms Shum's reticence to work within the confined parameters of the remittal and the respondents' zealous attempts to keep the case within the narrowest possible guardrails.
5. There were also contested applications for discovery and for the serving of subpoenas. Again, the area of contest was relevance, with the applicant unprepared to let go of any allegation or argument she believed was of even peripheral relevance to the remittal questions and the respondents giving no ground on what they considered to be the court's confined role.
6. Relevantly, on 31 January 2021, I acceded to Ms Shum's application for the respondents to make discovery on affidavit of, inter alia:

"any documents in their custody, possession or control relating to the Applicant's dismissal/redundancy on 19 June 2017, including but not limited to the relevant strategies/budgets, confirmed board minutes with relevant attachments and communications between any of Mr Oates/Ms Haralambopoulos/Mr Heeney/Ms Bindra/the Board."

1. A number of documents were discovered in response to this order, but not all the documents upon which the respondents ultimately sought to rely. I will deal with this in more detail in due course.
2. On 6 April 2023 I ordered the parties to file and serve outlines of argument which addressed the remittal questions only. After hearing argument from the parties, I also ordered the respondents to prepare the Court Book for trial, noting that their solicitors had the skills and resources to do so. I considered that a court book prepared by experienced solicitors would facilitate the just disposal of the matter in a timely and efficient manner.
3. On 18 April 2023, after yet another hotly contested interlocutory hearing, I granted the applicant leave to issue subpoenas to the following persons:

(a) Jacob Lee, a former co-worker of the applicant;

(b) Lynette Keleher (aka Periera), member of the SMRC board and officeholder;

(c) Helen Horvath, member of the SMRC board and officeholder;

(d) Hafez Abdul Wahab, SMRC board member; and

(e) Kelly Pollard, an accountant who provided contract services to SMRC.

1. Notations to the orders made that day recorded that leave had been granted to issue the subpoenas to Ms Keleher, Mr Wahab and Ms Horvath on the basis that they may be called to give evidence at trial as to the deliberations and decisions of the SMRC board in relation to the termination of Ms Shum's employment.
2. The respondents had been ordered to file their evidence by no later than 14 February 2023. However, on 2 May 2023 and relying on the decisions of Alam v National Australia Bank [2021] FCAFC 178; (2021) 288 FCR 301 at [14] (White, O'Callaghan & Colvin JJ); Wong v National Australia Bank [2022] FCAFC 155; (2022) 318 IR 148 at [18]- [26] (Katzman, Charlesworth & O'Sullivan JJ); and Eckel v Ballarat Community Health Ltd [2022] FedCFamC2G 890 at [124]- [143] (Judge Symons) which are referenced and discussed elsewhere in these reasons, the respondents sought leave to file affidavits from the following members of the SMRC board:

(a) Lynette May Pereira affirmed on 28 April 2023;

(b) Ilona Bridget Horvath affirmed on 1 May 2023;

(c) Hafez Abdul Wahab affirmed on 1 May 2023;

(d) Alice Tan affirmed on 1 May 2023;

(e) Ismail Dermiri affirmed on 1 May 2023;

(f) Malik Atif Mahmood affirmed on 1 May 2023; and

(g) Pravin Ramdany affirmed on 1 May 2023.

1. On 9 May 2023, I granted leave to the respondents to file those affidavits. I asked Ms Shum to inform the respondents' solicitors of the names of the witnesses the applicant intended to cross-examine. Unsurprisingly, it was all of them.
2. Document management in this proceeding also proved to be a significant and at times almost overwhelming challenge. A court book and supplementary court book (redacted for evidentiary objections) were produced by the respondent by early May 2023. However, both before and during the proceedings, the applicant sent large volumes of material to my chambers by email, often without clear explanation or leave having been granted. Due to the swirling presence of documents, I instructed the parties to prepare an electronic bundle (tender bundle) of any further documents which were not in the court book but which a party intended to tender in evidence at trial.

1. The remittal hearing commenced on 22 May 2023 and initially proceeded over 9 days of evidence. Mr Harrington of counsel appeared for the respondents.
2. Ms Shum was self-represented in these proceedings as she was at the primary trial and the appeal. Considerable accommodation was made for her inexperience although it must be noted that by the trial she had completed legal studies and had qualified as a solicitor. Ms Shum was more than a mere novice and I expected more discipline from her in the way she ran her case.
3. Throughout these proceedings the applicant agitated a broad range of allegations and sought to engage with issues which went beyond the remittal questions. Ms Shum sought to re-agitate matters which were found against her in the primary judgment and which had not been disturbed on appeal. She pressed for findings in relation to allegations of adverse action, other than her dismissal from employment. She sought findings and remedies against people who are not parties to the proceeding.
4. The transcript will reveal the constant objections raised by SMRC's counsel about the relevance of Ms Shum's evidence, her meandering cross-examination and her submissions to the Court. Most of these objections had a sound basis. The transcript also records the numerous occasions where the court stepped in to remind the applicant about the nature of the proceedings and the need to refocus her attention on the relevant legal and factual issues to be determined. Judicial intervention in this proceeding was unusually high but unavoidable.
5. By the conclusion of the trial, the parties agreed that the evidence would comprise:

(a) all affidavits affirmed by a witness at trial;

(b) any documents formally tendered into evidence and marked as an exhibit during trial;

(c) the documents contained in the "Board Minutes folder" which had been produced by the respondents and tendered by consent; and

(d) any other documents which formed part of an agreed "tender bundle", subject to any objections upon which the court would rule.

1. After final written submissions were filed in August and September 2023, the respondent was granted leave to reopen their case to adduce further evidence in relation to a discrete matter which had arisen for the first time in the applicant's reply. This resulted in further hearing days. Final oral submissions were completed in December 2023.

1. The respective parties filed and, subject to evidentiary rulings, sought to rely on the following affidavits:

1. These reasons will be better understood if I clarify, by name and role, the many individuals who gave evidence or were otherwise mentioned in the parties' affidavits. Explaining the relationships between these individuals assists to understand the context in which the dispute arose and how the evidence is to be assessed.
   • Ms Lai "Genie" Shum, the applicant. Former Team Leader - Finance from 21 June 2016 until her termination on 19 June 2017
   • Mr Travis Heeney, the second respondent. Interim managing director of SMRC between 1 May 2017 and 13 October 2017
   • Mr Brian Oates, the third respondent. Chairman of SMRC since November 2010, most recently re-elected December 2016
   • Ms Jenny Semple, long serving CEO for approximately 20 years until she took leave in 2016 from which she never returned
   • Ms Despina Haralambopoulos, acting CEO after Ms Semple took leave in 2016 until Mr Heeney's appointment as interim managing director in May 2017
   • Ms Lynette Periera (aka Keleher), elected board member and Secretary of SMRC
   • Ms Ilona (Helen) Horvath, elected board member and Treasurer of SMRC
   • Mr Pravin Ramdany, appointed board member at December 2016 AGM and assistant treasurer
   • Ms Alice Tan (Lau), appointed board member in March 2017
   • Mr Hafez Wahab, elected board member
   • Mr Ismail Demiri, elected board member
   • Mr Malik Mahmood, elected board member
   • Mr Ramesh Kumar, CEO from 2018 to 2022
   • Mr Rakesh Sharma, Director Corporate Services from October 2017, then CEO from November 2022
   • Ms Amandeep Bindra, SMRC Human Resources Advisor from about June 2015 until November 2017
   • Mr Jacob Lee, Corporate Services Manager and Ms Shum's immediate manager. Resigned August 2017
   • Ms Kate Lord, former Quality & Risk Adviser and Acting Programs Manager. Redundant 19 June 2017
   • Ms Kerry Pollard, contracted "crisis accountant" engaged by SMRC board in March 2017
   • Ms Champa Wattegamage, Assistant Finance Officer reporting to team leader Ms Shum
   • Ms Perla Mazie, Bookkeeper reporting to team leader Ms Shum
   • Mr Christopher Brooking, former Business Development manager. Redundant 19 June 2017
   • Mr Bill Collopy, Manager Diverse Care
   • Ms Sandra D'Souza, Executive Assistant to the CEO

1. In final submissions, both parties made general observations disparaging of the credit of the others' witnesses. Some of the criticisms have substance, but in this case I must make allowance for the fact that the impugned events occurred many years ago and not all witnesses were as close to the action as others.
2. It is well to remember that a court should be cautious before making adverse credit findings which rely to any significant extent on demeanour. The witness box is not the most natural environment, particularly for those who are reluctant participants in what they perceive to be someone else's dispute. The hurly-burly of cross examination and attacks on one's recollection or motives is prone to cause even the most calm individual to rankle. Conversely, with enough preparation and confidence, even the most disingenuous can present as calm and creditworthy.
3. The evidence in chief was given on affidavit. Both parties relied on affidavits which had been produced for the initial proceeding in this court which, by the time of the remittal proceeding, were several years old. More recent affidavits were prepared on memories which had faded or had been refreshed by reference to selective documentation. The affidavit evidence of the respondent's principal witnesses spoke at a high level of generality and did not give any real insight into the decision-making processes or the deponents' states of mind.
4. The affidavits filed on behalf of directors shortly prior to trial and their subsequent cross-examination were particularly illuminating. The affidavits were prepared in a common format with each witness denying any substantive involvement in the decision-making. The affidavits simply adopted the minutes of board meetings as being an accurate record of events, but none of the witnesses persuaded me that they had a true independent recollection of what occurred. Given the formulaic approach to those affidavits, I found this evidence to be fashioned to support the respondent's preferred narrative.
5. The court only observed witnesses under the glare of cross-examination. The witnesses were predictably partisan to the party which called them. Ms Shum was a passionate advocate for her own cause and she embraced cross-examination as another opportunity to press her narrative. As mentioned earlier, Ms Shum seems consumed by a deep sense of injustice and she brought that demeanour to these proceedings. She was suspicious of the cross-examiner and frequently argumentative when questioned, attempting to anticipate what was coming rather than answer what was asked. Her evidence was strongly coloured by her own perspective and exaggerated for effect. Where documents exist to record Ms Shum's interactions with others, I prefer that record to her more recent account of events.
6. Ms Shum's other witness, Mr Lee, presented as an embittered fellow traveller, with his own axe to grind about his time at SMRC. I found him to be generally credible although his evidence was brief and ultimately of marginal relevance.
7. The respondents' witnesses all responded to cross-examination at a high level of generality. For many of the board members, their memory of Ms Shum and the events of 2017, including the organisational restructure, was poor or even non-existent. A number of the older and longer serving board members emphasised their role as volunteers and saw their role on the board as being entirely divorced from operational matters, those being responsibilities entrusted to the CEO of the day. The common theme across the evidence given by those board members was a distinct lack of any recollection of matters relating to staff, finances, management and the like.
8. As the evidence emerged it became apparent that some board members were far more actively involved and engaged with the operational arm of the business than others. The Chairman Mr Oates, the Secretary, Ms Periera and the Treasurer, Ms Horvath were all identified as being the board members who regularly engaged with the CEO's of the day. In a sense these persons were regarded as the professional directors and they were entrusted by other board members to oversee the CEO's management of the business.
9. There was a distinct contrast between what I describe as the non-active board members and those who occupied executive office. The Chairman, Treasurer and Secretary proved to be close associates and well known to each other through, for example, their involvement in a local Residents Association, of which Mr Oates was the president. These key members of the executive board seemed much more invested in the proceedings. Each of them, to a greater or lesser degree, were reluctant witnesses, abrupt in the witness box and seemed particularly affronted by Ms Shum's allegations of bullying and dismissive of this litigation more generally.
10. That said, the length and breadth of cross examination and the manner in which the trial was conducted by Ms Shum often caused tensions to escalate. I make allowance for the fact that witnesses for the respondents were probably not at their best when confronted with meandering and unstructured questioning which had the natural effect of causing defensiveness and self-justification. More targeted and effective cross-examination on relevant issues would have been of greater assistance.
11. Where other comments regarding the credit of individual witnesses are warranted, including Mr Heeney, I express my observations throughout the course of these reasons.

1. There are few agreed facts in this case. The parties give very different narratives, each representing their own perspective on the same events. There are many factual contests and inconsistencies in the evidence, compounded by fading recollections and a deficit of contemporaneous documentation.
2. In this judgment it is simply not possible to refer to every piece of evidence the parties have relied upon or to address every argument raised by them. The following narrative represents an amalgam of what I understand to be agreed facts, uncontroversial or uncontested evidence and my findings in relation to relevant contested matters. Where it has been necessary to resolve an inconsistency or conflict in the evidence, I will explain how I have done so.
3. SMRC is governed by a board of directors, each of whom is a volunteer. The majority of the Board of 11 is elected by the 200 or so members of SMRC and the constitution makes provision for appointments to the Board. The Board is responsible for the governance of the organisation and the employment of a chief executive who oversees management and operations.
4. In 2017 SMRC had a workforce of about 60 permanent employees and around 150 volunteers who between them spoke more than 60 languages. The organisation provided a range of services to migrants including community support, settlement assistance, aged care services and access to social enterprises and participation.
5. Mr Oates has been the chairman of the board for many years. He is a former trade union official and municipal councillor. Mr Oates first joined the board of SMRC in 1998, the same year he became a member. He was elected as chairman in 2010 and relevantly remained in that position throughout the period of Ms Shum's employment.
6. Mr Oates gave evidence that the constitution of SMRC was amended in 2014 to introduce a new category of membership: associate member, which included SMRC volunteers and employees. He said that the distinction between financial members and associate members was introduced to ensure there was no real or perceived conflict of interest by preventing employees from being both. Mr Oates also gave evidence about another amendment in 2016 which set limitations on the period for which a person could serve on the board.
7. For the purposes of this judgment the story commences in June 2016, when Ms Shum accepted employment in the position of Team Leader - Finance. She had previously performed some part-time work in a locum capacity at SMRC, but her full-time appointment commenced in June. In her role as Team Leader, she reported to Mr Jacob Lee, the Corporate Services Manager, a long-time employee of SMRC. As team leader, Ms Shum supervised the Assistant Finance Officer, Ms Champa Wattegamage and the Bookkeeper, Ms Perla Mazie.
8. It is not disputed that late 2016 saw a period of significant instability and dysfunction within the governance of SMRC and its workplace. SMRC was riven with conflict and internecine disputes between its Board, its then CEO Ms Jenny Semple and members of executive management.
9. Mr Oates gave evidence that the board was concerned about the financial performance of SMRC as it had lost almost $400,000 over four years and was in a "precarious financial position". He said that from 2015 a newly constituted board started to take a more active approach to addressing these longstanding financial issues.
10. The CEO, Ms Semple, had held her position for nearly 20 years. However, by late 2016, for reasons which need not be explored, Ms Semple had fallen out of favour with the board and had been absent from the organisation for several months. Mr Lee and others gave evidence that the workplace became stressful after staff became aware of the conflict between Mr Oates and Ms Semple. The evidence makes plain that a good number of the SMRC staff were very loyal to the long-serving Ms Semple and her absence was disconcerting to them.
11. In October 2016 Mr Oates sent an email to SMRC staff notifying them of a board resolution to appoint Ms Despina Haralambopoulos as Acting CEO. There then followed a series of urgent board and staff meetings to manage the operational and governance ramifications of this decision.
12. In this turbulent period, a cloud of chaotic and bitter internal disputation enveloped SMRC and its leadership. Employees were drawn into or involved themselves in this disputation and sought to influence a change in the leadership of SMRC. More than 25 new members joined the organisation, many of whom were employees including Ms Shum. Mr Oates sensed a coup. The issue of membership and voting rights set the board and the new members on a collision course.
13. Loyalties were divided between those who supported long standing management and those who sought change. Employees (in particular the SMRC Executive Management Team) and the board sat on either side of the divide, each group expressing no-confidence in the other. There was significant staff unrest. The description of the workplace as toxic was adopted by many witnesses in this proceeding.
14. This dysfunctional workplace was the environment from which Ms Shum claims to have exercised the first in a series of workplace rights. Ms Shum alleges that the exercise of those workplace rights or a combination of them was a substantial and operative reason for SMRC's decision to terminate her employment in the coming months.
15. Mr Oates gave evidence that on 7 November 2016 he wrote to new members on behalf of the board informing them that the Constitution prevented them from voting at the forthcoming Annual General Meeting. This letter caused apparently consternation among those who had recently joined the organisation as members. Ms Shum claims that at a meeting on 9 November 2016 to discuss the board's letter, she inquired of Mr Oates whether there was evidence to support the board's investigation into Ms Semple's remuneration. Ms Shum contends that this enquiry by her constituted the exercise of a workplace right pursuant to s 341(1)(c)(ii).
16. Mr Oates gave evidence that in early November 2016, when the board was preparing correspondence to SMRC members about the forthcoming AGM, he noticed that Ms Shum's name was on the mailing list of members. Mr Oates says he recognised the applicant's name because she had previously emailed him regarding online banking in her capacity as Team Leader-Finance. He said the thought occurred to him at that time that Ms Shum must be simultaneously both an employee of SMRC and a financial member of the organisation. However, he denies having any direct contact with her or any other knowledge about her.
17. On 24 November 2016 Mr Oates met with the SMRC Management Executive to discuss their concerns about the board's correspondence with the 26 new members. It appears that this meeting had been requested by management to express concerns about ongoing staff unrest and to seek clarification regarding voting rights prior to the forthcoming AGM.
18. In a letter sent later that day under the hand of "Acting CEO and the Managers of SMRC" the authors claim that the board had circulated misleading information, that there was a disconnect between the board's communication and its interpretation by staff and that the content of the board's letter might be considered defamatory. Mr Oates understood that letter to have come from the acting CEO Ms Haralambopoulos and her management team.
19. On 1 December 2016, the day of the AGM, a document headed "An open letter to the Members of the SMRC from concerned Staff" was produced and circulated amongst those who attended the AGM. The document, which was not signed and has no identifiable author, purported to be written on behalf of "24 staff and associate members of the SMRC". The document asserted that the chairperson, Mr Oates, had lost the respect and support of those behind the letter, who also expressed a lack of confidence in him and a fear that under his leadership the future of SMRC was threatened. The so-called open letter encouraged recipients to use their vote wisely "to put the right people, people with integrity on the board, we have confidence in". Ms Shum claims to have voted to support this letter, which she also claims to be an exercise of her workplace rights pursuant to s 341(1)(c)(ii).
20. The AGM itself was a rowdy affair, given the testy internal politics. The band of supporters loyal to the long serving CEO Ms Semple voiced their opposition. Mr Oates said the meeting descended into farce.
21. Relevantly, Mr Oates gave evidence that he recalls Ms Shum placing her vote for the election of the board in the ballot box at the AGM. In cross-examination Mr Oates recalled that, "Ms Shum came up and in front of me, made sure that I saw that she put her vote in the box". Mr Oates gave evidence that this was the first time he had any direct or personal involvement with Ms Shum - although he conceded that he had dealt with her in relation to cheque signing previously.
22. At the AGM, Mr Oates was re-elected to the board as were others on his "Migrant Team" ticket. After the election the new board established an executive committee consisting of:

(a) Brian Oates - Chairperson

(b) Hafez Abdul Wahab - Deputy chairperson

(c) Helen Horvath - Treasurer

(d) Nazer Nazir - Assistant Treasurer

(e) Lynette Keleher - Secretary

(f) Malik Atif Mahmood - Assistant Secretary

1. A few days after the AGM, on 5 December 2016, the acting CEO Ms Haralambopoulos asked Ms Shum to a meeting in her office. Ms Shum described this as a "non-work" meeting at which Mr Oates and another board member Mr Abdul Wahab were present. Ms Shum alleges and Mr Oates admits that he told her that she should not have voted at the AGM on 1 December 2016 because she had a conflict of interest as a current employee of SMRC. Ms Shum alleges that she objected to that allegation and by doing so exercised a workplace right pursuant to s 341(1)(c)(ii).
2. Mr Oates gave a different version of the meeting. He said he needed to take another person with him because the board was concerned that some members of the staff might be violent to him if he walked in on his own. Ms Shum was brought into the meeting and Mr Oates said that Ms Shum's involvement "was a setup". Mr Oates agrees he challenged Ms Shum about her associate membership and a conflict-of-interest. Mr Oates gave evidence that Ms Shum was very very aggressive to him and that she made it quite plain that she opposed him and his board.
3. Ms Shum alleges that immediately after the meeting with Ms Haralambopoulos, Mr Oates and Mr Wahab on 5 December 2016, she complained to her manager, Mr Jacob Lee about being intimidated in the workplace during office hours in relation to her private business, namely her voting rights as a member of SMRC. Again, Ms Shum alleges that in making that complaint to Mr Lee, she exercised a workplace right.
4. There is evidence that in mid and late December 2016, Ms Haralambopoulos sent broadcast emails to "AllStaff@smrc.org.au" inviting them to informal morning tea get-togethers to touch base about the recent challenging times. Ms Shum asserts that she attended a few of these sessions where she enquired about staff voting rights and whether there was a code of conduct for Mr Oates and the board. Ms Shum alleges that her participation in these informal get-togethers constituted the exercise of a workplace right.
5. On 7 January 2017, Mr Oates emailed casual members of SMRC noting that some had requested a Special General Meeting. The proposed motion for the SGM was that current board members be expelled. In his correspondence, Mr Oates informed financial members that those who were paid staff members would not be able to vote at the meeting and should not take any part in any campaigning.
6. On 8 January 2017, Ms Shum forwarded Mr Oates' email to her colleague and manager Mr Lee with the message "FYI". Ms Shum alleges that by sending this email to Mr Lee she exercised a workplace right.
7. On 9 January 2017 the interim CEO, Ms Haralambopoulos, emailed Ms Shum informing her that she would be happy to meet to discuss Ms Shum's concerns about Mr Oates' correspondence of 7 January 2017. Ms Shum alleges that in a meeting later that day, Ms Haralambopoulos tried to cancel her financial membership and provide a refund. Ms Shum claims to have objected to this and asserts, by doing so, she exercised a workplace right pursuant to s 341(1)(c)(ii).
8. The tensions between staff and the board continued throughout January 2017 and beyond.
9. On 25 January 2017 the board and members of staff attended a mediation which was facilitated by an external agency. Ms Shum attended that meeting as a Team Leader, as did various other SMRC managers and the acting CEO. Ms Shum says that she complained about Mr Oates conduct during that meeting, although the formal record of the discussion does not attribute any particular complaint to her.
10. On 27 January 2017 the Special General Meeting took place to consider a motion to expel five board members, namely Mr Oates, Ms Horvath, Mr Demiri, Mr Wahab and Mr Wickiramasingham. Ms Shum says that she participated in staff discussions with a manager, Mr Brooking, who spoke on behalf of staff at the meeting. Ms Shum contends that her participation in these background staff discussions should be regarded as an exercise by her of a workplace right within the meaning of the FW Act.
11. The staff push to roll Mr Oates and other members of the newly elected board was unsuccessful. Mr Oates remained as chairperson and the board remained intact.
12. On 2 February 2017 Ms Shum took leave to visit a GP and a psychologist. Upon her return from leave, Ms Shum claims to have told her immediate finance team members, Mr Lee, Ms Maisie and Ms Wattegamage that her absence was due to work stress.
13. On 15 February 2017 a group of eight members of the SMRC management team sent a jointly signed letter to the board expressing various grievances and seeking a response. In its terms, the letter commenced as follows:

"On behalf of the majority of SMRC staff, we as members of the Management Team wish to express grave concerns about (i) the conduct of our current Chairperson (ii) his handling of recent events and (iii) the impact of his actions on the future of this organisation. We present this letter on behalf of staff who are not named, to protect them from further intimidation."

1. The letter goes on to catalogue a series of allegations against Mr Oates under the headings "Distributing misleading and false information", "Damage to the reputation of the SMRC and its CEO, Jenny Semple" and "Bullying and intimidating behaviour towards some staff". The letter then concludes:

"Accordingly, we believe Brian Oates is unfit to be Chairperson of SMRC. The majority of our staff feel at risk of being bullied and intimidated by his actions and statements. We believe the Board should take immediate steps to address these concerns, in accordance with the Fair Work Act 2009. We the signatories are exercising our rights to raise concerns about unprofessional and potentially unlawful conduct by the Chairperson. We are protected against adverse action or threats of further intimidation, in accordance with the Fair Work Act 2009.

We request a meeting within 5 business days of the date of this letter, with a view to the Board seeking the immediate removal of Brian Oates as Chairperson and as a member of the SMRC Board"

1. The letter, which was also copied to the acting CEO, was signed by Kate Lord, Chris Brooking, Jacob Lee, Bill Collopy, Aman Bindra, Peter Jarrett, Sylvia Wan and Wendy Fox, all of whom held management positions. Ms Shum was not mentioned in the letter, nor was she a signatory. Nonetheless, she claims to have been "supportive" of the letter and to have provided input. Ms Shum claims that this support and input should be construed as an exercise by her of workplace rights.
2. Two days later, on 17 February 2017, Ms Shum's manager, Mr Jacob Lee, commenced a period of sick leave but he maintained contact with Ms Shum and Ms Wattegamage for a period whilst he was on leave. Some months after commencing this sick leave Mr Lee informed the then interim managing director that he could not return to the organisation while Mr Oates remained the chairperson. Mr Lee never returned to the office.
3. After Mr Lee commenced sick leave on 17 February 2017 Ms Shum, as Team Leader, was left as the most senior person in the Finance office. She effectively reported to the acting CEO Ms Haralambopoulos from that time.
4. On 28 February 2017 Ms Shum held a meeting with her remaining finance team members, Ms Wattegamage and Ms Mazie. It did not go well. An email sent to Ms Wattegamage the following day (1 March 2017) reveals that Ms Shum was unhappy with Ms Wattegame's performance and behaviour. Ms Shum was most unimpressed that Ms Wattegamage had gone over her head and elevated certain financial operations issues to the acting CEO Ms Haralambopoulos, rather than resolving them within the Finance Office. Ms Shum was also unhappy that Ms Wattegamage had failed to respect the meeting and walked off.
5. The email to Ms Wattegamage did not hide Ms Shum's displeasure. According to a timeline prepared by Ms Shum, it appears that Ms Wattegamage marched off to the CEO's office to complain about Ms Shum's email. Ms Wattegamge then complained about chest pains and was advised by Ms Haralambopoulos to take the rest of the day off.
6. On 2 March 2017 there were two events of significance. First thing in the morning, Ms Shum emailed Ms Haralambopoulos to inform her that Ms Wattegamage was still sick and would not be in for the following two days. She went on to inform the Acting CEO that that both Ms Wattegamage and Ms Perla Mazie had mentioned taking sick leave. Ms Shum stated that she could not do the work of the whole team and asked for this circumstance to be considered as a risk management issue.
7. Secondly, later that day, Ms Shum emailed Ms Haralambopoulos to report on Ms Wattegamage's insubordinate conduct. Ms Shum said that the Finance team was under immense stress and pressure due to Mr Lee's absence and that she was required to do more than she had previously. In relation to the others in the Finance Office, Ms Shum said, inter alia:

"According to the PD of Champa (as well as Perla), I am their immediate supervisor. According to mine, I report directly to Jacob. The chain of command is not upheld now. I am happy for you to look after Jacob's jobs for the Finance Team. I have no issues for you to directly supervise them without involving me. However, I do not have the duty to accept the refusal of lawful instructions from a subordinate in a rude manner."

