Swiegers v Commonwealth Scientific and Industrial Research Organisation - [2015] NSWDC 298 - NSWDC 2015 case summary — Zoe

NSWNSWDC

Swiegers v Commonwealth Scientific and Industrial Research Organisation

[2015] NSWDC 298

District Court of NSW|2015-04-30|Before: Price J

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At a glance

Source facts

Court

District Court of NSW

Decision date

2015-04-30

Before

Price J

Catchwords

(1990) 170 CLR 394 Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120
(2007) 163 FCR 62 Grant v John Grant & Sons Pty Ltd [1954] HCA 23
(1954) 91 CLR 112 Karam v Australia & New Zealand Banking Group Ltd [2001] NSWSC 709 Legione v Hateley [1983] HCA 11
(1983) 152 CLR 406 McDermott v Black [1940] HCA 4

Source

Original judgment source is linked above.

Catchwords

(1990) 170 CLR 394 Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120(2007) 163 FCR 62 Grant v John Grant & Sons Pty Ltd [1954] HCA 23(1954) 91 CLR 112 Karam v Australia & New Zealand Banking Group Ltd [2001] NSWSC 709 Legione v Hateley [1983] HCA 11(1983) 152 CLR 406 McDermott v Black [1940] HCA 4(1940) 63 CLR 161 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177(2014) 315 ALR 243 Technical and Further Education Commission t/as TAFE NSW v Pykett [2014] FWCFB 714(2014) 240 IR 130 Thorby v Goldberg [1964] HCA 41(1964) 112 CLR 597 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52(2004) 219 CLR 165 Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd [1968] HCA 8(1968) 118 CLR 429 Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7(1988) 164 CLR 387 Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106

Judgment (39 paragraphs)

[1]

[2]

The Pleadings - a short summary

By a further Amended Statement of Claim ('ASOC'), filed on 31 March 2015, the plaintiff claims that the defendant breached his employment contract or converted employment contract by: 1. Failing to develop a role for the plaintiff upon his return from secondment with DataDot Technology Australia Pty Ltd ('DataDot') in January 2009, contrary to the term of his contract of employment as varied by the letter dated 18 September 2006 (further ASOC 11 and 29A); and/or 2. That on about 23 February 2009, the defendant terminated the plaintiff's employment, purportedly on grounds of redundancy in circumstances in which the plaintiff was not in fact excess to the staffing requirements of the defendant (further ASOC 28 and 29).
The plaintiff pleads, by virtue of the defendant's breaches of the employment contract, that the plaintiff suffered and continues to suffer part loss of income, part loss of superannuation, future loss of income and future loss of superannuation. The plaintiff claims damages, interest and costs (further ASOC 34).
In a Fifth Further Amended Defence ('Fifth FAD'), filed on 14 April 2015, the defendant denies that it was a term of the contract that upon the plaintiff's return from secondment, the defendant would develop a role for him (Fifth FAD 11(a)). The defendant pleads that on its proper construction, the term alleged was too imprecise to be given contractual meaning. Rather, it was a non-binding indication as to what the defendant intended to do for its benefit, in the event that the plaintiff returned from secondment (Fifth FAD 11(A)).
The defendant claims it terminated the plaintiff's employment because the plaintiff was excess to the defendant's staffing requirements in accordance with the entitlement to terminate. The defendant pleads that this entitlement arose as a result of staffing changes in the National Security Technology Partnerships Theme ('the Theme') necessitated by a decreased funding allocation to the Theme and a realignment of the defendant's research, capability and investment priorities away from security technology generally (Fifth FAD 28).
In addition to the retrenchment benefits offered to the plaintiff, by a letter dated 9 February 2009, the defendant offered a payment of an additional eight weeks' pay ('the early cessation payment') if the plaintiff elected not to contest his redundancy and agreed to cease employment on or before 23 February 2009. The defendant claims that, as a result of the plaintiff's acceptance of the early cessation payment, the plaintiff is estopped from challenging the lawfulness of the termination of his employment, or has otherwise waived any right to do so (Fifth FAD 36-38).
The defendant further and in the alternative pleads, by reason of the plaintiff's failure to fulfil the condition (that for the duration of the secondment, the plaintiff would keep the defendant informed of additional skills he acquired on secondment: Fifth FAD 11(b)); the plaintiff's failure to allege that the termination of his employment was contrary to the contract and any purported term arising from the 18 September 2006 letter (Fifth FAD 28(f)(ii)) and the matters in paragraphs 36 and 37, the plaintiff is estopped from alleging any purported failure by the defendant to comply with its obligations under the alleged employment contract, the converted employment contract and/or the letter from the defendant to the plaintiff dated 18 September 2006, or has otherwise waived any right he may otherwise have to do so (Fifth FAD 39).
In the event that it is found that the defendant has breached the contract, the defendant claims the plaintiff owed a duty to mitigate his damage (Fifth FAD 34(d)-(e)). The defendant pleads that the plaintiff has failed to mitigate his loss by failing to increase the level of his superannuation contributions so as to minimise, or eliminate, any adverse consequences that may result by the plaintiff ceasing to continue to be a contributing member to the defendant's Commonwealth Public Sector Superannuation Scheme. Furthermore, the defendant claims that the plaintiff failed to invest the moneys he received from the defendant on the cessation of his employment into an appropriate superannuation fund (Fifth FAD 34vi.(A)(B)).
The onus of proof is on the plaintiff on the balance of probabilities. The plaintiff was represented by M Gibian and the defendant by J Bourke QC with R Sweet.

[3]

Some Findings of Fact

The plaintiff is a chemist, holds a PhD in Chemistry and a Bachelor of Science (Hons) in Chemistry. He commenced employment with the defendant on 2 March 1998 as a Research Scientist in the CSIRO Molecular Science Division at Clayton, Victoria ('the CMHT').
By a letter dated 16 December 1997, the plaintiff was employed for a term of three years at a CSIRO Salary Level 6. The letter recorded that: "Your appointment to CSIRO is on the terms set out in the enclosed formal Document of Appointment."
The Document of Appointment, which was enclosed, included the following terms: "4.2 Your appointment may be terminated: (a) by you giving notice to CSIRO of resignation; (b) by CSIRO in the event of - (i) misconduct; (ii) incompetence; (iii) your becoming excess to CSIRO's staffing requirements; (iv) invalidity. … Governing provisions 11. Your appointment will be subject to and governed by: (a) the terms and conditions contained in this Document of Appointment; (b) the CSIRO Terms and Conditions of Service, as varied from time to time, which may be inspected at your place of employment; and (c) relevant present or future legislation, and awards of the Australian Industrial Relations Commission that are binding on CSIRO."
The plaintiff had been assured by Dr Albert Mau, the then acting Chief of the CMHT, that appointments at the plaintiff's level were initially term appointments that were subsequently converted to indefinite tenure. Dr Mau informed the plaintiff that the position would be converted to indefinite tenure within one year.
On 21 December 1998, the plaintiff and the defendant agreed to vary the employment contract so that the plaintiff's employment would continue indefinitely. In a letter dated 21 December 1998, Dr Mau wrote: "I am pleased to advise that I have endorsed the recommendation of the Divisional Management Committee and would like to offer you conversion to indefinite status."
In 2001, the plaintiff became the leader of the security devices research group at the CSIRO. His work involved creating chemical materials with novel luminescent properties for use in anti-counterfeiting, track and trace techniques for banknotes, identity documentation, and products security applications. This included what became known as the "DataTrace" and "Modulated Digital Images" ('MDI') technology.
In October 2005, the defendant and DataDot established a joint venture company known as DataTrace DNA Pty Ltd ('DataTrace') to develop and commercialise the DataTrace technology. This arrangement was formalised by "the Research and Development Agreement" between the CSIRO and DataTrace.
From 24 July 2006, the plaintiff joined DataDot on secondment from the defendant, as vice-president of strategic research, working within DataTrace. Two documents formalised the plaintiff's secondment with DataDot: a secondment Agreement (the 'Agreement') between DataDot and the defendant dated 1 August 2008, and a secondment letter (the 'secondment letter') between the plaintiff and the defendant dated 18 September 2006.
The Agreement recorded, by way of "Background", that the CSIRO and DataDot had formed a joint venture to commercialise the DataTrace technology and that: "To assist with product development and the commercialisation of DataTrace, DDT have requested that Dr Gerry Swiegers (the 'Secondee') be seconded to DDT. CSIRO has agreed to provide the Secondee with two years' leave without pay to facilitate this arrangement."
Clause 2 of the Agreement relevantly provides: "2.1 CSIRO will second the Secondee to work for DDT for a period of two years effective from the Effective Date ('Secondment Period'), unless the Secondment is terminated earlier in accordance with this agreement. 2.2 The Parties agree that for the duration of the Secondment Period, the Secondee will be an employee of DDT. CSIRO will provide the Secondee with two years' leave without pay to facilitate this arrangement."
The Agreement provided that 80 per cent of the plaintiff's work hours was to be devoted to the completion of work for DataDot and 20 per cent was "to be devoted to the completion of work for CSIRO, during which time the Secondee will be directed by CSIRO."
Dr Graeme Woodrow, the Chief of the CMHT, wrote in the secondment letter: "I wish to formally advise that I have approved your application for two years leave without pay to undertake a secondment with DataDot Technology (Australia) P/L (DDT), under the following conditions" (Italics added).
Clause 2 made provision for the period of the secondment as follows: "2. Period of Secondment This approval for leave without pay is given for a period of two years. There is no automatic entitlement for you to be placed back in the Division should you wish to return after a lesser period. If you do wish to return within two years could you please advise us at the earliest opportunity and full consideration will be given to your early return. …"
Clause 6 provided: "6. Return to CSIRO It is expected that you will continue to liaise with the Chief or his delegate, in respect to the new skills that you have acquired and your expectations on return to the Division. This information will be used to develop a role for you within the Division that maximizes the additional skills that you have gained. If you also agree to the terms of his (sic) secondment, please sign the enclosed copy of this letter and return it to me. The secondment to DDT is effective from 24th July 2006. I wish you and DDT success."
Whilst on secondment from the defendant, the plaintiff continued to perform work based at the CSIRO's Clayton offices, where the research was to be undertaken. From February 2007, the terms of the plaintiff's secondment were altered by the defendant, to 100 per cent employment by DataTrace. The plaintiff thereafter worked exclusively for DataDot.
During the secondment period, a number of disputes arose between the plaintiff and senior managers within the CSIRO. In April 2007, DataDot sought permission from the defendant to offer the MDI technology to Microsoft, which was rejected by Dr Geoffrey Houston (the business development manager for the security technologies group within the CMHT) on behalf of the defendant. This prompted the plaintiff to make complaints in two emails sent on 4 April 2007, to Drs Houston, Gerard Wilson (theme leader, flexible electronics), Woodrow and others, reflecting his frustration about the rejection of DataTrace offering the MDI technology to Microsoft. The plaintiff raised concerns and allegations as to potential breaches of commercial laws by Drs Wilson and Houston.
On 5 April 2007, Dr Wilson sent an email to Mr Graham Black (Human Resources ('HR') manager of the CMHT), which was copied to Drs Houston, Gregory Simpson (deputy Chief of the CMHT), Woodrow and others on the executive management team of the Division. The email stated that Dr Wilson had just spoken to Dr Woodrow about the plaintiff's email and that Dr Woodrow had told Dr Wilson that the plaintiff's email "[It] implicates various people, both directly and indirectly, so Graeme [Woodrow] believes our response needs to be as a team. So welcome aboard!!"
On 27 June 2007, the plaintiff lodged a formal complaint under the defendant's Whistleblower Policy concerning the conduct of five of the CSIRO officers, Mr Black, Drs Simpson, Wilson, Houston and Woodrow at the CMHT and their roles in the commercialisation of the Datatrace and MDI technologies ('the Whistleblower Complaint'). By way of an "addendum" dated 29 January 2008, Dr Peter Osvath (group leader, security) was added as a respondent to the Whistleblower Complaint.
On 13 November 2007, Dr Rebecca French from Mallesons Stephens Jacques ('Mallesons') was appointed to investigate the complaints the plaintiff had made in the Whistleblower Complaint. On 3 October 2008, Mallesons issued the "Whistleblower Complaint Report" which stated that none of the plaintiff's allegations, which had been considered, were made out, but made recommendations on improving the CSIRO policies.
Throughout the secondment period, decisions were made in relation to projects the plaintiff had been involved in, including a decision to cancel the Biomimetic Catalysis project in December 2006 and the closure of the MDI project in or around November/December 2007.
The plaintiff was due to return from secondment to the CSIRO on 24 July 2008. By agreement between DataTrace and the CSIRO, the plaintiff's secondment was extended by six months until 27 January 2009.
On 4 December 2008, Dr Osvath emailed the plaintiff and others, inviting them to apply for an internal vacancy for the role of National Security Technology Partnership Theme Leader. The plaintiff did not apply for that position.
On 8 December 2008, Dr Gregory Coia (senior manager and project leader from the CMHT) informed the plaintiff that the Division did not have a position for the plaintiff to return to from his secondment.
The CSIRO Terms and Conditions of Service (JCDB 1, T13), as they existed after November 2007, made provision with respect to the termination of the appointment of certain officers employed by the defendant. In relation to indefinite officers, cl 12.2 states: "12.2 Where the authorised person makes no determination under sub-paragraphs 12.1 or 12.1A, thereby specifying no period of appointment, the appointment may, subject to the Terms and Conditions, be terminated for the following reasons - (- grounds for termination of employment) (a) Deleted ; (b) inefficiency, incompetency, incapacity or unsuitability (Paragraph 15); (c) redundancy (Paragraph 16); (d) being found guilty of an offence warranting dismissal (Paragraph 19F); (e) a conflict of interests (Paragraph 20B)." Clause 16.1 is entitled "Excess officers" and includes the following term: "16.1 If at any time the Authorised Person finds that it is necessary to curtail any phase of the activities of the Organisation, and that as a consequence any officer is no longer required for the efficient working of the Organisation, or if at any time the Authorised Person finds that a greater number of officers of any designation is employed than is necessary for the efficient working of the Organisation, any officer whom the Authorised Person finds is in excess may be retired from the Organisation or may be transferred to such other duties as would be carried out by an officer of equal classification and salary in the Organisation as the officer is competent to perform, or to duties which would be carried out by an officer of lower classification and salary with payment appropriate to such lower classification."
The CSIRO Enterprise Agreement 2005-2008 (Ex A) applied until 25 June 2008 and made provision with respect to redundancies. Clause 3(a) of Sch 3 made provision for obligations to inform and consult affected employees (conveniently referred to as the 'R&R Policy'): "Where it appears that an officer is likely to become excess to Divisional or Business Unit requirements, the Chief (or equivalent) will, at the earliest practicable time advise the officer of the situation, provide the officer with comprehensive information concerning redundancy procedures and available assistance and carry out a CSIRO-wide survey of existing and foreseeable vacancies which are at, or one level below, the officer's substantive CSOF level and in the same functional area. If there are no apparent redeployment opportunities and the redundancy is to proceed, the officer will be formally advised in writing that they are potentially excess and will be provided with the following information: • details of the circumstances which have given rise to the potential redundancy; • the method of identifying the officer as potentially excess; • potential redeployment, including retraining prospects, within the Division and more broadly, within CSIRO; • other options which might prevent the redundancy (eg substitution by other officers); and • details of the termination benefits which apply in the event that redundancy is confirmed."
This agreement was replaced in December 2008 by the CSIRO Enterprise Agreement 2008-2011 (Ex B). Similarly, it made provision for affected employees to be advised of potential redundancy as soon as practicable. Clauses 3(b), (d) and (f) of Sch 3 state: "(b) Where it appears that an officer is likely to become redundant the Delegate will, at the earliest practicable time advise the officer of the situation and provide the officer with comprehensive information concerning redundancy procedures and available assistance. The officer will also be provided with the following information: • details of the circumstances which have given rise to the potential redundancy; •the method of identifying the officer as potentially redundant; • potential redeployment, including retraining prospects, within the Business Unit and more broadly, within CSIRO; • other options which might prevent the redundancy (e.g. substitution by other officers); and • details of the termination benefits which apply in the event that redundancy is confirmed. CSIRO will carry out an organisation-wide survey, of existing and foreseeable vacancies which are at, or one level below, the officer's substantive CSOF level and in the same functional area. From 1 December 2009 the minimum period over which this survey will be conducted will be 8 weeks or a shorter period may be agreed between CSIRO and the officer. … (d) If there are no apparent redeployment opportunities and the redundancy is to proceed, the officer will be formally advised in writing. … (f) If an officer does not contest redundancy and agrees to a termination date that is within 10 working days of receipt of the formal advice referred to in subparagraph (d) of this paragraph, the officer shall be paid the equivalent of 8 weeks pay in addition to the termination benefit options provided by paragraphs 4 (lump sum) or 6 (income maintenance). During this 10-day period the officer must provide formal advice as to their preferred benefit."
Clause 4 of Sch 3 of the CSIRO Enterprise Agreement 2008-2011 provided the following information with respect to lump sum payments: "Lump Sum Payment 1. An eligible officer who is retrenched will receive a lump sum payment calculated in accordance with this paragraph UNLESS the officer elects to receive income maintenance as provided in paragraph 6. This election must be in writing and be submitted to the Chief (or other Delegate) at least 5 working days before the termination date. 2. Subject to a minimum payment of 4 weeks pay and a maximum of 48 weeks pay, the Lump Sum payable to a retrenched officer will be 2 weeks salary for each completed year of continuous service PLUS a pro-rata payment for any additional completed months of continuous service. The sum payable under this subclause shall not exceed the sum of salary that would be payable were the officer to continue in employment until they reach the age of 65. 3. If an officer has received payment of an Enhanced Responsibilities Allowance (ERA) for a continuous period of at least 12 months preceding the date on which formal advice of potential redundancy is given under paragraph 3 (d), salary for the purposes of calculating the lump sum payable will include the ERA. 4. Where an officer regularly receives payment for shift work, restriction duty (i.e. on-call) or overtime [i.e. in 50% or more of the pays received in the 12 month period preceding the giving of notice under paragraph 3(d)], the average fortnightly payment during that period will be included for the purpose of calculating the lump sum payable. 5. First Aid Allowance, Superior Performance Rating (Premium Step) and AAHL Site Allowances will be included in calculating the lump sum payable."
On 16 December 2008, Mr Black emailed the plaintiff and attached a letter which stated the following: "This letter confirms the verbal advice given to you by Greg Coia on 8th December that we believe that we may not have a role at CMHT for you at the conclusion of your secondment with DDT in late January 2009. Given the lack of certainly (sic) around a future role at CMHT you are hereby advised that you are potentially surplus to the Business Unit's staffing requirements. This situation has arisen due to staffing changes in the National Security Technology Partnerships Theme necessitated by a decreased funding allocation through SIP 3 to the Theme. Naturally we will fully explore other opportunities within the rest of the Division and I believe Greg also advised you that the Division does have a number of senior roles vacant for which you are encouraged to consider applying for. Selection for these senior roles will be based on merit. Whilst we will continue to examine all opportunities within CMHT we also believe it is appropriate at this time to initiate a wider search for a suitable role for you within other Business Units, in particular Energy Technology, which you mentioned to Greg Coia. As a designated potentially surplus officer you have preference for any roles at or below your existing classification level for which you are deemed suitable. In all other circumstances, you may compete on merit for any advertised role. You should therefore apply for any roles within the Organisation that suit your skills and abilities. The CSIRO Capability Transition Team: http://intranet.csiro.au/intranet/hr/ctt/role.htm will assist in the search for other opportunities. For this search it is essential that we have a current CV and an indication as to whether or not you wish to be considered for roles in other states and regions outside of Melbourne. Also an indication whether or not you would like to consider available roles lower than your existing substantive level would also be appreciated to help define the search. Could you please forward a current CV to me and these indications as soon as possible. Ideally you will be considered for any opportunities before proposed advertisements are placed but you should also consider and apply for opportunities in CSIRO which suit your interests, skills and abilities as they appear in Jobs Central. Please notify your P&C staff of any roles you apply for so they can ensure your interests are protected. Every effort will be made to redeploy you within CMHT, or another Business Unit subject to your advice on which states you are prepared to consider relocation to. Staff will become surplus to the requirements of CSIRO only if redeployment efforts are not successful. Further information on redeployment is available at CSIRO Jobs Central: http://intranet.csiro.au/intranet/hr/jc/jchange.htm If we are unable to place you in a suitable role you may be provided with access to career transition services, or a reasonable level of assistance towards retraining. The Division will also pay for independent financial advice up to the value of $500. I would also like to remind you of the free and confidential counselling services provided by IPS an Employee Assistance Program (EAP) in CSIRO. The EAP is a free, confidential service and offers short-term professional off site counselling, face-to-face (preferred) or telephone counselling. Counselling services can be accessed by calling 1300 366 789 Monday to Friday (8:30am-6pm) for an appointment. I understand that you have enquired of Greg Coia as to the possibility of extended leave during 2009. Consideration of any formal request for leave from you would occur following the outcome from the redeployment efforts outlined above. Finally, should there be any issue you would like to discuss further, please contact me."
On 27 January 2009, the plaintiff emailed Mr Black. This email included the following: "I spoke on Friday with Paul Savage regarding a redundancy. Viki [Pinkard] also sent me some information on the options available in this regard. Would it be possible for you to please calculate and let me know the benefit I would receive (including Lump Sum, Long-Service Leave, and Rec Leave payments) if I took the "early cessation" option with (sic) termination date 8 February 2009?"
Mr Black met with the plaintiff on the morning of 27 January 2009. Mr Black told him that it was highly unlikely that he could depart the CSIRO on 8 February 2009, but that the HR Division would do their best to fasten the process.
On 3 February 2009, Mr Black emailed the plaintiff an estimation of his cessation benefits. The plaintiff replied to this email on 16 February 2009 and asked Mr Black to confirm that these calculations excluded "the 8 week salary payment that goes along with the early cessation option?" By an email of the same date, Mr Black confirmed that the calculation included "the 8 week fast track payment."
In a letter dated 9 February 2009 (the 'termination letter'), Mr Black gave formal notice of the termination of the plaintiff's employment and provided information about the available retrenchment benefits. He stated: "I have previously advised you on 16 December 2008 that you are potentially surplus to the staffing requirements of CSIRO Molecular & Health Technologies and since that time I have carried out a CSIRO wide survey of existing and foreseeable vacancies. This letter confirms that, as no apparent opportunities for redeployment exist, you have become redundant to the staffing requirements of CSIRO. … … [A]n "early cessation" payment of 8 weeks pay will be made if you do not contest redundancy and agree to cease employment on or before 23 February 2009 (Italics added). Formal notice and termination You are entitled to receive 5 weeks notice of termination except where you elect to take the "early cessation" option. Unless you secure alternative CSIRO employment in the meantime, this notice will be issued on 9 March 2009 and your services will be terminated at the expiration of the notice period on 13 April 2009."
The plaintiff emailed Mr Black on 20 February 2009, stating: "This redundancy, as you know, has been forced on me. I therefore confirm that I will terminate employment on Mon, 23 Feb."
The plaintiff received a redundancy payment of $50,845.16, together with the early cessation payment of 8 weeks' pay equalling $18,630.28, totalling $69,475.44 (Ex 23, V11, T273).
On 23 February 2009, the plaintiff's employment with the defendant ceased.
Three days later, the plaintiff commenced part-time employment with DataDot in the position of vice president of strategic research at DataTrace.
The plaintiff ceased his employment with DataDot on 9 March 2012.
Since 2010, the plaintiff has been employed on a 10 year, half-time term appointment as a Professor in the Faculty of Science at the University of Wollongong ('UOW'). His contract expires on 7 February 2020.
The plaintiff's work at the UOW has included the development of organic solar cells capable of splitting water into hydrogen and oxygen when illuminated by sunlight and the commercialisation of a low-cost electrochemical cell that splits water into hydrogen and oxygen. AquaHydrex Pty Ltd ('AquaHydrex'), a spin-off company that has been formed, secured a $5 million investment from a US venture capital firm. The technology was also awarded a $2.2 million Clean Tech grant in 2013.
The plaintiff commenced proceedings against the defendant by filing a Statement of Claim in this court on 3 May 2013.