1. On 3 March 2017 the popular former CEO, Ms Jenny Semple, resigned. She had been with the organisation for approximately 20 years although the last 6 months were on sick leave.
2. That same day, 3 March 2017, Ms Shum took sick leave. A medical certificate tendered in evidence certifies that Ms Shum had a "medical condition" that day, however she claims that the leave was due to overwork and stress.
3. On 6 March 2017 Ms Haralambopoulos asked Ms Shum into a meeting at about 3:15 PM where she was handed a letter regarding a complaint Ms Wattegamage had made against her. The complaint related to Ms Shum's conduct as team leader at the finance meeting on 28 February 2017. Ms Wattegamage alleged that Ms Shum had:

(a) acted in an angry, aggressive and intimidating manner;

(b) restricted staff from reaching out to the Acting CEO; and

(c) engaged in aggressive and intimidating communication in direct conflict with the SMRC code of conduct and the Work, Health and Safety Act.

1. Ms Haralambopoulos' letter directed Ms Shum to attend a formal disciplinary meeting at 2:30 PM on 8 March 2017, a meeting which would be conducted by Ms Haralambopoulos and the human resources manager Ms Aman Bindra. The letter goes on to explain that the complaint should remain confidential, that Ms Shum was at liberty to seek advice and representation and that the outcome of the meeting might result in disciplinary action. Ms Shum alleges she exercised a workplace right when she denied the allegations on the spot and challenged the procedure which was to follow.
2. A short time later, Ms Shum sent two emails to Ms Haralambopoulos. The first requested a copy of the SMRC complaints handling procedure. The second requested a copy of any emails which Ms Wattegamage had attached to her complaint and details of any other evidence or witnesses to the allegations. Ms Shum relies upon each of these emails as evidence of her exercising workplace rights.
3. A few minutes later, at 4:26 PM, Ms Shum emailed the CEO and the human resources manager, Ms Bindra, to initiate a formal counter-complaint against Ms Wattegamage, citing her rude manners and insubordination. Ms Shum says in doing so she exercised a workplace right.
4. The next day, 7 March 2017, Ms Shum lodged a WorkCover claim and commenced a period of leave. In her WorkCover claim application, Ms Shum stated:

"a. The injury/condition includes head, neck, shoulder,....Headaches, neck and shoulder pain, palpitation, anxiety, depression, insomnia, anger

b. Causes of injury include:

i. Ongoing bullying from Board to many staff since Oct 2016;

1. personally, the applicant was bullied as a financial member and staff member;

2. the Applicant boss on stress leave for more than 2 weeks and causing an overload of work in addition to bullying;

iv. environment hazardous to health."

1. After lodging her Workcover claim and commencing leave on 7 March 2017, Ms Shum did not return to the workplace or perform further work for SMRC. The disciplinary meeting which had been scheduled for 8 March 2017 did not go ahead.
2. On 9 March 2017, the chairman Mr Oates sent an email to the acting CEO Ms Haralambopoulos under the heading "Matters from this morning CONFIDENTIAL". The email was copied to all members of the SMRC board. Relevantly, Mr Oates' email commences as follows:

"Despina,

As I understand this morning we agreed that the priority is to finalise and lodge WorkCover claims.

The priority is Jacob [Lee] his claim will be rejected by SMRC on the grounds that there is a claim, from the Board, that he should be subject to discipline and that both that and a previous complaint that Jacob has made are subject to an agreed process that is underway. Further he has provided no evidence to support this latest claim.

With Genie [Shum] this claim will be rejected by the SMRC on the grounds that she was asked to attend a meeting on a discipline matter just before she went on personal leave and made the claim.

There is also, at the same time, the need to communicate with Jacob the need to access the SMRC's financial accounts on his computer and the passwords are required to do this. If there is no response to the request for communication we will need to force access to ensure the continued viability of the organisation."

1. I infer that the email recorded action items agreed in a meeting or discussion between Mr Oates and Ms Haralambopoulos earlier that morning. The email from Mr Oates goes on to deal with a number of other matters including finalising the former CEO's (Ms Semple's) pay and communicating with staff about a planned farewell function. Mr Oates also states that he will continue to come into the office to sign cheques and conduct online banking in the finance section area. He directs that if any staff raise questions about governance matters they should talk to him or another board member.
2. On 15 March 2017, Ms Haralambopoulos filed an employer's response to Ms Shum's WorkCover claim. In that response she states, consistent with Mr Oates' direction, that "we are disputing the claim based on the grounds that likely reason for claim is performance management action taken on 6/3/17. There has been no prior evidence of being bullied."
3. That evening, after receiving confirmation that her WorkCover complaint had been lodged, Ms Shum sent an email to the HR manager Ms Bindra, copied to Ms Haralambopoulos and Ms Shum's manager, Jacob Lee (who it will be recalled was also absent on stress leave). In that email Ms Shum states that an employer has to pay the first 2 weeks of wages under WorkCover and will face consequences if it does not do so. Ms Shum states that all communications regarding her WorkCover should be sent to her private email address and that "any authorised representatives can communicate with me for business purposes". Ms Shum adds that she has an outstanding request for documents regarding her complaint against Ms Wattegamage and Ms Wattegamge's complaint against her. Ms Shum alleges that this enquiry about her WorkCover pay and the disciplinary process constituted the exercise of a workplace right.
4. On the morning of 16 March 2017, Ms Shum sent a further email to Ms Bindra which she again copied to Ms Haralambopoulos and Mr Lee. In that email Ms Shum asserted:

"Hi Aman,

Further to my injury since 2/3/17 (as stated on my WorkCover claim), I would like to lodge a formal complaint against SMRC in bullying me on the following grounds:

1 Ongoing bullying from the board (chaired by Brian Oates) to most staff (including myself) since Oct 2016 including numerous insulting correspondences and duress.

2 Personally, I have been bullied as a financial member and a staff by the Board under duress in retaliation to my exercising the voting rights.

3 On top of bullying, my boss was on stress leave for 2 weeks and I was forced to overwork by taking up the duties of my boss, myself and my subordinate on 2/3/17, causing my injury to blow up.

4 Subsequent to my injury on 2/3/17, upon my return to work on 6/3/17, I was bullied by the acting CEO (Despina) with a complaint (false statement) from my subordinate (Champa). Without investigating or confirming the facts with me, this been pushed a letter to me asking for disciplinary action on 8/3/17 with short notice. She ignored me. I asked for a copy of the complaints procedures, substantiating emails, witness and evidence. To date, SMRC still ignores me.

5 I lodged a formal complaint against Champa on 9/3/17 but again, I have been ignored. SMRC cannot provide any complaints procedures and handle complaints with discrimination.

I have loads of bullying evidence (which you are well aware of and should have already had copies) and I am happy to send you a copy." (Underlining in original)

1. On 16 March 2017 at 5.30 PM there was a board meeting. At this point I briefly digress from the narrative.

An aside - Board minutes and other "contemporaneous" documents

1. In this remittal hearing the respondents tendered a folder of board minutes which they rely upon as a contemporaneous record of what occurred at various board meetings in 2017. In his written final submissions, counsel for the respondents said that these board minutes "told their own story", albeit in summary form.
2. The board minutes were not produced as a single bundle and additional documents were added during the retrial. By the end of the trial, the tendered Board Minutes folder comprised the following documents behind numbered tabs:

(1) Minutes of Board of Directors Meeting 16 March 2017

(2) Minutes of urgent Board Meeting 23 March 2017

(3) Minutes of Board meeting 30 March 2017

(4) Minutes of Special Board meeting 11 April 2017

(5) Minutes of Board meeting 20 April 2017

(6) Draft Minutes of Board Special meeting 10 May 2017

(7) Minutes of Board meeting 10 May 2017

(8) Minutes of Board meeting 18 May 2017

(9) Managing Director Report-Board meeting 18 May 2017

(10) Draft Minutes of Special Budget Meeting 8 June 2017

(11) Minutes of Board Meeting 22 June 2017

1. As I understand it, the bundle of minutes tendered in these proceedings was not discovered or put into evidence at the first trial. Ms Shum submits, and I accept, that only draft Board minutes dated 10 May 2017, Board minutes dated 18 May 2017, draft Board minutes dated 8 June 2017 and Board minutes dated 22 June 2017 were previously before the court. Discovery of those documents was made on oath by a former CEO of SMRC, Mr Ramesh Kumar, pursuant to orders made by the primary judge on 5 December 2017.
2. During the course of the current proceedings and in her final submissions, Ms Shum made much of the respondent's apparent failure to adduce relevant business records from late 2016 and 2017. This was a matter about which Ms Shum cross-examined many witnesses.
3. As previously mentioned, on 31 January 2023 at the conclusion of a contested directions hearing, I ordered the respondents to make discovery on affidavit of all documents in their custody, possession or control relating to the Applicant's dismissal/redundancy on 19 June 2017, including but not limited to the relevant strategies/budgets, confirmed board minutes with relevant attachments and communications between any of Mr Oates, Ms Haralambopoulos, Mr Heeney, Ms Bindra and the Board.
4. On 14 February 2023 SMRC's current CEO, Mr Rakesh Sharma, filed an affidavit deposing to searches having been made for documents within the category I prescribed. That affidavit identified draft minutes of the 10 May 2017 Special Meeting, minutes of the 18 May 2017 Board meeting, the "Managing Director Report" dated 18 May 2017, draft minutes of a Special Budget Meeting dated 8 June 2017 and minutes of a board meeting on 22 June 2017. These were essentially the same documents which had been previously discovered. Notably, no documents in the category of correspondence or communications between any of Mr Oates, Ms Haralambopoulos, Mr Heeney, Ms Bindra and the Board was discovered.
5. On the same day, Mr Oates and Mr Heeney also filed affidavits in response to my discovery order. Each of them deposed that the only documents of relevance they possessed had been attached to affidavits they had filed in the proceedings. They otherwise deposed that they did not have in their possession or control any relevant documents which had not otherwise been discovered by SMRC. Mr Heeney gave evidence that he did not retain any papers after he left the organisation in late 2017. Mr Oates gave evidence that he had IT problems from late 2016 to February 2017 and believed his email account had been hacked. He claimed to have lost up to 6 months' worth of emails.
6. Shortly before the commencement of the remittal hearing, further board minutes dated 16 March 2017, 11 April 2017, 20 April 2017 and 10 May 2017 were discovered by SMRC. In an affidavit affirmed on 5 April 2023, the CEO Mr Sharma deposed that further searches of the SMRC records had identified additional documents which fell within the scope of my order, but which were not previously known to him. He deposed that to the best of his knowledge, information and belief there were no other such documents in the possession or control of SMRC. Save for a document titled "Managing Director Report" dated 18 May 2017, there were no other attachments to the board minutes.
7. Further relevant documents, being the minutes of an urgent board meeting on 23 March 2017 and the board meeting on 30 March 2017, emerged and were not produced until 24 May 2023, after the remittal hearing had commenced.
8. During cross-examination of the respondents' witnesses, it emerged that there had been a practice at SMRC for board members to be provided with a "board pack" prior to scheduled meetings. That pack would include an agenda and documents relevant to any forthcoming discussion. The contents of any packs provided to board members prior to the meetings in respect of which minutes were produced are unknown and were not put into evidence, although Mr Oates quipped that he had filing cabinets full of such documents collected over 25 years and that they took up a lot of space in his garage. When cross-examined, Mr Oates was asked whether he kept relevant board minutes or correspondence or emails. He responded that apart from 6 months of emails which had been stripped from his personal computer he still had "a lot of records of the emails and documents, attachments that were sent out".
9. A perusal of the board minutes produced by SMRC also reveals the existence of board subcommittees, including a Finance committee. Minutes of those committees, if they exist, were not in evidence.
10. Ms Horvath, who also claimed that her personal computer had been hacked in 2017, was asked to recall how minutes and other board documents were produced at the relevant time. She explained that ahead of meetings board members normally received agendas and other documents by email from the CEO's executive assistant, Sandra D'Souza. Ms Horvath said that Ms D'Souza was responsible for creating and sending board minutes and agendas and attachments to board minutes and so forth. She also recalled that board meetings were often audio-recorded and that Ms D'Souza would take notes which she could check against the recording.
11. Documents which fell within the scope of my discovery order, which might loosely be described as documents relevant to the applicant's dismissal, emerged in dribs and drabs. I was left with the distinct impression that the documents produced by the respondents did not comprise a complete dossier of what might have been in existence at the relevant time. I will return to this issue later. Suffice to say the first respondent concedes that record-keeping was in as much disarray as the organisation itself was during those turbulent times. The respondents submit that there is a context and explanation for the parlous state of record-keeping and that I should accept that SMRC produced what it could find and there is no evidence of any improper conduct.
12. Witness recollections of what occurred at board meetings was generally very poor, although understandable given the passage of time between 2017 and the remittal hearing. Furthermore, most board members did not give evidence in the first trial and therefore had no reason to maintain a fresh memory over the years. For the most part, the evidence of board members in respect of what occurred in board meetings involved little more than an acceptance of the minutes which had been shown to them by SMRC's solicitors. For the majority of board members, they simply placed their faith in what was shown to them when they swore or affirmed affidavits which had been prepared for them.
13. All of this leads me to say something about the weight to be given to the documentary evidence generally. In cases where there are contested factual issues, contemporaneous notes and documents normally carry considerable weight in illuminating the objective facts. Witness recollections of what was said in meetings and conversations tend to be of lesser weight where, as here, significant time has passed since the critical events and litigation has played its role in the reconstruction of memory.
14. It has been observed that it is the inherent unreliability and frailty of the human mind which draws the Court to place weight on contemporaneous notes and documents and other objective evidence where it is available. In Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15] - [23], Leggatt J opined at [22] that often:

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

1. In Evans v Braddock [2015] NSWSC 249, Hallen J said at [74]:

"A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation [...] Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine [...]"

1. There is an unstated assumption that contemporaneous notes and documents are more likely to provide an unfiltered and unvarnished account of important interactions and a window into what people were thinking and doing in real-time. In Lehrmann v Network Ten Pty Limited (Trial judgment) [2024] FCA 369 Lee J observed that contemporaneous records represent "a far surer guide as to what happened than ex post facto accounts or rationalisations [...]".
2. However, great care must still be exercised before adopting a document as evidence of the truth. A caveat to the unstated assumption is that the records must be truly contemporaneous and complete. In TWU v Qantas at first instance Lee J cautioned that it would be unrealistic to assume uncritically that the decision-making process adopted, and the documents relating to or recording the decision, materialised spontaneously through some sort of organic process. His Honour observed that where there is an awareness that a business record may end up being subject to subsequent critical scrutiny, the Court must be careful to proceed on the basis of the unstated assumption about the accuracy and completeness of the documentation.
3. Also, in Kaur v P&G Accounting Solutions Pty Ltd [2025] FedCFamC2G 30 at [285] I recently observed in relation to the unstated presumption that:

"[...] there are [...] exceptions. Greater weight cannot always be given to contemporaneous notes and records. It remains within the power of a dishonest actor to create self-serving documents to conceal their wrongdoing or to convey a false impression. Documents which present as contemporaneous may not in fact be so or they may be incomplete or misleading without further context. Particular caution must be exercised where one or other or both parties have a motive to make things seem other than they really are."

1. The accuracy and reliability of documents which are produced in evidence might also be thrown into question by the absence of other documents one might intuitively have expected to exist. What does not exist or is not put into evidence might be as telling as the documents which are. It is the task of the court to ask itself whether, in light of all the evidence, the documents sought to be relied upon accurately record what was going on at the time or whether they simply serve to corroborate a narrative a party anticipated it may have to defend in the future. In circumstances where a party is aware at the relevant time that its decision-making may be the subject of challenge, the court should not be so naïve as to ignore the possibility that the "contemporaneous" records might have been curated to withstand the rigours of scrutiny in litigation.
2. The folder of board minutes produced to the court in these proceedings purport to be an accurate record of discussions and deliberations by the board of SMRC. They are relied upon as such by the respondents.
3. I harbour reservations about both the contemporaneity of the Board documents and their probative value as a record of what occurred in meetings. Agendas and minutes follow a formula which record items for discussion and outcomes, but little of what transpired between the two. The fact that a proposal might be recorded as having been taken to a meeting and discussed, says nothing of what was in fact discussed or the state of mind of those involved in the discussions or decision-making. The minutes are also incomplete and do not attach reports and other documents to which they refer.
4. There was some evidence about the provenance of the documents in the "board minutes folder", but I did not find it entirely satisfactory. It is self-evident from the minutes that they were not produced or put to the board for approval until weeks or even months after the events to which they relate. The Board minutes dated 30 March 2017, 11 April 2017, 20 April 2017, 10 May 2017, 18 May 2017 and 8 June 2017, all of which span the critical period of decision-making in these proceedings, were not confirmed until 22 June 2017, days after Ms Shum was dismissed. It is entirely unsurprising that Ms Shum picked up on this and submitted that the court should doubt the reliability of the documents on which the respondents seek to rely.

1. With those words of caution about the reliability of what purport to be contemporaneous records, I return to the narrative and the board meeting of 16 March 2017.
2. The minutes of the 16 March 2017 board meeting are notable in respect of outstanding matters and business transacted. First, they refer to a resolution passed at an earlier board meeting in December 2016 which directed the acting CEO to write a letter to all staff regarding the letter they had written and about their behaviour and conflicts of interest at the AGM "with severe actions taken against any staff found to be involved". The minutes of the 16 March meeting appear to record that this outstanding directive would be reviewed now that the Special General Meeting had passed.
3. Secondly, the minutes record that the final 2016-17 budget papers had not yet been presented to the board. In response to this, two relevant resolutions were passed. The first resolution was that a "temporary casual crisis accountant be appointed as soon as possible" to take the following actions:

(a) a detailed 2016-17 budget;

(b) a detailed profit and loss account and balance sheet with budget figures as of February 2017;

(c) day-to-day finance staff business support; and

(d) inform the Treasurer, by email, of any matters of concern.

1. The second relevant resolution was that the chairperson and the Treasurer engage the temporary casual crisis accountant as soon as possible.
2. If the Board minutes are accurate, the 16 March 2017 meeting was conducted over 3 hours and 45 minutes.
3. On 17 March 2017, on SMRC letterhead, the "SMRC Management Team" of Kate Lord, Chris Brooking, Bill Collopy, Aman Bindra, Sylvia Wan, Peter Jarrett and Wendy Fox wrote to the Fair Work Commission attaching a "jointly written application... on behalf of the majority of staff of this organisation". The letter expressed anxiety and distress regarding the alleged "repeated bullying and intimidation by the chairperson of the board". Those managers sought to enliven the Commission's jurisdiction to make a "Stop Bullying" order against Mr Oates.
4. Ms Shum was not a member of the SMRC Management Team and was not an author of the letter. However, she says that because her name was mentioned in the application she should be taken to have exercised a workplace right pursuant to s 341(1)(c)(ii) of the FW Act. The respondents contest that assertion.
5. On 20 March 2017 Ms Shum complained to Ms Bindra about her WorkCover payments. She again claims that this was an exercise of the workplace rights.
6. On that day there was also correspondence from Ms Bindra to Ms Shum. In an email to Ms Shum, Ms Bindra acknowledged receipt of Ms Shum's complaint about Ms Wattegamage and provided her with a copy of SMRC's grievance policy and procedures. Ms Bindra also noted that because Ms Shum was certified to be on sick leave until at least 16 April 2017, SMRC was prevented from contacting her in relation to work matters. Specifically, that would mean that the investigation of Ms Shum's complaint would not progress until she returned from leave.
7. The following morning, 21 March 2017, Ms Shum responded to Ms Bindra's email from the evening before. In her email to Ms Bindra, Ms Shum complained that she had been sent the SMRC grievance policy which she considered was the wrong document. Ms Shum reiterated that she wanted a copy of the organisation's complaints policy, if indeed such a document existed. In relation to the investigation of her complaint, Ms Shum said she wanted Mr Lee, as her immediate supervisor, to be copied into all emails. Ms Shum also complained that the investigation of her complaint should start immediately and be conducted by an independent person. Ms Shum demanded that SMRC comply with relevant legislation. Unsurprisingly, Ms Shum contends that this email constituted an exercise of her workplace rights.

1. It will be recalled that at the board meeting on 16 March 2017, the board resolved that the Chairman Mr Oates and the Treasurer Ms Horvath would be responsible for the urgent engagement of a temporary crisis accountant. It was also resolved that this person, once engaged, would inform the Treasurer, by email, of any areas of concern.
2. On 22 March 2017 Ms Kelly Pollard commenced work at SMRC in the role of Business Consultant-Finance on a casual basis. Ms Pollard is a qualified accountant and a registered Member of the Institute of Public Accountants. She has a Master's degree. She had run her own accountancy business since March 2010.
3. Ms Pollard gave evidence that earlier in March 2017 she was contacted by her acquaintance, Mr Pravin Ramdany, who was on the board of SMRC. She said that Mr Ramdany told her that SMRC had an urgent need for accounting support. She was then put in touch with the chairman Mr Oates who told her that the Board had not received any detailed financial reports in a very long time and that the organisation was running at a significant deficit.
4. In his 2018 affidavit Mr Oates said Ms Pollard was employed to assist the Treasurer, Ms Horvath to understand financial situation and to ensure SMRC's finances and accounts were being kept up-to-date. He said Ms Pollard's engagement was a direct consequence of the board not obtaining financial information from Mr Lee or the finance team.
5. Ms Pollard gave evidence that her brief was to come into the organisation as a "crisis accountant" to assess the financial state of the organisation and provide a report to the board about profit/loss/liabilities. Ms Pollard said that when she started at SMRC, Ms Shum had been absent for some time and that she never met Ms Shum or ever had any dealings with her. Ms Pollard was initially engaged for 3 days a week. Ms Pollard gave evidence that she was initially employed on a 4 week contract but that was extended due to the ongoing absence of Mr Lee and Ms Shum.
6. Ms Pollard said she reported to the Board and the acting CEO. Consistent with the resolution of the board, I infer that her reporting to the board was through the chairman Mr Oates and the treasurer, Ms Horvath. When Ms Pollard was cross-examined about her reporting line to management, she was less clear, recalling that there were a number of CEOs during her tenure.
7. Ms Pollard gave evidence and was cross-examined about the work she performed and her initial impressions. She described the books of account as a "disorganised mess" and a "shambles". Ms Pollard said that she could not understand the systems the finance team had used and that she had to unravel controls and systems to assess the true financial position of the organisation. She said that "At the end of the day, I had to go in and clean up an accounts department that was in a crisis mode, so that's what I did." Ms Pollard's evidence about the mess she confronted was frank, even blunt. She did not sugarcoat the situation or where she believed the responsibility for the mess fell.
8. In her 2018 trial affidavit Ms Pollard deposed that she prepared two written reports in late April 2017 after her first 4 weeks in the role. She said that she provided a copy of these reports to the board, albeit possibly in draft form initially. I will return to the content of these "Pollard reports" in due course.

1. On 23 March 2017 at 6:30pm there was an urgent board meeting. The respondents produced a 1½ page record of that 2½ hour meeting. However, even from that brief record, it appears likely that there were discussions at this meeting which are relevant to these proceedings.
2. First, there was discussion about risks to the chairperson, Mr Oates. The minutes record that Ms Alice Tan, a lawyer and board member, advised the board that SMRC was required to respond to the Fair Work application (which I infer to be the Management Team's stop-bullying application) and that any internal investigation would have to be kept on hold. The minutes also record that the acting CEO (at the time Ms Haralambopoulos) would be the contact for that Fair Work application "under the direction of the board".
3. There were also a number of motions moved in relation to Bank signatories for SMRC accounts and internal expenditure authorisations. Two motions of significance were moved by the Treasurer Helen Horvath and seconded by board member Pravin Ramdany. The first was for the removal of the former CEO's name (Ms Semple) from all documents, all bank accounts and all credit and petrol cards. The second was for Mr Lee and Ms Shum to be removed as bank signatories and for Ms Haralambopoulos, Mr Collopy, Mr Oates, Ms Horvath and Mr Wahab to be added as authorised signatories.
4. The motion removing Mr Lee and Ms Shum as bank signatories was the subject of much cross-examination by Ms Shum, in what ultimately proved to be a wasteful wild goose chase. Ms Shum questioned a number of board members about the motion, presumably in the hope of establishing that the decision to remove her as a bank signatory was an early step in the plot to remove her from SMRC entirely. However, the cross-examination ultimately went nowhere, after it was revealed that the motion was based on the flawed premise that Ms Shum was a registered signatory. As it turned out, Ms Shum was never an authorised bank signatory and knew that to be so. Her lengthy and searching cross-examination on this point, without disclosing that fact, was a waste of time. In his final submissions, counsel for the respondents observed that Ms Shum promulgated a false premise at trial and did not attempt to set the record straight. I agree.
5. I accept that as a new Treasurer, Ms Horvath may have been under the mistaken belief that Ms Shum was a signatory. Further, and in any event, I am satisfied by the respondents' explanation that because Mr Lee and Ms Shum were both on long-term sick leave, it was necessary for the board to put in place arrangements to bring the failing finance function back on track.
6. There was also another item discussed that the 23 March 2017 Board meeting. The item was headed "Organisational Structure" and the minutes record:

"3. Organisational Structure

There was discussion about organisational restructure.

The Acting CEO should do Performance Appraisals and provide a summary report of all Senior positions by the next Board Meeting with details such as when contracts are due for renewal and a summary of each Department's finance."

1. Witness recollections about the discussions around this issue were vague to non-existent. Mr Oates said that there had not been an organisational structure prepared for quite some time, so the board wanted to see a document or diagram prepared by the acting CEO which set it out. He gave evidence that the request for the CEO to do performance appraisals of senior positions was intended to have Ms Haralambopoulos do this work "in preparation for somebody new coming in". Ms Tan's best recollection was that the request for performance appraisals was part of "information gathering".
2. On 28 March 2017 Ms Shum sent an email to Ms Bindra (copied to Mr Lee) complaining that she had been ignored and requesting information about the complaint made by Ms Wattegamage. Ms Shum described herself as the victim of a false allegation and complained that threats of disciplinary action against her constituted bullying. Ms Shum asserts that by making these complaints she exercised workplace rights.
3. In response to Ms Shum's email, Ms Bindra reiterated her earlier position that SMRC was not able to action or progress her complaints while she was on personal leave. Ms Bindra stated that investigations would begin when Ms Shum was fit to return to work. Ms Bindra also cautioned Ms Shum about seeking to involve Mr Lee in her complaints, as he was also on personal leave. Ms Shum was informed not to involve Mr Lee in her emails.
4. Emails between Ms Shum and Ms Bindra continued late into the evening. At 10.06pm, again purporting to exercise a workplace right, Ms Shum angrily complained to Ms Bindra that SMRC was refusing to handle her complaints and that she would complain to "other agencies" if she did not receive a positive response within two days. Ms Shum also took issue with the direction that she keep Mr Lee out of the loop, asserting that "he should be kept informed of what happens to his staff".
5. Ms Shum's barrage of complaints continued on 29 March 2017. In separate emails to Ms Bindra, Ms Shum raised inquiries and complaints about her salary package, hourly rate and leave accruals. Ms Bindra endeavoured to respond to these queries. Ms Shum also complained about SMRC repeatedly refusing to handle her complaints and stated, inter alia, "I have been reading emails while I am on WorkCover all this time." That evening Ms Shum sent an email for the attention of the Board complaining that the Privacy Act had been breached by its disclosure of confidential and private email information. Ms Shum relies on each and all of these emails as the exercise of workplace rights.

1. On 30 March 2017 there was a board meeting. The minutes of that board meeting noted that the minutes of the special board meeting held on 23 March 2017 were not yet available for confirmation. This board meeting was not the subject of detailed cross examination, and it did not factor in the parties' final submissions.
2. On Saturday, 1 April 2017 Ms Shum sent an email to Ms Bindra raising issues about Ms Wattegamage's complaint against her. She expressed concern that after 4 weeks of Ms Wattegamage's complaint having been made, SMRC was yet provide any proof. Ms Shum also referred to her own complaint against Ms Wattegamage dated 6 March 2017 and her complaint of bullying dated 16 March 2017, both of which she believed had been ignored. Ms Shum's email contained a quote from the SMRC complaints policy and she ended with the warning "I remind you that any communication from SMRC will be used in the future legal proceedings".
3. On 3 April 2017 Ms Shum again reminded Ms Bindra that SMRC had refused to handle her complaints. Ms Shum imposed another two day deadline for action before she would complain to other agencies. Ms Shum added that she intended to copy all of her WorkCover emails to Mr Lee - an act which was directly defiant of the caution given to her by Ms Bindra a few days earlier.
4. On 5 April 2017 Ms Shum completed a "Request for Conciliation" form in respect of her contested WorkCover claim. In her Request, Ms Shum explained that she sought conciliation because "The decision has been made on the bases of substantially false facts from employer, ignorance of my submission, unfair/disadvantaged IME and investigation, non-involvement of my treating health providers."
5. On 8 April 2017 Ms Shum alleged that SMRC was discriminating against her by taking away her salary package without consent and asked for her complaint to be treated as a formal one. Ms Shum criticised Ms Bindra for allegedly not knowing how salary packaging works. Ms Shum stated:

"My formal complaints to SMRC since 6/3/17 have been piling up. Do you have any HR/complaints/bullying policy/procedures at all? Or SMRC does not need any policy/procedures but exercises the discretion to be above the law?"

1. On 9 April 2017, Ms Shum made her own application to the Fair Work Commission for a stop-bullying order. In that application she complained about organisation-wide and targeted workplace bullying, alleged that she had been subjected to a baseless disciplinary process and claimed that there had been a failure to handle her WorkCover claim. She included in her application many of the complaints and grievances which I have described in the preceding paragraphs and many others. Among her vast catalogue of allegations, Ms Shum alleged that SMRC had tried to use disciplinary action against her to take away her job and prevent her from making claims.
2. In her application to the Fair Work Commission, Ms Shum identified a number of persons against whom she alleged bullying. They included board members Mr Oates, Ms Periera, Ms Horvath and Mr Wahab, the acting CEO Ms Haralambopoulos, the HR manager Ms Bindra, and her Finance Team subordinate Ms Wattegamge. Ms Shum described the bullies as having messed up the governance of the organisation. She claimed they used duress to force staff to submit to tyranny and that they condoned defamatory and bullying conduct with no remorse. She alleged that the bullies used debriefing meetings "for suppression of free minds" and considered themselves as being above the law. In describing just some of the behaviour that constituted bullying, Ms Shum stated:

"The bombardment of intimidating and low class correspondences drive any sane minds into madness. Once 24 staff wrote an anonymous letter which was distributed on the AGM night. SMRC is a workplace but it looks like an asylum. These board members are a danger to society. They do not have even 1% of SMRC's values and the current casualties include our well-loved former CEO and Jacob Lee."

1. In terms of the relief sought by Ms Shum, she said:

"The bully(s) need to be condemned for what they have done to ruin other people's lives. They do not have any chances of rehabilitation. They should be penalised or prosecuted. I want my job back, but only if the environment is safe and healthy for staff".

1. On 10 April 2017 Ms Shum again complained to Ms Bindra about previous unresolved formal complaints, underpayment of her salary package and alleged discrimination in relation to the management of her leave. Ms Shum also complained that from the first day of her appointment she had never received any HR policies.
2. By this time Ms Bindra, understandably, appeared to be losing patience. In a return email she endeavoured to respond to Ms Shum's complaints about leave and salary packaging. Ms Bindra informed Ms Shum that she always had access to HR policies on a common file, just as all other employees had. Nonetheless, Ms Bindra attached a complete copy of the SMRC HR policy manual to put the issue beyond doubt. Concluding, Ms Bindra said:

"Again, I'm reiterating that we cannot investigate any of your complaints while you are on personal leave.

I would like to advise that, I will not be responding to your persistent requests to investigate your complaints while you are on personal leave".

1. Ms Bindra and Ms Shum exchanged further emails that day. Ms Bindra again reminded Ms Shum that she was not to involve Mr Lee in her emails while he was on personal leave. She directed Ms Shum not to copy Mr Lee into her emails and warned her that any failure to follow that direction may be considered as a disciplinary matter.
2. Ms Shum did not take kindly to Ms Bindra's direction and confronted it head-on. Ms Shum reminded Ms Bindra that Mr Lee was her (Ms Shum's) immediate supervisor and that he (Mr Lee) had never issued her with a direction not to send emails to him. Ms Shum directly challenged Ms Bindra's authority and sarcastically queried whether there was a new HR policy which forbade staff from copying emails to their immediate supervisor. Ms Shum asserted that Ms Bindra was threatening her, bullying her and exacerbating her symptoms.
3. On 10 April 2017 Ms Haralambopoulos gave a month's notice of her intention to resign.
4. The following day, 11 April 2017, Ms Shum sent an email to the Acting CEO Ms Haralambopoulos. In that missive, Ms Shum stated:

"While I am in the process of WorkCover claims, Aman [Bindra] has been bullying me with emails. It is again a breach of the duty of care to provide a safe and healthy workplace for staff.

As I have health and legal issues, I do not want any bullies from SMRC to contact me by whatever means. If SMRC would like to communicate with me, please use another staff or party."

1. On 11 April 2017 at 7 PM a special board meeting took place at the home of the Treasurer, Helen Horvath. According to the tendered minutes, the meeting ran for nearly 3 hours until 9:50 PM. There was a busy agenda. Not all board members attended but a majority did, including the chairman Mr Oates and all the office-bearers.
2. If the minutes are a correct record, the first item for discussion was a "Report from FWC from 10 April". In respect of that matter, the board resolved that the secretary, Ms Periera, would request an extension of time to file a response to the complaint and that she would have all of the responses sent to her. It appears that Mr Ramdany was charged with coordinating the responses, which would first be sent to Ms Tan, the legally qualified member of the board, for checking. It was also resolved that Mr Oates would contact SMRC's solicitor and ask for advice regarding the Jacob Lee WorkCover case.
3. I consider it most likely that Item 1 of the 11 April 2017 special board meeting related to Ms Shum's FWC stop-bullying complaint. The earlier Management Team complaint (the Collopy bullying complaint) was directed principally at the conduct of Mr Oates, whereas the Shum stop-bullying application listed multiple individual respondents. There was also evidence that the Chairman and other respondents prepared responses to Ms Shum's complaint in the few days immediately following this meeting. Mr Oates for example prepared his response on 12 April, Ms Horvath on 13 April, Ms Bindra on 19 April, Ms Wattegamage on 20 April and Ms Periera on 21 April. All of these matters suggest that the first item on the agenda for the 11 April 2017 board meeting involved a discussion about Ms Shum's complaint against the board and others.
4. At the 11 April special board meeting there was also discussion and resolutions recorded under the heading "Finance Recommendations". A ready inference to be drawn from the record is that there had been considerable interaction between the crisis accountant Kelly Pollard and the Treasurer Helen Horvath in the 3 weeks since Ms Pollard's engagement. The Minutes record that the two of them were to "work on Kelly's suggestions and prepare a report for the board ASAP". The board also resolved to ask Ms Pollard to enter the budget figures that had been approved by the board in July 2016 as the current corporate services manager, Mr Lee, had failed to do so despite several reminders. Notably, the board requested a copy of Mr Lee's employment contract. The board resolved to appoint Ms Pollard as Acting Finance Manager and instructed her to commence the budget process for 2017/2018. The board also passed a resolution to send a note of thanks to Ms Pollard to show their appreciation for her hard work.
5. Ms Pollard's brief was to come in as a crisis accountant, assess the financial state of the organisation and to provide a report to the board. Specifically, the board had resolved previously that the crisis accountant should inform the treasurer, by email, of any areas of concern.
6. In her evidence, Ms Pollard spoke of her early impressions and actions in dealing with what she described as the shambles in SMRC Finances. Ms Pollard said she reported to the board that the SMRC finances were in disarray and that there was a need for an experienced accountant to get the SMRC accounts in order. She gave evidence that her initial 4-week contract was extended on the strength of those recommendations and because the two senior employees in the Finance Team were absent. I infer from the evidence that in the early weeks of her engagement, Ms Pollard reported these initial observations to a least Ms Horvath and that she made suggestions for improvement. The resolution passed by the board on 11 April 2017 sought for those observations and suggestions to be incorporated in a report for the board, to be prepared as soon as possible.

1. In her 2018 trial affidavit Ms Pollard deposed that she prepared two reports in late April 2017 after her first 4 weeks in the role. The two reports are annexed to Ms Pollard's affidavit. She said that she provided a copy of these reports to the board, albeit possibly in draft form initially. The two documents are addressed only "To whom it may concern". The documents are undated and there is a contest about when they were actually produced. They may or may not be the report which were sought by the board at its 11 April meeting, but there is no evidence of any other having been prepared.
2. The form and content of the two documents are quite similar, at least in so far as both are highly critical of the finance department's accounting practices and the performance of two most senior personnel. Some of the criticism contained in the two reports is common, including in its description of incompetence.
3. There can be no doubt that Ms Pollard was commissioned to appraise the performance of the Finance department's leadership incumbents, Mr Lee and Ms Shum. In one document, Ms Pollard introduces her commentary with the words "I have been requested to write a report on my findings in regards to the Corporate Services Manager at SMRC. I have been employed at SMRC for a term of 4 weeks as a business consultant and below are a list of concerns that I have in regards to the finance department's accounting practices". The document then catalogues a series of accounting inaccuracies and process errors before concluding with a most unflattering assessment of Mr Lee's overall performance.
4. In the second document, Ms Pollard states "I have been requested to write a report on my findings in regards to the team leader for finance at SMRC". Again Ms Pollard notes that she has been employed at SMRC for 4 weeks and that the document sets out a list of her concerns regarding the finance department's accounting practices. In this targeted report Ms Pollard sets out the responsibilities of the Team Leader finance role and identifies that those responsibilities have not been discharged. The concluding remark in relation to Ms Shum (although she is not expressly named) is "it has been established that due to unknown reason the key responsibilities for the position Team Leader finance where (sic) not been completed".
5. The evidence in relation to the preparation of these reports was vague. In her 2018 affidavit Ms Pollard placed the preparation of these reports at late April 2017. On questioning from the Court in this proceeding, Ms Pollard thought it was possible that the Board requested these reports, but she qualified that by saying that they were only preliminary findings made after 4 weeks.
6. Mr Oates recalls that early on Ms Pollard contacted him and said that she was finding it difficult to work out how the organisation's financial system operated. He then recalls that "at some point before mid-April 2017", Ms Pollard prepared a report about the operation of the finance team and provided this to the board.
7. Ms Pollard denied that these reports had been written with a proposed restructure in mind or for the purposes of setting up Mr Lee and Ms Shum for disciplinary or other action. She said the purpose of the reports was to highlight the lack of processes and procedures within the accounting department and to fix them. She gave an example of functions which used to take 2 days, but could be completed under 20 minutes under her watch. Ms Pollard said that her real purpose was to provide an update to the board about what was going on and where she was at in addressing it. She told the court that she was exceptionally upset with where the finances were at, and felt that the organisation was vulnerable to losing government contracts and good people. Ms Pollard said that the board and the CEO did not know what was going on and she wanted them to know.
8. As this narrative unfolds further these two reports prepared by Ms Pollard assume greater significance. It will be necessary for me to make a finding about when these reports were prepared, why they were prepared and who knew about the content and when. This is because the case advanced by Ms Shum is that Ms Pollard's report about her is false and was used by the board to set up the foundation for her sham redundancy.

1. At the special board meeting held on 11 April 2017 another most significant decision was made. The board resolved:

"That the Board appoint a subcommittee comprising of Brian [Oates], Pravin [Ramdany] and Alice [Tan] to appoint an Interim CEO for a period of 3 to 6 months asap and Pravin to prepare a Salary Package of up to $150K total package."

1. I will shortly discuss the circumstances surrounding the appointment of the interim CEO, Mr Heeney. But before I do so, it is necessary to provide some further context including additional instances where Ms Shum claims to have exercised workplace rights.
2. On 12 April 2017, Ms Bindra met with Ms Mazie to take her witness statement in relation to the Wattegamage Complaint. In that meeting Ms Mazie expressed concerns about Ms Shum's behaviour in the workplace. Later in the day, Ms Bindra drafted and emailed a copy of Ms Mazie's statement to Ms Mazie and Ms Mazie confirmed its contents as true.
3. Also on 12 April 2017, Mr Oates signed his response to Ms Shum's anti-bullying application stating "I do not agree that either myself or Hafez bullied Ms Shum...this is a matter of miscommunication." In his response, Mr Oates referenced events which occurred in late 2016 when Ms Shum was told she could not vote at the AGM and Special General Meeting due to a conflict in interest being a paid employee. It is plain from his response that Mr Oates saw the source of Ms Shum's complaints about him as stemming from the political crisis earlier in the year.
4. On 13 April 2017, Ms Horvath signed her response to Ms Shum's anti-bullying application. Ms Horvath stated that she "had no knowledge at all about alleged bullying behaviour" and "had never had any contact with Ms Shum". When she was cross-examined about bullying allegations against her and the board, Ms Horvath responded aggressively, challenging Ms Shum to prove when the two had ever crossed paths. Ms Horvath made it abundantly clear that she regarded the allegations against her as completely untrue and ridiculous. She said Ms Shum might have mistaken her for someone else. Ms Horvath was an uncomfortable and somewhat impatient witness and her responses under cross-examination were curt, opinionated and dismissive.
5. On 13 April 2017, in response to Ms Shum's email of 11 April which complained of Ms Bindra's bullying, Ms Haralambopoulos requested Ms Shum to nominate a person she wished to be a contact for any future communication from SMRC. Ms Shum then identified Mr Chris Brooking "just for basic work communication".
6. Ms Bindra and Ms Wattegamage prepared their responses to Ms Shum's anti-bullying application on 19 and 20 April 2017 respectively. Ms Bindra stated that the disciplinary meeting which had been called with Ms Shum was based on reasonable grounds. Ms Bindra also maintained that her requests for Ms Shum not to contact Mr Lee were well-intentioned and could not be perceived to be bullying.
7. Ms Pereira, the secretary of the board, was also cross-examined about the board's response to Ms Shum's anti-bullying application. Her evidence was enlightening about the knowledge of board members about the claim, the attitude of the board to Ms Shum and her practical responsibility for managing the claim.
8. Ms Pereira agrees that she put in a response for the board but otherwise she did not know anything about the bullying claims. She described the whole organisation as being in a mess where "staff were rebelling and all sorts of stuff". She believes that if she read Ms Shum's application she would only have skim read it. Ms Pereira said she saw the name Lai Shum but it meant nothing to her. Ms Periera said that her response to the claim was probably authored by the interim CEO or their advisor or someone else whose judgement she trusted. She said that there was no discussion at the board and that Brian (Oates) was dealing with it as chairperson and that it was not her problem. She later said that the response to the bullying claim was probably prepared by lawyers: "I just forward it on. Sign and forwarded on."
9. When cross-examined by Ms Shum about whether, as secretary of SMRC, she investigated the allegations of bullying, Ms Pereira painted a vivid picture of how she perceived SMRC and her role at the time (omitting Ms Shum's questions):

"...I - look, I - this is absolute - I know nothing about this, this bullying claim.... There was no bullying that I was aware of at all from the board, a board I felt were very professional people who certainly don't engage in that sort of behaviour. So a lot of this is just, to me, you know, baseless claims as far as I could have seen and this was just following process, you know.

I didn't have any evidence of anything that was going on there. To me - I mean, the allegations - I'm reading this, the ongoing bullying from the board. That's absurd to me. I certainly never bullied anyone. If anything, I was being bullied as secretary by a bunch of the staff that was still loyal to the previous CEO. That's what I was copping. I was getting bullied left, right and centre. I don't know how I say this is a voluntary position, I remind your Honour"

... I was in a voluntary position, going home crying from meetings, receiving all sorts of abhorrent letters from staff making all sorts of wild accusations. And just remember I didn't know any of these people. I wasn't involved in the SMRC. I wasn't hanging around. I was invited to attend to get on the board to try to straighten the organisation out because of my experience.

... I'm very professional. I certainly never engaged in my life in bullying behaviour. And I didn't witness any of the other board members either. They were all very, very professional people that, you know, knew what they were doing. I mean, it mentions Helen [Horvath] here. You know, Helen is very good with the finance stuff. She took her role very, very seriously. She was still on the board long after I left. So no, I just think - I didn't think anything of that because to me it was nonsense.

...I - I was - I'm on the board and I was being here also accused of bullying. I don't need to investigate something. If I'm being accused, I know it's wrong. I - I certainly never bullied anybody and I never witnessed anything else either. So whatever investigation was going on. There would have been investigation, I presume, probably Despina [Haralambopoulos] or something would have done it internally, but I don't know. There was nothing in it that I could see. If-if there was some basis to it, I would have paid more attention. But to me it was just like, "what is this? This is - I don't know what this is about."

...

... Somehow I got dragged into this mess because of my new role. The organisation was just toxic because the CEO was there for a long, long time didn't come to a single meeting, the finance person was meant to be coming didn't come to a single meeting. And I was just sitting there, wondering what have I got myself in for. And then getting all these letters - you know, crazy letters coming left, right and centre, it was just horrible. So this - this was just some - like, another thing that was going on on the side. But certainly it was - when I see "Ongoing bullying from the board", that is a nonsense to me because, no, I certainly didn't engage in any of that sort of behaviour.

1. Later in her evidence, Ms Pereira explained how she recalls the response to Ms Shum's bullying complaint being dealt with at board level:

"The board doesn't get involved in staff matters, as such. If it gets up to legal stages and legal things, yes, we going to then, you know, be - I suppose be briefed by lawyers and all that sort of things. But we - certainly no one ever asked me about Ms Shum's cases. All I knew she had a Fair Work case and the chairperson, I believed, was sort of handling that, as the chairperson would. But it certainly didn't come down to me. I simply lodge it in my capacity as a secretary because of, you know, I send the correspondence out....

... I would have quickly read it. But like I said, I didn't know a lot of the people here so a lot of it is meaningless to me in a way. I knew there was a complaint. I - you know, reading it there was some other things going on. I didn't know the people. I didn't know the details of it. But we had the acting CEO, who did know the people, this - I think that would have been Despina at the time he did know all the staff and I saw as a - a competent person, you know, handling the matters. So between her, the chairperson and the legal team they sort of would have dealt with this, not - but all the other board members. It's not - I would never get involved. Like, it's a bullying claim. Unless it got to court, I'm not - I'm not going to even step in. I don't give any disciplinary action and things like that. As the secretary of a board, I'm not going to step in and do that.

1. On 20 April 2017 Ms Shum sent an email to Ms Bindra complaining about the disclosure of her WorkCover health information to unrelated parties. She contends that this complaint, which was copied to Ms Haralambopoulos was a further exercise of her workplace rights.

1. On 20 April 2017 there was another board meeting which commenced at 6:30PM. The typed minutes of this board meeting (whensoever they were prepared) noted that minutes from the urgent board meetings of 30 March and 11 April 2017 had not yet been prepared.
2. The minutes of the 20 April 2017 board meeting are very confusing and when cross-examined board members further confused rather than clarified what actually occurred. A number of entries in those minutes appear in red coloured print. A legend on the front page of the minutes indicates that those matters in RED were to be considered closed. Unfortunately, when board members were cross-examined about the meeting and the minutes, they gave inconsistent evidence about what was meant by the red entries, reinforcing my overall impression that they had very little actual recall of the meeting itself.
3. The minutes of the 20 April board meeting include a number of entries and motions of interest, including:

(a) Item 32: there was discussion about the risk to the chairperson in coming to the SMRC office unaccompanied. In that respect it was also noted that the board and a number of staff were respondents to another Fair Work application and were required to respond to it (which I infer to be a reference to Ms Shum's stop bullying application);

(b) Item 33: a motion that Jacob Lee and Genie Shum be removed from any Bank signatories;

(c) Item 34: there was a discussion about organisational restructure. The then acting CEO (Ms Haralambopoulos) was to undertake performance appraisals and provide a summary report of all senior positions by the next board meeting with details such as when contracts are due for renewal and a summary of each Department's finances.

(d) Item 3.3: a motion noting that Ms Pollard and an external auditor had reported that, had there not been an intervention, SMRC was likely to have collapsed due to financial management problems by September.

The board also confirmed the minutes of a finance committee meeting which had been held on 12 April 2017 "including the issues document". (I note that there was no evidence produced to the court about that finance committee meeting or the "issues document" referred to).

(e) Item 6.1: under the heading General Business there appears the following entry:

Interim Managing Director

The subcommittee of Helen [Horvath], Pravin [Ramdany] and Brian [Oates] reported on the interview with the proposed interim Managing Director and answered questions.

Motion

Based on the CV and interview and subject to satisfactory reference check by Chairperson the SMRC Board offer the position with a start as soon as possible on the contract as discussed.

1. It will be recalled that on 3 March 2017, Ms Semple, the former long-standing CEO, resigned from her position after being on sick leave for the previous 6 months. Ms Haralambopoulos replaced Ms Semple as CEO on an acting basis, but Ms Haralambopoulos gave notice of her resignation on 10 April 2017.
2. By reason of Ms Haralambopoulos' resignation, SMRC was to be left without a CEO. According to Mr Oates, the Board wanted to act quickly and hire a new CEO so as not to further aggravate the financial circumstances of SMRC. At its meeting on 11 April 2017 the board resolved to engage an interim CEO for 3 to 6 months on a package of $150,000 per annum.
3. The role of interim managing director was not advertised. Instead, the Board used a network of referrals to identify and recruit an appropriate candidate. The board secretary Ms Periera said that Mr Heeney was recommended to her by someone in her professional network, a Mr Phil Stone. Mr Heeney gave evidence that he was contacted by a Ms Kay Rundall who told him that she had been asked by a board member at SMRC to inform him of the job opportunity with SMRC. Following this connection, howsoever it came about, Mr Oates personally contacted Mr Heeney by phone to gauge his interest. Both Mr Oates and Mr Heeney gave evidence that they were not previously acquainted. I accept that evidence.
4. Mr Oates gave evidence that he outlined the job description to Mr Heeney in their initial phone discussion, requested his resume and organised an interview date. Mr Oates said that the board chose to interview Mr Heeney as he presented the relevant experience for the position, having recently finished a job as an acting CEO. Additionally, due the short-term nature of the role, Mr Heeney was seen to be a suitable candidate as he was only looking for employment for a period of 3 to 6 months.
5. Mr Oates said that he formally interviewed Mr Heeney on 20 April 2017 in the company of two other Executive Board Members. Mr Oates said that Mr Ramdany was present during the interview. He said that while Ms Lau was to be on the committee, she didn't have time to do it, so he believes Ms Horvath came on as her replacement. In his 2018 affidavit, Mr Heeney identified the interviewing sub-committee as comprising Mr Oates, Ms Horvath and Mr Ramdany.
6. Confusingly, Mr Ramdany gave evidence that he did not interview Mr Heeney, stating "as a new member, I was not on any sub-committee". When told about Mr Oates' conflicting evidence about him being present at the interview, Mr Ramdany doubled down and remained firm stating "to the best of my recollection, like I said, I was not part of [the] committee" which interviewed Mr Heeney. In fact, Mr Ramdany went further and stated "there was never any interview conducted by the board of hiring any operational staff".
7. Curiously, Ms Horvath also had no recollection of being involved in an interview with Mr Heeney. During cross-examination, Ms Horvath even struggled to recall the terms of Mr Heeney's employment contract, stating "I think" Mr Heeney was hired for "a six-month period". Ms Horvath had a very clear memory of interviewing and hiring the crisis accountant Ms Pollard, but she could not remember any interview with Mr Heeney.
8. For the sake of completeness, I note that Ms Tan had been appointed to the CEO recruitment subcommittee at the previous board meeting. Ms Tan accepted that she may have been part of a subcommittee but confirmed she was not involved in any interview with Mr Heeney. To the best of her recollection, Ms Tan believes that Mr Heeney was interviewed by Mr Oates and Mr Ramdany. She said that she cannot be sure about Ms Horvath's involvement and said that "there may be an email record somewhere".
9. As to what occurred at the interview, Mr Heeney and Mr Oates both gave evidence that there was a discussion about the Board's concerns and priorities for SMRC. Mr Oates said that they outlined specific goals for Mr Heeney, including to achieve a surplus by the end of the financial year and to "settle the staff down". Mr Oates said the board members were very honest during the job interview about SMRC's problems and the company's "dire" financial situation. However, Mr Oates evidence about the interview was at a very high level of generality. Mr Oates agreed that no statistics were provided to Mr Heeney when explaining SMRC's financial circumstances. Mr Oates also agreed that he did not provide Mr Heeney with any key performance indicators. Mr Oates did not expand on what he meant by SMRC's other problems, settling the staff down or the honesty of the discussion about them. There is no record of the discussion.
10. In his March 2018 affidavit, Mr Heeney recalled the "recruitment subcommittee" discussing the organisation's priorities, including clarifying the structure and finances of SMRC. Mr Heeney also stated that during the interview, the so-called Executive Board Members explained he was "to undertake all responsibilities of the CEO". Mr Heeney said there was no discussion about any plans to restructure SMRC during the interview.
11. I infer from the minutes (if they are to be accepted as accurate) that the interview occurred on the same day as but prior to the board meeting on 20 April 2017. The board minutes record that the subcommittee of Mr Oates, Ms Horvath and Mr Ramdany reported on the interview and answered questions. Mr Ramdany is recorded as the person who moved the motion for the job to be offered to be offered to Mr Heeney. There is no evidence about or record of the questions that were asked about Mr Heeney's proposed appointment.
12. Prior to the recruitment process, Mr Heeney and Mr Oates were not known to each other. I have no reason to doubt that evidence. Prior to the interview there is evidence of a single phone call between Mr Oates and Mr Heeney, which I have described above. The interview on 20 April was the only other point of contact between Mr Heeney and a representative or representatives of SMRC before he started work on 1 May 2017. Contextually, the content of discussions at this single interview is a matter of some significance. I will return to this in due course.
13. The uncertainty and conflict in the evidence of Mr Oates, Mr Ramdany and Ms Horvath about the recruitment of Mr Heeney again reinforces my concern that a good deal of the respondents' evidence in this case is the product of reconstruction based on records which are themselves unreliable and inaccurate. That is particularly so in relation to the affidavits of SMRC board members who placed blind faith in the accuracy of the minutes, only to stumble once tested on their actual recall of events.
14. Another item which attracts interest in the 20 April 2017 minutes is Item 34: Organisational Structure. The action to be taken in relation to that Item was "Acting CEO to arrange appraisals and provide details as requested". There is no record and no evidence about the discussion among board members about what was contemplated in terms of an "organisational restructure". Suffice to say it appears that the then acting CEO (Ms Haralambopoulos) was tasked with providing the board with details about the performance of employees in senior positions and details of when their contracts were due for renewal. There is no evidence about whether or not that task was ever undertaken, although it will be recalled that Mr Oates gave evidence that Ms Haralambopoulos was asked to do this work "in preparation for somebody new coming in".
15. Finally, before leaving the 20 April 2017 board meeting, Item 3.3 also captured my attention. This item refers to a Finance Committee meeting which was held on 12 April 2017 and to an unspecified "issues document" which had been presented at that meeting. The board minutes record that Mr Ramdany moved a motion which included a notation that Ms Pollard and another accountant Mr Galgutt believed that SMRC would have collapsed due to financial management problems had there not been an intervention. From that entry I infer that Ms Pollard had reported her findings about the state of the finances to the SMRC board and that her two reports about Mr Lee and Ms Shum had been prepared and conveyed by that time.
16. Save for a complaint made by Ms Shum to Mr Brooking on 28 April 2017 about underpayment (which Ms Shum contends was the exercise of a workplace right), there is no evidence of events which took place between 20 April 2017 and the end of the month.