[5]

A question of credibility - the Sting email

A matter that was said by the defendant to irreparably damage the plaintiff's credibility was the plaintiff's claim, that was withdrawn at the hearing, that a meeting arranged via email with the subject line 'Sting', with Mr Black and Drs Wilson and Osvath on about 3 December 2008, had a sinister purpose and indicated a conspiracy.
The defendant argued that the court should find that the plaintiff falsified a copy of the original 'Sting' document by writing in the names of Dr Osvath and Mr Black to match his false evidence about 'seeming' to see the names flash up on the screen at the time of the original printing. The defendant submitted that the truth of the matter was that the plaintiff assumed that any 'Sting' meeting may have involved Mr Black and Drs Wilson and Osvath, as at the relevant time, the plaintiff suspected that these persons were on the selection panel for the Theme Leader role.
The defendant referred to correspondence between the parties' solicitors, and the plaintiff's solicitor's refusal to provide a full explanation regarding the creation of the 'Sting' document. The defendant contended that the plaintiff refused to provide the information sought, even after his solicitors were put on notice that the defendant was investigating the authenticity of the document.
What was even more damaging for the plaintiff's credit the defendant argued was that, once he realised the GS73 'Sting' document had been revealed as a fake, the plaintiff nonetheless sought to engage his own expert evidence through Professor Robin Braun. The defendant pointed out that when answering the plaintiff's question, Professor Braun was not instructed to review the CSIRO IT system. The defendant argued that the court ought to infer that the plaintiff sought to engage an expert in this manner in order to "raise a red herring" (T95, 43) to cast doubt on Mr Rodney McKemmish's (Partner, PPB Advisory) conclusions without a proper basis for doing so.
In written submissions, the plaintiff explained that he thought that the calendar entry referred to a meeting arranged by Drs Wilson, Osvath and Mr Black. However, he accepted that he was mistaken, a meeting did not appear to have occurred between those individuals on that date, and the entry had another meaning entirely, relating to the performer 'Sting'. The 'Sting' email played no part in his case.

[6]

Matters of Evidence

The plaintiff pleaded in all versions of his Statement of Claim and para 23 of his further ASOC that: "On about 3 December 2008, Mr Graham Black, Dr Gerry Wilson and Dr Peter Osvath arranged a meeting via email, which had a subject line of 'Sting'."
The context in relation to para 23 of the further ASOC was outlined by Mr Gibian in his opening address (T12, 2-5; 14-17): "The plaintiff upon discovering that calendar entry discerned a meaning to that as having some reference to him and discerned a sinister intent behind that meeting… The plaintiff did discern that meeting as having some effect on him given its timing arising as it did a short time before in circumstances where he was concerned about his employment and shortly before being advised that he was to be made redundant."
The plaintiff recounted in his first witness statement dated 17 January 2014 (Ex D, 119): "I am aware that on 3 December 2008 Mr Black, Dr Wilson, and Dr Osvath arranged a meeting via email, which had the subject line 'Sting'. Annexed and marked GS73 is a copy of an Outlook Calendar Appointment for 3 December 2008. I obtained a copy of this Outlook Calendar appointment as I had access to this entry as an ordinary part of my work at CSIRO."
Annexure GS73 is as follows: "Outlook Calendar Appointment From: Gerry Wilson To: Peter Osvath, Graham Black Subject: Sting Start: Wed 3/12/2008 4:30 PM End: Wed 3/12/2008 5:00 PM Recurrence: (none)" NOT IMPLEMENTED: support for w:pict - without v:imagedata
On 2 April 2014, Mr Jamie Ronald from the plaintiff's solicitors wrote to the defendant's solicitors in response to their letter of 27 March 2014, titled "Meeting via email subject line 'Sting'" requesting particulars of the plaintiff's witness statement (Ex 23, V11, T212, Ann F). Mr Ronald stated that if the plaintiff "were to answer your request, he would, in effect, be permitting himself to be cross examined via correspondence. He does not so consent."
On 9 April 2014, Mr Jason Noakes, from the defendant's solicitors, wrote the following to the plaintiff's solicitors (Ex 23, V11, T212, Ann G): "We refer to your letter dated 2 April 2014. We note your client's refusal to inform the CSIRO how he came to be in possession of a purported Outlook Calendar Appointment titled "Sting", now attached as Exhibit GS73 to his witness statement. We put you on notice that the CSIRO is currently investigating the authenticity of this document, and the CSIRO has briefed internal and external IT consultants as part of this process."
In Dr Wilson's first witness statement dated 28 April 2014 (Ex 16, 40) he stated: "The only reason I can fathom as to why I might have created an appointment in my Outlook calendar for that date with the title "Sting" is that I wanted to remind myself that Sting (from the band, The Police) was playing in Melbourne that night. This was a usual practice of mine, particularly to a social event that was not scheduled to take place for some months. My wife and I had contemplated attending the Sting concert. However, at some point, one of my work colleagues, either Pat Hartley or Scott Watkins, I cannot now recall which, told me that Sting was going to be performing songs from his recent Elizabethan era music phase. This is a very different type of music to that played by Sting with his band, The Police. I raised this with my wife and we both agreed that an evening of Elizabethan music was not our "cup of tea". I know that Sting did play in Melbourne on 3 December 2007 (Tab 149I). However, we did not attend Sting's concert that night."
The "FRONTIER" website was accessed on 28 April 2014 (Ex 23, V9, T149I) and included the following information in relation to "STING - AUSTRALIA 2008": "New York, NY - In support of a special edition of the critically-acclaimed album, Songs from the Labyrinth - a personal tribute to late 16th-century Elizabethan composer, John Dowland (1563-1626) - Sting will embark on a tour of Australia this summer, joined by esteemed lutenist, Edin Karamazov, including performances in Sydney, Brisbane, Melbourne and Perth (see below for itinerary)…"
In Mr McKemmish's first witness statement dated 28 April 2014 (Ex 40, Ann A [68]) he stated: "Arising from my forensic examination of Dr Gerry Wilson's CSIRO laptop computer, and selected restored mailboxes for the period November 2008 and December 2008, I note the following: a) The calendar appointment titled "Sting" exists in the archive folder located within Dr Gerry Wilson's CSIRO laptop computer. b) The archived "Sting" calendar appointment is identical to the restored "Sting" calendar appointments located in both the November 2008 and December 2008 backups of Dr Gerry Wilson's mailbox. c) None of the "Sting" calendar appointments identified by me contain indicators that the calendar appointment had been forwarded to "Peter Osvath" or "Graham Black". d) There is no evidence in the restored mailbox of Dr Peter Osvath and Mr Graham Black to indicate that they received the "Sting" calendar appointment. e) A number of users and user groups have sufficient access to Dr Gerry Wilson's calendar so that they could see details of each appointment. f) In the absence of any further information regarding the source of the "Sting" Outlook Calendar Appointment as presented by Dr Swiegers, I am of the view that this version is either: i. an amended and unsaved version of the original calendar entry; or ii. an entirely new and unrelated calendar entry."
On 26 May 2014, Mr Ronald wrote to Professor Braun of the University of Technology Sydney, in relation to the plaintiff's request for Professor Braun to provide an expert report concerning the capabilities and possible configurations of Microsoft Outlook. Mr Ronald asked (Ex 23, V11, T216, pg 2): "(8) Mr Rodney McKemmish's report is based on a restoration process conducted by CSIRO IT. In your opinion, is it possible that the archived information may have been compromised before it was provided to Mr McKemmish?"
In the plaintiff's second witness statement dated 13 June 2014 (Ex E, 240-242) he stated: "At around the time of my retrenchment by CSIRO, I happened to notice that Dr Wilson had shared his Outlook Calendar and that I was able to see his calendar by checking the appropriate box in my Outlook Calendar. Annexed and marked GSR59 is a screen-shot taken at that time, showing my computer screen when Dr Wilson's and my Outlook Calendars were displayed side-by-side. I noticed however that I was not able to open individual appointments in Dr Wilson's calendar in their original form, except to print them in the "memo-style" that is used by Microsoft Outlook. In this format, they did not show the sender and recipient of the appointment. However I noticed that immediately upon clicking upon an appointment, a screen become momentarily visible that appeared to include sender/recipient information. I had to repeat the printing several times to identify what was shown on the screen. In this way it appeared to me that I was able to identify senders and recipients."
In Mr McKemmish's supplementary witness statement dated 12 August 2014 (Ex 41, Ann A [1(d)], [34]-[37]) he stated: "As a "Reviewer" a person is able to open a calendar appointment in a shared calendar and see all details, including whether the appointment had been sent to other recipients. Additionally the ability to print suggests that Dr Swiegers had permissions set to "Reviewer". Under "Reviewer" a person is permitted to access a calendar entry in its entirety by clicking on it and is permitted to print same. In accessing the calendar entry, the person would be able to view full details including if there was a sender or recipient. Further, at paragraph 241 of Dr Swiegers' Reply Statement, he notes that when referencing the printing of the individual appointment in "memo-style" that "they did not show the sender and recipient of the appointment". I note that this statement is at odds with both GS46 and the original "Future role for G Swiegers" appointment printout, both of which show the recipients details next to the heading "Required Attendees". Given the content of paragraph 241 and my comments above, I am of the view that Dr Swiegers' assertion that he was restricted from accessing the "Sting" Outlook appointment, and yet was still able to print it, conflicts with the way permissions are enforced within Microsoft Outlook 2003 and with the way the Exchange 2007 server was configured. At paragraph 242 of Dr Swiegers Reply Statement, he notes that "immediately upon clicking upon an appointment, a screen became momentarily visible that appeared to include sender/recipient information." He further notes "I had to repeat the printing several times to identify what was shown on the screen. In this way it appeared to me that I was able to identify senders and recipients." Dr Swiegers description in paragraph 242 appears to draw a link between the act of printing and the momentary presence of the screen. Proceeding on this basis, the assertion that a screen containing more information than what the user has privileges to access (as outlined in paragraph 241) is at odds with how Microsoft Outlook manages shared information. When a user grants limited calendar privileges to another user, the information available to that user is restricted to the permissions as granted."
Annexure GS46 is as follows: "Outlook Calendar Appointment From: Graham Black Subject: Confidential Future role for G Swiegers Location: Greg Simpson's office Start: Fri 19/10/2007 12:30 PM End: Fri 19/10/2007 1:30 PM Recurrence: (none) Required Attendees: Simpson, Greg (CMHT, Clayton); Wilson, Gerry (CMHT, Clayton); Osvath, Peter (CMHT, Clayton) Dear all As mentioned previously, I would like us all to be clear about future role for Gerry on his return from secondment in July 08 regards"
In cross-examination, the plaintiff gave the following evidence in relation to the 'Sting' calendar entry (T61, 3-14; T61, 39-50; T62, 1-30; T67, 29-44; T69, 6-30; T95, 34-41): "Q. Because as far as you were concerned, the sting' email was your trump card for proving the conspiracy, correct? Until you realised that we knew it was false, you considered that your trump card in proving the conspiracy, correct? A. Well, it seemed to indicate a conspiracy, yes. Q. Come back to my question. You considered it your trump card to prove your conspiracy; didn't you? A. It seemed to indicate that, yes. Q. You're agreeing you considered it your best point? A. It seemed to indicate that, yes. … Q. Then if you could turn over page 7 at paragraph 23 you refer to a meeting on 3 December, arranged a meeting, subject sting', and you name three of the six whistle blower respondents, correct? A. Yes. Q. Then you show that the next day that you were invited to apply for a job with three of the four members that were on the committee? A. Yes. Q. You also show that those three members were also the three members that were going to attend the sting' meeting, correct? A. Yes Q. Then you show you allege that only five days later you told you were made redundant. Do you see that? A. No, four days later. Q. It was 3 December is the sting' meeting‑‑ A. Five days after. Q. ‑‑and you're showing five days you were told you're made redundant? A. Yes. Q. If this case had have gone forward before we got a forensic expert in, you would've tendered your sting' document to show that three people met, wouldn't you? A. I did, yes. Q. There would've been the risk of a great injustice if on reliance of that document, your trump card, six senior officers of CSIRO have been found to enter a conspiracy to make you redundant, correct? A. Yes. Q. You've known for a long time that the email you exhibited was false? A. It was ‑ perhaps I should explain‑‑ Q. No, just answer my question, please. You've known for a long time the email you exhibited showing the sting' meeting was false? A. It was not a direct copy of the printout that I had. Q. And we'll go to your statement; your statement had not indicated it wasn't a direct copy, had it? A. No, it didn't. … Q. There is a big difference between saying, here is a copy of a document I obtained, as distinct from, here is a document I have created, correct, there is a big difference? A. Well I think, so I am not a lawyer and the term "copy" doesn't necessarily mean a photocopy for me but I understand that in the law, which I didn't understand at the time I wrote this, that the word "copy" means actually a photocopy but, so in that sense, I didn't understand exactly the implications of saying the word "copy" here. Q. Do you agree on a fair reading of 119, you were suggesting that you had taken a photocopy or printed out a copy of the calendar appointment invitation, weren't you? A. I agree that it could be interpreted that way, yes. Q. I suggest to you that is the impression you wanted to give, wasn't it? A. Yes. … Q. Now you are using the word "seemed"? A. Yes, because I am not sure any more but it seemed, it felt like it was correct at the time. Q. Because what you then did is you added to the top of what the document you printed out from Gerry Wilson to Peter Osvath and Graham Black, correct? A. Yes. Q. And anyone looking at that document in your witness statement, you would agree would think you have printed out that document and that is how it looks? A. Well, I think it was intended that ‑ to show that was a header, it was intended to show that the bit between the lines was the appointment, but I accept that someone who looked at that would think maybe that was the whole thing. Q. Because one of the things you complain about in your whistleblower complaint, is you say people engaged in misleading and deceptive conduct? A. Yes. Q. Do you agree, by you adding those things in was quite misleading? A. Yes, it was and it was inadvertently so. Q. And it was quite deceptive? A. It was not intended to be and as soon as I found out about it, I acknowledged it and made it clear. … Q. You instructed your expert to speculate whether there had been some tampering of the system? A. Well that was one possible explanation. There were a number of possible explanations and we wanted him to comment on and help us understand how this had happened. The one explanation and I accept now that that was the correct one was that I had made a mistake and I had not seen what I thought I saw. Another possible explanation is that CSIRO had actually done something here. So we just wanted to canvass all options."
In cross-examination, the plaintiff gave the following evidence in relation to GS46 (T99, 35-50; T100, 1-22): "Q. You knew if you produced this document, and you made it look like the sting' document, people would assume the authenticity of the sting' document because CSIRO would know this email had gone out. A. Yes. Q. And so you deliberately, when recreating the sting' document and creating this document, made them look alike with the same type face and everything, so people would assume they were both originals, or copies of the original and weren't created by you? A. These documents were prepared and sent to Comcare. They were part of a number of these documents in the letter to Comcare, and that's where they came from. I had no legal action against CSIRO at that time. At that time, actually, I wasn't even contemplating it. Q. Can we just show you a document that we received this morning, and we've made a notation on it. We asked your solicitors to produce the original of this document. A. Yes. Q. We've made a note up the top, "Copy of original produced by Dr Swiegers' solicitors today". A. Yes. Q. Do you see that it comes out in exactly same form as the original you produced regarding the sting', with your name up the top, except there's ‑ in the sting' one, there's no required attendees, see that? A. Yes. Q. And like with the sting' when you've recreated the sting' document showing invitees, you have removed ‑ when you go back to GS46, removed the Gerry Swiegers, so it looks exactly the same, and you've written up the top, "Outlook calendar appointment exactly the same as the sting' document from Graeme Black"? A. Yes. Q. And you did that so the people wouldn't realise that you had falsified these documents? A. No, absolutely not."