1. On 1 May 2017, Mr Heeney commenced employment at SMRC under the title of "Interim Managing Director".
2. Mr Oates expressed that he was "pleased" to have recruited Mr Heeney, as at the time, SMRC was in a "pretty horrendous" position and they were therefore relieved to find an experienced candidate to fill the position so quickly.
3. There is no evidence of Mr Heeney engaging with SMRC about the role prior to his commencement, save for the initial phone contact from Mr Oates and the one interview for the position on 20 April 2017. Notably, there was no evidence of any contact between Mr Heeney and Mr Oates or any member of the SMRC board or any member of SMRC management between the 20 April board decision to hire an interim CEO and the commencement of Mr Heeney's employment.
4. In his affidavit, Mr Heeney deposed that at the time he commenced, SMRC appeared to be in a poor operating state. He said he recalled looking at some figures and forming an opinion that the organisation was losing approximately $250,000 per year. Elsewhere he said that when he commenced SMRC was running at a large loss and he was told the figure was in the range of $250,000. In neither case did Mr Heeney identify the source of this information. Mr Heeney said that in order for SMRC to achieve its objectives in the welfare sector, he believed there needed to be a more efficient utilisation of available capital.
5. There is very little objective evidence of what Mr Heeney did in his role as interim managing director, particularly in his first couple of weeks. Suffice to say, Mr Oates gave evidence that he had daily contact with Mr Heeney as he settled into the role. He said Mr Heeney would contact him to discuss issues that arose, such as lack of policies, relationships with stakeholders and other matters within SMRC. Mr Oates said through these conversations, he ended up providing Mr Heeney with "a significant amount of the background to the current situation of the SMRC as deposed to [in his affidavit of 21 September 2018]".
6. On 7 May 2017 Ms Shum sent a number of documents to the Fair Work Commission in support of her anti-bullying application. She alleges that in doing so she exercised a workplace right.

1. Although the next board meeting was scheduled for 18 May 2017, there was a special meeting held on 10 May 2017. Mr Heeney had been in the job for 7 working days. The meeting commenced at 5:15PM and went for just over 2 ½ hours. Mr Oates gave evidence that the meeting was called to give all board members an opportunity to meet Mr Heeney. The minutes record that in his welcome to board members, Mr Oates apologised to those who did not get invited to the interview with Mr Heeney "as it was only a small panel".
2. The minutes record that a number of "Staff Matters" were discussed first. Among those matters, three are of particular note. First, the board noted that the anti-bullying application which had been commenced by Bill Collopy on behalf of the majority of staff had been completed with no further action. It appears that part of the resolution of that dispute included acceptance of a protocol whereby Mr Oates would not attend SMRC premises unaccompanied.
3. Secondly, there was discussion about Ms Shum's stop-bullying application which was listed for hearing in the Fair Work Commission the following day and Ms shum's appeal against a WorkCover decision which was listed for hearing on 18 May 2017.
4. Thirdly, the minutes record that Jacob Lee had informed Mr Heeney that he was not interested in coming back to work. After some discussion regarding Mr Lee's WorkCover claim, Mr Heeney was directed by the board to speak with Ms Bindra about commencing a disciplinary process against Mr Lee .
5. The second major topic for discussion was recorded under the heading "IMD Report". Relevantly, the minutes state as follows:

"IMD Report

Travis [Heeney] discussed his initial thoughts about the SMRC - Poor Operational Leadership and Poor Systems.

There is evidence of poor leadership - He recommended the Board should ensure one external consultant and 3 Board members conduct rigorous CEO performance appraisals to ensure proper accountability in future. This group should also set performance measures for the following year and that such a committee should conduct the appointment of a permanent Senior Managers position in this process should start shortly. Brian [Oates] suggested that the Board note 1st August to start advertising to recruit a permanent Senior SMRC manager.

.......

Travis spoke about his Re-structure plans and that he is leaning towards a dichotomous structure with a Director of Service Delivery and a Director of Corporate Services with all other positions below those two

The Programs Manager position will be advertised

Budget process needs to be given high priority and is currently hampered due to poor systems.

A new Strategic plan needs to be commenced for 2018.

Programs have hopefully been funded for an extra 2 years - TBC

See attached notes from Travis." [emphasis in original]

1. Mr Heeney's notes have never been produced. I infer that those notes dealt with the matters referred to in the minutes, including critically Mr Heeney's "restructure plans". Mr Heeney has deposed that he no longer has a copy of those notes. Mr Oates did not produce the notes. SMRC has not produced the notes, presumably because it can't find them.
2. It is again unclear whether the minutes of the 10 May 2017 special board meeting should be regarded as a contemporaneous record. The minutes of that meeting were not presented for confirmation by the board until 22 June 2017. Mr Heeney's evidence was to confirm his initial leaning toward a dichotomous structure, but little more. No other board member was able to shed any light on what was discussed.
3. On 11 May 2017, there was a conciliation conference at the Fair Work Commission to discuss Ms Shum's stop-bullying application. Ms Shum was in attendance, and Mr Heeney, Mr Oates and Ms Bindra represented SMRC. SMRC denied Ms Shum's complaints and there was no resolution of her application.
4. On 13 May 2017, Ms Shum emailed Mr Heeney. Mr Heeney alleges this is the first time Ms Shum directly contacted him. In her lengthy email, Ms Shum complained that Ms Wattegamage's complaints from 1 March were false and she set out the many occasions on which she had informed the previous CEO Ms Haralambopoulos and the HR manager Ms Bindra about the falsity of the allegations against her. Ms Shum asserted that there were no grounds for any disciplinary meeting or action against her and she reserved the right to take legal action for such false claims and defamation. Ms Shum relies upon this email as a further instance of her exercising her workplace rights.
5. Two days later on 15 May 2017 Ms Shum emailed Mr Heeney again, stating that she was on WorkCover leave, not personal leave. Once again Ms Shum reiterated that Ms Wattegamage, as well as Ms Haralambopoulos and Ms Bindra, had made false allegations against her and that SMRC had ignored her complaints and failed to undertake any investigation. Mr Heeney responded on the same day, affirming that "employees have the...right to raises concerns regarding the conduct of other employees". Further, Mr Heeney confirmed that while SMRC intends to investigate the complaint in a formal and transparent manner, as Ms Shum was on personal leave the investigation had been suspended until her return.
6. On 18 May 2017 Ms Shum attended a WorkCover Conciliation Conference, with Mr Heeney and Ms Bindra in attendance to represent SMRC. The conference concerned an appeal made by Ms Shum, against Allianz's decision to deny the claim. The conference did not result in agreement: subsequently, the Conciliation Office issued a certificate stating there was an arguable case in support of the denial of liability for payment of compensation.

1. 18 May 2017 was also the date of the next scheduled Board meeting. The minutes of this meeting are, again, almost incomprehensible. As I have previously noted, the minutes comprise an amalgam of past and present matters, with items in red text to be considered as closed. However, the use of red text is inconsistent and board members who were questioned about the accuracy of the minutes were at a loss when trying to recall what was and what was not discussed at the meeting.
2. There is no mention in either the Board minutes or in the Managing Directors Report of any discussion about an organisational restructure or the dichotomous structure which Mr Heeney had flagged a week earlier. There was no reference to nor any document produced which referred to the strategic plan the board had asked for on 10 May 2017.
3. Nonetheless, Mr Heeney gave evidence that by mid-May 2017 he had spoken to Ms Bindra in general terms about a proposed new structure for SMRC and that he also sought advice from SMRC's lawyers, Maddocks, about the organisational change process. He and Ms Bindra had discussions about how many managers were currently employed and he considered how the structure could be "flattened out". Mr Heeney said that in his discussions with Ms Bindra, he did not seek her views on which specific employees might be impacted by any potential redundancy. But Mr Heeney conceded that he had received information from Ms Bindra regarding various staff issues, including the complaints made by Ms Shum.
4. Mr Heeney gave sworn evidence that he attended the board meeting on 18 May 2017 and provided a verbal update on a proposed organisational restructure, including reiterating his recommendation for a reduction in the workforce and a streamlining of processes to save money. He says he explained to the board that he had identified some surplus roles within the organisation and informed the board that making those roles redundant would lead to a cost saving of around $250,000.
5. From what he can recall of the meeting, Mr Oates agreed that Mr Heeney spoke about how he had identified roles were not necessary for SMRC's operations. He said that making these roles redundant would save the organisation around $250,000. Mr Oates does not recall, however, whether Mr Heeney specified the roles to be made redundant.
6. Ms Pereira was the only other board member who provided any corroboration of Mr Heeney's recollection. She confirmed her attendance and involvement in the board meeting on 18 May 2017 and recalled that the board delegated powers to Mr Heeney to handle the restructure of the organisation. Ms Horvath was asked whether Mr Heeney presented his restructure to the board. Ms Horvath responded variously "I presume he did... but I can't 100% to say yes or no", "... he could have. I don't know. I can't remember." Ms Tan confirmed the board's delegation of power to Mr Heeney for a restructure, but she was not at the meeting. Mr Wahab acknowledged attending the meeting but struggled to recall the specifics. Mr Dermeri also claimed a limited memory and could not recall delegating authority to Mr Heeney or discussing the restructure. Mr Ramdany said that he only recalls discussions about the removal of bank signatories and voicing his concerns about the lack of financial reporting.
7. There is an important unresolved question as to whether Mr Heeney actually attended the 18 May 2017 board meeting. The minutes produced for the meeting do not record his attendance. Nor do the minutes record any participation by Mr Heeney in any of the items listed for discussion. Item 4.2 of the minutes notes receipt of the "Managing Director's report for his first 2 weeks" although the minutes do not record Mr Heeney speaking to this item.
8. The respondents produced in these proceedings a two-page document which purports to be a copy of the Managing Director's report for the 18 May 2017 Board meeting. The document is signed by Mr Heeney and it conforms to the description of the document referred to at item 4.2 of the minutes.
9. I will not set out the full text of the report, but it is relatively brief and it addresses 3 principal areas of responsibility, namely "Budget", "Service Delivery" and "HR/OH&S/Risk Management".
10. In short the 18 May Managing Director's Report states that the situation for the current financial year remains unclear. In particular, the absence of the Manager Corporate Services (Mr Lee) has resulted in challenges gaining access to financial information. Notwithstanding, Mr Heeney noted that the organisation should end the financial year with a slight surplus. The Report notes that a budget is currently under development for the 2017/2018 financial year and a timetable had been set for the development of the budget, with a final budget to be presented to the board on 12 June 2017.
11. Under the heading "HR/OH&S/Risk Management" the Managing Director's report states as follows:
    • Requirement for regular and elaborate bullying and harassment training. With the absence of the training, SMRC is at risk of not identifying a genuine bullying behaviour and/or staff misinterpreting appropriate management action as bullying.
    • 2 WorkCover Injury claims update:
      • 1 WorkCover claim rejected by the organisations insurer on the basis of reasonable management action, Conciliation Hearing scheduled for 18 May 2017.
      • Subsequent to this, employee lodged an application with Fair Work Commission for Bullying, initial conciliation held 11 May, no evidence of bullying. Employee has until 1 June to progress application.
      • 1 WorkCover has been accepted by the organisations insurer. HR Advisor and Managing Director addressing the appeal with Allianz.
12. The evidence points fairly clearly to the subject of the rejected WorkCover claim and the subsequent bullying claim as being Ms Shum. The accepted WorkCover claim is that of Mr Lee.
13. In the absence of any contemporaneous documentary evidence, I have serious reservations about Mr Heeney's evidence about his involvement in the 18 May 2017 Board meeting. I am not persuaded that he gave any kind of presentation or update about a proposed organisational restructure at that meeting. There was no clear recollection or record of him having done so. Even Mr Oates and Ms Pereira's recollections were at a very high level of generality.
14. On 22 May 2017, Ms Shum emailed Ms Bindra and Mr Heeney, complaining about the alleged non-payment of her superannuation. She also reiterated that all of her prior complaints since March 2017 had been ignored and that she was being underpaid salary as well. Ms Shum also asserted that SMRC had failed to take disciplinary action against Ms Haralambopoulos, Ms Bindra and Ms Wattegamage for making false statements about her. These complaints are again relied upon as an exercise of Ms Shum's workplace rights.
15. Ms Bindra was the first to respond: she provided Ms Shum with a table outlining her fortnightly salary payments and superannuation, affirming her "superannuation is well in line with the law". Mr Heeney responded later, stating "a response [had already] been provided to you" and that there was no further information to be provided.
16. The following day, 23 May 2017, Ms Shum emailed Mr Brooking, complaining about the same issues. In that email, Ms Shum threatened to report her concerns to the ATO.

1. On 25 May 2017, Mr Heeney emailed an organisational restructure proposal to the Board. Mr Heeney's covering email referred to discussions at recent board meetings which anticipated reviews of governance and operations. In his explanatory paper to the board, Mr Heeney set out a proposed organisation chart and stated that "the change in structure [was] being proposed to support the long-term viability of Southern Migrant and Refugee Centre and is in no way a reflection on the quality of work or commitment of any employee". He also affirmed SMRC was "committed to maintain employment whenever possible" and would endeavour to redeploy employees. At the time, Mr Heeney outlined his reasoning for the restructure as follows:
   • "Recent events which highlighted the need to build greater rigour and transparency in critical support areas of the organisation.
   • The need to channel our resources to enhance sustainability and viability of our organisation.
   • A focus on business improvement to ensure we are supporting service delivery in a contemporary manner.
   • Positioning our organisation to be well-placed for any future composition."
2. Mr Heeney described the proposed changes to the organisational structure as involving:
   • "Removing the position of Business Development Manager [Mr Brooking]
   • Removing the position of Quality and Risk Adviser [Ms Lord]
   • Removing the position of Team Leader Finance [Ms Shum]
   • Introducing a position of Coordinator Business Improvement (12 months in the first instance)
   • Retaining an allocation of funds to improve business systems"
3. Mr Heeney's communication sets out a process for a short period of consultation with affected employees and an opportunity for them to provide feedback on the proposal. Mr Heeney set out the timeframe for the change process as follows:

Individual meetings with potentially impacted staff

External advertising/recruitment for unfilled positions

1. Mr Heeney deposed that what he attached to the email was a "proposed high-level organisational structure". He said this was an operational matter, rather than a governance matter, but he thought it appropriate to give board members an opportunity to contribute any thoughts they might have. He asked the board members to provide their thoughts or comments by the close of business Monday, 29 May 2017.
2. Mr Heeney did not receive any feedback from the board.

Ms Shum is informed about the proposed restructure

1. On 30 May 2017, Ms Bindra sent an email to Ms Shum, informing her of "slight changes in relation to the current organisational structure" and that "the position of Finance Team Leader may potentially become redundant". Ms Shum was informed that there would be a formal announcement to staff the following day and that Ms Bindra and Mr Heeney were keen to meet with her at a suitable venue at 9:15 AM to discuss the issue before the proposed restructure was announced to other staff.
2. Following receipt of Ms Bindra's email, Ms Shum contacted Mr Brooking and informed him that she wanted to lodge a complaint against Ms Bindra for requesting that she attend a work meeting with less than 24-hour's notice. She claimed that this constituted harassment and bullying as she had no capacity to attend work. Mr Heeney was informed of this complaint.
3. On 31 May 2017 at 9:35 AM, Mr Heeney emailed Ms Shum. He explained that Ms Bindra had made contact with her at his request and he accepted that Ms Shum had been given 23, not 24, hours notice. Mr Heeney noted Ms Shum's complaint against Ms Bindra but said that no further action would be taken regarding it. Mr Heeney then invited Ms Shum to propose an alternative time for a discussion and provided her the option of receiving information about the restructure in written form. He asked Ms Shum to express a preference by close of business the following day, 1 June 2017. Mr Heeney also requested Ms Shum to direct any further correspondence to him rather than through Mr Brooking.
4. Within 20 minutes, Ms Shum responded to Mr Heeney, asserting that she had no capacity for work until 8 June 2017 and that any requests for her to work, which included attending meetings or any communication by whatever means, would infringe her work rights. Ms Shum added that she had further evidence regarding the false allegations made by Ms Wattegamage and that she wanted SMRC to release a record of interview between Ms Bindra and Ms Wattegamage which would prove that Ms Wattegamage had been encouraged to lodge a complaint.
5. A few minutes later, Mr Heeney responded. Mr Heeney noted Ms Shum's inability to attend a meeting relating to the potential restructure and said that he would provide details of the proposed changes in writing to her email address. He added "Please only open this email when you are able". Mr Heeney also briefly addressed the allegations made by Ms Wattegamage and said that any formal investigation would be undertaken after Ms Shum's return, unless Ms Shum was prepared to give authority for the investigation to proceed without her formal involvement.
6. At 12:03 PM on 31 May 2017, shortly before the announcement to staff, Mr Heeney sent an email to Ms Shum which attached the proposed new structure and a notice to all staff explaining the proposal and the reasons behind it. The communication to staff was essentially in the same form as the explanatory document which Mr Heeney had sent to board members for comment a few days earlier.
7. Mr Heeney gave evidence that his reference in the communication to the "external financial professional who had been engaged to review systems and processes", was a reference to Ms Pollard. He said that he had worked with Ms Pollard and the rest of the finance team to ensure the financial processes were efficient and that through that process it had been identified that the existing structure could be flattened.
8. In his covering letter to Ms Shum, Mr Heeney explained that there would be a short period for consultation about the restructure between 31 May and 7 June 2017 and that Ms Shum could contact him or Ms Bindra by phone or in writing. He said that they were open to considering, where appropriate, strategies to minimise any negative impact of the changes.
9. Thirty minutes later, Ms Shum responded as follows:

"Dear Travis

Your emails are offensive. They exacerbate my work-related stress symptoms.

During the duration of my certificates of incapacity, I do not give consent to certain SMRC staff (namely Travis, Aman, Champa, all board members) and ex-staff (Despina) to contact me for any work issues by any means. SMRC has no right to disturb my recovery. Chris is my chosen contact person and he agrees in writing. You have no authority to interfere with my contact person without his knowledge or agreement.

Whatever adversary actions SMRC chooses to take against me, I strongly object and appropriate legal actions will follow. All SMRC's correspondences will be used in court proceedings.

Despina, Aman and Champa had made false allegations against me, which are serious misconduct. You, as the Managing Director, knowingly and recklessly support their misleading and deceptive statements.

With immediate effect and until further notice, the certain SMRC staff mentioned above are not allowed to send emails to me. Their emails will be blocked and spammed."

1. As planned there was a staff meeting to discuss the restructure. This was followed by an email from Mr Heeney to all staff which contained the same information as that which had been communicated to Ms Shum.
2. There was no communication between Ms Shum and SMRC about the restructure proposal or any other issue during the seven-day consultation period. Mr Heeney gave evidence that he received only minimal feedback from other staff. He recalls that Ms Lord provided some feedback and that one or two of the team leaders also sought clarification about what the changes would mean for them.
3. Mr Heeney gave evidence that over the period 5 to 7 June 2017 he exchanged emails with board member Pravin Ramdany (cc'd to all other board members' private email addresses) regarding the budget for the forthcoming year. That email exchange, which was exhibited to his affidavit, was quite comprehensive and involved Mr Ramdany raising various financial issues he hoped Mr Heeney would address at the forthcoming special board meeting on 8 June 2017. It is a very straight forward, businesslike exchange of emails one would expect to see between a board member and the CEO. However, what is surprising about this exchange in the context of these proceedings as a whole, is that it stands as one of the very few examples of electronic communications between board members in the entire body of evidence. There is, for example, evidence of only one other electronic communication between Mr Heeney and the chairman's personal email address (25 May 2017). Apart from the email which sent notice of the proposed organisational restructure to the board for comment on 25 May 2017, the respondents have not produced evidence of any email communications between Mr Heeney and Mr Oates or Mr Heeney and any board member which relates to the restructure or Ms Shum's dismissal/redundancy on 19 June 2017. Nor is there any evidence of email communications between Mr Heeney and Ms Bindra or Ms Pollard regarding that issue.
4. The 7 day period for consultation about the proposed organisational restructure ceased on 7 June 2017.

1. On 8 June 2017 the board convened another special meeting. There is no evidence of a notice for the meeting or any documents circulated for discussion at the meeting.
2. Draft minutes of the 8 June meeting which were tendered in evidence, report that a draft budget for 2017/2018 was presented and explained by Mr Heeney and Ms Pollard. The minutes of the meeting reveal almost nothing about those discussions save that it was decided to put $200,000 into the Capital Expenditure fund for allocation to resources as required.
3. The second item on the agenda was "MD's presentation on Organisational Restructure". The only notation being that "Proposed restructure presented to the Board".
4. Mr Heeney recalls that this special meeting of the board was fairly tense. He recalls making an oral presentation to the board and that he explained how the restructure had been progressing and was being implemented. His affidavit evidence about the explanation he gave to the board again did not extend beyond high level statements and was devoid of any detail. What Mr Heeney conveyed orally, of which there is no record, remains unknown.
5. Other board members were not able to assist the court with any clear recollection about Mr Heeney's presentation on 8 June 2017. A number of board members do not recall the organisational restructure at all, let alone the meeting at which it was discussed. Mr Oates recalled Mr Heeney giving a 5 or 10 minute verbal presentation following which no questions were asked. According to Mr Oates it was a very straightforward exercise involving 3 redundancies so there wasn't much to ask. Ms Tan also recalls a verbal explanation of 5 to 10 minutes but no detail. Mr Ramdany does not recall the presentation at all. Ms Periera recalled that there was a presentation but said nothing about its content. Ms Horvath remembered that Mr Heeney made a recommendation to restructure the organisation and that she agreed with it. She presumed he made a presentation to the board but couldn't remember it.
6. The restructure timetable provided for a revised proposal based on feedback. There does not appear to have been any feedback from the board which resulted in any change to Mr Heeney's original proposal.

1. On Wednesday 14 June 2017 at 10.52am Mr Heeney emailed Ms Shum a letter regarding the organisational change process. The Subject line of the covering email was oddly titled "Only open when able to do so". The letter attached to the email was in the following terms:

Dear Lai (Genie)

Restructure

I refer to my email correspondence to you dated 31 May 2017, attaching a letter about proposed changes to SMRC's structure.

As outlined in the correspondence, consultation with employees of SMRC affected by the proposed changes took place between 31 May 2017 and 7 June 2017.

SMRC invited you, as an affected employee, to provide feedback on the proposed changes, either in a meeting, via telephone or in writing. You did not provide any feedback.

SMRC has now carefully considered all feedback provided with respect to the proposed changes. As you did not provide feedback, SMRC has made a decision with respect to the proposed changes without your input.

I am writing to inform you that SMRC has decided to proceed with the proposed restructure. This will include your position becoming redundant, after Monday, 19 June 2017.

Redeployment Opportunities

SMRC has considered whether any suitable redeployment opportunities exist for you within the organisation. Having carefully considered its operational requirements, SMRC considers that there are no suitable redeployment opportunities for you.

However, the following two positions will be available:

• Coordinator Business Improvement; and

• Director - Client Services

Although, based on the information currently available to it, SMRC considers that neither of these positions is suitable for you, it would be happy to consider an expression of interest from you in either (or both) of them if you would like to make one. To this end, I enclose copies of the position descriptions and an expression of interest form.

If you wish to express interest in either or both positions, please send HR Advisor the completed expression of interest form/s by Sunday, 18 June 2017 at amanb@smrc.org.au. Any expression of interest should be accompanied with a covering letter summarizing your response to the selection criteria and your suitability for the role and a copy of updated resume detailing your qualifications and experience.

We will notify you of the outcome on Monday, 19 June 2017.

If you do not express interest in either of these positions, or your expression of interest is not successful, your employment with SMRC will terminate on Monday, 19 June 2017 and you will be paid in lieu of notice.

Support

We understand that this may be a difficult time for you and encourage you to access the support offered through SMRC's Employee Assistance Program on 03 [...].

If you have any questions, please do not hesitate to contact me on 03 [...].

1. On the same day, Mr Heeney wrote to Mr Brooking (who was at time on leave) and Ms Lord who were the other two employees earmarked for redundancy. Mr Heeney gave evidence that Mr Brooking subsequently told him that he was not interested in any of the available roles and he was given 3 weeks notice of termination. Ms Lord also did not express interest in the available roles and she was subsequently given notice of termination. However, Ms Lord commenced unfair dismissal proceedings and later reached a confidential resolution with SMRC.
2. Ms Shum gave evidence that the 14 June letter went to her spam folder and was not received by her on that day.
3. On 15 June 2017, Ms Shum responded to an email from the Fair Work Commission confirming that she wished to proceed with her stop-bullying complaint against Mr Oates, Mr Heeney and the other named respondents. In her correspondence to the Commission, Ms Shum claimed among other things that she was still being bullied despite being on WorkCover, and that "As a protected employee, SMRC is trying to use redundancy as their solution...".
4. Mr Heeney's letter of 14 June required Ms Shum to express interest in either of the available positions by Sunday, 18 June 2017. She did not express interest as they were not accounting positions.
5. On 19 June 2017 Mr Heeney sent an email to Ms Shum, copied to Ms Bindra, attaching a letter of the same date. The Subject line of the email was again titled "Please only open when able to do so". The attached letter read as follows:

Dear Lai (Genie)

We refer to the letter to you dated 14th June 2017 and the opportunity given to you to express interest in any available positions on the new structure by 18th June 2017.

In absence of any Expression of Interest from you and after consideration, the Management of SMRC has determined that at present there are no viable alternate positions available in which to offer you continuing employment.

You are hereby given payment in lieu of 1 week notice that your employment with SMRC will terminate on 19th June 2017. All your unused annual leave entitlements will be paid along with your final payment. The payment will be transferred to your bank account within a week. Your final payslip will be sent to your personal email address.

We understand that times of change can be challenging, and we encourage you to use the support offered to work through your options. We have arranged for access to Career Development and Transition support through Davidsons. To make your first appointment please contact [...]

Please liaise with Aman Bindra (HR Advisor) at amanb@smrc.org.au to return all SMRC properties (such as building access card and keys) or to collect your personal properties from the office.

We regret that it is necessary to take this action, and would like to thank you for the dedicated service you have given SMRC. We wish you well in your future endeavours.

Yours sincerely,

Travis Heeney

Managing Director

1. As with the earlier correspondence on 14 June, Ms Shum alleged that this email also went to her spam account and was not received by her that day. I do not accept Ms Shum's evidence about that. On my assessment of the evidence, Ms Shum was most likely aware of the 14 June 2017 and 19 June 2017 correspondence on or about those days, but certainly by no later than 21 June 2017.

1. On 21 June 2017, Ms Shum sent an email to the board, via the chairman, complaining about Mr Heeney and his recent emails. Directing her comments to the board of SMRC, Ms Shum alleged:

It appears that your newly appointed managing director has no regards to workplace legislation. I refer to my polite request to SMRC for not disturbing me during my sick leave (certified as no work capacity) until further notice. Travis Heeney keeps on bombarding my home email with unwanted work emails without my consent, which exacerbate my work-related stress symptoms. The emails go to the spam folder, unread and will be trashed in 30 days. It is obvious harassment and bullying. The evidence is shown underneath.

This is my formal complaint against Travis Heeney. Of course, it will be used in the court proceedings against SMRC." (Underlining in original)

1. The SMRC board met on 22 June 2017. Minutes of that board meeting were tendered in evidence. Interestingly, the first substantive item on the agenda was the confirmation of minutes of previous meetings going back to the urgent meeting of directors held on 30 March 2017. Six separate sets of minutes were confirmed. I infer from this that the minutes of those previous meetings had either not been prepared or at least had not been presented for consideration by board members prior to the meeting on 22 June 2017. This compounds my concern about the contemporaneity and accuracy of the tendered minutes as objective evidence of the matters contained therein.
2. The minutes of the 22 June board meeting also record that Mr Heeney gave an "HR update" and an "Organisational Structure update" which included a verbal briefing on staff changes that were taking place in line with the new organisational structure and the expected costs and savings. The minutes are otherwise silent about the details of the update or any discussions among board members.
3. On 23 June 2017 a payslip recording Ms Shum's final termination payment and entitlements was sent to her by email. Ms Shum sent an enquiry to Ms Bindra seeking confirmation about what the payment was for.
4. On 26 June 2017 Ms Bindra responded to Ms Shum's payslip enquiry and explained that the payments related to the correspondence which had been sent to her by Mr Heeney on 19 June 2017. Ms Bindra attached a copy of Mr Heeney's letters of 14 June and 19 June 2017. Ms Shum claims to have not seen Ms Bindra's response or the Heeney letters until 29 June 2017 - evidence I do not accept.
5. On 4 July 2017 Ms Shum initiated proceedings in the Fair Work Commission alleging that the termination of her employment constituted unlawful adverse action pursuant to Part 3-1 of the FW Act. In that application Ms Shum alleged that she did not learn of her termination until 29 June. That application initiated the proceedings which are now before the court.
6. On the same day, 4 July 2017, Mr Heeney wrote to the Fair Work Commission and applied for Ms Shum's stop-bullying application to be dismissed.
7. There was a series of communications between Ms Shum and others in the weeks and months after her dismissal. Ms Shum complained about having received spam emails. She complained in emails to Mr Heeney about SMRC bullies. Ms Shum continued to prosecute her WorkCover claim through proceedings in the Magistrates Court and she claims to have been intimidated by SMRC's lawyers into discontinuing her Fair Work Commission stop-bullying application. For reasons which are explained later, it is not presently necessary to explore the details of these allegations.
8. What is possibly relevant, however, is that in August 2017 Mr Heeney recruited a Director of Corporate Services, Rajesh Sharma. That person had finance responsibilities and the position description required the incumbent to have accountancy qualifications. Ms Shum contends that this new position was created as a result of the restructure and that it came at a salary which was almost identical to that which attached to her position and involved the performance of similar functions. Ms Shum submits that, as an accountant, it was a position for which she was clearly qualified and suited. Ms Shum submits that Mr Heeney's failure to consider her for this role prior to dismissing her, exposes the redundancy as a sham which was designed to exit her from the organisation.
9. Ms Shum also contends that the rationale for the redundancy and associated cost savings are completely undermined by other subsequent events. Ms Shum argued that her tasks still needed to be performed and that her work was distributed across a number of other employees. Ms Pollard who had been brought in on contract as a "crisis accountant" continued on for a period and performed accounting and financial duties. A Ms Lin, who had previously assisted in the finance department on a voluntary basis, became an employee. Ms Shum also alleges aspects of her work were taken on by Mr Vijayan, Ms Konstantopoulos and Mr Solomon.
10. The final 2016/2017 financial results did not disclose the dire financial situation feared by the board. It revealed a small surplus.

1. Before embarking on an analysis of the evidence, it is convenient to revisit the statutory framework within which the remitted questions are to be determined.

1. Section 340(1) of the FW Act is only engaged where a person has taken "adverse action" against another. In this case the applicant bears the onus of proving adverse action within the meaning of s 342.
2. For the purpose of the remitted questions, the respondents admit that by terminating her employment, SMRC took adverse action against Ms Shum. Accordingly, in this proceeding the determinative question is why did the Respondent terminate Ms Shum's employment.
3. Insofar as the applicant has alleged other instances of adverse action during the period of her employment with SMRC, those allegations are not the subject of the remittal questions and it is not necessary for the court to determine whether there were other contraventions of the Act. However, the evidentiary underpinnings of those other allegations may be relevant as surrounding facts and circumstances which informs the Court on the central question, namely why was the applicant terminated?

1. Section 340(1) of the FW Act proscribes the taking of "adverse action" against another because, amongst other things, that person had a workplace right, has or has not exercised a workplace right or proposes or proposes not to exercise a workplace right. The termination of employment will also be unlawful if it was taken to prevent the employee from exercising a workplace right.
2. In order to engage the rebuttable presumption in s 361, an applicant should allege with sufficient particularity both the action said to constitute "adverse action" and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217 at [55]; Alam v National Australia Bank [2021] FCAFC 178 (Alam) at [14].
3. An applicant is required to plead in the originating application, statement of claim or in some other document the particular reason or intention for which he or she alleges that the respondent took the adverse action complained of in the proceeding. That pleading must make clear what the case is about and include the identification of the particular proscribed reason or intention.
4. The party making the allegation that adverse action was taken "because" of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the respondent's reason(s) for taking the adverse action: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 (ABCC v Hall) at [100]; Alam at [14].
5. In these proceedings, the applicant has thrown the proverbial kitchen sink at the respondents. The articulation by Ms Shum of her "workplace rights" has been something of a moving feast - presenting difficulties for both the respondents and the court. The expression "workplace rights" has been bandied about by the applicant without careful attention to its legal meaning within the relevant statutory scheme.
6. In her final written submissions, Ms Shum alleges that between November 2016 and 31 October 2017 she possessed or proposed to exercise workplace rights on about 58 occasions. She alleges around 40 of those occasions occurred between November 2016 and the date of her dismissal on 19 June 2017. Ms Shum alleges that these various instances of her exercising or proposing to exercise workplace rights, even if not the primary reason for her dismissal, were substantial and operative reasons for her dismissal.

1. The respondents concede many, but not all, of the workplace rights alleged by Ms Shum. Relevantly, the respondents admit that the following complaints and inquiries made or actions taken by Ms Shum involved the exercise of workplace rights by her within the meaning of s 341:

(a) on 25 January 2017, the Board and the staff had a mediation meeting facilitated by Lifeworks. Ms Shum attended that meeting and complained about Mr Oates' conduct;

(b) on 2 February 2017, Ms Shum took stress leave and visited a GP and a psychologist. Upon return to work, she told Mr Lee, Ms Mazie and Ms Wattegamage that her illness due to work stress;

(c) on 2 March 2017, Ms Shum emailed Ms Haralambopoulos and complained about the unacceptable behaviour of her subordinate Ms Wattegamage;

(d) on 3 March 2017, Ms Shum took sick leave due to overwork and stress;

(e) on 6 March 2017, Ms Shum emailed Ms Haralambopoulos complaining about the unacceptable behaviour of Ms Wattegamage and requested that the complaint against her be made formal;

(f) on 6 March 2017, Ms Shum emailed Ms Haralambopoulos requesting a copy of SMRC's complaint handling procedures and asking for any evidence/witness statements relating to complaints against her;

(g) on 7 and 8 March 2017, Ms Shum took stress leave;

(h) on 7 March 2017, Ms Shum completed a Worker's Compensation injury claim form;

(i) on 15 March 2017, Ms Shum inquired about her Workcover pay and SMRC's disciplinary processes;

(j) on 16 March 2017, Ms Shum emailed Ms Bindra stating she would like to make a formal complaint of workplace bullying, including complaints against Ms Haralambopoulos and Ms Wattegamage;

(k) on 20 March 2017, Ms Shum complained to Ms Bindra about Workcover pay and evidence and procedures regarding bullying complaints;

(l) on 21 March 2017, Ms Shum followed up on her complaint against workplace bullying and internal complaint procedures;

(m) on 28 March 2017, Ms Shum complained to Ms Bindra about the disciplinary process and asked for evidence regarding complaints against her;

(n) from 29 March 2017, Ms Shum began to enquire and subsequently enquired about underpayment of her WorkCover entitlement;

(o) on 1 April 2017, Ms Shum complained to Ms Bindra about evidence regarding the disciplinary process, the previous formal complaint of workplace bullying and she proposed to complain to other channels;

(p) on 3 April 2017, Ms Shum complained about her previous unresolved formal complaints and proposed to report her grievances to other agencies. She also queried about why copying work emails to her manager Jacob Lee was thought to be an issue;

(q) on 8 April 2017, Ms Shum complained to Ms Bindra about previous unresolved formal complaints, underpayment and discrimination;

(r) on 9 April 2017, Ms Shum made an application to the Fair Wok Commission seeking stop-bullying orders, complaining about workplace bullying (organisation wide and targeted), including the institution of a baseless disciplinary process against her and the making of untrue statements in relation to her WorkCover claim;

(s) on 10 April 2017, Ms Shum complained to Ms Bindra about previous unresolved formal complaints, underpayment and discrimination;

(t) on 11 April 2017, Ms Shum complained to Ms Haralambopoulos against Ms Bindra for threatening to discipline her due to copying work emails to Mr Lee. Ms Shum also requested bullies not communicate with her;

(u) on 7 May 2017, Ms Shum sent documents to the Fair Work Commission in support of her antibullying application;

(v) on 10 May 2017, Ms Shum complained to another employee Mr Brooking about underpayment;

(w) on 13 May 2017, Ms Shum complained to Mr Heeney alleging false allegations had been made against her by Ms Wattegamage;

(x) on 15 May 2017, Ms Shum emailed Mr Heeney stating she was on Workcover leave and that Ms Haralambopoulos, Ms Wattegamage and Ms Bindra had made false statements against Ms Shum;

(y) on 22 May 2017, Ms Shum complained to Mr Heeney and Ms Bindra about her underpayment and proposed to report SMRC to the Australian Taxation Office. She also complained about the previous formal complaints made since March 2017 having not been resolved including workplace bullying, the disciplinary process and an antibullying application;

(z) on 31 May 2017, Ms Shum complained to Mr Heeney for requesting Ms Shum attend a work meeting while she was on Workcover leave and requested him to provide Ms Mazie's witness statement; and

(aa) on 15 June 2017, Ms Shum confirmed to FWC that she wanted to proceed with the antibullying application.

1. Based on my assessment of the evidence and the respondents' concessions, I am satisfied that Ms Shum exercised a workplace right in each of the instances described above. Further detail of those instances will be found in the background narrative above.

1. Of the workplace rights which have not been conceded by the respondents, a number of them are to be excluded from consideration.

1. First, it is clear that a number of the claimed rights cannot be relevant to the remittal questions because they arose or were exercised by Ms Shum after her dismissal. Logically, the exercise of those alleged workplace rights cannot have actuated the respondents to take the adverse action of dismissing her from her employment. The workplace rights which fall into that category and which I do not accept as a reason for the termination of Ms Shum's employment are:

(a) on 18 June 2017, Ms Shum complained about the underpayment of superannuation;

(b) on 30 June 2017, Ms Shum sent an email to Mr Heeney complaining about breach of her employment contract;

(c) on 4 July 2017, Ms Shum made a general protections claim with the FWC;

(d) on 6 July 2017, Ms Shum requested a response to her email to Mr Heeney sent on 30 June 2017;

(e) on 6 July 2017, Ms Shum sent an email to Mr Heeney complaining against "SMRC bullies" sending her spam emails;

(f) Ms Shum continued to dispute underpayments and participated in a mediation on 24 and 25 August 2017;

(g) on 23 August 2017, Ms Shum commenced Workcover proceedings in the Magistrates Court; and

(h) on 31 October 2017, Ms Shum commenced a general protections proceeding in the Federal Circuit Court of Australia

1. Secondly, because of earlier undisturbed findings made by the primary judge, conduct and events which arose from or relate to Ms Shum's asserted "rights" as a voting member of SMRC do not relevantly pertain to her employment and therefore cannot be considered as the exercise of a workplace right within the meaning of s 341.
2. Her Honour the primary judge found that Ms Shum's voting rights at the SMRC Annual General Meeting and the Special General Meeting were not workplace rights, rather they were rights which were an incident of her membership of the organisation. The primary judge also found that any injury arising from the exercise of those rights was not an injury in employment.
3. These findings were not challenged or disturbed on appeal and I consider that I am bound by them for the purposes of the remittal. Accordingly, the following alleged complaints, inquiries or actions did not amount to the exercise of a workplace right for the purposes of s 341 of the FW Act:

(a) on 5 December 2016, Ms Haralambopoulos asked Ms Shum to a non-work meeting with board members Mr Oates and Mr Wahab telling Ms Shum that she should not vote in the AGM. Ms Shum inquired/objected;

(b) on 16 December 2016, Ms Haralambopoulos commenced informal meetings to debrief the staff. Ms Shum attended a few sessions and inquired about the voting rights of staff with financial membership and a code of conduct for Mr Oates and the Board; and

(c) on 9 January 2017, Ms Haralambopoulos met with Ms Shum offering to discuss Ms Shum's concern about correspondence from Mr Oates regarding not allowing staff who are SMRC members to vote in the upcoming Special General Meeting. In the meeting, Ms Shum objected to Ms Haralambopoulos' attempt to cancel Ms Shum's financial membership and refund her.

Not complaints or inquiries Ms Shum was "able to make"

1. There is a remaining group of verbal and written communications which the respondents submit do not evidence the exercise of a workplace right by Ms Shum. The respondents submit that these communications are not a species of complaint and/or inquiry Ms Shum was "able to make" for the purposes of s 341(1).
2. The alleged workplace rights which fall into this disputed category are articulated by Ms Shum as follows:

(a) on 9 November 2016, Mr Oates met with staff about a letter dated 7 November 2016 regarding an investigation into the CEO's remuneration. Ms Shum inquired whether there was evidence to support it;

(b) on 15 February 2017, eight management team members (including Ms Bindra) sent a letter to the board setting out reasons why Mr Oates should be removed from his role for serious misconduct (bullying, distributing false and misleading information). Ms Shum did not sign this letter because Ms Bindra told her of Mr Oates' vindictive nature. Ms Shum was supportive of this letter and provided inputs. This letter was copied to Ms Haralambopoulos;

(c) on 2 March 2017, Ms Shum emailed Ms Haralambopoulos regarding Ms Wattegamage being off sick and warning of risk management issues due to the finance team having most of its staff off sick;

(d) on 6 March 2017, Ms Haralambopoulos asked Ms Shum into a meeting at 3:15pm. She handed the disciplinary letter to Ms Shum despite her instant denial and challenging her procedures;

(e) as a result of the management team's letter dated 15 February 2017, on 17 March 2017, Mr Bill Collopy and six management team members including Ms Bindra, Ms Lord and Mr Brooking (representing most of the staff) applied for an order to the Fair Work Commission (FWC) to stop bullying. Ms Shum was specifically mentioned in the application;

(f) on 28 April 2017, Ms Shum complained to Mr Brooking about underpayment;

(g) on 10 May 2017, Ms Shum complained to Mr Brooking about underpayment;

(h) on 23 May 2017, Ms Shum complained to Mr Brooking about her super and proposed to report to the ATO; and

(i) on 30 May 2017, Ms Shum complained to Mr Brooking about Ms Bindra who asked her to a work meeting (about dismissing Ms Shum) giving less than 24 hours notice, while she was on workcover leave

1. In order to deal with these remaining alleged "workplace rights", it is necessary to consider recent authorities which provide guidance in distinguishing a complaint or inquiry which an employee is "able to make" for the purposes of s 341(1) from those which an employee is not.
2. As to what constitutes a complaint or an inquiry, the courts have drawn a distinction between a complaint on the one hand and a mere request for assistance or an expression of frustration on the other: Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99, (2005) 144 FCR 347 at [36] [37]; Hill v Compass Ten Pty Ltd [2012] FCA 761, (2012) 205 FCR 94 at [48]
3. It is uncontroversial that an "inquiry" involves "an investigation or examination made for the purposes of acquiring knowledge or information": Maric v Ericsson Australia Pty Ltd 293 IR 442 at [45].
4. Even if a complaint or inquiry bears some relationship with a person's employment, some vague connection between the communication and the employment is not enough. In Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 (Shea v TRUenergy) Dodds-Streeton J observed that just as there are complaints and inquiries which an employee is able to make, there are those which the employee can not. In other words there is a species of communications which may have a nexus to employment but fall short of being the exercise of a workplace right for the purposes of s 341(1).
5. In Shea v TRUenergy, Dodds-Streeton J at [625] considered that for a complaint to be one which an employee is able to make, "it must be underpinned by an entitlement or right" of the employee. Her Honour's reasons did not make clear the nature of the requisite "underpinning", for example, whether it is the ability to make a complaint or inquiry which must be "underpinned" by an entitlement or right or whether it is the subject of the complaint or inquiry which must have that underpinning.
6. In Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285, Collier J at first instance proceeded on the basis that a complaint or inquiry directed to an employer about an entitlement for which the contract of employment makes provision is within the scope of s 341(1)(c)(ii).
7. On the appeal (Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; (2019) 268 FCR 46), the Full Court (Greenwood, Logan and Derrington JJ) at [28] described the statement of principle by Collier J in [33] [34] as "unremarkable and correct"
8. Subsequently, in PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225 Rangiah and Charlesworth JJ held that an employee may have the requisite ability to make a complaint or inquiry not only by reason of a workplace law, a workplace instrument or an order made by an industrial body (being the source of the entitlements referred to in s 341(1)(a) and (b)), but also from legislative provisions which are not workplace laws, contractual terms providing a right to make complaints, and from the general law.
9. More recently, the Full Court in Alam said at [59]:

[59] In the context of s 341(1)(c), the term "complaint" connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy at [579] [581] per Dodds Streeton J. Her Honour continued, at [626] [627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.

1. In Alam, the Full Court was required to find meaning in the expression "is able to make a complaint or inquiry" at a time of divergent Full Court views. After surveying the authorities the Full Court reconciled the differing views by holding that the court should proceed on the unanimous decision of the Full Court in Whelan. Therefore:

[65] ...the complaints and inquiries to which [section 341(1)(c)] refers are not confined to those which can be made to an external authority or to persons with the capacity to seek compliance with a legal obligation, but include complaints or inquiries made to the employer itself in relation to the person's employment: Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908, (2013) 238 IR 307 at [141] [143] (Jessup J); Shea v TRUenergy at [600] .

1. It is not necessary for the complaint or inquiry to have an instrumental source. It is sufficient that the complaint be in relation to employment and that the ability to make it is grounded in an instrumental right, a contractual right or in the general law.
2. In Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 Snaden J neatly summarised the test at [150]:

...in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumental or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire.

1. In light of those legal principles, I return to consider each of the alleged complaints and inquiries which the respondents submit do not constitute a "workplace right" for the purposes of s 341(1).

1. A meeting took place on 9 November 2016 between Mr Oates and members of the SMRC staff. The meeting was convened for the chairman to explain matters relating to an investigation into the then CEO's (Ms Semple) remuneration. In the course of that mass meeting, Ms Shum claims to have asked whether there was evidence to support the investigation.
2. The respondents submit that inquiry by Ms Shum was not in relation to her employment. I agree. Insofar as it was an expression of grievance about some broader workplace issues, the inquiry did not pertain to the rights and entitlement of Ms Shum's employment, other than in a most obtuse way. The inquiry may have been advocacy in support of another's workplace rights, but not her own.

1. Similarly, Ms Shum's "support" for a letter sent to the SMRC board by eight executive team members on 15 February 2017, was not a complaint, inquiry or other exercise of a workplace right by Ms Shum. That letter set out reasons why Mr Oates should be removed as chairman for alleged bullying and other misconduct. Ms Shum did not sign the letter, citing a fear of doing so.
2. I cannot see how Ms Shum's passive and invisible support for the views expressed by other employees can constitute the exercise of a workplace right by her. There is no expression of grievance by her nor can there have been any expectation that the recipient would sit up and take notice of Ms Shum's unexpressed concerns.

1. I take a different view in relation to an email dated 2 March 2017 sent by Ms Shum to Ms Haralambopoulos regarding the absence of Ms Wattegamage from the finance department and the potential risk for the finance team from a risk management perspective. As I apprehend that email, Ms Shum should rationally be taken to be expressing concern, as Finance Team Leader, that the absence of other members of the Finance team will result in their work falling to be performed by her. Ms Shum puts the interim CEO on notice that she will not be able to perform that work, a circumstance which should be taken into account in decision-making around risk. In my view, the email expresses a grievance about the scope of Ms Shum's duties, departmental resourcing and her own capacity. The email does invite a call-to-action. The correspondence is more than a routine internal communication - it was sent to a senior manager and it seeks consideration and relief. In sending the email, Ms Shum exercised a workplace right.

1. It will be recalled that on 6 March 2017, Ms Haralambopoulos asked Ms Shum into a meeting, where Ms Shum was handed a disciplinary letter. The request for Ms Shum to attend the meeting was not a complaint or enquiry or any other form of conduct which could constitute a workplace right as defined.
2. However, Ms Shum asserted that she immediately challenged the allegations contained in the letter and took umbrage with the procedure being followed by Ms Haralambopoulos. I accept, and I do not understand the respondents to contest, that in challenging the allegations and asserting a denial of procedural fairness, Ms Shum made a complaint and exercised a workplace right.

1. Ms Shum contends that she exercised a workplace right by reason of her name being mentioned in a stop-bullying application made to the Fair Work Commission by a colleague Mr Bill Collopy and six other management team members under cover of the letter dated 17 March 2017. Ms Shum contends that the applicants for the stop-bullying order effectively represented most of the staff and implies that the application to the FWC was in the nature of a class-action in relation to which her personal grievances formed part.
2. I do not accept that the letter evidences a complaint or enquiry by Ms Shum or some other exercise of a workplace right by her. True it is that the authors of the letter claimed to represent a majority of the SMRC staff and advocated that the staff were anxious and troubled by "the effects of repeated bullying and intimidation by the chairperson of the board". However, the communication would not, in my view, have been reasonably understood to convey a grievance by Ms Shum or to draw attention to her specific circumstances or claim for any particular form of relief. Had Ms Shum raised her head above the parapet and put her name to the letter, I would have found differently. But she did not, and in the circumstances of this case I cannot see how her passive support for the voices of others can be construed as the expression of a grievance by her.

1. Ms Shum gave evidence that on 28 April 2017, 10 May 2017 and 23 May 2017, she made complaints to Mr Brooking regarding underpayment and superannuation and her intention to report SMRC to the ATO. Ms Shum also alleges that on 30 May 2017 she complained to Mr Brooking about Ms Bindra having asked her to a work meeting with less than 24-hour's notice, knowing that she was on WorkCover leave .
2. Ms Shum gave evidence that Mr Brooking is a work colleague. When Ms Shum was on stress leave, she decided that she would not communicate with those managers at SMRC who she believed were responsible for bullying behaviour. Ms Shum says that she was invited by Ms Haralambopoulos' to identify another staff member with whom she would communicate and who could act as a go-between while she was absent.
3. There is evidence which supports Ms Shum's recollection. Ms Haralambopoulos did extend an invitation to her and Ms Shum did nominate Mr Brooking. However, the purpose and scope of that arrangement was unclear. Mr Brooking was not Ms Shum's manager and the matters about which Ms Shum complained were not initiatives of Mr Brooking or matters which fell within his field of responsibility. Mr Brooking was not authorised by SMRC to act as an agent on its behalf in relation to the management of Ms Shum's employment. There is no evidence before the court that Mr Brooking was in any position to advance or resolve Ms Shum's grievances.
4. Ms Shum might have hoped that Mr Brooking would be sympathetic to her cause and take up matters with management on her behalf. But even if SMRC had acquiesced to Mr Brooking playing some role as a middleman for communications between Ms Shum and management, I do not accept that Mr Brooking stood in the shoes of the organisation or that complaints to him can be taken to be complaints to SMRC itself.
5. In any event, I am not satisfied that the communications between Ms Shum and Mr Brooking had the characteristics of a complaint or inquiry. Not every interaction by which one person communicates to another the existence of some suboptimal state of affairs will qualify as a "complaint", as that term is properly understood. An expression of frustration about internal management, structural or operational issues is a common incident of life at any workplace. Voicing one's exasperation or frustration at not being listened to in their role or failing to get sufficient cut-through to get a timely response from a colleague, another department or management is in many respects part and parcel of the ordinary workplace dynamic.
6. In my view, Ms Shum's communications with Mr Brooking were in the nature of venting to him about her own issues in the hope of securing his empathy and support as a fellow disaffected employee. I reject Ms Shum's submission that these communications amounted to an exercise of workplace rights.