[7]

Consideration

It must be remembered that the plaintiff no longer relied on the 'Sting' email as part of his case. He accepted that he had wrongly believed that it indicated a conspiracy against him. However, his conduct in adding "From: Gerry Wilson To: Peter Osvath, Graham Black" to the top of GS73 was not adequately explained by his testimony that the term "copy" did not necessarily mean a photocopy.
By adding those names, the plaintiff was seeking to bolster his claim that his termination by the CSIRO was not genuine, but was the product of ill will towards him by the CSIRO officers who were the subject of the Whistleblower Complaint.
It is evident from Mr McKemmish's statement that the plaintiff could not have seen that the 'Sting' email had been forwarded to Dr Osvath and Mr Black. Furthermore, the only reason that Dr Wilson created the 'Outlook Calendar Appointment' was to remind himself that the band 'Sting' was playing in Melbourne on 3 December 2008.
I do not accept the plaintiff's evidence that his conduct was not intended to be deceptive but was the product of inadvertence. Whilst I find that the plaintiff gave disingenuous evidence concerning the 'Sting' email, I reject the defendant's submission that it irreparably damaged the plaintiff's credibility. However, it demonstrated the lengths that the plaintiff was prepared to go, to establish his belief that there were those in the CSIRO who were maliciously acting together against him. The plaintiff's evident fixation with collusion, conspiracy and mala fides seriously undermined his credibility. I found that I was unable to accept such of his testimony that was controversial without independent evidence which indicated that the plaintiff's evidence was true.
It is convenient to provide here my evaluation of the principal witnesses for the defendant (Mr Black, Drs Savage, Wilson, Osvath, Simpson, Coia and Woodrow). I did not discern from their testimony before me that they acted at any stage with mala fides towards the plaintiff. Of those witnesses, who were the subject of the Whistleblower Complaint, they were prepared to admit that their relationship with the plaintiff had deteriorated, but I accept the general thrust of their evidence that they acted in the best interests of the CSIRO and were not motivated by a dislike for the plaintiff.
Although I did not accept the interpretation of cl 6 of the secondment letter (see [209] below), I found them overall to be honest and reliable witnesses.

[9]

Argument

The focal point of the argument is the plaintiff's acceptance of the early cessation payment.
The defendant contended that the plaintiff, by requesting the "early cessation" option, entered into a bargain with the CSIRO in return for the payment of an additional 8 weeks' salary, resulting in the sum of $18,630.28 being paid to him. The defendant argued that the plaintiff, as part of this bargain, gave up his right to "contest" his "redundancy."
The defendant submitted that the plaintiff cannot take the benefit of his bargain but avoid the burden of it. By accepting the early cessation payment in exchange for a promise to "not contest redundancy", the plaintiff entered into a contractual bargain by which he released the CSIRO from liability from any suit, or legal proceedings brought to "contest redundancy".
The defendant argued that, generally speaking, release clauses are not subject to special rules of construction. What needs to be shown, the defendant submitted, is that the language used discloses an intention to give up some right, or claim, in return for valuable consideration. The defendant cited Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165.
A reasonable person with knowledge of the surrounding circumstances, the defendant said, would understand that the purpose of the transaction, as conveyed by the objective conduct of the parties at the time, was to prevent the plaintiff from launching proceedings to litigate the circumstances of his redundancy, and to provide valuable compensation to him for giving up this legal right.
A further argument was that the plaintiff received the "early cessation" payment as satisfaction. The accord for this payment was the agreement not to contest his redundancy.
The plaintiff argued that the court would be very slow to reach the conclusion submitted by the defendant on the basis of the words in a form letter, which did not clearly bear that meaning or have that effect. It was contended that to constitute accord and satisfaction, it was necessary to be sure that the plaintiff intended to accept the payment in replacement or satisfaction of any existing right or claim. The plaintiff cited McDermott v Black [1940] HCA 4; (1940) 63 CLR 161 at 183.
The plaintiff submitted that to establish that a person is barred from bringing proceedings, it must be demonstrated that there exists an agreement binding upon the person that by clear words included settlement of the claim. The plaintiff put to the court that even if a release is entered into, general words will be read down so as to apply only to matters specifically in the contemplation of the parties. The authorities cited by the plaintiff included Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251 at 260; Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112 at 123-124 and Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29. Another contention was that a release is given the meaning it would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties.
The plaintiff argued that the words used in the termination letter of 9 February 2009 were not capable of being construed as constituting a release of all legal claims that the plaintiff may have had, or a release at all, and certainly not a release of all contractual rights. It was put to the court that the reference in the termination letter to "contesting redundancy" did not convey by any clear words an intention by the parties that the plaintiff releases any legal claims, let alone all claims arising out of the termination of the plaintiff's employment.
In oral address, Mr Gibian contended that the purpose of the early cessation payment was "to facilitate the expeditious and early resolution of the employment and the reference to contesting is a reference to activating internal processes by way of complaint or grievance to delay or contest" (POS, T959, 34-37). He argued that acceptance of the payment was not bargaining away the right to bring a legal claim for breach of contract or otherwise. He noted that the Enterprise Agreement provides for "review and the like" (POS, T961, 50).
Mr Bourke, in oral address, said that this was an "all claims release" and the idea that the early cessation payment was "some type of argy-bargy from an internal process of delay, just simply does not hold water" (DOS, T982, 35-36).

[10]

Matters of Evidence

The plaintiff recounted in his first witness statement (Ex D, 138): "On 20 February 2009, after being pressed by Mr Black, I accepted the "early cessation" redundancy that had been offered to me. I understood at that time that there was no possibility that CSIRO would continue my employment and accepted the early cessation benefit accordingly. I believed that even if I failed to accept the early cessation, my employment would in any event not continue and I would be retrenched…"
In cross-examination, the plaintiff agreed that he had nominated 8 February 2009 as his date of termination. He denied that he had already planned at that stage to start at DataDot the following month. He said "that was because [he] understood that the early cessation option was that you leave immediately. [He] misunderstood the early cessation option and [he] understood that to get that you had to leave by 8 February" (T123, 41-44).
His evidence on this topic included the following (T130, 27-37): "Q. So thus if you took the early cessation option you're out the door quicker, correct? Yes. Q. You would be at CSIRO a number of months more if you don't take the early cessation option? A. Yes. Q. But if you don't take the early cessation option there's more opportunities for you to spot an internal job to go to at CSIRO? A. Yes."
The plaintiff agreed that the extra payment that he received for not contesting the redundancy was $18,600. The plaintiff was asked by Mr Bourke (T133, 39-50): "Q.What happened after this was that you went into CSIRO on 23 February? A. Yes. Q. Although you were sick? A. I wasn't sick, I was stressed out of my bracket. I did not want to leave the organisation. I was being forced out the door. Mr Black was pushing me out the door as hard as he could. He was saying to me, people were saying to me, if you do this quick thing you'll get a better amount of money, you'll get more money. I did not want to go. I wanted to stay and I was forced out the door and I was actually ill on the day from ‑ from that. I knew if I stayed I would just get less money, I would still be pushed out the door. That was what was happening on that day so it was not a normal sickness."
In answer to Mr Bourke's suggestion that he was organising "the fast track out because [he] had had enough of CSIRO and [he] wanted to go back to DataDot", the plaintiff replied (T134, 23-32): "A. No, I wanted to stay at CSIRO. I was forced out the door and I was facing the end of not just my job but my career. I had to think about how I was going to fund myself, fund my family forward and I had to make a very very tough choice that actually made me ill. I found it so difficult to do and let me also say that I think after the email of 8 February or the letter of 8 February where Mr Black said to me you'll be terminated on the 16th or 13 April, I forget, I went to speak to Mr Black and I said to him "I have a position at the energy technology division. I've got six months or more of leave available to me. Can't I take my leave to see me through to that position?" And he said, "No, you cannot do that." And I said, 'That's absolutely ridiculous'."
In his first witness statement dated 28 April 2014 (Ex 7), Mr Black denied that he had in any way pressured the plaintiff to take an "early cessation" redundancy. He states (Ex 7, 101): "… I did not seek to influence him in his decision whether or not to take the additional payment. To the contrary, from my dealings with Dr Swiegers, it was apparent that Dr Swiegers actually wanted the cessation of this employment due to redundancy to be concluded as soon as possible."
Mr Black explained that it was the defendant's firm policy not to offer voluntary redundancies. All redundancies were, in effect, "involuntary". By confirming the termination date as 23 February 2009, Mr Black understood the plaintiff to be electing to take the "early cessation" option which, he said, "meant that [the plaintiff] was entitled to the 8 week fast track payment" (Ex 7, 67).
Mr Black recounted that he was happy with the outcome because it meant that there was definitely not going to be a "contest" over the plaintiff's redundancy. A contest, he said, would have resulted in further time and resources and both his and Dr Woodrow's time being diverted to deal with the matter.

[11]

Consideration

By accepting the early cessation payment of $18,630.28, the plaintiff promised "not [to] contest redundancy" and to cease employment on or before, 23 February 2009. His promise to cease employment by the nominated date was performed, but is he in breach of his promise not to contest redundancy by commencing the present proceedings?
The defendant relies on these words as constituting a complete release from any suit or legal proceedings brought to "contest redundancy". On the other hand, the plaintiff contends that these words are limited to not activating the CSIRO internal processes of complaint or grievance against redundancy, and did not amount to an "all claims" release.
In Karam v Australia & New Zealand Banking Group Ltd [2001] NSWSC 709, Santow J provided a helpful summary of the relevant principles relating to the construction of releases at [406]: "The principles applicable to construing releases or purported releases can conveniently be set out in a series of propositions: (1) In construing a release, here embodied in a letter of variation to the terms of lending, the Court should ascribe to the release the meaning that the release would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties at the time that they signed the document containing the release: ICS v West Bromwich BS [1997] UKHL 28; [1998] 1 All ER 98 per Lord Hoffman at 114. (2) In order for the Court to give effect to what in an objective sense the contracting parties intended, it is clear that a party may agree to release claims or rights of which it is unaware and of which it could not be aware, provided clear language is used to make plain that that is its intention: see Salkeld v Vernon [1758] EngR 153; (1758) 1 Eden 64, 28 ER 608 per Lord Keeper Henley. (3) Consistent with this emphasis on intention, general words in a release are limited to what was specifically in the contemplation of the parties at the time when the release was given: Grant v John Grant and Sons [1954] HCA 23; (1954) 91 CLR 112 per Dixon CJ, Fullagar, Kitto and Taylor JJ; Iletrait Pty Limited v McInnes (NSWCA, 17 April 1997, unreported) per Priestley JA with whom Grove AJA and Handley JA agreed). (4) Although there are no special rules of construction, such as a contra proferentem requirement, in the absence of clear language courts have been slow to infer that a party intended to surrender rights and claims of which it was unaware and could not have been aware: BCCL v Ali [2001] 1 All ER961 at 966 per Lord Bingham, (contrast Lord Nicholls in BCCL v Ali (supra) at 971-72 who was of the view that for the purposes of construction a general release is simply a term in the contract). (5) Although each release should be considered against its own matrix of facts, an example of this line of "cautionary principle" (Lord Bingham's phrase) is the frequently cited judgment of the High Court of Australia in Grant v John Grant & Sons Pty Limited (supra), where Dixon CJ, Fullagar, Kitto and Taylor JJ (at 125) referred with approval to the proposition put by Sir Frederick Pollock in his "Principles of Contract" (Stevens: London, 1950) 13th ed at 412, that "in equity a release shall not be construed as applying to something of which the party executing it was ignorant." (6) Despite the fact that, strictly speaking, releases are subject to no special rules of construction, a transaction in which one party agrees in general terms to release another from any claims upon it does have special features: BCCL v Ali at 984 per Lord Hoffman. (7) In such circumstances it may well be appropriate to imply an obligation upon the beneficiary of such a release to disclose the existence of claims of which it actually knows and which it also realises might not be known to the other party: BCCL v Ali at 984 per Lord Hoffman, for such an obligation is consistent with a concern to protect parties from sharp practice, by preventing advantage being taken of the known ignorance of the conceding party; BCCL v Ali per Lord Nicholls at 973. (The Bank made no such disclosure here.) (8) Most recently in this Court in Amaca Pty Limited formerly known as James Hardie & Coy Pty Limited v CSR Limited [2001] NSWSC 324, Bergin J adopted the principles of construction broadly as outlined above, including the "cautionary principle" and taking into account the purpose of the contract and the circumstances in which made."
To this, I would add the approach of Bathurst CJ in Ashton v Pratt [2015] NSWCA 12; (2015) 88 NSWLR 281 at [173]: "…the agreement in question must clearly demonstrate that Ms Ashton intended to release Mr Pratt from her claims in consideration of the payment to be made. As Dixon J pointed out in McDermott at 185, it is necessary to be sure of the intention to take the payments offered in satisfaction of the rights and claims Ms Ashton had against Mr Pratt. Contrary to what was submitted by senior counsel for Ms Ashton, the reference to being sure does not involve some standard of proof over and above the usual civil standard, but that the acceptance must be clear and unequivocal: Ballas v Theophilos (No 2) [1957] HCA 90; (1957) 98 CLR 193 at 196."
The termination letter was primarily a document confirming that the plaintiff was redundant to the staffing requirements of the CSIRO. The document did not speak in terms of release. There was no mention in the letter that by acceptance of the early cessation payment, the plaintiff released the defendant from all rights or claims that he had, or might have, arising from the redundancy. Furthermore, neither Mr Black nor anyone else explained to him that that was the intention of the early cessation payment.
The plaintiff's testimony was that he understood the early cessation option enabled him to leave more quickly. The credibility of the plaintiff's understanding is fortified by Mr Black's reference to the "8 week fast track payment". In any event, the plaintiff was not asked in cross-examination whether he understood that the early cessation payment was a release for all claims that he might have against his employer.
In determining the construction of the words "not contest redundancy", the court is obliged to ascribe to those words the meaning that they would convey to a reasonable person, having all of the background knowledge which would have been reasonably available to the parties at the time of the termination letter.
The available background knowledge includes the CSIRO Enterprise Agreement 2008-2011 (Ex B), which provided information concerning redundancy in some detail (see [35] above). The termination letter, early cessation payment and words of release are part of the process dealing with redundancy set out in cl 3(f) of Sch 3 of the Enterprise Agreement.
Part 1 of the Enterprise Agreement makes provision for "Grievance and Dispute Procedures". Clause 79 relevantly provides: "79. REVIEW OF DECISIONS TO TERMINATE EMPLOYMENT (a) An officer will have the right to bring an action under the Workplace Relations Act 1996 in respect of termination of employment. This will be the sole right of review in respect of such actions. (b) In particular, termination of, or a decision to terminate employment, cannot be reviewed under dispute avoidance and settlement procedures addressed in clause 80 of this Agreement. …"
Schedule 3, in which cl 3(f) is found, provides in cl 8 for independent review and action by a CSIRO officer against termination of employment. Clause 8 is as follows: "8. Independent Review (a) An officer may seek an independent review under clause 80 of this Agreement in relation to other redundancy issues which do not impinge on the validity of the decision to retrench him/her (i.e. the purpose of the independent review cannot be to question the redundancy itself). (b) An officer may bring an action against termination of employment under clause 79 of this Agreement."
Clause 80, which applies to redundancy issues that do not impinge on the validity of the retrenchment decision, sets out in cl 80(d) stages of the dispute settlement process.
Redundancy is specifically excluded from the "Grievance Procedures" provided in Sch 4 (see Sch 4(2)).
It is apposite to note that at the time of the termination letter, there were no legal proceedings or claims on foot, contemplated or threatened in relation to the decision to make the plaintiff redundant.
The absence of clear language in the termination letter that the plaintiff was surrendering all his legal rights and claims, the Enterprise Agreement regime for redundancy and independent review, and the non-existence of legal proceedings, either on foot or contemplated, lead me to conclude that, objectively, the parties intended that the promise "not [to] contest redundancy" applied to the plaintiff's rights under cl 79 and Sch 3, cl 8 of the Enterprise Agreement and no more. I do not find that by acceptance of the early cessation payment, the plaintiff promised to release the CSIRO from liability from any suit, or legal proceedings brought to "contest redundancy". Objectively viewed, this was not an "all claims release".
Furthermore, when the approach of Bathurst CJ in Ashton v Pratt is followed, I am not sure that the plaintiff intended to release the CSIRO from all his rights and claims in consideration of the early cessation payment.
The plaintiff, in my view, did not breach his promise not to contest his redundancy by commencing the present proceedings.

[12]

Is the plaintiff's claim barred by reason of the principles of estoppel, waiver or election?