WHY WAS MS SHUM TERMINATED FROM HER EMPLOYMENT?

1. I now turn to the central question in this case, as it is in all adverse action case cases, namely "why was the adverse action taken?". This is a question of fact, which must be answered in light of all the circumstances established in the proceeding: Board of Bendigo Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 (Bendigo v Barclay) at 517 (per French CJ and Crennan).

1. Ms Shum alleges that the termination of her employment on 19 June 2017 was the final act in a fabricated "sham" redundancy process which had played out over a number of weeks, commencing from about the time of Mr Heeney's engagement as interim managing director on 1 May 2017. Ms Shum maintains that the sham, which resulted in her position as Team Leader - Finance being declared redundant, was designed to conceal the true prohibited reason(s) for her dismissal.
2. Ms Shum alleges that the reasons for the sham process, which culminated in her termination on 19 June 2017, can be traced back to events which significantly predate the decision to employ Mr Heeney in mid-April 2017. Ms Shum has consistently asserted that her termination must be seen in a much broader context which recognises the reality that Mr Oates was the operative mind of SMRC and that a compliant board was effectively controlled by him and a small cabal of his close associates. Ms Shum claims that her exercise of workplace rights, including taking stress leave, making a WorkCover claim and levelling bullying accusations at Mr Oates, board members and some staff, all served to have her marked out as a troublemaker destined to be removed.
3. Ms Shum alleges that Mr Oates' animus toward her stemmed from the internecine tensions between the board and staff in 2016 and then compounded as Ms Shum made complaints about Mr Oates' bullying and other matters. Ms Shum alleges that her prolonged absence from work, commencing at the beginning of March 2017, the ensuing contested WorkCover claim and her stop-bullying application to the Fair Work Commission left her exposed to retribution and victimisation from those who were the subject of or disapproved of her conduct, all culminating in the sham redundancy and her dismissal on 19 June 2017.
4. Ms Shum contends that SMRC, through Mr Oates and the board, engaged Mr Heeney, a corporate "cleanskin", to design and execute a fabricated, but benign looking, corporate restructure which had as its purpose the removal of Ms Shum. She contends that the premeditated objective of her dismissal was retribution for her exercise of workplace rights which had gotten under the skin of SMRC staff and board members, including its chairman Mr Oates. Alternatively, Ms Shum says the dismissal was engineered for the purpose of preventing her from exercising further workplace rights, such as prosecuting the stop-bulling application in the FWC.
5. Ms Shum alleges that on any objective view of the evidence, the respondents' asserted reasons for the restructure of the organisation and the removal of her former position do not objectively stack up. Ms Shum says that the process which led to the redundancy of her position and ultimately her dismissal should be seen as a disingenuous disguise for the respondents' unlawful intent.
6. Insofar as Mr Heeney was responsible for executing the unlawful design, Ms Shum submits that he was brought in on a short-term contract to act as an operative for Mr Oates and his coterie of supporters. As a "clean-skin" without the baggage of SMRC history, it was hoped that Mr Heeney would be seen as an objective corporate decision-maker and that his actions would not leave the finger-prints of those to whom he was answerable.

1. It will be recalled that in lieu of formal pleadings, I posed five questions to which evidence and submissions would be addressed in the proceedings. The third of those questions was:

"Assuming the First Respondent denies that any of those prohibited reasons were reasons for its termination of the Applicant's employment, what does the First Respondent contend were the reason/s for the Applicant's dismissal? (ie how does the First Respondent meet the Applicant's hypothesis?)"

1. The respondents have maintained a consistent response to this inquiry. In their Points of Contention filed prior to trial, the respondents contended inter alia that:

(a) Mr Heeney commenced in the role of interim managing director on 1 May 2017. At the time he commenced he had no pre-existing personal or professional relationships with Ms Shum or any member of the SMRC board;

(b) upon commencing in his management role, Mr Heeney was directed by the SMRC board to undertake the operational function of clarifying the structure and finances of SMRC;

(c) Mr Heeney assessed the organisational structure and the financial costs of operating SMRC and then developed a proposal to restructure, which involved making 3 positions redundant and the creation of a new role. One position earmarked for redundancy was the Finance Team Leader position occupied by Ms Shum. The respondents state that the decision to make Ms Shum's position redundant was Mr Heeney's and Mr Heeney's alone;

(d) Mr Heeney communicated the restructure to the board and offered members an opportunity for feedback. In the absence of feedback he proceeded on the implied understanding that the restructure was approved;

(e) Mr Heeney was aware of conflict in the workplace (including complaints about the conduct of the board) and that grievances had been aired at an earlier AGM. However, Mr Heeney says that he was neither involved in nor concerned with those matters in his decision-making;

(f) from 30 May 2017, Mr Heeney sought to engage in a consultation process with affected employees, but Ms Shum resisted his communications and refused to participate;

(g) on 14 June 2017 implemented the restructure and informed Ms Shum of available roles for which she could express interest. She did not respond.

(h) On 19 June 2017, Mr Heeney emailed Ms Shum a letter. The letter explained that SMRC had not received an expression of interest from her for the available positions and no suitable positions were available for redeployment. It stated her employment would terminate effective that day and she would receive one week's pay in lieu of notice along with her statutory entitlements.

1. The respondents deny that the dismissal was for a prohibited reason or reasons. In their written closing submissions, the respondents posit the following answer to the critical question:

"The reasons for the Applicant's dismissal: there was a bona fide restructure driven by the new Interim Managing Director (IMD), Mr Heeney. It was his idea and he implemented it. He believed the organisation was over-staffed and was faced with losses and a precarious financial position. He decided to introduce a new structure, make three positions redundant, make savings by reduced labour costs and then reinvest on capital items, if possible. One of those positions was the position of Team Leader - Finance."

1. Ms Shum enjoys the benefit of a rebuttable presumption which accepts the correctness of her allegation that she was dismissed because of her exercise of workplace rights. In order to succeed in her claim, Ms Shum does not need to prove the truth of her conspiracy narrative or her claims that the respondents acted for prohibited reasons. Similarly, undermining the applicant's narrative or damaging her credit may not be sufficient for the respondents' defence to succeed.
2. To discharge the statutory burden created by s 361 of the FW Act, SMRC must prove to the requisite civil standard that Ms Shum's exercise of a workplace right or workplace rights did not factor in any substantial or operative way as a reason for its decision to dismiss her from her employment. The respondents will only succeed if I am persuaded that the decision to dismiss was not infected by prohibited reasons.
3. It falls to the Court to determine "the actual reason of the decision-maker, in his or her own mind". The determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19].
4. It will not suffice for the employer to simply assert a negative, namely, that the employer did not take the adverse action because the employee had, or had exercised, a workplace right. An employer's denying acting for such a proscribed reason implies the employer acted for a reason other than the proscribed reason. To deny acting for a proscribed reason is to beg the question of the reason or reasons for which the employer did take the adverse action.
5. Rebutting the statutory presumption requires that a respondent lead, and for the court to accept on the balance of probabilities, evidence as to why the adverse action was taken. The respondent must show that the proscribed reasons or circumstances that are alleged did not factor in any substantial or operative way as a reason for the conduct that the applicant seeks to impugn: General Motors-Holder Pty Ltd v Bowling (1976) 12 ALR 605 at 612, 619.
6. Section 361 does not impose upon the respondent the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent; see Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [27] per Jessup J. But the respondent must call sufficient evidence to persuade the Court it has rebutted the statutory presumption.
7. The enquiry is not whether the decision-maker's reasons were fairly or properly formed or whether his reasons and conduct were procedurally or substantively fair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31]. A claim under Part 3-1 of the FW Act "...is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome": Ermel v Dulux Group (Australasia) Pty Ltd (No.2) [2015] FCA 17 at [48].
8. Where, as here, the respondent employer cites, as its reasons for taking the adverse action, an opinion or belief as to a particular state of affairs (such as the current or projected financial health of the organisation), the relevant inquiry is not whether those opinions or beliefs were fairly or properly formed or vindicated in fact. Rather the inquiry is whether those opinions were formed at all and, if they were, whether the respondent was moved to act as it did in consequence of them.
9. However, in some cases, it might be possible to infer from evidence that a respondent's opinions or belief were formed wrongly or unfairly, such that the opinions were not, in fact formed or did not relevantly actuate the respondents conduct. Such circumstances might warrant the rejection of the respondent's evidence as to why it did what it did and a finding that the respondent failed to rebut the presumption established by s 361 of the FW Act: Wong v National Australia Bank Limited [2021] FCA 671 at [78]- [83] per Snaden J.

The corporate mind and scope of the Court's inquiry

1. Bodies corporate, such as SMRC, are only capable of acting through human agents. They have no conscience or separate mind within which a reason or reasons for acting might form. Proof of why actions were taken by a corporate entity requires proof of who it was that did or did not do the things that constitute the conduct in question and why those things were done.
2. SMRC is responsible for constructing and advancing the thesis which explains the non-prohibited reasons for its conduct and for leading the evidence necessary to establish it. The task of the court is to consider the plausibility of the presented thesis in light of the evidence as a whole and to decide whether it displaces the statutory presumption.
3. A key premise of the respondents' case is that Mr Heeney came to the organisation without any previous knowledge of it, without pre-existing relationships and unburdened by the tumultuous history of politics and internal conflict. The respondent's case relies on its claim that Mr Heeney was the lone decision-maker in relation to the restructure and Ms Shum's dismissal. The respondents assert that Mr Heeney was "a fresh pair of eyes in the organisation", unknown to Mr Oates before he commenced. Mr Heeney denies that any other person was involved in the decision-making and asserts that he alone designed and implemented the restructure for reasons of organisational efficiency, cost savings and to better allocate resources. The sham redundancy allegation is denied.
4. Mr Heeney denies that he acted for any of the prohibited reasons claimed by Ms Shum. While Mr Heeney concedes that he was generally aware of conflict in the workplace (including complaints about the conduct of the board) and that grievances had been aired at an earlier AGM, he denies being involved in or concerned with those matters in his decision-making.
5. It is implicit in the respondent's case theory, which presents Mr Heeney as the sole decision maker, that the reasons which animated SMRC to terminate the applicant are to be found in the mind of Mr Heeney alone. The first respondent's case is that search for the reasons for its conduct do not require exploration beyond Mr Heeney's mental processes because no other person or persons contributed to the decision beyond the threshold level.
6. In most cases, the person or persons whose minds constitute the mind of the corporation for will give evidence of his or their reason or reasons for which the employer took the adverse action. While direct testimony of the decision-maker, if given, will attract weighty consideration, whether or not the statutory presumption is rebutted will depend upon a consideration of all the relevant facts and circumstances that shed light upon why the adverse action was taken.
7. The evidence of a putative "decision-maker" must be assessed against other facts and circumstances, including any one or more of the following:

(a) the inherent plausibility, coherence, and consistency of the employer's evidence that the employer acted for the reason or reasons the employer says the employer acted;

(b) the completeness of the evidence that is adduced in support of the employer's claim that the employer took the adverse action for the reason or reasons the employer claims the employer took the adverse action;

(c) where the reason the employer claims the employer took the adverse action included the employer's believing a state of affairs existed or did not exist, whether there is evidence of the existence or non-existence of that state of affairs, or evidence of the reasonableness of the employer's belief;

(d) whether there are contemporaneous documents that support the employer's evidence that the employer took the adverse action for the reasons the employer claims the employer took that action;

(e) if there are no such documents, whether it is reasonable to expect that such documents would have been created if the employer took the adverse action for the reason the employer claims the employer took the adverse action; and

(f) whether there are other persons who were involved in the conduct that constituted the taking of adverse action, and, if so, whether they have given evidence which supports the evidence the employer gave of the reasons for which the employer took the adverse action.

1. True it is that an essential prerequisite to the respondents' discharge of the statutory presumption under s 361 is the requirement to identify the person or persons who took and made the decision to take the adverse action. That is necessary in order to assess what was in the mind of the corporate respondent and to ascertain the respondent's reason(s) for the adverse actions: Qantas Airways Ltd v Transport Workers Union of Australia [2023] HCA 27; (2023) 412 ALR 134 at [107]; Bendigo v Barclay at [44]; see also Wong v National Australia Bank Limited [2021] FCA 671 at [84].
2. However, the identity of the decision-maker or decision-makers is a question of fact for the court to determine. The respondent's nomination of Mr Heeney as the sole decision-maker may be an important evidentiary issue but is not for the respondent to determine the scope of the Court's inquiry. The Court's inquiry cannot be confined to the person the respondent claims was ultimate decision-maker, particularly if there is evidence of the involvement of others or a reason to suspect that the decision-maker has relied on information, recommendation or assessment from others in the course of reaching the impugned decision. The applicant's allegations or the evidence adduced at trial might reasonably lead to an inquiry into whether there were others whose contribution to the impugned decision rose beyond a threshold level - that is, in a way that was indispensable, material, significant, plainly important, major, substantial or essential.
3. Where others have contributed to the decision-making at that level, the respondent must satisfy the court that they were not motivated by a prohibited reason. In Wong v National Australia Bank (2022) 318 IR 148; [2022] FCAFC 155, the Full Court (Katzmann, Charlesworth and O'Sullivan JJ) said at [26]:

"The authorities show that in asking whether an adverse action was taken by a corporate entity, the Court should remain alert to the possibility that the answer may reside in the mind of more than one natural person. The state of mind of the human actor who said or did the thing that bound the corporation to the action will of course be important, and in many cases determinative. However, the cases illustrate that a person who does the act or thing constituting the adverse action may act on information or advice the provision or content of which is actuated by a prohibited reason. The adoption of such information or advice may necessitate the conclusion that the corporation's reasons for the adverse action include that prohibited reason. In such cases, it matters not that the person providing the information and advice does not formally possess the authority or power to effect the decision based on the information and advice. Whether the person performing the act constituting the adverse action is aware that he or she is acting on information or advice given for a prohibited reason may not be relevant in cases of that kind."

1. Relevantly, the authorities to which the Full Court referred in the cited paragraph included:

(a) Wood v City of Melbourne Corporation [1979] 26 ALR 430, a case where an employee was stood down by a municipal council in circumstances alleged to amount to a contravention of a general protection provision similar to s 340 of the FW Act. In identifying the relevant human actors, Smithers J considered the state of mind of the town clerk (Mr Rogan) who gave directions to the acting town clerk (Mr Reilly) after an exchange of information between them. His Honour observed that whilst "technically" it was Mr Reilly who took the adverse action on the corporation's behalf (as he was authorised to do), he had done so on the advice of Mr Rogan. At 446-447 Smithers J in Brambles Holdings Ltd v Carey (1976) 12 SASR 270 at 275-6 that "... It is enough to say that, in my view it is a fallacy to say that any state of mind to be attributed to a corporation must always be a state of mind of one particular officer alone and that the corporation can never know or believe more than that one man knows or believes. ...';

(b) Voigtsberger v Pine Rivers Shire Council (1981) 1 IR 198, where Evatt J concluded that in examining the reasons of a decision of a municipal council to dismiss an employee it was relevant to consider the reasons of a finance committee that had recommended that course. The decision of the finance committee was the "essential and material decision to be considered" (at 205);

(c) Roberts v General Motors-Holden's Employees' Canteen Society Inc [1975] CthArbRp 1780; (1975) 172 CAR 1073 where the Full Court of the Australian Industrial Court (Smithers, Woodward and Evatt JJ) said of decisions made by a committee managing the affairs of a corporate body (at 1079):

"... considerations may have operated on the minds of the various members of the committee, and not all the considerations operating on the mind of every member would necessarily be known to the others. In addition it could well be that, in the decision-making process, the influence of one or more members may, for various reasons, have been greater than that of others. The effective decision may even have been made by a person who was not a member of the committee. In any particular case, a recommendation of one man may have been rubber-stamped by others without their giving the matter independent consideration. In another case a person actuated by improper motives may have overborne the minds of others who were not so motivated. Or a person improperly motivated may have presented a dishonest case to others.

Of course there may be cases in which it would not be proper to go behind the proceedings of a formal meeting of a particular body. But in the circumstances of this case it is our view that the problem should be approached through an analysis of the motives and parts played by the individual actors".

(d) Elliot v Kodak Australasia Pty Ltd [2001] FCAFC 1804; (2001) 129 IR 251 in which the Full Court (Lee, Madgwick and Gyles JJ) held that a corporate employer's reasons for dismissing an employee resided not only in the mind of the general manager who made the decision but in the mind of a supervisor who had made an "indispensable contribution" to rankings upon which the manager relied. The reasons of the supervisor, the Full Court held, had been "inadvertently adopted" by the manager without independent thought or analysis (at [37]). To found a contravention, it was not necessary for the decision-maker to have had conscious awareness that the supervisor's assessment was affected, motivated or explained by a reason prohibited by the FW Act;

(e) National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139, in which Gray J held that a university's decision to dismiss an academic employee resided not only in the minds of those who made the decision but in the mind of the author a memorandum recommending that course;

(f) Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332 in which the Full Court (Greenwood, Besanko and Rangiah JJ) said (at [91]) that "a person who is involved in the process leading to the decision may be a decision-maker for the purpose of a proscribed purpose"

(g) Construction, Forestry, Mining and Energy Union v Claremont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166 where Reeves J accepted that Kodak required the Court to examine the reasoning process employed by each person whose involvement had a material affect on the ultimate decision to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. "If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. That is what I consider the Full Court meant by 'inadvertently' adopting an 'undisclosed prohibited reason' in Kodak"

1. More recently, in Atkins v North Australian Aboriginal Justice Agency Ltd [2024] FCA 686 Charlesworth J considered whether a senior executive (who was not called to give evidence) had a substantial role in the processes which led to the applicant's termination. In considering that person's involvement in the corporation's conduct her Honour stated that:
   • the key question is whether a person's involvement as a "material effect on the ultimate decision" or exerted substantial or essential influence;
   • the person does not necessarily need to occupy a position with the capacity to bind a company in a legal sense to have substantial or essential influence;
   • there is no requirement for the person to be labelled as a "decision-making" for the conduct to be relevant in assessing whether an employer acted for a prohibited reason;
   • the reverse onus under s 361 of the FW Act effectively requires an employer to satisfy the court that all relevant witnesses have been called to testify as to the reasons for participating in the relevant action against the employee;
   • practically, an employer may find itself in the difficult position of attempting to dispel an inference arising from the evidence in relation to the influence of an employee or agent of the employer who has not been called to testify; and
   • if the employer fails to address any inference or concern from the evidence, the court may have reservations about the employer's case.
2. In Qantas Airways Limited v Transport Workers' Union of Australia [2023] HCA 27; (2023) 278 CLR 571 the High Court reiterated that corporate decision-making is often the product of many motivations, causes, influences and processes of reasoning. The task is to identify the decision-maker or decision-makers, which is a question of fact. Where a corporate entity takes adverse action, the decision makers will usually be the board of directors or, where applicable, the board's authorised delegate or delegates and agent or agents. In every case, if the presumption mandated by s 361 is to be displaced, what is required is a determination of the actual or authentic reason or reasons for the taking of the adverse action by the real decision-maker or decision-makers[3].
3. It is not necessary for Ms Shum to prove her conspiracy theory in order to succeed but her serious allegations are enough to warrant an inquiry beyond Mr Heeney. It is for the respondent to lay bare the anatomy of its decision-making process and the factors which influenced the decision made.

THE FACTS AND CIRCUMSTANCES LEADING TO DISMISSAL

1. Having regard to the way in which the respondents' case was put, the onus rests with the first respondent to satisfy the court to a level of actual persuasion that Mr Heeney was the sole decision-maker for SMRC, that he was not actuated by a proscribed reasons and that no other person who contributed to the decision beyond the threshold level was actuated by a proscribed reason.
2. Ms Shum urges the court to take into account the long history which preceded her dismissal by SMRC. She submits that the history of conflict and simmering tensions between her, Mr Oates and others, contextualises the subsequent events and decision making which led to the sham restructure and her termination.
3. The determination of why SMRC and its human agents took adverse action against Ms Shum requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding. The applicant's case necessarily invites consideration of relevant facts and circumstances which surrounded and gave rise to the exercise of her workplace rights.
4. It is appropriate to commence by taking stock of the organisation in the period immediately before a decision was taken to engage an interim managing director. The decision by the SMRC board to engage Mr Heeney and the circumstances giving rise to that decision form a necessary part of the analysis of what he subsequently did and why.

1. Ms Shum believes she came into the crosshairs of the board and SMRC management well before Mr Heeney commenced employment as the interim managing director on 1 May 2017. In the broad, Ms Shum submits that by reason of her involvement in opposing Mr Oates election as chairman, her complaints about the conduct of Mr Oates and other board members and her series of complaints about management actions against her, she was identified as an irritant, a troublemaker and disloyal to the incumbent leadership. Ms Shum believes that this negative view of her was well-entrenched and widely held, certainly by those with whom she came into conflict, before Mr Heeney's engagement was even contemplated.
2. Based on the evidence given by the respondent's witnesses, one would be forgiven for thinking that Ms Shum had no or very little profile to the board and management and that her involvement in SMRC politics and her complaints and enquiries largely went without notice. Certain members of the board, including Mr Oates, Ms Horvath and Ms Periera sought to distance themselves from Ms Shum by professing little or no knowledge of her or her activities.
3. I found that evidence unpersuasive. Mr Oates, in particular, knew exactly who Ms Shum was and I have little doubt that he regarded her as opposed to him and his board, and as untrustworthy, troublesome and incompetent as an employee. I also have little doubt that Mr Oates' negative opinion of Ms Shum was well formed prior to the engagement of Mr Heeney and was in all probability, communicated to Mr Heeney during the course of their daily discussions. My conclusion in this respect is informed by the following evidence:

(a) Mr Oates had dealt with Ms Shum in relation to cheque signing in the past. He knew her to be a member of the Finance Team (led by the difficult and troublesome Mr Lee) who he suspected had been involved in events which led to Ms Semple's remuneration being scrutinised by the Board;

(b) Mr Oates knew Ms Shum was an active member of the staff campaign which sought to oppose his election as chairman of SMRC in 2016;

(c) Mr Oates knew that Ms Shum was part of a group of employees who alleged him to be a bully and not fit to be chairman of the organisation;

(d) Mr Oates knew that Ms Shum had taken out a membership of SMRC for the purposes of enabling her to vote against him and his team at the AGM;

(e) Mr Oates gave evidence that he saw Ms Shum at the AGM, which he could only have done if you knew who she was. Indeed, he said "doesn't she work here?" In cross-examination Mr Oates recalled Ms Shum's antagonistic behaviour: "Ms Shum came up and in front of me, made sure that I saw that she put her vote in the box";

(f) in cross-examination, Mr Oates made it clear that he saw Ms Shum as meddling in politics. In relation to the election, he said that Ms Shum "had obviously done some homework" by identifying casual employees who were members and had sought to involve them;

(g) after the AGM Mr Oates called for a meeting with Ms Haralambopoulos, the acting CEO. He said he needed to take another person with him because the board was concerned that some members of the staff might be violent to him if he walked into the meeting on his own. Ms Shum was brought into the meeting and Mr Oates challenged her about her associate membership and a conflict-of-interest. He said that Ms Shum's involvement "was a setup". Mr Oates gave evidence that Ms Shum was very very aggressive to him and made it quite plain that she was opposed to the board;

(h) Ms Shum levelled numerous complaints to Ms Haralambopulos and Ms Bindra which were severely critical about Mr Oates leadership as chairperson of the board. I consider it implausible that the fact of these complaints, if not their specific content, did not come to Mr Oates' attention given the chairman/CEO relationship;

(i) Mr Oates said he was aware of Ms Wattegamage's complaint about Ms Shum and he was aware of Ms Shum's counter complaint against Ms Wattegamage. Mr Oates conceded that he was very surprised to be made aware of so many complaints. I infer that Ms Shum's complaints were made known to him by the then CEO, Ms Haralambopoulos or the HR manager, Ms Bindra;

(j) Mr Oates conduct was, among other things, cited by Ms Shum as a reason for her stress leave and WorkCover claim in mid-March 2017. Mr Oates knew of the Workcover claim and gave written instructions to Ms Haralambopoulos to oppose it on the basis that Ms Shum was facing disciplinary action;

(k) Mr Oates was a named respondent to Shum's application to the Fair Work Commission for a stop-bullying order and he prepared a response in relation to it, dismissing the allegations. Ms Shum's application and Mr Oates response were prepared before Mr Heeney was interviewed;

(l) Ms Shum's WorkCover complaint and Fair Work Commission complaint were the subject of discussions and resolutions at board meetings attended by Mr Oates;

(m) Ms Shum and her manager Mr Lee were the subject of discussions at board meetings, including whether they should remain as signatories to the organisation's bank accounts. I consider it likely Mr Lee and Ms Shum were perceived by Mr Oates to have been cut from the same cloth; and

(n) Mr Oates or the board commissioned Ms Pollard to provide a report of her initial observations of the SMRC finance function. The reports she prepared in mid-April 2017 were scathing of Mr Lee and Ms Shum.