The defendant pleads that the plaintiff is estopped from alleging any purported failure by the CSIRO to comply with its obligations under the plaintiff's employment contract, or has otherwise waived any right to do so, by reason of the following conduct: (a) The plaintiff's acceptance of the early cessation payment; and/or (b) The plaintiff's failure to allege between 16 December 2008 and 23 February 2009, that the termination of his employment was contrary to: i. The plaintiff's employment contract; and/or ii. Any "promise" said to have been made in the secondment letter.
The defendant contended that at the time the plaintiff elected to take the early cessation payment, the plaintiff represented to the CSIRO that he was not willing to contest the redundancy by agreeing to terminate his employment on 23 February 2009. Further, in reliance on this representation, the defendant paid the early cessation payment of $18,630.28 to the plaintiff.
Another submission was that it is unconscionable of the plaintiff to secure the early cessation payment, as part of an agreement not to contest redundancy, and to then seek to assert that he was not genuinely redundant many years later. The defendant argued that this lapse of time (without explanation) made it more difficult for them to defend the plaintiff's substantive claims, given the need for the witnesses to give evidence about matters dating back to 2006, and the importance of witness credit in the proceedings.
The defendant referred to the secondment letter dated 18 September 2006. The defendant submitted that the plaintiff's evidence that he raised that letter at the meeting with Dr Coia should be rejected as a recent invention. The defendant argued that in circumstances where the plaintiff admits that he was aware of the secondment letter and its contents, did not raise it, and/or subsequently elected to exercise an inconsistent right for an early redundancy payment (including an "early cessation" payment), the court should find that the plaintiff is estopped from attempting to rely on this entitlement, or has otherwise waived any right to now rely on this entitlement, or has otherwise waived any right to now rely on the secondment letter. The defendant cited the observations of Brennan J in Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 at 421-422 as being apposite.
The defendant referred to the definition of the doctrine of approbation and reprobation in Banque des Marchands de Moscou (Koupetschesky) v Kindersley [1950] 2 All ER 549 at [552].
The defendant's contention was that if the plaintiff's claim was not otherwise barred by reason of his acceptance of the "early cessation" option, it was defeated by reason of the principles of estoppel, waiver or election.
The plaintiff contended that an estoppel, or waiver, must be based on a clear and unequivocal representation of fact, or future conduct, relied upon to the detriment of the other party. The plaintiff cited Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406 at 435-436 and Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290 at [50]-[51]. The plaintiff argued that no clear or unequivocal representation made on the part of the plaintiff had been identified by the defendant. A further argument was that it is not sufficient, even if true, to declare that the plaintiff merely failed to assert that the defendant was proposing to breach his employment contract.
Another submission was that none of the defendant's witnesses suggested that, if the plaintiff had asserted in January 2009 that his proposed retrenchment could constitute a breach of his employment contract, that a different course would have been taken.
The plaintiff argued that, to the extent that the defendant relies upon any conduct by the plaintiff or the early cessation payment as constituting a representation that he would not bring proceedings in relation to the termination of his employment, it would not be unconscionable for the plaintiff to depart from any such representation (if it had been made) in circumstances in which the defendant misled the plaintiff in relation to the reasons for, and timing of, his alleged redundancy.

[13]

Matters of Evidence

In his first witness statement dated 28 April 2014 (Ex 30, 26), Dr Coia referred to his meeting with the plaintiff on 8 December 2008. The recollections of Dr Coia and the plaintiff of what was said at that meeting differ in some aspects. Of particular relevance to the defendant's submission on estoppel and waiver is whether the plaintiff raised the secondment letter with Dr Coia at their meeting, or made mention of an obligation upon the CSIRO to "develop a role" for him.
Dr Coia relevantly states (Ex 30, 36): "I deny that I said I was unaware of any intention to "develop" a position for him or made mention of a letter from Dr Woodrow dated 18 September 2007. A prior arrangement or intention to "develop" a position for Dr Swiegers would have been out of the ordinary, based on my experience as a returning secondee, and if there had been any reference to such an intention in our meeting, I would have put this in my notes and followed up on it."
In a supplementary witness statement dated 19 December 2014 (Ex 31, 6 and 9-10), Dr Coia states: "I have now seen a letter dated 18 September 2006 addressed to Dr Swiegers from the then Chief of the Division, Dr Graeme Woodrow, which is attached to Dr Swiegers' witness statement dated 17 January 2014… I was not previously aware of this letter or its terms, nor had I seen a copy of the Secondment Letter prior to these proceedings. … Dr Swiegers did not at any time during the term of his secondment, or prior to his retrenchment from the CSIRO, in any conversation with or communication to me, …make reference to the Secondment Letter nor at any time assert he had any special employment entitlements arising from the Secondment Letter beyond those of his original employment contract. … Furthermore, it is alleged in Dr Swiegers' Further Amended Statement of Claim in the particulars under paragraph 29 that the CSIRO "failed to develop" a role for Dr Swiegers upon his return from secondment to DataDot. Dr Swiegers did not, at any time during the term of his secondment or prior to his retrenchment from the CSIRO, in any conversation with or communication to me… make the suggestion or complaint that the CSIRO was required to develop a role for him upon his return from secondment to DataDot, let alone, that the CSIRO had failed to satisfy any such alleged obligation."
In cross-examination, Dr Coia gave the following evidence (T823, 7-10): "Q. When you informed Dr Swiegers that there was no definitive job to go back to, Dr Swiegers asked you whether CSIRO was going to develop a role for him? A. No he did not."
Dr Coia was not asked whether the plaintiff had raised the secondment letter with him.
Contemporaneously with the meeting, Dr Coia made notes (Ex 23, V9, T152). These notes neither refer to the 18 September 2006 letter, nor to an obligation upon the defendant to develop a role for him. On 8 December 2008, Dr Coia sent an email to the plaintiff (Ex 23, V9, T153) that commenced: "It was good to meet you today. I thought I would just quickly summarize the two options you put forward so that I am clear as to exactly what you would like." The conclusion of the email was: "I look forward to your response and please let me know if I've missed anything".
No mention was made in this email to the secondment letter or to an obligation to develop a role. On the next day, the plaintiff emailed Dr Coia (Ex 23, V9, T154). The email commenced: "I will reiterate what I said at the meeting."
The plaintiff's email did not refer to the secondment letter, or to an obligation to develop a role.
In the plaintiff's first witness statement (Ex D, 121) he states: "On 8 December 2008 I was informed by Dr Greg Coia, a Project Leader from the Division of Molecular and Health Technologies, that the Division did not have a position for me to return to from my secondment, and I was to be made redundant. This was due to the fact that my two inventions, the MDI Technology and the Biomimetic Catalysis Technology, had been cancelled by CSIRO. Dr Coia told me that he was unaware of any intention to "develop" a position for me, as had been promised me (sic) in the letter from Dr Woodrow of 18 September 2006…"
In responding to Dr Coia's witness statement, the plaintiff relevantly states in his second witness statement (Ex E, 225-226): "I refer to paragraph 36 of Dr Coia's statement, in which he states "I deny that I said I was unaware of any intention to "develop" a position for him or made mention of a letter from Dr Woodrow dated 18 September 2006." I do not agree with this statement. Dr Coia told me quite clearly that he was not aware of any attempt to "develop" a position for me. It was not Dr Coia who mentioned the letter from Dr Woodrow of 18 September 2006, it was I …I mentioned it in connection with my question as to whether a position was to be "developed" for me. Dr Coia was unaware of the promise that had been made to me at the commencement of the secondment regarding a continuing position in the letter dated 18 September 2006."
The plaintiff's evidence in cross-examination on this topic included the following (T105, 15-23): "Q. You never said to him, you have to find me a role? A. I actually did, I said, "I understood that the division would develop a role for me", and he said, "No, he didn't know anything about that". I referred to the letter of 18 September in which they said they would develop a role. I, you know, and I understood that I had a guaranteed position. Q. That is simply untrue, isn't it, that is simply untrue that you referred to the 18 September 2006 letter, that is simply untrue. A. That is absolutely true and Dr Coia didn't know anything about it."
The plaintiff was taken by Mr Bourke to Dr Coia's email of 8 December 2008 (Ex 23, V9, T153) and to his response to Dr Coia on the following day (Ex 23, V9, T154). His evidence included the following (T113, 19-40): "Q. There's nothing, is there, in your reiteration of what was said at that meeting about you mentioning the 18 September 2006 secondment letter, is there? A. No, there's nothing. Q. There's nothing in your reiteration of the meeting suggesting that you told Dr Coia that CSIRO had to develop a role? A. No, there's nothing in there. Q. You would agree you've otherwise given a lot of detail as to what occurred at the meeting? A. That's correct and the reason I didn't raise that there was that - Q. Can you just respond to my question, we didn't get to the reason. I suggest to you the reason it's not in this email of what you're reiterating what was said at the meeting was you never raised it? A. No, I absolutely did raise it but Dr Coia said he was unaware of the letter and he was unaware of any commitment to develop a role for me. Q. If that had occurred you would have said that in the email and you would have asked Dr Coia to investigate the letter? A. No, I don't think so."
I am not persuaded on the balance of probabilities that the plaintiff did raise the secondment letter with Dr Coia at their meeting, or an obligation upon the defendant to develop a role for him. The lack of reference to these matters in Dr Coia's contemporaneous notes, in both Dr Coia's email and in the plaintiff's email in response, undermine the accuracy of the plaintiff's recollection and support Dr Coia's testimony.

[14]

Consideration

Notwithstanding these findings of fact, I do not think that there is merit in the defendant's argument. I have previously found that the promise to "not contest redundancy" was confined to the plaintiff's rights under cl 79 and Sch 3, cl 8 of the Enterprise Agreement.
In Legione v Hateley, Mason and Dean JJ said at 435: "First, it has long been recognized that a representation must be clear before it can found an estoppel in pais…"
The promise or representation need not be express but may be implied. Mason and Deane JJ further observed at 438-439: "The requirement that a representation as to existing fact or future conduct must be clear if it is to found to be an estoppel in pais or a promissory estoppel does not mean that the representation must be express. Such a clear representation may properly be seen as implied by the words used or to be adduced from either failure to speak where there was a duty to speak or from conduct. Nor is it necessary that a representation be clear in its entirety. It will suffice if so much of the representation as is necessary to found the propounded estoppel satisfies the requirement."
It is well settled for estoppel or waiver that the relying party (the defendant) must act or refrain from acting in reliance on the other party's (the plaintiff's) representation. In Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 at 404, Mason CJ and Wilson J said: "One may therefore discern in the cases a common thread which links them together, namely, the principle that equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has "played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it": per Dixon J in Grundt."
The defendant has not established a clear or unequivocal representation by the plaintiff that he would not bring a cause of action for breach of contract. The plaintiff's failure to assert that the defendant was proposing to breach his contract of employment, or raise the terms of the secondment letter, could not have been reasonably understood by the defendant as being a representation that he waived his contractual rights. Nor could it have been reasonably understood that an election had been made to release the CSIRO from liability for any suit, or legal proceedings for breach of contract. Furthermore, the evidence does not establish that the defendant acted in reliance of a representation by the plaintiff that he would not institute a cause of action, such as the present proceedings.
The plaintiff's proceedings, in my view, are not barred by reason of the principles of estoppel, waiver or election.

[16]

Argument

The defendant submitted that the secondment letter, specifically cl 6, was not intended by the parties to have contractual force (Fifth FAD 11(aa)(ii); PWS 37). Rather, the defendant argued that the purpose of the letter was to set out the conditions of the secondment, it was not a document that granted the plaintiff "significant employment entitlements… that overrode fundamental employment terms that were in place" (DWS 501).
The plaintiff contended that the circumstances in which the contract was entered into and the context of the policies and operations of the CSIRO objectively made the contract binding. The plaintiff submitted that a reasonable person, in the plaintiff's position, would have understood the defendant to be bound by the terms of cl 6 of the secondment letter. The plaintiff cited Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62 at [23].
The defendant further contended that the secondment term alleged by the plaintiff was unsupported by mutual consideration (Fifth FAD 11aa(i)). The plaintiff argued that the secondment letter provides consideration, as all that is needed is "some benefit, detriment or forbearance passing from the CSIRO to the plaintiff as its employee and from the plaintiff to the CSIRO as his employer" (PWS 44).
The plaintiff's contention was that the defendant undertook steps in the secondment letter which constituted a "detriment", such as continuing the plaintiff's employment without requiring him to perform work for the CSIRO for two years, as well as developing a role for him upon his return from the secondment. The plaintiff submitted that he had provided good consideration as he had waived the entitlements under his contract of employment.
Another argument advanced by the defendant was that the secondment term alleged by the plaintiff was uncertain or incomplete. The defendant contended that it was a statement of the intention of the Division and was not intended to provide the plaintiff with any entitlements. The defendant cited Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177; (2014) 315 ALR 243 at [58].
The plaintiff disagreed that the term to "develop a role" in the secondment letter, was too uncertain so that it could be considered void and unenforceable. The plaintiff relied on Upper Hunter County District Council v Australian Chilling & Freezing Co [1968] HCA 8; (1968) 118 CLR 429 at 436-437 (Barwick CJ).
The plaintiff put to the court that although the letter does not detail the exact "role" he would have upon his return from secondment this did not impact the enforceability of the undertaking. The plaintiff argued that a contract providing some scope for performance is not presumed void for uncertainty.
Another submission made by the defendant was that the secondment term was not expressed to be limited in point of duration. The plaintiff contended that this was not an accurate interpretation of the secondment letter, as cl 6 is entitled "Return of CSIRO".

[17]

Matters of Evidence

In October 2005, the defendant and DataDot established DataTrace, a joint venture company.
In Dr Houston's supplementary witness statement dated 19 December 2014, he said (Ex 25, 4): "In approximately mid-2006, Dr Swiegers initiated discussions with CSIRO Divisional management, including me, regarding an opportunity to undertake a secondment to DataDot."
In Dr Houston's former role as a Business Development Manager for the CMHT, he co-ordinated two aspects of the negotiations between the CSIRO and DataDot with respect to the plaintiff's secondment (Ex 25, 5): "a. arrangements to ensure the continuation of Dr Swiegers' superannuation benefits and Dr Swiegers' accrual of certain types of leave; b. arrangements for payment of a bench fee (the consideration payable to the CSIRO for permitting DataDot access to one of its scientists on secondment and located on site) and the protection of the CSIRO's intellectual property rights over Dr Swiegers' work."
Dr Houston explained that his main involvement in the plaintiff's secondment "was largely in relation to the negotiation and discussion of the main terms of the secondment with a number of relevant CSIRO functional areas (such as finance, human resources, operations and legal)" (Ex 24, 13). In cross-examination, he agreed that the negotiations he was referring to were between the CSIRO and DataDot in respect to this secondment, rather than negotiations with the plaintiff in a HR type role (T701, 19-24).
In Dr Woodrow's first witness statement dated 28 April 2014, he said (Ex 33, 101): "Despite the fact that Dr Swiegers was on secondment, he remained a CSIRO officer at all relevant times, with the benefits and responsibilities of such an officer…"
In Dr Woodrow's supplementary witness statement dated 17 December 2014, he said (Ex 34, 4): "In my capacity as Chief of the CSIRO Molecular and Health Technologies Division (Division), I was responsible for approving Dr Swiegers' application for two years' leave without pay to undertake a secondment with DataDot... To this end, I signed a letter dated 18 September 2006 formally advising of my approval (Secondment Letter) (Tab 270). I did not draft this letter. Generally speaking, such tasks are the provenance of CSIRO's Human Resources staff."
The defendant's online policy with respect to "Mobility of staff: Secondments" made provision for the return of secondment in the following terms (GS12): "A staff member with indefinite tenure should normally be guaranteed a position in the Division on return from the secondment..." (Italics added).
On 27 July 2006, the plaintiff sent an email to Mr Rajiv Cabraal, the head internal lawyer for the CMHT, which said the following: "Dear Rajiv I enclose the proposed contracts I discussed with you: (1) my employment contract with DataDots, (sic) (2) my agreement with CSIRO. Regards Gerry" (Italics added).
The plaintiff recounts in his first witness statement (Ex D, 24): "… Clause 6 states that a role at CSIRO will be developed for me upon my return to CSIRO after the secondment. My line manager at the time, Dr Gerry Wilson, confirmed these terms with me verbally at the time that the secondment was approved on around 9 June 2006. Dr Wilson said words to me to the effect of "secondees are guaranteed a position at CSIRO upon return from secondment." I understood that this was in order that they would not suffer any professional disadvantage arising from the secondment. CSIRO wanted to encourage and not dissuade secondments. At the end of the secondment I would therefore have to make a decision to either return to CSIRO or remain with DataTrace."
In Dr Wilson's first witness statement, he stated that he "may have explained that after secondment a person returns back to CSIRO" (Ex 16, 50). However, he said that he would not have said a position would be "guaranteed" and would not have suggested that because of a secondment, a person is immune from this risk on their return.
In their supplementary witness statements, Mr Black (Ex 8, 12), Dr Wilson (Ex 17, 10), Dr Savage (Ex 21, 16), Dr Houston (Ex 25, 10), Dr Simpson (Ex 28, 9), Dr Coia (see [124] above), Dr Woodrow (Ex 34, 8) and Dr Osvath (Ex 37, 9) stated: "[the plaintiff] did not, at any time during the term of his secondment or prior to his retrenchment from the CSIRO, in any conversation with or communication to me… make the suggestion or complaint that the CSIRO was required to develop a role for him upon his return from secondment to DataDot, let alone, that the CSIRO had failed to satisfy any such alleged obligation."