1. Mr Oates also gave evidence that the former acting CEO, Ms Haralambopoulos, probably remarked to him that Ms Shum was "a bit of a problem". In cross-examination Mr Oates remarked that after 40 complaints by Ms Shum he could see why Ms Haralambopoulos might have expressed that view. However, Mr Oates denied that Ms Shum was a problem for him. Notwithstanding his denial I consider that Ms Haralambopoulos and Mr Oates shared a common view about Ms Shum, albeit for different reasons.
2. During cross-examination Mr Oates reflected on his conflict with Ms Shum after the AGM. Ms Shum queried why he did not seek to performance manage her due to her aggression, to which Mr Oates responded "at that time we were trying to calm things down and clear things up and, you know, get back to where the state of the organisation should be, not to stir up more trouble". I have little doubt that Mr Oates saw Ms Shum as potentially volatile and a contributor to the toxic environment he wanted to address.
3. Mr Oates adverse view of Ms Shum also found a voice during cross-examination about Ms Shum's Fair Work Commission stop-bullying complaint. Mr Oates strongly rejected the assertion that he had bullied Ms Shum. He described the Fair Work Commission conciliation where "Ms Shum came in with a 12 inch stack of bits of paper" and he took pride in the fact that "after 2 ½ days of discussion, the Commissioner didn't find anything of - any evidence of me bullying you". Mr Oates added that "... Ms Shum wanted to proceed with the case and then withdrew the evening before it was going to court".
4. Similarly, I am also inclined to the view that other "executive" members of the board (the treasurer Ms Horvath, the secretary Ms Periera and to a lesser extent Mr Ramdany, - all of whom Mr Oates conceded were the most active members of the board), also aligned themselves with the view that Ms Shum was problematic, well before Mr Heeney's arrival. They did not have the same direct experience of dealing with her, but they were generally supportive of and closely aligned to Mr Oates and generally acquiesced to his views. I consider that at the executive level of the Board, Ms Shum had developed a reputation as a member of the class of employees who were actively opposed to Mr Oates and that the board was generally aware, through Mr Oates and Mr Heeney's predecessor, Ms Haralambopoulos, of the various complaints Shum made about her employment, management and the board. Those board members were aware through board meetings that Ms Shum was on sick leave and that she had lodged a Workcover claim and FWC stop-bullying claim.
5. I also consider it likely that the consensus view at board level was that Mr Lee and Ms Shum were either responsible for a perceived financial crisis or had left the board in the dark about the state of the organisation's finances. The Board was aware, either directly or via the treasurer Ms Horvath, of Ms Pollard's view that Ms Shum and her close colleague and manager Mr Lee were incompetent and had had left the accounts in a shambles. I infer from all the evidence, that the reports which were highly critical of Mr Lee and Ms Shum were known to at least Mr Oates and Ms Horvath, if not other members of the board, prior to the initial interview with Mr Heeney on 20 April 2017. I am also of the view that those reports were requested by the board from Ms Pollard and likely for the purpose of being used as evidence of the incumbents' incompetence and to influence decision-making about their positions.
6. Members of the board later became respondents to Ms Shum's stop-bullying complaint to the FWC. The minutes of board meetings revealed that the members of the board were united in their rejection of the claim and coordinated their responses and representation. Ms Periera, the secretary to the board, gave evidence about the coordination of the response to the stop bullying claim which she recalls was a managed by Mr Oates, the CEO and the lawyers.
7. The board members and management respondents to Ms Shum's stop-bullying application regarded it as completely meritless and bordering on vexatious. If Ms Shum was not previously viewed as a troublemaker, that view was cemented in the minds of board members after that complaint.
8. Other evidence given by Oates and some of the Board members under cross-examination confirmed a prevailing adverse view about Ms Shum and her conduct.
9. In his evidence Mr Oates expressed strong views about the toxicity of the organisation in late 2016 and into early 2017. He blamed the toxicity on the former CEO's (Ms Semple's) claim that he was bullying her and her subsequent long period of stress leave. He added that Ms Semple's situation "upset some of the senior management people and they were making life difficult" (for, I infer, Mr Oates and the board). Mr Oates was also scathing that the board was not receiving important information from the finance department from late 2016 and that Mr Lee went off on sick leave from which he never returned. He placed considerable emphasis on Ms Pollard's view that "this place would have gone down the drain by September 2017" if they hadn't sorted the finances out.
10. Mr Oates also took what I considered to be a veiled swipe at Ms Semple, and her supporters Mr Lee and Ms Shum, in the following exchange during the course of cross-examination:

Ms Shum: Mr Oates, I put it to you, the board is responsible for running the organisation with such poor finances, was - the board is not doing its job to run the business, to run the organisation?

Mr Oates: You're probably right. We should have sacked a couple of people then, straight away, for not doing the right thing. But the problem was that the other managers would have gone crazy about that and we would have been in a worse situation. So we had to try and live through that until things got better. And things did get better because people went on leave.

1. In relation to staff issues, Mr Oates expressed disappointment in management. He said that that when Ms Haralambopoulos was acting CEO she "didn't want to discipline or punish or even make life difficult for anybody and the place. She was trying to run it as smoothly as she could. And she was hoping that she could pour oil over [troubled water]". In my view prior to Mr Heeney's appointment Mr Oates was frustrated about the lack of inaction and failure to manage problematic employees, including Ms Shum
2. Well prior to the commencement of Mr Heeney, Ms Shum had also established a high profile amongst managers due to her difficult and challenging behaviours, her incessant and persistent complaining and her threats of legal action against the organisation, the board, management and more junior employees such as Ms Wattegamage. Mr Heeney's predecessor, Ms Haralambopulous (who did not give evidence in these proceedings) and Ms Bindra were the subject of numerous serious complaints from Ms Shum and they were charged with managing her complaints against others. So much is clear from the background narrative and the many emails to which I have already referred.

The engagement of Mr Heeney and the Board's instructions

1. At its meeting on 11 April 2017 the board resolved to engage an interim CEO for 3 to 6 months on a package of $150,000 per annum. This was the very same meeting at which the board discussed Ms Shum's then recently-filed stop bulling application. At the very least this timing invites speculation about whether to two matters were connected.
2. As previously mentioned, Mr Heeney subsequently came to the attention of SMRC on the recommendation of a colleague of Ms Periera**.** He was initially contacted by the chairman Mr Oates and they had a short telephone discussion where he asked for a resume and some references. Mr Oates said he gave a brief explanation of what SMRC was doing and asked whether Mr Heeney was interested. Neither Mr Oates nor Mr Heeney were able to say much more about this initial call.
3. There was then an interview with Mr Heeney on or about 20 April 2017. Notwithstanding contradictory evidence from Ms Horvath and Mr Ramdany, Mr Oates remained certain that they all interviewed Mr Heeney as a subcommittee of the board. His recollection was not clear but he was "pretty certain" that at least Mr Ramdany was there.
4. There is no doubt that Mr Oates interviewed Mr Heeney. What I cannot reconcile is Mr Heeney's apparently clear recall, Mr Oates somewhat less clear recall, Ms Horvath's lack of recall and Mr Ramdany's denial about the composition of the interviewing committee. Both Mr Heeney and Mr Oates say that there were others present in the interview. I see no obvious reason for either of them to give untruthful evidence about that. That said, neither Mr Heeney nor Mr Oates give evidence of any input from the others they believe were present.
5. If persons other than Mr Heeney and Mr Oates were present at the interview, the evidence suggests that they were at best passive observers. I am comfortable in inferring, based on my assessment of the witnesses, that Mr Oates would have had carriage of the meeting and would have been the spokesperson for the board. However, for the following reasons the evidence leaves open the possibility that Mr Oates and Mr Heeney met alone.
6. First, I do not have confidence in the accuracy of the tendered Board minutes. I consider it likely that they were not prepared contemporaneously and were subsequently reconstructed by the author (Ms D'Souza, who did not give evidence) from memory or belief. The minutes of the 20 April 2017 were not confirmed until 22 June 2017. These reconstructed minutes have played a significant role in shaping the recollections of the respondents' witnesses.
7. Secondly, at the previous special board meeting the subcommittee appointed for the engagement of an interim CEO comprised Mr Oates, Ms Horvath and Ms Tan, not Mr Ramdany. That does not exclude the possibility that Mr Ramdany might have been asked to fill in, but it leans in favour of his very firm recollection of not having been involved.
8. Thirdly, the minutes do not expressly state that Mr Oates, Ms Horvath and Mr Ramdany all actually interviewed Mr Heeney. Rather, they record that the three of them formed a subcommittee which reported to the board about the interview and answered questions. Ms Horvath and Mr Ramdany might not have attended the interview and may have received a report from Mr Oates about it. The fact that Mr Ramdany moved the motion to appoint a new CEO does not itself mean that he attended the interview.
9. Fourthly, I am perplexed that there was no evidence-in-chief from Ms Horvath or Mr Ramdany about their participation in the interview with Mr Heeney and any discussions with him about his intended role and purpose. It is evidence that would have carried weight and the respondents had the time and opportunity to put that evidence on. Each of Mr Oates and Mr Heeney gave evidence about the general nature of the discussion between them, but there was no mention of any involvement in that discussion by the other two.
10. Finally, one would expect being given responsibility for the engagement of a new CEO, albeit a temporary one, would have been a matter of some significance for Ms Horvath and Mr Ramdany, notwithstanding the passage of time. As board members and given these long running proceedings, I would expect them to have some memory of being involved in interviewing the second respondent.
11. As to what passed between the interviewers and Mr Heeney at that interview, the evidence was scant and far from enlightening.
12. In his 2018 affidavit Mr Oates said:

[78] On 20 April 2017, two other Executive Board Members and I interviewed Mr Heeney for the IMD role. I had not met Mr Heeney before the interview and I had no personal association with him before contacting him about the role.

[79] At the interview with Mr Heeney, we discussed the financial challenges that SMRC was having with Mr Heeney. We told him that a key part of the IMD role would be to address this and achieve a surplus at the end of the financial year. I also recall we said words to the effect that in his role, he would need to 'settle the staff down' and 'keep the place going, business as usual'.

[80] On the selection panel's recommendation, the Board approved Mr Heeney's application for the IMD role at a meeting later that evening.

[81] The next day I phoned Mr Heeney to advise him that he was successful in his application and Mr Heeney accepted the job. We agreed 1 May 2017 would be his start date.

1. In evidence-in-chief at the remittal hearing Mr Oates was given another opportunity to expand on this evidence. He was asked:

Counsel: Okay. At the meeting on - in April '17 - I will call it the job interview, if that's what it probably was best described as - what did you say to Mr Heeney about the SMRC and its operations at that time?

Mr Oates: Well, we - we had to be fair with him, so we had to tell him that there was a fair few problems going on, that we knew that the finances are in dire straits, and we - we, I guess, felt that he was going to be a good person for - for our ---

Counsel: What, if anything, did you say to him about the job that would be required of him as the interim managing director?

.....

Counsel: In the meeting - again, in the meeting what, if anything, did you say to Mr Heeney about what you required of him in the role?

Mr Oates: Well, we - we said we wanted to make the place more efficient and we wanted to make the place have a - not have a deficit. Let's put it like that.

Counsel: And why did you put those things to him?

Mr Oates: Well, those were the major problems that we - you know, what we - we need to get sorted out. Yes.

Counsel: And just in terms of who spoke at that meeting, you say "we" - you have been saying that in your evidence, "we" - do you recall what you said or the you know, when you spoke and when someone else spoke?

Mr Oates: This normal process is for each - each person to ask 2 or 3 questions and you sort of rotate around, asking those prearranged questions of the candidate.

Counsel: All right. When you communicated to Mr Heeney that - and this is the committee at the meeting - that you wanted a place to be more efficient and that you were hoping not to be in deficit, what, if anything, did he say in response to that?

Mr Oates: I can't really recall anything specific there.

1. Mr Heeney's recollection of the interview was even more scant. In his 2018 affidavit he said:

[6] I commenced at SMRC on 1 May 2017. I was recruited by a sub- committee of the SMRC board comprising Brian Oates (Mr Oates), Helen Horvath and Praven Ramdany. During my recruitment process, it was explained to me that my contract would be for a six-month period. The recruitment sub-committee also discussed with me the organisation's priorities for my tenure, which were to clarify the structure and finances of the SMRC. After I started at SMRC, this continued to be my focus and the topic of ongoing conversations with the board and operational staff.

1. In their final written submissions, the respondents contend that Mr Heeney was asked by the Board sub-committee to "assess the organisation and report back on his findings". There is no evidence that an instruction in those terms was ever given to Mr Heeney.
2. Mr Heeney commenced at SMRC as interim managing director on 1 May 2017. Relevantly, there is no evidence of any contact between Mr Heeney and any other person associated with SMRC between the job interview on 20 April 2017 and 1 May 2017. In his 2023 affidavit at [8], Mr Oates doubled down in confirming that there was no contact between he and Mr Heeney between the job interview and Mr Heeney's commencement on 1 May 2017.
3. In the absence of any evidence to the contrary, I must conclude that, save possibly for some private research, Mr Heeney's knowledge of SMRC was derived solely from Mr Oates and did not extend beyond whatever had been conveyed to him by Mr Oates in their initial phone call and at the job interview.

1. Mr Oates said that he never discussed a restructure of the SMRC operations with Mr Heeney before he started. He added "I never said to him when meeting him for an interview, or at any time before he started in employment, or after he started in employment at SMRC, that he must restructure the SMRC so as to bring about the termination of the Applicant's employment".
2. There is very little evidence to explain what steps Mr Heeney actually undertook to make his recommendation, after about a week of employment, that a "dichotomous structure" would best serve the organisation. The Minutes record that in its meeting on 10 May 2017 Mr Heeney discussed his restructuring plans of which the dichotomous structure would be a feature. Given that all the respondent's witnesses disavow any prior mention or thought of a restructure, it strikes one as odd that Mr Heeney would be discussing such plans at his first meeting with the board.
3. Nor is there much evidence to demonstrate how, less than 3 weeks into his assignment, Mr Heeney had redesigned the structure of the organisation and identified 3 positions, including Ms Shum's, as excess to requirements. Mr Heeney gave evidence about his reasons for reaching this conclusion, but the practical processes he followed remains almost completely opaque.
4. If one assumes that Mr Heeney had virtually no practical or operational knowledge of the organisation when he commenced on 1 May 2017, it would be reasonable to assume that he would have relevantly informed himself before making a decision to restructure it. Given the timing of his decision to restructure, which he claims was first conveyed and explained to the board at its meeting on 18 May 2017, Mr Heeney must have set about that process very quickly.
5. Mr Heeney gave evidence that after he commenced he came to "some understanding of the problems" at SMRC. When questioned about his source of information about these problems, Mr Heeney said:

"I was briefed by various members of the leadership group regarding the-their perspective of the board, their perspective of the annual general meeting the prior year. The-the boards communication to me was-I would describe as immature, in the sense that it focused very specifically on some minutiae matters such as you, you know, the- the- the- the who could be a member, who couldn't be a member, and those sorts of things. It wasn't certainly to the level of detail that-the strategy that I would have expected the board to be at. So there was quite minimal briefing from the board. So predominantly it was staff that-that had provided feedback through various briefings"

1. Mr Oates gave evidence that he and Mr Heeney had daily contact as he settled into the role. He said Mr Heeney would contact him to discuss various issues that arose, such as lack of policies, relationships with stakeholders and other matters within SMRC. Mr Oates said that through these conversations, "I ended up providing Mr Heeney with a significant amount of the background to the current situation of the SMRC...".
2. Mr Heeney made no reference to daily discussions with Mr Oates. In his 2018 affidavit Mr Heeney obliquely states that after commencing employment, clarifying the structure and finances of SMRC were his priorities and "the topic of ongoing conversations with the board and operational staff". But his evidence did not develop beyond this high level of generality and there are few documents to corroborate his activities.
3. There is almost no evidence about the content of communications between Mr Heeney and Mr Oates, despite their frequency. I must infer that these interactions were verbal because there is no record of any written communication between them. There is no evidence of any directions or guidance given by Mr Oates to Mr Heeney. Mr Oates says that was because he left operational matters to Mr Heeney. Neither Mr Oates or Mr Heeney seemed able to give anything other than the most vague account of their relationship or Mr Oates' explanation to Mr Heeney of the "background" or "the current situation".

Basis of the opinion/belief regarding the financial state of the organisation

1. It is necessary to test the central premise of the respondents' case, namely that "Mr Heeney assessed the organisational structure and the financial costs of operating SMRC and then developed a proposal to restructure".
2. In his 2018 affidavit at [26], Mr Heeney said that when he commenced employment with SMRC on 1 May 2017, the organisation was running at a large loss. He said he was told the figure was in the range of $250,000. Mr Heeney did not identify the source of that information. Nonetheless, Mr Heeney said that as a result of that revelation he was keen to assess the structure, finances and ongoing viability of the organisation.
3. The claimed $250,000 loss was advanced as a material factor in Mr Heeney's reasons for restructuring the organisation. Mr Heeney said that he told the board, at its meeting on 18 May 2017, that he had identified surplus roles within the organisation and that making those roles redundant would lead to cost savings of around $250,000. He gave evidence that the three roles to be made redundant, namely Team Leader-finance (held by Ms Shum), Quality and Risk Adviser (held by Kate Lord) and Business Development Manager (held by Chris Brooking) would save approximately $240,000 per year.
4. Ms Shum sought to challenge the premise that the organisation was running at a $250,000 loss. Understandably so.
5. There is no clear evidence that Mr Heeney ever verified this figure through his own assessment of the organisation's finances. At [7] of his 2018 affidavit, Mr Heeney said that the time he commenced, SMRC appeared to be in a poor operating state. He said he recalls "looking at some figures and forming an opinion it was losing approximately $250,000 per year". Mr Heeney has been unable to point to the figures he looked at or the person who might have provided him that information.
6. When cross-examined, Mr Heeney said that when he started and was briefed by the board his understanding was that there had been deficits in prior years which the board absolutely wanted addressed. When asked about the basis for his opinion that there was a $250,000 loss for the 2016/17 year, Mr Heeney said:

"Yes. So, Ms Shum having looked at paragraph 7, I specifically state that at the time I commenced, SMRC appeared to me to be in a poor operating state. I recall looking at something in forming an opinion it was losing approximately $250,000 per year. It was my opinion upon fully grasping what the organisation set out to achieve in the welfare sector that it needed to be efficient in the utilisation of available capital so as to ensure its services were being delivered. So I can only assume from that, which I obviously gave back in 2018, that I was provided figures at that time which indicated that".

1. Mr Heeney's response to this direct question was in my view most unsatisfactory. Mr Heeney's response amounted to little more than him reading back a paragraph of his affidavit. It showed no clear recollection of events.
2. In his September 2018 affidavit Mr Oates' gave evidence that SMRC had lost almost $400,000 over the 4 years from 2012 to 2016. Mr Oates said this left SMRC in a precarious financial position which the board had been trying to rectify for a number of years. Mr Oates said that the newly elected board intended to take a more active approach to addressing these long-standing financial issues.
3. During cross-examination, Mr Oates said that some management staff had created a rumour that there was going to be a $300,000 loss, that the organisation would collapse and that everyone would lose their jobs. But Mr Oates said he knew that to be wrong at the time and thought it was just a scare campaign. In fact, Mr Oates said that while nobody was exactly clear about the financial state of the organisation, he did not believe from the information available to him that there would be a loss in the 2016/2017 financial year. Mr Oates did not believe there would be loss before Mr Heeney started and after Mr Heeney started, he recalls Mr Heeney telling him that there was a chance of a small surplus. Mr Oates did not claim that the business was running at $250,000 loss nor did he say that to Mr Heeney.
4. Other members of the board gave evidence that the accounts of the organisation were in a shambles and that the financial state of SMRC was not clear. Ms Pereira, for example, said that the board members were panicking and didn't know what was going on. She said that the accounts were absolutely utterly unacceptable. Ms Periera put that situation down to the leadership of the finance department and the people there not doing their job properly. Ms Pereira gave evidence that there was a crisis in the accounting function and a fear that things could have collapsed very quickly - but she did not say that there was a $250,000 loss.
5. Mr Ramdany gave evidence along similar lines. He said that he wanted a proper profit and loss account and a full consolidated budget. Mr Ramdany raised these issues in an email to Mr Heeney in early June 2017 and requested that he provide detailed financial information. Mr Ramdany's request for this information occurred weeks after Mr Heeney claimed to have made the decision to restructure
6. Ms Pollard, the crisis accountant, who took the finance department under her control in the absence of Mr Lee and Ms Shum did not give evidence of a $250,000 loss. Ms Bindra recalls Mr Heeney mentioning a loss sometime during the course of their discussions about staff. She recalls that Mr Heeney said he wanted to make the organisation more profitable.
7. Mr Oates gave evidence that the board was pleasantly surprised to see a $160,000 surplus for the 2016/17 year. However, he did reiterate that until the final accounts were published, the board had been completely ignorant of the financial situation because of poor reporting.
8. The respondents have maintained that the correction of a $250,000 loss was a reason for the restructure and redundancies. When tested on the issue during cross-examination, Mr Heeney deflected. He referred instead to the need to invest in capital items, make changes to the financial environment as a result of SMRC losing a contract and to the need to ensure the efficient operation of the business.
9. Mr Heeney has never explained where the $250,000 figure came from. There is no evidence of a briefing from the board which disclosed this information. He has not identified the person who told him or the documents from which the loss has been derived. None of the respondents have done so.
10. Relatedly, I am not persuaded that Mr Heeney's proposed restructure was supported by any budgetary considerations when it was first put to the board on 18 May 2018. By that stage Ms Shum's position had already been identified for redundancy. An assessment of the financial impact of the proposed redundancies, including Ms Shum's position, only came later and after the organisational restructure had been set in motion.
11. The evidence, such that it is, does not provide any real transparency into what was presented and discussed at the 18 May 2017 board meeting. The evidence still leaves me with a sense of uncertainty as to whether Mr Heeney was even there - that uncertainty arising in part from the fact that the minutes of the meeting do not record his attendance, the minutes refer to and annexe a written report prepared by Mr Heeney, whereas no other minutes did, and the absence of any clear evidence, from any of the respondent's witnesses, about what was presented or discussed in that meeting. But what I am confident about is that whatever presentation was made about the proposed restructure, it was not accompanied by any budget or financials, save for the claim that redundancies would save about $250,000.
12. The memorandum which was sent to the board on 25 May 2017 which explained the rationale for the restructure and redundancies also made no mention of an ongoing $250,000 loss or any urgency in addressing a haemorrhaging financial situation.
13. I am not satisfied that there was a $250,000 ongoing loss at the time the organisational restructure was proposed or, more to the point, that Mr Heeney believed there to be so. The evidence does not provide the basis for such a belief. I consider it more likely that an illusory $250,000 loss has been proferred as an ex post facto justification for the approximately $240,000 wages which would be saved as a result of the redundancies.

Other sources of information for the decision to make Ms Shum's position redundant

1. There was some vague evidence of a possible cross-over between Ms Haralambopoulos and Mr Heeney. Ms Haralambopoulos gave notice of her intention to resign in April 2017 but did not leave until 5 May 2017, the end of Mr Heeney's first week. By the time Mr Heeney commenced Ms Haralambopoulos was the subject of a bullying complaint by Ms Shum, among other things. Ms Haralambopoulos also had many interactions with Mr Oates during her time as acting CEO and informed him that she regarded Ms Shum as a problem.
2. Ms Haralambopoulos was not called to give evidence, so there is no evidence of discussions between Ms Haralambopoulos and Mr Heeney. Nonetheless, I consider it implausible that Ms Haralambopoulos' views about her own difficult encounters with Ms Shum, as expressed by her to Mr Oates, were not shared by Mr Oates to Mr Heeney. Given what was going on at the time, that information is what one would expect to be passed to a new CEO, particularly one whose priorities included "settling down the staff".

1. Ms Bindra gave evidence that she provided Mr Heeney with an induction of sorts, which included a general overview of the organisation, its structure, staff and issues. She said that she walked Mr Heeney through each of the various positions in the organisation, but she was completely unaware of any plans for a restructure.
2. Mr Heeney gave evidence that shortly after he started at SMRC, Ms Bindra provided him with background to some of the human resources issues that she was handling, including various complaints and external claims that had been initiated by Ms Shum. He conceded that during the course of those initial discussions, Ms Bindra told him that she had concerns about Ms Shum's manner and interpersonal skills, dating back to Ms Shum's recruitment. Ms Bindra also told him that other members of the Finance Team had approached her about these issues and that a complaint had been made against Ms Shum by Ms Wattegamae.
3. In his 2018 affidavit, Mr Heeney recalled learning about Ms Wattegamage's complaint and Ms Shum's counter-complaint. Mr Heeney also recalls the correspondence he received from Ms Shum on 13 May 2017 which alleged that the complaint against her was false, that SMRC had failed to provide any proof and that Ms Shum reserved her rights to take legal action. As detailed in the background narrative, Mr Heeney then engaged in a series of emails with Ms Shum about a range of issues and complaints. Mr Heeney also conceded, that Ms Bindra had made him aware of Ms Shum's complaints regarding her pay, salary packaging and superannuation.
4. Mr Heeney also gave evidence that Ms Bindra informed him about Ms Shum's WorkCover claim and told him that the claim had been rejected. Mr Heeney attended conciliation before the Accident Compensation Conciliation Service on 18 May 2017. In order to attend a conciliation and represent the organisation, Mr Heeney must have been briefed by Ms Bindra or someone else about Ms Shum's stress claim and the various issues and allegations which preceded it. I also infer that in the course of representing SMRC at the conciliation, Mr Heeney would have been exposed to Ms Shum's explanation of the background to her stress and absence from work.
5. Ms Bindra also informed Mr Heeney that Mr Shum had lodged an application in the Fair Work Commission for an order to stop bullying against Mr Oates, Mr Wahab (the deputy chairperson), Ms Horvath, Ms Bindra, Ms Wattegamage and Ms Haralambopoulos. Ms Shum's application and the various responses prepared by those against whom the application was brought were annexed to Mr Heeney's 2018 affidavit. Ms Shum's application had been filed and all of the responses were prepared prior to Mr Heeney being interviewed.
6. Mr Heeney gave evidence that he attended a conciliation hearing at the Fair Work Commission on behalf of SMRC. He was accompanied by Ms Bindra, Ms Wattegamage, Mr Oates and Mr Wahab. Mr Heeney is an astute and thorough business executive and he would not have attended that conciliation conference in a mere ceremonial capacity. I have no doubt that he would have been completely across the paperwork including Ms Shum's complaint and the rejection of her complaint by board members and management. It is also implausible that Ms Shum's complaint and the organisational response to it would not have been the subject of extensive discussion prior to, during and after the conference, including, quite possibly, with the organisation's legal advisers. Of course, at the conference, Mr Heeney and other SMRC representatives would have been confronted by Ms Shum and exposed to her narrative of past events.
7. It struck me as surprising that Ms Bindra's involvement in the restructure process was very limited. To the best of Ms Bindra's recollection, Mr Heeney asked her for an opinion about what could be done to make the structure more efficient and she gave him some assistance on position titles. Ms Bindra recalls that she and Mr Heeney discussed each team and management level employees. She believes they might have discussed Mr Lee's position, but she has no recollection of discussing second level employees such as team leaders. Ms Bindra's recollection was that she and Mr Heeney spoke about these things around the middle of May 2017, although her recall was quite vague.
8. Ms Bindra said that Mr Heeney spoke to her privately and she never saw him talking to anyone else about the restructure. She did not have any knowledge of anyone else being involved in Mr Heeney's decision-making. In re-examination Ms Bindra confirmed that after their initial induction discussion, Mr Heeney went away and came back to her with a new structure. Ms Bindra believes she might have given Mr Heeney a spreadsheet with staff positions and salaries. She can only recall that Mr Heeney went away "did the numbers" and came back with the final proposal.
9. Ms Bindra denied any involvement in the decision-making about which positions were to be made redundant or what the new structure was going to look like. Ms Bindra said she was only informed about which positions were to be made redundant just before the structure was released to the rest of the organisation on 30 May 2017 or perhaps a day or two earlier. She said Mr Heeney did not consult her about the legal requirements for a restructure and that he was receiving separate legal advice about that.
10. Ms Bindra was shown a copy of the new organisational chart and said that she did not recall creating it. She recalls having seen it after it was finalised and believed it was created around the time the new structure was introduced by Mr Heeney. I infer from that evidence that Mr Heeney or someone else on his behalf created the new organisational structure without Ms Bindra's direct involvement.
11. Ms Bindra said that she did not know how Mr Heeney made his decision, although she believed that cost savings and reducing management positions were part of the reasons. She and Mr Heeney then discussed the execution of his proposal and how he endeavoured to make it work. Ms Bindra said her main role was in communication and consultation - but there is no evidence that she was responsible for authoring the communications to the board or the staff which explained the restructuring process. It struck me as odd that the HR manager was excluded from this process and I am inclined to the view that she was deliberately distanced from it.
12. Mr Heeney gave evidence that lawyers were engaged to provide him advice and guidance in relation to the restructure and redundancy process. Mr Heeney did not involve Ms Bindra in seeking or obtaining that legal advice. Ms Bindra said that she was involved in seeking legal advice about other matters, but not in relation to the restructure.