[18]

Consideration

The question is whether the plaintiff's contract of employment as incorporated in the Document of Appointment, was varied by the secondment letter so that it included cl 6. If it was, the contract of employment, as reflected by the Document of Appointment and the secondment letter, included a term that the defendant would develop a role for the plaintiff upon his return from the secondment.
Notwithstanding my finding that the plaintiff did not raise with Dr Coia the defendant's obligation to develop a role for him, I accept that he believed that the CSIRO was contractually obliged to do so. So much is evident from the terms of the email to Mr Cabraal and his conversation with Dr Wilson. However, the plaintiff's subjective belief does not answer the question.
Whether or not cl 6 was incorporated into the employment contract will depend upon the parties' intentions as objectively ascertained. As was said in Goldman Sachs JBWere Services Pty Ltd v Nikolich at [23] (Black CJ): "The principles to be applied in determining whether any, and if so what, parts of WWU were terms of the contract of employment are not in doubt. It is well established that if a reasonable person in the position of a promisee would conclude that a promisor intended to be contractually bound by a particular statement, then the promisor will be so bound. This objective theory of contract has been repeatedly affirmed as representing Australian law by the High Court. Thus, in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179, the Court said: 'It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.'"
In objectively ascertaining the parties' intention, the language of the secondment letter will be an initial consideration. The language "is to be viewed in context, not in abstract isolation. Further, regard must be had to the purpose and the object of the transaction": Romero, the Federal Court at [35] (Allsop CJ, Rares and McKerracher JJ).
In Romero, the Federal Court said at [58]: "…Many enforceable contracts contain provisions that can be described as aspirational. These often include recitals or other terms, that are not of themselves individual expressions of discrete rights or obligations, but record, as part of the contractual terms, agreed positions that are available to inform the proper construction of the contract as a whole. Recitals in the contract or deed often provide an aid to the elucidation of the meaning of particular operative terms in a contract, albeit that the recitals themselves do not contain any promises or obligations that are capable of being enforced by law. However, the precise effect of every provision, including a recital, in a contract or deed will depend on the circumstances of the individual case."
It is necessary to recount all of the terms of the secondment letter. Dr Woodrow, the Chief of the CMHT, wrote in the secondment letter: "I wish to formally advise that I have approved your application for two years leave without pay to undertake a secondment with DataDot Technology (Australia) P/L (DDT), under the following conditions (italics added). 1. Role and responsibility During the term of the secondment, you will work under the direction of, and be responsible to DDT. 2. Period of Secondment This approval for leave without pay is given for a period of two years. There is no automatic entitlement for you to be placed back in the Division should you wish to return after a lesser period. If you do wish to return within two years could you please advise us at the earliest opportunity and full consideration will be given to your early return. 3. Remuneration and entitlements During the secondment, you will be an employee of DDT and they will be responsible for your salary and other employment benefits. CSIRO will continue to administer your membership of the Public Sector Superannuation Scheme provided that you agree to make your normal contributions to the scheme during this period. DDT has agreed, in writing, to reimburse CSIRO, monthly in arrears, the full costs of the employer and employee superannuation contributions made. You should note that CSIRO has a policy that strictly prohibits its employees from placing themselves in a situation where there may be a conflict of interest. Such situation would include receiving a financial benefit from a third party with whom CSIRO has commercial dealings, such as DDT. If DDT proposes to give you a personal financial benefit (other than an offer of employment) the matter must be agreed by me or my delegate. 4. Leave The secondment is classified as leave without pay to count for service for the purposes of sick leave and long services leave accrual but not for recreation leave purposes. There is provision for you to access your CSIRO sick leave credit during secondment should this be necessary. If you become ill for a protracted period and are unable to return to work for DDT after having exhausted the sick leave entitlement from DDT, as certified by a medical practitioner, at your request, the secondment and your employment with DDT may be suspended to enable you to access your CSIRO sick leave credit during the period which, but for this suspension, would be during the term of the secondment. Such suspension of the secondment will cease when, and if, you are able to return to work for DDT during the term of the secondment. Existing CSIRO Recreation leave credits will be frozen until such time as your return to CSIRO, or will be paid out if you elect to cease with CSIRO either during or at the end of the secondment period. Your period of leave without pay will not automatically count for service for the purposes of advancement or reclassification within CSIRO. During your leave without pay your classification will be "frozen". On your return to the Division it is expected that you will prepare a submission to the Divisional Management Team on your experiences and achievements whilst at DDT and your classification level will be reviewed, on the 1st July following your return, in light of this report. 5. Conflict of interest On return to the Division following your period of LWOP you will be required to declare any potential conflicting interests. Any conflicts of interest will be assessed under the provision outlined in the CSIRO Terms and Conditions of Service. 6. Return to CSIRO It is expected that you will continue to liaise with the Chief or his delegate, in respect to the new skills that you have acquired and your expectations on return to the Division. This information will be used to develop a role for you within the Division that maximizes the additional skills that you have gained. If you also agree to the terms of his (sic) secondment, please sign the enclosed copy of this letter and return it to me. The secondment to DDT is effective from 24th July 2006. I wish you and DDT success."
The background to the plaintiff's secondment was the joint venture between the defendant and DataDot. I have no doubt that the plaintiff's work with DataDot was to the defendant's advantage as it enhanced the development of the DataTrace inventions which were the subject of the Research and Development Agreement.
It is plain from the language of the secondment letter that its purpose was to set the conditions of the plaintiff's secondment to DataDot and his return to the CSIRO. The letter deals with matters such as remuneration, superannuation and leave entitlements that would normally be embodied in a contract of employment. The use of the word "conditions" and the letter's content, reasonably suggest that its terms were intended to be binding and were more than aspirational. This inference is supported by the requirement that the plaintiff was, if he agreed to the terms of the secondment, to "sign the enclosed copy of this letter and return it to [Dr Woodrow]." By signing and returning the letter, the plaintiff was contractually obliged to adhere to its terms as was the defendant.
This conclusion is supported by the plaintiff's email to Mr Cabraal, in which he refers to "the proposed contracts" (see [159] above) and the defendant's online secondment policy.
A reasonable person in the position of the plaintiff would conclude that the CSIRO was bound to develop a role for him upon his return from secondment.
Taking the secondment letter as a whole, the letter makes it clear that there are mutual obligations. The plaintiff was required to take leave without pay, to declare any conflicting interests following the secondment and to continue to liaise with the Chief, or his delegate, in respect to the new skills that he had acquired. In return for the plaintiff adhering to the terms of the secondment, the CSIRO was obliged to develop a role for him "within the Division that maximizes the additional skills that [the plaintiff] had gained."
I do not accept the defendant's argument that the secondment term was unsupported by mutual consideration.
The defendant's argument of uncertainty falls well short of the well-known statement of principle in Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd, where at 437 (Barwick CJ) said: "The question becomes one of construction, of ascertaining the intention of the parties, and of applying it. Lord Tomlin's words in this connexion in Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503, at p 512 ought to be kept in mind. So long as the language employed by the parties, to use Lord Wright's words in Scammell (G) & Nephew Ltd v Ouston (1941) AC 251 is not "so obscure and so incapable of any definite or precise meaning that the Court is unable to attribute to the parties any particular contractual intention", the contract cannot be held to be void or uncertain or meaningless."
Although the role to be developed was not nominated, it was one that was to be developed for the plaintiff upon his return to the CSIRO that maximised the additional skills that he had gained. Whilst there was a degree of flexibility in the establishment of the role that does not mean that it was void for uncertainty. In Thorby v Goldberg [1964] HCA 41; (1964) 112 CLR 597 at 605 (Kitto J) said: "But an agreement is not void for uncertainty because it leaves one party or group of parties a latitude of choice as to the manner in which agreed stipulations shall be carried into effect, nor does it for that reason fall short of being a concluded contract."
I do not consider that there is any uncertainty in the expression to "develop a role".

[19]

Further Argument

The defendant submitted that if cl 6 had contractual force, then it should be subject to a condition that the plaintiff has a duty to liaise with the Chief or his delegate "in respect to the new skills that you have acquired and your expectations on return to the Division" (Ex 23, V11, T270). In Mr Bourke's opening address he said that cl 6 of the secondment letter (T22, 21-25): "Talks about him [the plaintiff] keeping us informed of any new skills he has acquired so that we can capture those in any role we might want to give him when he comes back but one, he didn't develop any new skills and two, if he did he didn't tell us about it. He had to play that part of the deal and then we might for our benefit organise a position for him…"
The plaintiff submitted that the court should not read cl 6 as imposing a condition upon the undertaking of the defendant to develop a role for the plaintiff, such that if it did not occur, the defendant would not develop a role for the plaintiff. The plaintiff contended that "Liaison involves maintenance of contact or communication between two persons and requires the cooperation of the two parties" (PWS 61). The plaintiff submitted that it was not the defendant's intention to be relieved of its obligation to develop a role for the plaintiff, if "liaison" did not occur.
In oral address, Mr Gibian said that "it's a bit rich for there to be a complaint about a failure to liaise where it's apparent no step at all was taken by CSIRO to initiate these arrangements or such liaison with the plaintiff" (POS, T1001, 17-19).
In any event, the plaintiff contended that he undertook the appropriate steps needed to liaise with the CSIRO representatives during his period of secondment, regarding the work he was completing and the skills that he was utilising. This included speaking with various CSIRO employees from December 2006, until at least December 2008, about the work that he had undertaken on the Biomimetic Catalysis project as well as about the book that he was writing.
The defendant pointed to the various witnesses who testified that the plaintiff did not inform the CSIRO of "new skills" that he had gained whilst on secondment, as the plaintiff was referring to a field of work that he had been involved in, prior to the secondment.
The plaintiff disagreed with the argument that a person can only acquire "new skills" if they are working in a completely different field. In oral address, Mr Gibian stated that the "ritual and identically worded incantations by CSIRO witnesses that they were not informed of new skills appear to be cut and paste jobs in their statements, and were informed by an absurdly narrow view of what new skills might be" (POS, T969, 48-50; T970, 1).

[20]

Matters of Evidence

On 12 December 2006, the plaintiff emailed Drs Woodrow, Wilson and others in relation to the Biomimetic Catalysis project. In this email, the plaintiff explained the "history of the work, what had been achieved in the prior few months (while [the plaintiff] was on secondment) and the new technical capabilities and skills that had been developed in respect of making hydrogen from water using sunlight" (Ex F, 13). The email stated in part that (GSR63): "… In effect, we have, for the first time, been able to sustainably replicate an important aspect of photosynthesis in a non-biological setting. We are planning to publish this discovery around March 2007 (once some isotopic labelling studies are complete)…"
On 8 May 2007, the plaintiff emailed Dr Woodrow (GSR70): "Just to let you know that my Catalysis book has been approved for publication by the board of Wiley, USA. This followed the commissioning by the company of several reviews (that turned out to be very complementary) and subsequent editorial approval of the work."
The plaintiff said that the ability to better mimic nature and to harness sunlight in an electrochemical device constituted another skill that he developed while he was on secondment.
The plaintiff said that he met with Dr Savage on 23 July 2008 and told him about the new technical capabilities and skills that were being developed in the catalysis project. He explained that Dr Savage had requested the meeting in order to discuss the secondment extension and his career plans.
By an email dated 21 July 2008, Dr Savage had written to the plaintiff stating, inter alia (GSR76; Ex F, 24): "It would also be good if you and I could have a chat before then to discuss the secondment extension and your career plans. Would it be possible for you to drop in sometime this week?"
The email exchange that followed between the plaintiff and Dr Savage included (GSR76; Ex F, 24): "…No problem also to meet and talk with you, but this will have to be on Wednesday. Can you make it then? Regards Gerry" "Hi Gerry, Wednesday is fine. I have meetings in the middle of the day but morning (9:30) or afternoon (2:30 onwards) would be fine. Let me know what suits you better. Cheers, Paul" "Hi Paul I will stop in tomorrow afternoon. Regards Gerry"
Dr Savage maintained that the plaintiff did not at any time during the secondment, or prior to his retrenchment from the CSIRO, inform him of additional skills he had acquired as a result of his secondment to DataDot. In his witness statement in reply, dated 13 February 2015 (Ex 22, 6), Dr Savage states: "…Although I cannot say whether or not Dr Swiegers and I met on or around this date, even if we did, and during the meeting he informed me about his work in the catalytic use of sunlight to split water into oxygen and hydrogen, this information would not amount to informing me of a new skill or capability. The work he refers to at paragraph 24 was an application of his existing expertise, which predates his secondment to DataDot. This is evident from Dr Swiegers' Curriculum Vitae (Tab 164), in which Dr Swiegers has listed his many publications in the catalysis field, and it is clear from Dr Swiegers' Curriculum Vitae that the catalysis work was one of his existing primary areas of expertise. Scientists publish new work and discoveries all the time, using their existing skills and expertise, but this does not necessarily mean they have developed new skills and expertise."
In cross-examination, Dr Savage did not recall whether there was a meeting held on 23 July 2008 or around that time. Although he had no recollection of the meeting, he did dispute that the plaintiff told him about new technical capabilities and skills that had been developed as part of the catalysis work he was undertaking.
On 7 August 2008, the plaintiff met with the acting Chief of the CMHT, Dr Megan Fisher, Dr Savage and Mr Cabraal. During this meeting, the plaintiff said that he informed the participants of the Energy Division's interest in the work he was undertaking at the time, scientific papers that he had published describing new techniques that he had developed, and that there had been significant developments in the catalysis technology on which he was working. The plaintiff said that he informed Dr John Carras (the deputy Chief of the CSIRO Division of Energy Technology) of these developments as instructed by Dr Fisher.
In Dr Savage's witness statement in reply, he said that the plaintiff did not discuss new technical or commercial skills at the 7 August 2008 meeting. Dr Savage stated that any information regarding the catalysis project that the plaintiff discussed at the meeting "was an extension of previous work for which he had used existing skills. These "skills" were not acquired as part of the secondment to DataDot" (Ex 22, 8). Dr Savage explained that based on his experience on the Board of Directors of DataTrace, DataDot was in no way concerned or interested in the catalytic formation of hydrogen from water, and that DataDot had no expertise in that area to assist the plaintiff in learning these purported new skills.
On 19 September 2008, Dr Carras emailed representatives of the participating universities (GSR79): "Colleagues, The draft plan looks fine to me. With regard to getting the legals in place, re UoW, Monash and CSIRO, the agreement will have to reflect the three way nature of the agreement and the outcomes we are all seeking…"
The plaintiff explained that the development of a multi-institution commercialisation strategy and legal agreement governing the catalysis technology comprised new commercial skills that he developed during the secondment.
The plaintiff said that on 28 January 2009 (one working day after he returned from secondment), he provided Mr Black with his curriculum vitae (T124, 43-48). The plaintiff stated that his curriculum vitae detailed the skills and capabilities he had acquired, which included the books and papers he had published (or was preparing) between leaving on secondment in 2006 and returning to the CSIRO in 2009, the role he had performed at DataDot, and the related technical and commercial activities.
In cross-examination, the plaintiff gave the following evidence (T187, 1-19): "Q. When you were at DataDot on secondment, they had initially wanted you in the role of vice president of Datatrace? A. Yes. Q. That was because of the skills you brought to the role? A. Yes. Q. You exercised those skills in the role? A. Yes. Q. They were skills you had developed over years? A. Yes. Q. You did not develop a new set of skills at DataDot? A. No, I disagree, I did develop new skills. Q. I suggest you never told anyone at CSIRO you had developed a new set of skills at DataDot? A. No, that's completely incorrect as well."
In their supplementary witness statements, Mr Black (Ex 8, 10), Dr Woodrow (Ex 34, 6), Dr Simpson (Ex 28, 7), Dr Savage (Ex 21, 14), Dr Houston (Ex 25, 8), Dr Wilson (Ex 17, 7), Dr Coia (Ex 31, 8) and Dr Osvath (Ex 37, 7), stated: "[The plaintiff] did not, at any time during the term of his secondment or prior to his retrenchment from the CSIRO, in any conversation with or communication to me…, advise me… of any additional skills that he had acquired during his secondment to DataDot."
In Dr Wilson's witness statement in reply, dated 13 February 2015, he explained that the email he received from the plaintiff on 12 December 2006, regarding the cancellation of the Biomimetic Catalysis project, "did not outline a new skill. It outlined a result from a particular scientific line of enquiry" (Ex 18, 6). Further, Dr Wilson said that all of the skills the plaintiff referred to in paragraphs 19, 28 and 42 of his third witness statement "relate to existing skills Dr Swiegers had acquired prior to going on secondment" (Ex 18, 8).
In Dr Woodrow's witness statement in reply, dated 13 February 2015, he said that he disagreed that the 12 December 2006 email, the 8 May 2007 email, and the plaintiff's curriculum vitae informed him of new skills acquired by the plaintiff for the following reasons (Ex 35, 6-17):

the skills the plaintiff developed for performing part of the catalysis project which involved "making hydrogen from water using sunlight" occurred prior to his secondment to DataDot;
the catalysis project was a CSIRO project because it was funded by the CSIRO through a research grant awarded to it by the Australian Research Council. His work on this project was not undertaken as part of the plaintiff's secondment;
the work carried out by the plaintiff in identifying the "model complex" from Princeton University as a likely catalyst, was performed using skills that the plaintiff had developed over time. "These skills were not new skills he had acquired as part of his secondment to DataDot." This experimental work was a new result, not a new skill and was not carried out by the plaintiff, rather a student at Monash University;
skills of publishing papers and submitting patents were skills that the plaintiff already had prior to his secondment;
the email dated 8 May 2007 was two sentences long and did not inform Dr Woodrow that the plaintiff had acquired any new skills; and
the plaintiff's curriculum vitae did not detail any new skills that the plaintiff had gained as a result of his secondment to DataDot. The catalysis papers and books were not informative of any new skill as they outlined new results from the plaintiff's research at the CSIRO, as opposed to new skills he had developed on his secondment.

However, Dr Woodrow, in cross-examination, accepted that further publications and patents did involve the development of a scientist's skills (T912, 42-44): "Q. Scientists improve their skills and obtain greater experience by publishing more papers and being involved in more patent applications, correct? A.Yes. That's a hard one to argue against, indeed it is true."
In answer to my questions, Dr Woodrow gave the following further evidence (T914, 7-31): "Q. Was any consideration given by you as to the question of new skills that Dr Swiegers had acquired during the period of his secondment? A. Your Honour, I did not ask Dr Swiegers for new skills, whether he had acquired new skills. I feel that was his responsibility to inform us that he had acquired new skills, and I'm not talking with hindsight, but as far as I am aware with hindsight there were no new skills developed because they were all in the province of work that was taking place in CSIRO, not work that was being carried out as part of the secondment. Q. Would you regard the increasing development of skills that had been originally acquired by Dr Swiegers in his employment with the CSIRO during the period of his secondment as a new skill? A. No, I would not have. I would ‑ in seconding people into companies we're seeking to bring fresh air back into the organisation and new skills so new concept so a continuation of previously acquired skills would not, in my mind, fit that definition. Q. Even though they may have significantly developed during the period of the secondment? A. I guess there's a theoretical possibility that if there was some major breakthrough that you ‑ well, no, that would be essentially in my mind a new result from an implied skill. Yes, so if skills are applied in your work and you generate results and data from the application of those skills. We're talking here about any new, in my mind, skills, techniques, approaches, knowhow which can be brought back into a generic sense into the organisation."

[21]

Consideration

The mutual obligations imposed by cl 6 included the expectation that the plaintiff "would continue to liaise with the Chief or his delegate, in respect to the new skills" that he had acquired and his "expectations on return to the Division." This information was to be used to develop a role for the plaintiff "within the Division that maximizes the additional skills" that he had gained. Whilst the obligation is expressed in terms of being "expected", it was a condition under which the plaintiff undertook the secondment.
A reasonable person in the position of the plaintiff would understand that the development of a role upon his return to the Division was dependent upon him maintaining contact with the Chief or his delegate in respect of the new skills that he had acquired. That a reasonable person would understand that the CSIRO was bound to develop a role for the plaintiff upon his return from secondment, but he was not obliged to liaise as cl 6 envisaged, defies both common sense and logic.
I accept the plaintiff's evidence that on 12 December 2006, he informed Drs Woodrow, Wilson and others of "the new technical capabilities and skills that had been developed in respect of making hydrogen from water using sunlight" (see [184] above). He maintained contact with Dr Woodrow by email on 8 May 2007.
Dr Savage did not recall a meeting with the plaintiff on 23 July 2008, but it is evident from the emails that they met on that day. It was Dr Savage's suggestion that they have a discussion concerning "the secondment extension and [the plaintiff's] career plans." In these circumstances, it is more likely than not that the plaintiff told Dr Savage about the new technical capabilities and skills that were being developed in the catalysis project.
I also accept that the plaintiff informed Drs Fisher, Savage and Mr Cabraal on 7 August 2008 of the work he was undertaking, the scientific papers that he had published describing new techniques that he had developed and of the significant developments in the catalysis technology. He further informed Dr Carras of these developments.
The real issue, it seems to me, is whether the information provided by the plaintiff amounts to "new skills" that he acquired as I am satisfied that he continued to liaise with "the Chief or his delegate." Dr Woodrow was the Chief of the CMHT from 1 July 2005 to 30 June 2010. Dr Fisher had been an Acting Chief. The defendant's criticism of the information provided is founded on the argument that the development of skills gained by the plaintiff whilst working for the CSIRO before the secondment did not amount to "new skills" within cl 6.
The interpretation of cl 6 by Drs Woodrow and Savage is, in my opinion, too narrow. The meaning of "new skills" is enlightened by the use of the words "additional skills" in the role that was to be developed. These words suggest that the skills which were acquired during the secondment were not confined to skills that the plaintiff did not have at all before moving to DataDot but apply to pre-existing skills that were added to or enhanced. The development of the plaintiff's skills in catalysis technology during the secondment could only have been to the advantage of the CSIRO as it was a CSIRO project. It would defy common sense that the role to be developed for him would not be enhanced by maximising these additional skills that he had gained.
I should mention that I agree with Mr Gibian's criticism of the uniform dissertation in the supplementary witness statements referred to in [183] above. It is evident that the deponents to those statements were informed by the unreasonably narrow approach adopted by the defendant to the construction of cl 6.
I conclude that the plaintiff did liaise in respect to the new skills that he had acquired in accordance with the obligation imposed on him by cl 6. I find that the CSIRO did not develop a role for the plaintiff upon his return from the secondment with DataDot in January 2009.
The question, however, remains as to whether the mutual obligations imposed by cl 6 were subject to the terms of the Document of Appointment.
I consider that they were, as the "Governing provisions" in cl 11 of the Document of Appointment relevantly provided that the plaintiff's appointment was "subject to and governed by: 1. The terms and conditions contained in this Document of Appointment; 2. The CSIRO Terms and Conditions of Service, as varied from time to time, which may be inspected at your place of employment,…" (Italics added)
Clause 4.2(b) included a term that stated that the plaintiff's employment may be terminated by the CSIRO in the event of - "(iii) [his] becoming excess to CSIRO's staffing requirements." Clause 4.2(b) is more fully set out in [12] above.
There is nothing to suggest in the secondment letter that the CSIRO's obligation to develop a role for the plaintiff upon his return from secondment overrode the governing provision of termination in the event of the plaintiff becoming excess to the CSIRO's staffing requirements. The plaintiff, however, argues that had the CSIRO developed a role for him upon his return from secondment in January 2009 in accordance with its contractual obligation, the plaintiff would have had a role and could not have been subject to retrenchment at that time pursuant to cl 4.2(b)(iii) of the Document of Appointment. It is the first ground of the plaintiff's case that the CSIRO breached the term of the plaintiff's contract of employment by failing to develop a role for him upon his return from secondment.
The second ground upon which the plaintiff claims that the CSIRO breached his contract was by retrenching him in February 2009. The plaintiff says that the only basis upon which the CSIRO could terminate his employment was in the circumstances set out in cl 4.2(b)(iii) of the Document of Appointment. Shortly stated, the plaintiff claims that the decision made to terminate his employment was not genuine and he was not actually excess to staffing requirements.
There is, in my opinion, no merit in the plaintiff's argument that had a role been developed for him upon his return from secondment, he could not have been retrenched pursuant to cl 4.2(b)(iii). As I have found that the obligation upon the defendant to develop a role for the plaintiff upon his return from secondment was subject to and governed by the terms and conditions in the Document of Appointment, the first ground of the plaintiff's case could only succeed if the decision to terminate his employment was not genuine and he had not become excess to the CSIRO's staffing requirements.
Before venturing further, it is apposite to note that it is common ground between the parties that the CSIRO had the contractual right to terminate the plaintiff's employment if he was excess to staffing requirements. The parties differ as to the source and the extent of the power.

[22]

The CSIRO's power to retrench the plaintiff

The plaintiff submitted that cl 4.2 of the Document of Appointment was the sole source of the defendant's power to terminate his employment. The defendant, on the other hand, contended that cl 16.1 of the Terms and Conditions of Service gave content to the broad words in cl 4.2(b)(iii) of the Document of Appointment, that is, "becoming excess to CSIRO's staffing requirements." The defendant's approach is reflected in the Fifth FAD 5 ha (i)-(iii) which is relevantly pleaded as follows: "ha i. The Employment Contract (as varied) (the Contract) included express terms as set out in a document entitled "Document of Appointment"; ii Clause 11 of the Document of Appointment provided that the Plaintiff's appointment was subject to and governed by: (a) the terms and conditions of the Document of Appointment; (b) the Defendant's Terms and Conditions of Service, as varied from time to time; (c) … (iii) Further to ii.(b) above, the Defendant's Terms and Conditions of Service (as applicable as at the time of termination of the Plaintiff's employment), provided that the Defendant may at its choosing retire an employee or transfer them to other duties if it is necessary to curtail any phase of the activities of the Defendant or the officer is no longer required for the efficient working of the Defendant or there are a greater number of officers of any designation than is necessary for the efficient working of the Defendant (clause 16.1) (the entitlement to terminate for being excess to the Defendant's requirements);"
In the Fifth FAD 28(b)-(c), the defendant pleads: "(b) says it terminated the Plaintiff's employment because the Plaintiff was excess to the Defendant's staff requirements in accordance with the entitlement to terminate for being excess to the Defendant's requirements; (c) says the Plaintiff was excess to the Defendant's staffing requirements due to staffing changes in the National Security Technology Partnerships Theme necessitated by a decreased allocation to the Theme and a realignment of the Defendant's research, capability and investment priorities away from security technology generally; Particulars (i) Letter from the Defendant to the Plaintiff dated 16 December 2008; (ii) Email from Dr Osvath to Mr Black and others sent on 13 June 2008 at 12:54pm."
The plaintiff submitted that cl 11 of the Document of Appointment, properly construed, performs the function of informing him as to other instruments that may apply to his employment. This clause could not be construed as giving the Terms and Conditions of Service any greater effect than the instrument would have otherwise. The plaintiff further argued that cls 12 and 16 of the Terms and Conditions of Service, on their face, did not apply to his employment. The plaintiff contended that cl 4.1 of the Terms and Conditions of Service provide that an officer "may be employed either under these Terms and Conditions of Service or under the terms and conditions of the appropriate industrial award or determination." The plaintiff pointed out that only certain terms, not including cls 12 and 16, applied to all officers. It was argued that the Document of Appointment records in cl 1 that the plaintiff was employed "under the circumstances described in sub-clause 7(b)(v) of the CSIRO Tenure Award." The plaintiff submitted that, accordingly, the relevant Terms and Conditions of Service relied upon by the CSIRO have no application to him.
The defendant referred to cl 11(b) of the Document of Appointment and argued that the plaintiff's construction of the employment contract was not sustainable. The defendant submitted that the grounds for termination in the Document of Appointment were "properly construed, merely a high level summary of the CSIRO's powers of termination" (DWS 445). Clause 16.1 was said to give content to the broad words "becoming excess to CSIRO's staffing requirements." It was put to the court that pursuant to cl 16.1, the central purpose of the retrenchment power was to enable the CSIRO to control the numbers of its workforce to ensure the efficient working of the organisation.

[23]

Consideration

Clause 1 of the Document of Appointment relevantly is as follows: "Position You are appointed to the full time position of Research Scientist in the Applied Chemistry and Polymer Science Program of CSIRO Molecular Science. Your appointment will be under the circumstances described in sub-clause 7(b)(v) of the CSIRO Tenure Award."
Clauses 4.1 and 4.2 of the Terms and Conditions of Service are in the following terms: "4.1 An officer may be employed either under these Terms and Conditions or under the terms and conditions of the appropriate industrial award or determination: 4.2 Notwithstanding sub-paragraph 4.1, the following Paragraphs of these Terms and Conditions shall apply to all officers, that is to say, Paragraphs 9, 11, 20, 20A, 20B, 21, 22, 23, 24, 24A, 25, 36 and 37."
As the plaintiff submits, cls 12 and 16 of the Terms and Conditions of Service do not apply to officers employed "under the terms and conditions of the appropriate industrial award or determination." The difficulty, however, for the plaintiff's argument is that it ignores the governing effect of cl 11(b) of the Document of Appointment which expressly provided that the plaintiff's appointment was subject to and governed by the CSIRO Terms and Conditions of Service. Clause 12.2 of the Terms and Conditions of Service applied to "indefinite officers" which the plaintiff was after 21 December 1998. Clauses 12.2 and 16.1 are reproduced at [33] above. In my opinion, these clauses applied to the plaintiff's employment. I do not consider that there is any inconsistency between the provisions of the Document of Appointment and the Terms and Conditions of Service.
I agree with the defendant's submission that the correctness of the CSIRO's construction of the retrenchment power is illustrated by the use of another example: termination in the event of "misconduct." As the defendant submits (DWS 446): "… On a plain reading of the Document of Appointment alone, CSIRO is entitled to terminate an employee with indefinite status for any type of "misconduct". However, "misconduct" has a particular definition within the Terms and Conditions of Service, being "a failure of the officer to fulfil his or her duty as an officer." Clause 19B of the Terms and Conditions of Service set out various actions which will constitute this type of misconduct, including wilful disobedience of a direction, incompetence, negligence and improper conduct in and outside employment."
The principal question remains whether the circumstances justifying the exercise of the power of termination existed at the time the plaintiff's employment was terminated.

[24]

Was the decision to retrench the plaintiff genuine?

I do not propose to recount all of the plaintiff's submissions on this issue as they occupy many pages of the written submissions (PWS 69-182). A convenient summary of the plaintiff's case on this topic is found at PWS 182: "For these reasons, the plaintiff submits that his retrenchment from employment with the CSIRO was in breach of his contract of employment in circumstances in which the decision to terminate his employment was not a genuine decision that he was excess to staffing requirements and the plaintiff was not actually excess to staffing requirements having regard to the following: (a) That those involved in the decision held and expressed extremely negative opinions of the plaintiff and were aggrieved at the plaintiff making the Whistleblower Complaint and other complaints in the course of his employment. (b) That a decision was made that the plaintiff would be made redundant as early as November 2007 without there being any basis for the decision and without investigating other work that could have been performed by the plaintiff. (c) That, contrary to obligations upon the CSIRO under its enterprise agreements and in contrast to the treatment of other employees, the plaintiff was not advised he was regarded as redundant for in excess of 12 months. (d) That, again in contrast to the treatment of other employees no genuine efforts were made to redeploy the plaintiff or to find alternative projects on which the plaintiff could work. (e) That there was research work available and required by the CSIRO that was suitable for the skills, experience and capabilities of the plaintiff at the time he was identified as redundant and that his employment was terminated."
The plaintiff submitted that the events which ultimately resulted in the plaintiff being retrenched appear to have commenced in late 2007 with the making and implementation of a decision to close the MDI project. The plaintiff argued that the reasons for and timing of the decision to cancel the MDI project ultimately turned out to be obscure, having regard to the whole of the evidence. The plaintiff stated (PWS 90): "… Somewhat extraordinarily for a public sector agency, no document appears to exist recording the decision and no person was able to give evidence as to how it was made."
It was contended that the evidence was entirely unsatisfactory. The plaintiff submitted that the conclusions that can be drawn from the evidence are (PWS 102): "(a) Firstly, that discussions had occurred resulting in the MDI project being earmarked for closure some time prior to October 2007 and Mr Black at least was lead to believe the project would be closed. (b) Secondly, the Project Review Committee did nothing more than suggest that the CSIRO contemplate closing the MDI project and did not made (sic) a decision to close the project. (c) Thirdly, the decision was made to close the project after the meeting of the Project Review Committee in discussions between Dr Woodrow, Dr Wilson, Dr Simpson and Dr Osvath, persons named in the Whistleblower Complaint."
Another matter referred to was a "confidential" meeting having taken place involving Mr Black, Drs Simpson, Wilson and Osvath on 19 October 2007. The plaintiff was critical of a number of attendees at the meeting, submitting that they were very quick to claim inability to recall the meeting or doubt that it occurred or that they personally attended. The plaintiff contended that no plausible explanation was provided by any of the participants for the conduct of the meeting. The plaintiff pointed out that his secondment was not due to finish for another eight months, that the notation made by Mr Black in organising the meeting recorded that the issue had "been previously discussed" and no step was taken following the meeting in relation to the plaintiff's return from secondment.
The plaintiff argued that the only reasonable explanation is that a confidential meeting was held in contemplation that steps would be taken in the coming period that would result in the plaintiff being made redundant from the CSIRO.
Amongst other matters of complaint was the identification of the plaintiff as being in a "potential redundancy situation" little more than a month after the October meeting. Particular reference was made to Mr Black's evidence and at the very least that a potential redundancy had been identified by June 2008, which was the option that the CSIRO chose to pursue.
The plaintiff contended that by January 2008, Mr Black was so confident that the redundancy would proceed that he requested "cesscalcs" (that is, calculations of payments to be made upon termination of employment) be obtained with respect to the plaintiff. The plaintiff argued that it was contrary to common sense to suggest Mr Black would request calculations be undertaken in relation to the plaintiff's entitlements upon retrenchment unless a firm conclusion had been reached that he was to be made redundant.
Another contention was that the preparation of the redundancy document in June 2008 was consistent with the obvious desire of Mr Black and others that the plaintiff not return to the CSIRO. The plaintiff submitted that there was no other reasonable inference to be drawn other than that the senior decision-makers within the CMHT had determined that the plaintiff's employment would be brought to an end by a disciplinary process or redundancy process.
The plaintiff submitted that no coherent or believable reason has been advanced as to why the plaintiff was considered to be excess to staffing requirements or ultimately subject to retrenchment from the CSIRO. To the extent that the plaintiff sought to place any reliance upon the decision to close the MDI project, there was no reason for him to be identified as redundant as he was not assigned to the MDI project at the time. Furthermore, in the case of an indefinite employee, the closure of a project was not an event that would lead to immediate contemplation of redundancy.
The reason given in the letter of 16 December 2008 for the plaintiff's redundancy being "necessitated by a decreased funding allocation through SIP3 to the Theme" was claimed by the plaintiff to be incorrect (Ex 23, V9, T157). The plaintiff pointed out that "SIP3" was a reference to budgetary changes that occurred in the middle part of 2008, which the plaintiff said was clearly not the reason as he had been identified as potentially redundant from November 2007. Another matter was that the redundancy documentation prepared by Mr Black for submission to senior management made no reference to the SIP3 process but referred to the closure of the project review process in 2007.
The plaintiff contended that the genuineness of the purported redundancy decision could be tested against whether the decision was made and put into effect in accordance with the usual procedures applied by the CSIRO. The plaintiff argued that, in flagrant disregard of the legal obligations of the CSIRO and the usual treatment of employees, the decisions with respect to the plaintiff's employment were actively and deliberately concealed from him. Had the process been genuine, the plaintiff said that he would have been advised at the earliest possible time of the situation and assisted to identify other work he could be engaged to perform. The plaintiff made reference to the treatment of other employees affected by the closure of the MDI project, or upon return from secondment, which was said to stand in stark contrast to the way he was treated.
The approach to Dr Coia's return from secondment, the plaintiff said, could not stand in greater contrast to his treatment. It was said that the absence of a position for Dr Coia to return to did not prompt any action to regard Dr Coia as redundant or potentially redundant. Rather, projects were "cobbled together" to allow Dr Coia to continue his employment.
The plaintiff complained that his treatment by the defendant from November 2007 until the termination of his employment demonstrated that no genuine attempts were made to identify alternative projects on which he could be engaged. What steps were taken, the plaintiff claimed, were perfunctory in nature.
Reference was made to the defendant's failure to inform him of a "potential redundancy situation" in the period between November 2007 and December 2008. The plaintiff claimed that if there were to be a genuine attempt to redeploy him, the first step that would have been taken would be for the CSIRO to inform him of the situation and engage in discussions aimed at developing a plan for his future employment. The plaintiff submitted that there was no evidence of any steps taken by the defendant to redeploy him or of any person within the CSIRO who took responsibility for attempting to identify redeployment opportunities for him.
The plaintiff stated that the only steps taken to attempt to redeploy him after he was formally advised of potential redundancy on 16 December 2008 were undertaken by Mr Black. These steps are identified at PWS 159.
I do not propose to detail all of the defendant's submissions on the genuineness of the plaintiff's redundancy. These submissions occupy many pages of the written submissions. In short, the defendant contended the notion there was any "conspiracy" operating against the plaintiff was entirely improbable. Each of the plaintiff's allegations in this regard were untrue and without foundation. It was pointed out that the "Sting" meeting theory had been debunked, the meeting had not occurred and the assertion of a conspiracy was a product of the plaintiff's overly suspicious mind.
The defendant referred to all of the alleged participants in the conspiracy as witnesses of credit who convincingly refuted allegations of conspiracy. The defendant noted that the plaintiff had conceded in cross-examination that he was only making bad faith allegations in terms of his redundancy against "Black, Woodrow, Osvath and potentially Wilson" (DWS 50).
The defendant pointed out that at the time the redundancy process commenced in early December 2008, the Whistleblower Complaint had been resolved and favourably to the six CSIRO officers, none of whom presented as having a personal grudge against the plaintiff. Furthermore, the evidence showed that the making of complaints and grievances was not uncommon for individuals at the CSIRO.
Considerable attention was given by the defendant in submissions to the plaintiff's focus on the timing of the CSIRO's advice to the plaintiff that he was "likely to be excess" to the CSIRO's requirements. The defendant referred to the plaintiff's reliance on a documentary trail that commenced as early as 29 November 2007 (Mr Black's email to Drs Woodrow and Simpson, and the lack of formal advice to him that he was "potentially excess" to requirements until 16 December 2008).
The defendant stated that the implication was that "CSIRO was required on and from 29 November 2007 to advise [the plaintiff] about his "potential redundancy situation, and deliberately withheld this information from [the plaintiff], mala fides, in order to deny him redeployment opportunities at CSIRO and achieve his forced redundancy" (DWS 61).
Reference was made to cl 3(a) of Sch 3 of the R&R Policy. The defendant submitted that on a plain reading of this section, the obligation on the Chief of the Division to "advise" the relevant CSIRO officer did not arise until it appears that the officer is "likely to become excess". The words "likely to become excess" were said to have real meaning because they triggered the following obligations under the R&R Policy (DWS 63): "(a) the conduct of a CSIRO-wide survey for redeployment opportunities; (b) where no apparent redeployment opportunities exist, the requirement to formally advise the officer in writing that he or she is potentially excess; (c) one calendar month after the formal advice referred above, unless the officer has secured alternative CSIRO employment, the officer will be given five weeks' notice of termination; and (d) employment will terminate at the completion of the notice period if the CSIRO officer remains excess to CSIRO's requirements."
The defendant argued that the consequence under the R&R Policy of escalating the matter by informing the plaintiff that he was "likely to become excess" would lead, if redeployment attempts were unsuccessful, to the plaintiff's termination of employment within approximately nine weeks. The defendant said that the plaintiff's proposition that by delaying giving "advice" to the plaintiff under the R&R Policy, the CSIRO deprived the plaintiff of approximately 12 months to search for redeployment issues, was entirely misconceived.
When referring to Mr Black's email of 29 November 2007 to Drs Woodrow and Simpson, the defendant argued that Dr Woodrow's assessment that the plaintiff was only "potentially redundant" and not "likely to become excess" was entirely consistent with a bona fide decision making process given the plaintiff's secondment to DataDot where he would be 100 per cent employed until at least July 2008.
The defendant submitted that "[r]edundancy and project closures are not two sides of the same coin" (DWS 70). Dr Simpson's evidence that there was "not such a linear direct connection" between the closure of the MDI project and the plaintiff's ultimate redundancy was said to illustrate this point. Furthermore, at the time of the MDI closure, two CSIRO officers other than the plaintiff were assigned to work on the project, whereas the plaintiff was 100 per cent engaged with DataDot.
The defendant said there was no evidence that, had the CSIRO invoked the clause earlier, the plaintiff's prospect of finding a redeployed role would have been better.
The allegation by the plaintiff that genuine efforts were not made to find redeployment opportunities for him, the defendant argued, did not withstand scrutiny. Amongst the matters referred to were Mr Gibian's failure to cross-examine Mr Black about the efforts to redeploy the plaintiff prior to December 2008, the agreement between DataDot and CSIRO to extend the defendant's secondment through to the end of 2008 and the entitlement of Mr Black to accept the word of his fellow professionals that they had no vacancies in their respective divisions.
The defendant submitted that the plaintiff was informed that he was likely to become excess to CSIRO's requirements in December 2008, because it was at this stage that the following factors were all simultaneously present (DWS 91): "(a) his secondment was coming to a definite conclusion, meaning he would be returning to CSIRO at the end of January 2009; (b) the work he had previously performed was not being undertaken in the Division anymore; and (c) the funding for the Division had been drastically reduced."