1. It will be recalled that Ms Pollard was brought into the organisation as a "crisis accountant" in the latter half of March 2017. She was asked by the board to look into the financial function and to provide her initial thoughts and impressions. There is evidence that she worked closely with the SMRC Treasurer Ms Horvath. I am satisfied on the evidence that at or before the time Mr Heeney was interviewed, Ms Pollard's scathing assessment of the finance function was well known to the board including Mr Oates and those on the recruitment subcommittee.
2. Ms Pollard was undoubtedly a source of information for Mr Heeney after his commencement. Ms Pollard was the external expert to whom Mr Heeney referred in the redundancy notification. There is evidence that Ms Pollard and Ms Bindra were the key internal resources with whom Mr Heeney consulted to develop a picture of SMRC.
3. Mr Heeney gave evidence that at the time he was considering the redundancies he was not aware of the two undated but highly critical reports which had been prepared by Ms Pollard. That may be so, but I would find it extraordinary indeed if the sentiments in those reports were not conveyed to Mr Heeney by Ms Pollard or by Mr Oates or Ms Horvath from the outset of his employment. Ms Pollard's unvarnished criticism of the Finance department, including Ms Shum, was front and centre of her initial observations about the organisation and those view had been placed before the board before Mr Heeney was engaged.
4. As I have mentioned, I am not persuaded that the redundancy proposal, when taken to the board, was accompanied by any budgetary documents. The mysterious so-called "Exhibit 11" document (tendered in the remittal as Exhibit R2), which Ms Pollard now claims to have authored, is undated but it was almost certainly created after the decision had been made to restructure the organisation. The document clearly identified the names of the persons to be made redundant, whereas all members of the board claimed that they were not told the identity of those who would be impacted by the decision. Finally, the document was prepared to address a financial discrepancy which had been identified by Alice Lau at a previous board meeting and refers to Mr Heeney's presentation of the restructure at an earlier meeting - which I infer to be the meeting of 18 or 25 May 2017. By the time the Exhibit 11 document was created by Ms Pollard the die had been cast for Ms Shum and it played no role in the decision to make her position redundant.

1. I have already discussed the evidence that Mr Heeney and Mr Oates enjoyed daily discussions in the early days of his tenure as interim managing director. For reasons I have stated, I am strongly inclined to the view that Mr Oates knew who Ms Shum was and that by reason of her incessant complaining he saw her as disloyal, troublesome and a source of instability for the organisation and its board. Given the priorities Mr Heeney claims were set for him, it is very difficult to imagine that the finance department, Ms Shum and Mr Lee were not a topic of conversation.
2. The board member respondents to Ms Shum's stop bullying complaint would also have formed a strong adverse view, shaped by what they believed to be her meritless and vexatious allegations. In so far as Mr Heeney engaged with those board members about the organisation's finances or the historic performance of its finance department, I expect he would have been met with views similar to those held by Mr Oates. The cross-examination of Ms Horvath and Ms Periera satisfied me that they and Mr Oates were at one when it came to their view of Ms Shum and merit of her complaints.

Implementation of the restructure and termination of Ms Shum

1. There is very little evidence of the involvement of SMRC management in the development or implementation of the corporate restructure. Ms Pollard gave evidence that she provided some financial information to Mr Heeney. Ms Bindra, the HR manager, was kept at a distance from decision-making and gave advice only in relation to communications and consultation. There is no evidence about who authored documents such as the new organisational chart, memorandums to the board and staff and consultation and termination letters to Ms Shum, Ms Lord and Mr Brooking.
2. From the time Mr Heeney suggested a dichotomous structure after his first week in the job up until the termination of Ms Shum's employment about 6 weeks later, the board was conspicuously acquiescent of Mr Heeney's decision-making. Even though the board approved of the proposed organisational restructure, there is also scant evidence of any engagement or interrogation of the decision by the board or board members.
3. This absence of evidence stands in contrast with Mr Heeney's evidence that: "I believe that I had various and numerous conversations with the board at just about every board meeting regarding my intent to restructure". He reiterated: "I also ensured that I was having... Regular conversations with the board to ensure that they were supportive of the decision that I was making. " The minutes do not bear this out.

1. The respondents submit that the simultaneous redundancy of Ms Lord and Mr Brooking should be seen as a complete answer to Ms Shum's allegation that the organisational restructure was a sham process designed to remove her. The respondents submit that the redundancy of these other employees is entirely consistent with their case that there were genuine reasons for organisational restructure and that there is no substance to Ms Shum's conspiracy theory. In relation to that submission I make the following observations:

(a) I accept that the termination of Ms Lord and Mr Brooking forms part of the matrix of facts and circumstances which must be taken into account in assessing the reasons advanced by SMRC for the termination of Ms Shum;

(b) save for the reasoning advanced in Mr Heeney's correspondence to Ms Lord and Mr Brooking advising them of the reorganisation, there is no documentary or other probative evidence before the court as to why they were identified for redundancy ahead of others. The decision seems to have been a judgment made by Mr Heeney. In any event it is not necessary for Ms Shum to prove or for the court to find that either employee was terminated for prohibited reasons;

(c) in the context of considering all the facts and circumstances, it will be recalled that both Ms Lord and Mr Brooking were authors (together with other managers Bill Collopy, Aman Bindra, Sylvia Wan, Peter Jarrett and Wendy Fox) of an application to the Fair Work Commission on 17 March 2017 which sought to enliven the Commission's jurisdiction to make a "Stop Bullying" order. The letter which accompanied the application expressed anxiety and distress regarding the alleged "repeated bullying and intimidation by the chairperson of the board"

(d) Mr Brooking was the ally who Ms Shum put forward to SMRC as the person to whom communications about her employment should be directed whilst she was on stress leave. Although Ms Haralambopoulos initially approved Mr Brooking to be Ms Shum's nominated recipient, that arrangement was later challenged after Mr Heeney's appointment;

(e) following her dismissal, Ms Lord commenced unfair dismissal proceedings against SMRC. The merit of her challenge is unknown and it resulted in a confidential settlement between those parties;

(f) even if the court accepts that Ms Lord and Mr Brooking were dismissed for entirely for non-prohibitive reasons, that finding would only lend contextual weight to the respondents' case. Such a finding could not of itself exclude, in Ms Shum's case, the operation of prohibitive reasons.

1. It is an objective fact that at or about the time of the restructure and the decision to terminate Ms Shum's employment SMRC engaged an external law firm to provide legal advice. When asked why during cross-examination, Mr Heeney said that it was to provide advice about the legal requirements of the restructure process. Ms Shum, on the other hand, would have the court draw an inference that the engagement of lawyers was, at the very least, indicative of the respondents subjective awareness that her exercise of workplace rights presented a risk factor in the decision-making. The maintenance of a claim of legal professional privilege over communications between SMRC and its legal advisers only reinforced Ms Shum's belief.
2. Mr Oates gave evidence that he saw the restructure as a straightforward decision which did not draw any comment from the board. SMRC also had internal human resources expertise to draw upon. Communications to staff and Ms Shum described the restructure as a "slight change". When viewed in that context, it does strike one as intuitively odd that a law firm, with specialist expertise in employment and industrial relations, would be engaged to shepherd the organisation through such a benign process.
3. Nonetheless, the Court must be careful not to make too much of the fact that an organisation seeks legal advice in relation to important employment decisions. Involuntary dismissals, such as those occasioned by redundancy, are subject to the provisions of the Fair Work Act and other industrial instruments. It is not uncommon for an organisation to turn to lawyers for expert legal advice in relation to workplace obligations and potential areas of risk and liability. A perception of risk about such a decision cannot lead to an inference, without more, that a prohibited reason is being concealed.

DID THE REASONS FOR TERMINATION INCLUDE PROHIBITED REASONS?

1. By reason of s 361 of the FW Act the exercise of workplace rights by Ms Shum is presumed to be a reason for the adverse action unless SMRC proves otherwise.
2. The respondents in this case have built their narrative around the premise that Mr Heeney and Mr Heeney alone, insulated from the board and management, deliberated upon and conceived of the restructure which resulted in Ms Shum's dismissal. SMRC presents Mr Heeney as being entirely agnostic as to which personnel or departments would be effected by the restructure - his sole focus being to stem the financial crisis, improve efficiencies and restore stability to the organisation.
3. The respondents contend that Mr Heeney was the sole decision-maker and that no other person, be it the chairperson, a board member, another SMRC manager, employee or other person contributed to Mr Heeney's decision-making in any material way. This controversy was presented by the respondents as a straightforward case of one decision made by one man which should turn simply on whether the evidence given by the decision-maker is accepted.
4. I am not persuaded by that narrative and I do not accept that Mr Heeney's decision-making was as insulated as the respondents would have me believe. SMRC's decision to terminate Ms Shum's employment cannot be assessed in a vacuum. Mr Heeney's evidence about the organisational restructure and the redundancy of Ms Shum's position cannot be assessed as though the final step in decision-making can be divorced from what preceded it. The circumstances leading up to and surrounding the impugned decision are contextually important.
5. The background narrative which I have set out in deliberate detail invites inquiry into whether SMRC's state of mind was that of Mr Heeney alone or in truth the expression of others.
6. As Snaden J recently remarked in Pilbrow v University of Melbourne [2024] FCA 1140 (and despite his Honour's previously expressed reservations), the Courts have in recent years breathed life back into the notion that "unconscious" influences might be relevant in assessing the motivations which actuate the conduct of bodies corporate. The lack of transparency about Mr Heeney's deliberations and the cloak of secrecy which shrouded the decision-making process serves to highlight a need for deeper inquiry.
7. In assessing the reasons that animated the 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 variously described as "indispensable" (Elliott v Kodak Australasia Pty Ltd [2001] FCAFC 1804; (2001) 129 IR 251), "material" (Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166) and "significant", plainly important", "major", "substantial" or "essential" (Wong v National Australia Bank [2022] FCAFC155 (2022) 308 IR 155).
8. I am left with the distinct impression that the respondents presented a superficial and less than complete explanation of the reasons for Ms Shum's dismissal. There are significant gaps in the evidence, filled only by the most vague, general and uninformative recollections. It seems to me that the respondents have gathered around what they hope to be a defensible narrative and endeavoured to give evidence which corroborates the decision, but the whole decision-making and redundancy process has a distinct air of artificiality about it. The sole decision-maker thesis advanced by the respondents does not ring true and the evidence did not persuade me otherwise.
9. If I am to accept the respondents' evidence that Mr Heeney did not know anything of the organisation prior to the commencement of his employment on 1 May 2017, it is difficult to accept that it was possible for him to make an informed commercial and strategic decision to restructure within a couple of working weeks without a material contribution from others. Logic dictates that Mr Heeney must have looked to others or been guided by others to inform his process of decision-making. Mr Heeney did not conceive of the restructure out of thin air. I do not accept that Mr Heeney's past experience as a business executive was enough to rationally inform the decision.
10. Mr Heeney's decision making must have been informed through interaction with others who knew the organisation much better than him and were in a position to provide information about finances, staffing, budgets, internal politics and corporate history. The evidence as a whole reveals almost no trace of Mr Heeney's own investigative or deliberative processes. On the issue of the restructure, there are no emails between Mr Heeney and management staff which evidence requests for financial or staff-related information or the provision of such information.
11. There is evidence that Mr Heeney communicated with Mr Oates almost every day. He also received a briefing from and communicated in some form regularly with Ms Bindra about HR issues and Ms Pollard about financial matters, yet there is a complete absence of any written communications between them. One would have thought that any important business information passing between them would have been recorded in writing and that there would have been a record of requests for information and responses to those requests.
12. Board minutes relied upon by the respondents do little to inform the question of what actually happened at meetings. There were many meetings, often of several hours' duration. Agendas and minutes followed a formula which record items for discussion and outcomes, but little of what transpired between the two. The fact that a proposal might be recorded as having been taken to a meeting and discussed, says nothing of what was discussed or the state of mind of those involved in the decision-making.
13. There is no evidence of any costings, working documents, alternative proposals, cost/benefit analyses or notes of discussions in the period prior to the proposed restructure being put to the board for comment and its subsequent announcement to the staff. The only documents which exist are a single communication to the board and one to the staff which evidence compliance with legal process. The lacuna in the evidence leaves me with a strong sense that the whole process was deliberately undertaken in a shroud of secrecy to minimise the risk of scrutiny.
14. One of the few concrete instructions given to Mr Heeney was to "settle the staff down". This instruction was given by Mr Oates to Mr Heeney at their first meeting - and if they are to be believed at least two other board members were present. In my view Mr Heeney's decision-making framework was thereafter shaped by his belief, informed and reinforced by others, that the organisation was toxic and dysfunctional, that there were governance issues between the board and staff, that the two key personnel in finance were involved in internal politics and had not been providing information to the board, were absent on questionable stress leave, had levelled allegations of bullying against the chairman, other board members and senior staff and were acting uncooperatively. Key informants regarding the internal staff situation at SMRC included Mr Oates and Ms Bindra who themselves were the subject of bullying allegations and had an intimate knowledge of Ms Shum's internal grievances and antipathy to the board, and Ms Pollard, who had formed and shared a strong adverse opinion about the performance of Mr Lee and Ms Shum in their finance department roles.
15. I find it difficult to accept that the finance department so quickly emerged as a main focus of the restructure, absent any significant input from in particular Mr Oates, Ms Bindra and Ms Pollard. In my view, the evidence points to a high degree of likelihood that Mr Heeney was exposed to information, background, commentary or recommendations which influenced him to design a restructure which would remove Ms Shum, who was known to be anti-regime and agitating from without.
16. Based on the evidence, I am satisfied that by the time of Mr Heeney's commencement on 1 May 2017, Mr Oates bore ill-feeling toward Ms Shum by reason of the complaints she had made against him, other board members and members of senior management. I am inclined to the view, as borne out by the evidence, that executive members of the board shared Mr Oates irritation about Ms Shum's complaints and allegations of bullying.
17. For some months, Ms Shum's incessant litany of complaints and inquiries was an inescapable, almost daily, reality for Ms Bindra, Ms Haralambopoulos and then Mr Heeney. I doubt the edict from the Chairman of the board to "settle the staff down" required any further elaboration. If not already explained to Mr Heeney prior to his commencement, what was meant by that objective would have quickly become apparent to him as he immersed himself in discussions with Mr Oates, Ms Bindra, Ms Pollard, Ms Wattegamage and others after 1 May 2017. It is implausible discussions about the staffing situation did not feature Ms Shum who, as a serial complainer, was perceived by all as a major irritant for the organisation. As a recipient of complaints from Ms Shum himself, Mr Heeney's short experience in the managing director's chair would have only reinforced what he was being told by others.
18. I consider it implausible that communications between Mr Oates and Mr Heeney were not infused with the hope that Ms Shum might never return to SMRC. In my view the information, commentary and observations which must have passed between and among Mr Oates and Mr Heeney and Ms Bindra, Ms Pollard and Mr Heeney about Ms Shum would have significantly influenced Mr Heeney's decision-making and drawn him to formulate a restructure proposal which delivered on that hope. Mr Heeney may have had the responsibility for the operational aspects of restructuring the organisation, but in my view his decision-making was framed and guided by the unstated but obvious objective of seeing Ms Shum out of SMRC.
19. The restructure developed by Mr Heeney and presented to the board on 25 May 2017 proved to be a fait accompli. It did not generate any comment at all from the board. Members of the board sought to explain that situation as a governance decision to be "hands-off" and not to interfere in "operational matters". An alternative, and in my mind equally plausible, explanation for the board's acquiescence and non-interference was that there was nothing about Mr Heeney's decision that came as any surprise to them and they were content to keep some distance from it.
20. The reasoning for the decision to restructure was expressed in broad aspirational language. The formal memorandum to the board which accompanied Mr Heeney's restructuring proposal was an exemplar in corporate speak and showed the hallmarks of careful curation by legal advisers experienced in employment law. The memorandum to the board and the near identical communication which was sent to staff a few days later said all the right things and appeared tailored to pass muster if the redundancies were subsequently challenged in unfair dismissal proceedings.

1. Ms Shum was subjected to adverse action in her employment, that being the termination of her employment on 19 May 2017.
2. I have found that prior to her dismissal and during the course of her appointment, Ms Shum exercised workplace rights by making complaints and inquiries in relation to her employment and by initiating proceedings in relation to her WorkCover claim and claims of having been bullied (Fair Work Commission proceeding). The respondents admit the majority of (but not all) instances alleged by the Shum to constitute the exercise of workplace rights.
3. It is not necessary for Ms Shum to demonstrate that exercises of workplace rights were the reason for her dismissal. It is enough if they were a substantial and operative reason, even if there were other non-prohibited reasons.
4. I am not satisfied and do not feel a sense of actual persuasion that SMRC has proved on the balance of probabilities that Mr Heeney effected the restructure and dismissal of Ms Shum solely for the reasons claimed. This conclusion reflects my unease as to the state of the evidence which, as I have said, leaves me with a sense that the court has not been presented with the full picture of how and why the decision was made.
5. In TWU v Qantas at first instance, Lee J observed that the evidence exposed a "huge degree of artificiality" about how the decision came about and that the evidence revealed that it was "all reverse engineered". As I do in this judgment, Justice Lee expressed concern about the absence of contemporaneous records and the absence of evidence which disclosed who said what to whom about the impugned decision. He said the state of the evidence left him with a sense of disquiet such that he did not fully understand the true extent and nature of the dealings between certain people and what was said and to whom and when. I am left with a similar sense of disquiet in this case.
6. After hearing all the evidence I am skeptical about Mr Heeney's claimed independence from the board and other influential executives within the organisation. I do not accept that he had the knowledge or necessary factual foundation to make a sensibly informed decision about the structure of the organisation without exposing himself to the significant influence and views of others. I find it difficult to accept that he operated as a self-guided executive quarantined from the views of those in his orbit. As to whether others made a significant, material, essential or influential contribution to the decision, I am satisfied they did so by shaping Mr Heeney's thinking about the form and impact of his restructuring decision.
7. I do not find that Mr Heeney was given a direct instruction to remove Ms Shum. It would have been remarkable for such an instruction to have been given in such blunt terms. However, it is easy enough for close colleagues to convey a preferred outcome implicitly using loaded anecdotes, suggestive language and tone, expressions of frustration or dismay. I doubt Mr Oates, other senior board members and Ms Bindra hid their views.
8. Further, based on his communications with those who were able to give him information about SMRC and what he learned from documents and emails produced by Ms Shum, it would have been plain enough to Mr Heeney that including the finance department as part of his restructure would meet the approval of Mr Oates and others who had been on the receiving end of Ms Shum's complaints.
9. I accept Mr Heeney's evidence that there were efficiencies and commercial benefits in a flattened organisational structure. There were of course savings to be made from removing three positions, opening up the possibility of rebuilding capital reserves. But when assessing alternatives (if indeed he did so), I am inclined to the view that Mr Heeney was drawn to the option which he knew implicitly would receive the endorsement of the board's more influential members.
10. The reasons given by Mr Heeney are at first glance commercially cogent and plausible. But those reasons are expressed at a high level of generality and are not readily supported by any objective contemporaneous evidence. In any event, making a decision to further stated commercial imperatives is not inconsistent with another, complimentary prohibited reason. Crudely, it is possible to kill two birds with the one stone, and when confronted with the need to improve the finances of SMRC and settle the staff down, there was a pathway which served to meet those commercial objectives and simultaneously remove a thorn in the organisation's side.
11. Mr Heeney was not insulated from the significant material influence of others, in particular Mr Oates, who I believe (despite their denials) were actuated by prohibited reasons and motivated to see Ms Shum out of the organisation. Mr Heeney's decision to restructure the organisation was shaped by that influence.
12. Considering the whole of the evidence, I am not persuaded that SMRC has, on the balance of probabilities, discharged the onus imposed by section 361 of the FW Act. Accordingly, I find that SMRC has contravened s 340(1) of the Fair Work Act.

1. Section 550 of the FW Act establishes a form of accessorial liability whereby those who are "involved in" the conduct in which others engage in contravention of civil remedy provisions (including s 340(1) of the FW Act) are taken also to have committed those same contraventions. Section 550 states as follows (headings included):

550 Involvement in contravention treated in the same way as actual contravention

(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a) has aided abetted, counselled or procured the contravention;

(b) has induced the contravention whether by threats or promises or otherwise;

(c) has been in any way, by act or mission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d) has conspired with others to effect the contravention.

1. The relevant principles as to "involvement" and accessorial liability were discussed by White J in Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [227]- [234]. In sum, the central principles are:

(1) to be knowingly concerned in a statutory contravention, the person must have been an intentional participant with knowledge, at the time of contravention, of the essential elements constituting it[4];

(2) constructive or imputed knowledge is not enough; actual knowledge is required. But actual knowledge may be inferred from "exposure to the obvious". It is not necessary that the person also knows that the elements amount to a contravention. Put another way, a person may be an accessory without knowing that the conduct in which he or she is involved is unlawful[5]; and

(3) the person must have engaged in conduct which implicates or involves her or him in the contravention, so that there is a "practical connection" between the person and the contravention[6].

1. Subsequently, the relevant principles were discussed by the Full Court in Fair Work Ombudsman v Hu [2019] FCAFC 133 (Hu), including the decisions regarding the requirement that the accessory have actual knowledge of the essential elements of the contravention as discussed in Fair Work Ombudsman v Devine Marine Group Ltd [2014] FCA 1365 (Devine Marine) and EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134.
2. It is therefore settled law (as per the Full Court in Hu, applying Devine Marine) that accessorial liability:

(1) requires actual knowledge of the essential elements of the contravention and not imputed knowledge; and

(2) does not require knowledge that the essential elements constitute a contravention.

1. The statutory presumption for which s 361 of the FW Act provides does not apply in relation to an allegation that a person has been "involved in" the contravention of a civil remedy provision contained within Pt 3‑1 of the FW Act: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50, [59] (Greenwood, Flick and Rangiah JJ). In order to implicate Mr Oates or Mr Heeney as an accessory to SMRC's contravention of s 340(1) of the FW Act, the evidence must establish that one or both of them knew at least one of the reasons for which SMRC acted was that Ms Shum made any or more of the complaints or inquiries on which she relies.

1. The evidence satisfies me that the board was the guiding mind of SMRC and that the power of the board was concentrated in its very influential chairman Mr Oates. Not only was Mr Oates the chairman, but he was closely aligned with and supported by an executive of Ms Horvath, Ms Periera and Mr Ramdany who were more closely involved with the governance and operations of SMRC than other board members. Mr Oates in particular worked closely with the various CEO's, including Mr Heeney, attended the offices regularly and was aware of issues, including staffing issues.
2. Mr Oates, for reasons I have detailed earlier was well aware of Ms Shum and her complaints. Mr Oates was also well aware of the legal processes Ms Shum initiated. Mr Oates himself was the subject of many of those complaints, including to the Fair Work Commission. He contested the complaints and rejected Ms Shum's allegations of bullying behaviour. He was involved in instructing management to reject the Workcover claim.
3. Mr Oates was responsible for engaging Mr Heeney and providing instructions and direction to him as interim managing director. Given his extensive discussions with Mr Heeney about the business, I infer Mr Oates would have had actual knowledge of the decision to restructure the organisation and knowledge about its consequences, including the redundancy of Ms Shum. As a board member he had the opportunity to comment on and approve or reject the proposal.
4. As a long-time leader of the business and former union official, Mr Oates can be taken to have more than a passing knowledge of the legislative protections available to employees and their right to exercise workplace rights free from retribution or adverse action. Mr Oates was aware that Ms Shum had made various threats of legal action and would have been aware that the termination of Ms Shum would expose SMRC to the risk of litigation, including an unfair dismissal claim or a general protections claim. I infer that Mr Oates would have been privy to legal advice obtained by Mr Heeney in relation to the organisational restructure or would have at least been made aware of its substance.

1. Mr Heeney, as a decisionmaker must be taken to have been involved in the contravention. He is an experienced seasoned business executive. He gave evidence that he has been involved in business restructures and redundancies before. Mr Heeney can be taken to have knowledge of workplace laws, including the protections afforded to employees under the Fair Work Act. He sought and obtained legal advice in relation to the redundancy decision and it can be assumed that he was on notice as to the legal risks of that decision.
2. Mr Heeney concedes and I find that he was aware of the various complaints Ms Shum made about her employment and the exercise of her workplace rights to initiate Workcover and Fair Work Commission proceedings. These complaints were made known to Mr Heeney by Ms Bindra and Ms Haralambopoulos in his initial briefing, and I expect from Mr Oates in their many daily discussions. Mr Heeney was also aware as he was briefed on and represented SMRC's interests in conciliation at the Fair Work Commission where Ms Shum's complaints of bullying were ventilated. Mr Heeney was aware of these matters before he announced the organisational restructure and his decision to terminate Ms Shum.

1. For the reasons set out in this judgment, Remittal questions (a) and (b) are answered as follows:

(a) whether Southern Migrant and Refugee Centre Inc (SMRC) terminated its employment of Ms Shum in contravention of s 340(1) of the FW Act; YES

(b) if it did, whether either of Mr Brian Oates or Mr Travis Heeney was (or both of them were), for the purposes of s 550 of the FW Act, involved in that contravention such that he or they might be taken also to have engaged in or committed it: YES

1. The nature of relief sought in relation to those findings will be the subject of separate proceedings. The court will give the parties an opportunity to digest these reasons and then will list the proceeding for a case management conference at which time orders will be made for the filing of evidence and submissions on the remaining remittal questions.

I certify that the preceding five hundred and forty-seven (547) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.

[1] Fair Work Act 2009 (Cth) (FW Act) s 340

[2] Shum v Southern Migrant and Refugee Centre Inc & Ors [2020] FCCA 21

[3] Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27; (2023) 278 CLR 571 at [107] per Steward J

[4] Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [229]

[5] Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [233]

[6] Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 at [227]