[25]

Matters of Evidence - the closure of the MDI project

In the plaintiff's second witness statement (Ex E, 91, 151, 152, 177 and 214) he stated: "The concept of the MDI technology arose out of a project to create a "self-authenticating" banknote. Dr Woodrow neglects to state that on that same page 10 of his presentation are also listed projects which were to receive increased funding. One of these was "Security Devices" - i.e. the product security research group, which included the MDI technology. In fact, the MDI technology received additional funding at this time. A new staff member, Dr Mat Ballard, was assigned to work on the technology at that time. Thus, contrary to Dr Woodrow's assertions, in May 2006 the MDI technology was considered to meet all of the requirements listed in sub-paragraphs (a)-(d). Indeed, it met them so strongly, that it received additional funding. Yet, effectively, one and a half years later, it was closed, according to Dr Woodrow, due to "lack of impact" and "lack of alignment." The decision to close the MDI project was made by the DMT in a meeting over 12-14 November. Dr Wilson remained the Stream Leader for the MDI project at the time. Dr Wilson was aware that, in April 2007, I had made a formal complaint against him alleging illegalities… … It is clear that six members of the panel were whistleblower respondents and the majority of the rest were subordinates of whistleblower respondents… The suggestion is not that Dr Osvath or anyone else would compromise the Security Group simply to get back at me. It is rather that they would do what their superiors wanted them to do, or what they thought they wanted them to do. Their superiors had earlier told most of the senior managers through Dr Wilson that the Division chief wanted them to "work as a team, so welcome aboard!!".
In cross-examination, the plaintiff gave the following evidence in relation to the MDI project (T307, 48-50): "Q. Do you accept, you say that this closure was somehow a way to target you? A. Yes, I think it was, yeah."
Dr Woodrow's executive assistant took minutes of the Project Review on 12 and 13 November 2007 (Ex 33, 59; Ex 23, V6, T64). The following individuals were recorded as being members of the "CMHT PROJECT REVIEWS NOVEMBER 2007": "Project Review Committee Graeme Woodrow Greg Simpson Megan Fisher Keith McLean David Down Bruce Kemp Ian Elsum Lee Karolidis (Minutes) In Attendance: Gerry Wilson Pat Hartley (alternate for Peggy Stasinos) Paul Savage"
On page three of the "CMHT PROJECT REVIEWS NOVEMBER 2007" document, the following was recorded under the heading "1048:National Security Technology Partnerships" (Ex 23, V6, T64): "1048.1:Document & Product Authentication • MDI - where is this going in a BD sense? Path to market - is there a buyer? Why are we struggling getting these out the door? • Do we close? • Marketing issue - cannot find customer. • Relationship issue with Datatrace. • Market exploration should be done by experts • No sense of urgency MDI/OVD - we should contemplate on closing down. No strategic alliance. Theme Leader to work up plan. No interview required."
Dr Mat Ballard (project manager) prepared a "Section 2: Status Report" on the MDI technology for November 2007, which stated in part (Ex 23, V5, T59): "Despite a committed effort to exploit our "Hidden Image" (MDI) technology with commercial companies we have met with limited success."
On 4 December 2007, Dr Simpson emailed the CMHT DMT in relation to the preliminary results of the Project Review (Ex 23, V6, T78): " " text version of table (3.95 KB, html)
Exhibit Y is a series of "Cached messages" sent on 5 December 2007. In one of the messages, Dr Wilson emailed Mr Lawry McCarthy and Drs Ballard and Houston the following (Ex Y, pg 1 and 2): "… My reading of the tealeaves is that we will soon be asked to cease and desist all new activities in MDI (both experimental and Business Development). We will probably be allowed to continue a minimum amount of BD and practical work on any projects that are currently on foot - but, again, not start anything new. Whilst there is no need to panic it might be a smart use of your time to start seeing what other projects around the place you can contribute to. Obviously ones that are growing (or slated to grow) would be the smart choice. Off the top of my head the immediate examples I can think of are - I'm frustrated by our lack of progress on piezochromic polymer films - ie block-copolymer films that separate into lamellae that produce strong Bragg reflections and that change colour as you press them. Securency would snap up this in a heartbeat and I know we have all the skills here in house to do it. I also know that there is a shed-load of infomatics 'stuff' that Andrew G needs to have help with around his high-throughput materials discovery and materials library work. So there are no shortage of opportunities. Perhaps we can get together with Peter and Geoff and discuss??? Gerry"
In an email dated 25 January 2008, with the subject line "Project Review Outcomes", Dr Woodrow informed the CMHT staff (Ex 23, V6, T82): "Specific project decisions … Security • Stop MDI and BioOvd projects"
In Dr Woodrow's first witness statement (Ex 33, 30-32, 54-55, 104 and 109) he stated: "March 2006: Project Review In March 2006, the DMT held a Project Review. 12 May 2006: Presentation to staff regarding project closures On 12 May 2006, I delivered a presentation to staff in which I listed 16 projects (Tab 22, p.10) that were being or had been closed based on an analysis of, in the main: (a) their alignment with the Division's objectives and goals; (b) their level of "impact" (c) their scientific quality; and (d) the strength of their intellectual property. These closures formed part of a strategy developed, at least in part, in response to the recommendation from the External Science Review to reduce the total number of projects overall within CMHT. The MDI project was not earmarked as one of the 16 projects for closure, although it did not meet the objectives of impact and alignment, even at this time. It was given more time to see if a significant commercial partner could be found. July 2006: Project Review In July 2006, the DMT held a Project Review (Tab 23). At this review, concerns regarding the "fit" of the MDI project were raised and discussed. 12 to 14 November 2007: Project Review On 12 to 14 November 2007, the CMHT Project Review Committee held a Project Review. Each member of the Project Review Committee, of which I was a part, independently completed an assessment of all projects within the Division, using a common scoring template. We then came together for three days to hear from the project leaders about individual projects and to allow discussion on any issues the Project Review Committee had. The Project Review was chaired by Dr Ian Elsum, a senior colleague from Science Planning CSIRO Corporate, who was a former scientist from CMHT… Further, I deny that I took action against Dr Swiegers, alone or with others, in "reprisal" for the bringing of the Whistleblower Complaint. I would not do such a thing and if I was aware of any such conduct by others, I would treat such a matter as serious misconduct and would have dealt with the matter accordingly. I had no need to do so. The decision to close the MDI project was based on sound objective strategic and commercial information in a transparent and interactive process, and not on some bizarrely perceived "conspiracy" or "collusion" between most of the senior managers in CMHT focused on an alleged "campaign of harassment" against a middle level scientist."
In cross-examination, Dr Woodrow gave the following evidence (T881, 50; T882, 1-10): "Q. There was no further meetings with the project review committee after 15 November; correct? A. There was communication but no formal meetings; that's correct. Q. Would I be really right in understanding that there's no document that records how that decision was made? A. There was the summary prepared by Dr McLean which was in the form of a presentation which summarised the outcomes from the meeting with involved discussion amongst the project committee so that's why I say it wasn't a formal meeting but there was informal follow‑up around the contents of that particular presentation."
In Dr Wilson's first witness statement (Ex 16, 12 and 16) he explained that: "The decision to make the Modulated Digital Image (MDI) project was made towards the end of 2007 by the Division Management Team of CMHT (Panel), as part of its regular and Division-wide Review process. This Panel sought input through written documentation from project leaders, by interviewing the project teams and through consultation with senior scientists. As a Theme Leader within CMHT, I had input into this process. I supported the closure based on the written documentation and general discussion during the presentation of the Project. As part of the Project Review process, each project within the Division would provide a submission to the Panel on the status of the project. The purpose of this document was to provide the Panel with key technical and business information upon which to base its decision as to whether to continue or close the project. Dr Mat Ballard prepared a statement with respect to the MDI Project (Tab 59). I consider that the information provided in this document accurately described the technical and business status of the MDI technology. From a business perspective, Dr Ballard's submission describes a lot of business development activity for little return."
In Dr Osvath's first witness statement dated 27 April 2014 (Ex 36, 25-26) he stated: "As a Theme Leader, I was part of the Panel that made the decisions about the closure of projects. With respect to the MDI project, the Panel discussed that the MDI technology appeared to have had negligible commercial validation after more than five years of concerted effort at commercialisation. Although I was championing the project, I had to accept that it had not brought in substantial commercial interest. There was also a perception amongst the Panel that the MDI project had gone on for long enough. Based on my knowledge of the project work within the Security Group, it was correct that the MDI project had gone on for longer with few returns than many projects within the CMHT. The weight of opinion on the Panel was to close down the project and this was reflected in the vote taken: the MDI project was to close. I deny that the closure of the MDI project had anything to do with any kind of personal act against Dr Swiegers. I would not have been party to a decision to close a project based on any sort of vendetta against someone, including Dr Swiegers."
In Dr Savage's first witness statement dated 28 April 2014 (Ex 20, 14-19) he stated: "In preparation for making this statement, I have read numerous pieces of correspondence authored by Dr Swiegers, such as his emails to Dr Houston and others of 4 April 2007. These emails reflect a side of Dr Swiegers' personality that I was not personally exposed to during his time at the CSIRO. However, the nature of the work performed by the CSIRO, that is, cutting-edge scientific research and development, means that there are a great many highly-intelligent, strong-minded, and highly-strung individuals employed within the organisation. It would be unusual if this were not so. The fact that Dr Swiegers may have been viewed as a "difficult" individual within the CSIRO, and the fact that he pursued a number of grievances against other CSIRO officers, does not distinguish him from a number of other individuals within the organisation. The idea that Dr Swiegers' behaviour led to some conspiracy between a number of scientists to concoct a non-genuine redundancy is, in my opinion, highly improbable. …The purpose of the Project Review is to review each project currently being undertaken within the Division and assess: (a) the likelihood of the project achieving timely technical success; and (b) the project's commercial attractiveness (e.g. path to market, market size, customer readiness). A decision to close a particular project does not mean that the project is a bad project. None of the projects that are conducted within the Division are fundamentally worthless. Our review process requires all projects to be ranked. The bottom projects, rather than being "poor" projects, often simply do not offer the organisation as good an opportunity as the top ones, based on a combination of technical and commercialisation measures, and in the context of limited resources within an applied research organisation. The Modulated Digital Image (MDI) project was essentially complete from a technical perspective. During the Project Review, we discussed how a significant effort had gone into trying to attract commercial interest in the technology but that all of the leads were evaporating and there didn't appear to be any customers willing to take on the technology at that time. There had been many cycles within the MDI project of: (a) a potential customer expressing interest in the MDI technology; (b) further technical work being performed (at CSIRO's cost) to create a prototype for the client's needs; and (c) the client giving feedback that the technology was interesting, but not for them. I supported the closure of the MDI project. To my mind, this was not a difficult discussion to come to in light of the budgetary constraints of the Division. There was no discussion during the Project Review of the personalities involved in the various projects. Furthermore, the closure of a project is not prima face (sic) linked with a person who works on the project losing his or her job. Within the CSIRO, for employees of indefinite status a project is a thing you do - it is not your job or position (by contrast, term staff may be appointed for the duration of a specific project or task). The closure of a project frees up resources for other higher priority projects into which those individuals can be redeployed. Furthermore, Dr Swiegers was not even working on the MDI project at the time it was closed, so there was no immediate effect on him."
In cross-examination, Dr Savage gave the following evidence (T669, 8-22): "Q. Do you know when that decision was made or did you have involvement in a decision to move from contemplation to closure? A. The process of these project reviews are such that these are the running minutes or the running commentary during the presentation part of the project reviews, following those presentations by the project leader of each project or a representation of the project. There would then a two or three day discussion amongst the project review committee and the decisions would be made then or if the decisions were not made then they would then be discussed further over the following weeks until a final decision was made about which projects to continue, which to add additional resources or which to terminate. Q. In the case of MDIs is it your recollection there were discussions over the following days or weeks that resulted in a decision to close? A. Yes, your Honour, that's my recollection."
In Dr Simpson's first witness statement dated 29 April 2014 (Ex 27, 17-18) he stated: "I recall that during the Project Review, which took place in November 2007 over several days, the Panel reviewed the MDI and how it fitted strategically within the CSIRO, and, specifically, the Division. As I had previously worked in the Security Theme (which the MDI project was a part of), I had knowledge of the background of the CSIRO's work in that theme. I was a supporter of the work done within that theme, and had presented its work to external parties. During the Project Review, the Panel decided that the CSIRO would not continue to support the MDI project, unless an external party came forward to fund it. That is, no more CSIRO appropriation funding would be invested in the MDI project and no additional resources would be provided to the MDI project, as there was no strategic alliance in place. The closure of the MDI project was a strategic decision which had absolutely nothing to do with a motivation to get Dr Swiegers' out of CSIRO as asserted by Dr Swiegers in his witness statement. The work done within the Security Theme was not considered to be in line with the overall strategy of the work within the Division, and, eventually, the CSIRO ceased working in security technologies generally."
In cross-examination, Dr Simpson gave the following evidence (T758, 22-32): "Q. No document recording any decision of the divisional management team to close the project? A. No. Q. There's not. We don't know how we get from preliminary results in the document you sent around on 4 December to an announcement to close the project on 25 January? A. The way we go there was a discussion at the end of the consideration of each project taking into account the strategic direction of the organisation, the future viability of particular projects, our ability to resource them and a choice made about which projects we would continue. So that was the process."
Dr Simpson testified that there was "not such a linear direct connection" (T783, 23) between the closure of the MDI project and the plaintiff's redundancy. The plaintiff was not assigned to the project at the time and, once he had returned from secondment, the plaintiff could be assigned to other areas. Dr Simpson said that, at times, an ex-secondee will (T799, 37-39): "go to a completely new area to avoid governance and other risks associated with continuing work and using confidential information that they may have gained on secondment."
At the time of the closure of the MDI, Dr Ballard (CSOF 7M) was assigned to spend 100 per cent of his time on the project, and Mr McCarthy (CSOF 6M) 95 per cent of his time. Both were CSIRO officers. The plaintiff accepted that he was 100 per cent engaged with DataDot and not assigned to the MDI project.
In Mr Black's first witness statement (Ex 7, 10) he explained: "… Dr Swiegers had worked on the MDI project immediately prior to going on Secondment in mid-2006. I had no involvement in the decision to close the MDI project. I was first advised that the MDI project would be closed by Roslyn Hore, Assistant Chief, Operations, but I do not recall precisely when she notified me of this."
In cross-examination, Mr Black gave the following evidence (T370, 11-35): "Q. Your recollection is, at this date of 19 October 2007, the project on which Dr Swiegers had worked had been earmarked for closure? A. That is correct, yes. Q. That is a reference to the MDI process? A. That is correct. Q. The project, I should say. We are told in other evidence that the decision to close the MDI project was made between 12 and 15 November 2007, a month or so later, are you aware of that? A. Yes, that is correct. Q. But your state of knowledge as of October, or as of 19 October, was that it had already been earmarked for closure, is that right? A. That is correct. Q. Was that understanding that you had received from Dr Simpson and Dr Wilson, or Dr Osvath? A. As I recall it I was advised by Ros Hore that ‑ of closure decision but that, yes, the dates I'm not sure of. Q. But you are confident at least by 19 October 2007 you had been informed that the MDI Project was earmarked to close, is that right ‑ as you've referred to it? A. Yes, that is correct."
Mr Black created an "Outlook Calendar Appointment" requesting the attendance of Drs Simpson, Wilson and Osvath at Dr Simpson's office on 19 October 2007 from 12:30pm - 1:30pm. Mr Black stated (Ex 23, V5, T62): "Dear all As mentioned previously, I would like us all to be clear about (sic) future role for Gerry on his return from secondment in July 08 regards"
On 19 October 2007, at 9:32am, Dr Simpson emailed Mr Black, Drs Wilson and Osvath with the subject line "New Time Proposed: Confidential Future role for G Swiegers" (Ex H): "Graham, Gerry, Peter, Greg is now not attending the Brad Smith lunch - SO, could we return to the original time of 12 - 12.30 following the Brad Smith seminar? Thanks, Laile"
In Mr Black's witness statement (Ex 7, 12-13) under the heading "19 October 2007: Email regarding 'Future Role for G Swiegers" he stated: "It was a common practice of mine to draw events like this to the attention of the senior scientists who will have management responsibilities for the scientist on his return. This was particularly pertinent in Dr Swiegers' circumstances, because the project on which he had worked prior to going to secondment had been earmarked for closure during CSIRO's recent internal science review process. I can no longer recall at this distance of time whether or not this particular meeting went ahead, but there may well have been some meeting around this time as a prompt to commence planning discussions for Dr Swiegers' return to the CSIRO. Generally speaking, this type of meeting is not a "decision" meeting, that is, it is not a meeting at which anything is decided in concrete. It merely serves as a reminder to the attendees, who are senior scientists who may well have their minds on other matters, to starting (sic) thinking about what projects the returning employee could be applied to on his or her return."
On 29 November 2007, Mr Black emailed Drs Woodrow and Simpson (Ex 23, V6, T76): "Graeme / Greg We have examined the implications for staff around this closure (as consequence of Project Review Process) and have determined that we have roles in other areas for all except Mat Ballard and Gerry Swiegers. The intention is that Peter Osvath and I would have discussions with both these officers (both CSOF 7M) to advise of potential redundancy situation Graeme Before we undertake this discussion, Alastair Robertson should be advised of this action in relation to Gerry's whistleblower action. If so do you want to discuss first? Graham Black Human Resources"
In cross-examination, Mr Black gave the following evidence (T370, 37-50; T371, 1-32): "Q. Is that a matter that you discussed at the meeting with Dr Simpson, Dr Wilson and Dr Osvath? A. I have no recollection of the meeting proceeding however it may well have taken place. Q. I'll show you another document. You'll see there's an email from Dr Simpson to yourself, Dr Wilson and Dr Osvath? A. Yes. Q. Dated 19 October at 9.32am, do you see that? A. Yes, that's correct. Q. Reading, "Graeme, Gerry, Peter, Greg is now" ‑ it's from someone called ‑ I've forgotten how you say that name ‑ from Greg Simpson's email address, do you see that? A. That's correct. Q. It's signed off by Laile? A. His PA. Q. Who is his PA indicating that Greg, meaning Dr Simpson is now not attending the Brad Smith lunch so could we return to the original time of 12 to 12.30 following the Brad Smith seminar. Do you see that? A. Yes, that's correct. Q. Does that suggest to you that the meeting did go ahead? A. Not necessarily, it really doesn't suggest anything to me in terms of whether the meeting proceeded or not. I would have thought that there would have been other responses around that to say yes, we'll go ahead ‑ but there don't seem to be any record of that. Q. Do you know whether there were or there were not? A. To my knowledge there are not. Q. But at least at 9.30 in the morning on 19 October Dr Simpson's PA is asking that the meeting return to the time of 12 to 12.30, correct? A. That is correct. Q. You've no reason to believe that the meeting didn't go ahead on 12 to 12.30 on that day? A. As I mentioned I do not recall the meeting proceeding however there is no reason for me to think it didn't occur. Q. And am I right in understanding that you have no recollection at all at what happened at the meeting? A. No."
In Dr Wilson's first witness statement (Ex 16, 24) he stated: "I am unable to recollect a meeting between Mr Black, CSIRO HR Manager, CMHT, Dr Simpson, Deputy Chief, CMHT and Dr Osvath, Theme Leader, National Security Technology Partnerships in Dr Simpson's office to discuss Dr Swiegers' role with CSIRO on his return from secondment. However, it is possible that a meeting to discuss Dr Swiegers' return from secondment may have occurred around this time."
In Dr Simpson's first witness statement (Ex 27, 20-21) he explained: "I have no recollection of attending a meeting almost seven years ago now, on or around 19 October 2007 with Graham Black, CSIRO HR Manager, CMHT, Dr Gerry Wilson, Theme Leader, Electroactive Materials, and Dr Peter Osvath, Theme Leader, National Security Technology Partnerships to discuss Dr Swieger's return from his secondment with DataDot Technology Limited (Datadot) (Tab 62). Although I have no direct recollection of this alleged meeting, the arrangement of such a meeting to discuss where a CSIRO employee would fit in within the Division following an external secondment is unremarkable. It is therefore quiet possible that this meeting occurred. In my role as Deputy Chief CMHT at that time, I had a pastoral role, and that is why I would have been invited to such a meeting. As I did not have any direct line management responsibility with respect to Dr Swiegers, it would not surprise me if the meeting went ahead without me as my attendance at such a meeting was not essential."
In Dr Osvath's first witness statement (Ex 36, 27-28) he stated: "I have a vague memory of a brief meeting on or around 19 October 2007, in which Dr Swiegers' return from secondment was discussed (Tab 62). The purpose of the meeting was to give some thought to where Dr Swiegers would fit in within the Division when he came back from secondment in mid-2008. Part of the reason it was going to be a challenge was because the areas where Dr Swiegers had done most of his work prior to going on secondment had been "spun out" to DataTrace, and there wasn't money to fund a new project. Although the decision had not been made to close the MDI project at this stage, the MDI project was only a small part of Dr Swieger's work, and it was necessary to consider whether there were positions within any existing projects to which Dr Swiegers could contribute on his return. The meeting had nothing to do with any plan to rid Dr Swiegers from the CSIRO, as Dr Swiegers seems to imply. It was a straightforward meeting in which Mr Black reminded the senior scientists present to start planning for the new financial year and to give thought to Dr Swiegers' return when doing so."
As to the meeting on 19 October 2007, Dr Osvath's evidence included the following (T938, 33-50; T939, 1-34): "Q. In your statement you've said that this was a meeting to remind senior scientists present to give thought to Dr Swiegers' return? A. That's correct, your Honour. Q. If you just see the message that Mr Black has written, it commences, "As mentioned previously." Do you see that? A. That's correct, your Honour. Q. Mr Black continues, "I would like us all to be clear about the future role for Gerry on his return from secondment." Do you see that? A. That's correct, your Honour. Q. So it had already been communicated that Dr Swiegers was returning; correct? A. I cannot recollect any conversation that I was involved with about this other than perhaps in the tea room Graham Black saying we need to set up a meeting to discuss that but there was certainly no actual substantive discussion about it before this in which I was involved, your Honour. Q. If you actually wanted to have a discussion about a future role for an employee you'd involve that employee in that discussion; correct? A. That's not correct, your Honour. Q. So you wouldn't discuss with an employee what role they would come to on return from secondment; is that correct? A. The first thing ‑ this was essentially a place I would ‑ the first thing you would do is look around to see what projects were likely to need people in the upcoming financial year, your Honour. I'm not surprised that the discussion, at least in the first instance, wouldn't involve the person who you're looking to find a place for, your Honour. Q. You never had any discussions with Dr Swiegers around this time about his return from secondment; did you? A. Dr Swiegers was still on secondment, your Honour. No, I didn't have any discussions with him. Q. Indeed you never had any discussions with him about his return from secondment or finding a role for him; did you? A. Personally, no, I didn't, your Honour. Q. Arising out of this meeting there was never any plan for his return developed; was there? A. There was no formal plan. It wasn't clear at this point when he was ‑ I mean it wasn't absolutely clear when he was coming back and I wasn't in a position, at this stage, to find a position for somebody who was coming back at some indeterminate time, your Honour. Q. The time he was coming back was July 2008, wasn't it; it says that in the message. A. That was the understanding so there was the talk essentially that I was involved with effectively was we have to find where there is an appropriate role for him when he does return."

[26]

Matters of Evidence - informing the plaintiff of potential redundancy

Clause 3(a) of the R&R Policy is quoted at [34] above. Clause 3(b) of Sch 3 of the CSIRO Enterprise Agreement 2008-2011 is quoted at [35] above.
Clauses 3(e) and (f) of the R&R Policy are as follows: "(e) One calendar month after receiving the formal advice referred to in subparagraph (a), unless the officer has secured alternative CSIRO employment, the officer will be given 5 weeks notice of termination. During the notice period the officer will advise CSIRO if income maintenance is their preferred termination benefit. (f) During the notice period the officer will continue to be eligible for redeployment within CSIRO. Employment will terminate at the completion of the period of notice if the officer remains excess to CSIRO's requirements. Where, prior to the completion of the notice period, the officer seeks appointment to an advertised vacancy but has not been assessed by the end of the notice period, employment will be extended until the officer's suitability for that position has been determined."
On 29 November 2007, Mr Black emailed Drs Woodrow and Simpson with the subject line "MDI project closure" outlined above in [278]. The email stated in part (Ex 23, V6, T76): "… We have examined the implications for staff around this closure (as consequence of Project Review Process) and have determined that we have roles in other areas for all except Matt Ballard and Gerry Swiegers The intention is that Peter Osvath and I would have discussions with both these officers (both CSOF 7M) to advise of potential redundancy situation Graeme Before we undertake this discussion, Alastair Robertson should be advised of this action in relation to Gerry's whistleblower action. If so do you want to discuss first?"
On 3 December 2007, Dr Woodrow replied to Mr Black's email (Ex 23, V6, T77): "Graham As discussed in person, we shouldn't proceed with this until we have advice from above that it is OK to do so. Graeme"
In cross-examination, Dr Woodrow gave the following evidence in relation to the 29 November 2007 email (T884, 9-41): "Q. Mr Black indicates, "The intention is that Dr Peter Osvath and himself would have discussions with both these officers to advise of potential redundancy situation." Do you see that? A. I do see that. Q. Mr Black regarded it as a potentially redundancy situation; do you see that? A. Yes. Q. He was the HR manager; correct? A. That's correct, yes. Q. You understood that he was proposing to advise Dr Swiegers and Dr Ballard in accordance with the redundancy processes that they were potentially redundant; correct? A. That appears to be his intention at that time from this email, yes, that's correct. Q. You weren't second guessing his judgment about the processes that followed; correct? A. Sorry, I didn't understand. Q. You said yesterday afternoon, in a general sense you followed advice in respect of HR processes and the like; correct? A. Yes, indeed I did, yes. Q. Mr Black was saying what he thought should occur in accordance with those processes in the situation; correct? A. He was advising me what he thought, yes. Q. You've then said, and what he thought, is that Dr Ballard and Dr Swiegers should be advised of the potential redundancy situation; correct? A. That is correct, yes."
In cross-examination, Dr Woodrow gave further evidence that (T902, 20-25): "… as far as advising Dr Swiegers, as I said the situation in any redundancy can be fluid. Closing of one project means that you are only potentially redundant and there can be events that happen that change that perspective. So we would have given ‑ given that Dr Swiegers was on secondment, given it as much time to see what the outcomes was likely to be."
In re-examination, Dr Woodrow gave the following evidence (T916, 24-41): "Q. You were criticised in cross‑examination for the fact that Mr Black, in correspondence of November 2007 in relation to Dr Swiegers, had described it as a potential redundancy situation and not invoking the formal policy process regarding notification, regarding redundancy; what do you say about that? A. So this is why I found difficulty with the questions because the words "potential redundancy" were Mr Black's words. In actually fact with respect to the process I feel that that was far too early a stage to be considering it for Dr Swiegers, a potential redundancy because we still had time to run to find an alternative position for him since he was on secondment." Q. You were asked some questions about the length of time in which Dr Swiegers could look for jobs by way of redeployment. If the formal redundancy process had have been invoked, how much time would have been involved? A. Well when the formal redundancy process was invoked, I believe it was approximately six weeks or so. And then there was another couple of weeks before he was ‑ he actually received a letter, so it's getting up to eight weeks and then that's even before you even enter the notice period, of course."
On 10 January 2008, Ms Viki Pinkard (CMHT, Clayton) sent an email to the payroll service section of the CSIRO ('P&C') and Cc'd Mr Black with the subject heading "Cesscalcs required" (Ex K): "Hi P & C Graham Black has requested cesscalcs for fast track redundancies with a nominal date of 29.02.2008 SWI038 SWIEGERS, Gerhard Frederick"
On 21 January 2008, at 12:49pm, Mr Black emailed Drs Wilson and Osvath with the subject line "Confidential draft to got (sic) to Alastair Robertson" (Ex 23, V6, T81): text version of email (3.62 KB, htm)
On 21 January 2008, at 1:42pm, Dr Wilson replied to Mr Black and Dr Osvath (Ex 23, V6, T81): "Hi Graham Red is text I'd delete - Blue is my additional text Meeting with Calum at 2 but happy to discuss later G"
In relation to Ms Pinkard's email (Ex K), Mr Black's evidence in cross-examination included the following (T376, 29-50; T377, 1-7): "Q. Then by January of 2008, you requested cessation calculations for Dr Swiegers? A. That is correct. Q. I'll just show you this document. You'll see that's an email of 10 January 2008? A. That is correct. Q. From Vicki Pinkard who we discussed earlier? A. That is correct. Q. To the P&C service centre? A. That is correct. Q. I take it that's the payroll section or equivalent function? A. That is correct. Q. It's indicated that you had requested cess calcs for fast track redundancies with a nominal date of 29 February 2008. Do you see that? A. That is correct. Q. Including with respect to Dr Swiegers? A. That is correct. Q. By this point at least it had been sufficiently to firmly decided that Dr Swiegers was likely to be made redundant to request calculations as to the payments to which he would receive if that occurred ‑ which would be paid to him if that occurred? A. No, that is not correct."
In further cross-examination, Mr Black said (T377, 35-40): "Q. You then at tab 81 ‑ and you still didn't at this point, that is in January 2008, inform Dr Swiegers of this situation? A. I'm trying to find tab 81. Q. You still did not as of January 2008 inform Dr Swiegers of this situation? A. No, I had not."
In re-examination, Mr Black stated (T412, 18-25): "Q. You were cross‑examined about the fact that you did calculations regarding potential redundancies in January 2008? A. That I had requested those calculations, yes. Q. What was the purpose of those? A. That in the event that we proceeded with advising the individuals for who those calculations were requested, we had them and we knew the financial impact of those costs."
In cross-examination, Dr Woodrow gave the following evidence (T858, 28-48): "Q. You understand that the requirement for there to be advice to the individual is for the benefit of the person so that they can be appraised of the situation at the earliest practical time, correct? A. Yes, that is ‑ it is definitely to help the individual. Q. That is, if they don't know that it appears likely that they will be excess to divisional or business unit requirements, they are not in a position to explore other roles and other work that might be available to allow them to continue their employment, correct? A. It certainly helps them to be aware of the situation and if it ‑ if it is important for them to therefore to seek for other employment if that is the ‑ if that is their situation, indeed. Q. If there is some possibility that they will be excess and there might be some threat to their employment as a consequence, it is important that they know so they can take what steps they can to either prevent that occurrence, correct? A. Absolutely. Absolutely, yes. Q. Or indeed to explore other employment outside of CSIRO if they think the writing is on the wall, as it were, correct? A. That is correct, yes, it is to help the individual."
Dr Woodrow further stated (T889, 37-50; T890, 1-16): "Q. You had directed Mr Black not to advise Dr Swiegers of his redundancy situation, correct? A. That is correct, until we ‑ until we sorted out the situation with Dr Robertson. That is correct, your Honour. Q. You never sorted out the situation with Dr Robertson, because you decided not even to tell him, correct? A. Sorry, that was sorting out, in my mind the situation with Dr Robertson. I decided that we wouldn't tell Dr Robertson. That is correct, yes. Q. You didn't go back to Mr Black and say, well, you should advise Dr Swiegers of his potential redundancy situation now, did you? A. I don't believe I did. I don't believe I did. The situation is, of course, is that while we have occasional emails there were ‑ there are discussions that take place and I honestly can't remember what would have taken place in the meantime but, as I said, the operational matters were mainly handled by Mr Black and the situation with Mr Robertson was in my domain, that's correct. Q. You at least hadn't decided whether to approach Dr Robertson by towards the end of January. Do you know when you did decide not to approach Dr Robertson? A. No, I ‑ no, I don't know when I decided not to but it was something I felt uncomfortable with from the very beginning and I ‑ I delayed notifying him and then in my mind I decided that I wouldn't and I don't know when I actually did make that decision. Q. In any event you took no steps to ensure that Dr Swiegers, in accordance with Mr Black's advice, was advised of his potential redundancy situation, correct? A. At that point of time, no, I guess that is correct."
Dr Woodrow's testimony included the following (T895, 19-50; T896, 1-15; T902, 16-25): "Q. And the requirement arises where you now understand that Dr Swiegers was not advised at any time before December 2008 that there was a potential redundancy situation, correct? A. Sorry, before which date? Q. December 2008, correct? A. That would be correct, yes. I guess that's correct. Q. And the effect of the fact that he was not advised from November 2007 until December 2008 was to deprive him of that opportunity for which that requirement affords, correct? A. In my mind at the time I was wanting to keep two processes separate. In other words, I didn't want to contaminate the Whistle Blower complaint with a potential redundancy. Now where I believe the email correspondence doesn't record was that I didn't come back to Mr Black and say, "I've decided not to proceed with discussing this with or informing Dr Robertson." That's not in the email. Whether I said that to him verbally I can't recall. So, yes, but I guess the situation is that there was ‑ in my mind Dr Swiegers had ongoing employment at that time, so although you are portraying it as a potential redundancy for acting then, that was not the situation. Q. Mr Back had advised you that it was potential redundancy situation, correct? A. Potential. Potential. At some stage. Q. And the question I asked you was, the effect of failing to inform Dr Swiegers of a potential redundancy situation from November 2007 to December 2008 was to deprive him of the opportunity to explore options and roles that is the basis for that obligation to be imposed, correct? A. If he was not informed under December 2008, that would axiomatically reduce the amount of time that he had to find another position. The question then becomes, was I satisfied that he had sufficient time nonetheless from that point of notification? Q. The effect was, as you agree, to deprive him of the opportunity during that eleven month period or twelve and a bit month period to explore other roles and the like, correct? A. He was aware that the MDI project was closing, so he still had the opportunity to seek and to discuss other projects that he could work on when he came back from secondment. So he was actually aware of that project closure. Q. But he was not aware, or not made aware and never informed that as a consequence of that matter it was alleged that he was put in a potential redundancy situation, correct? A. He was not informed that he was, yes, in a potential redundancy because the likelihood at that stage was quite small because we still had the whole secondment to go. The whole process still had to run. So, yeah. … Q. When you say if the Whistle Blower complaint came to a faster conclusion, that is if it would have been resolved ‑ or that matter had been finalised in February March or something 2008, you would have advised Dr Swiegers at that point about the redundancy situation, is that right? A. I thought the issue was advising Dr Roberson. But as far as advising Dr Swiegers, as I said the situation in any redundancy can be fluid. Closing of one project means that you are only potentially redundant and there can be events that happen that change that perspective. So we would have given ‑ given that Dr Swiegers was on secondment, given it as much time to see what the outcomes was likely to be."
On 29 May 2008, at 8:23am, the plaintiff emailed Dr Osvath with the subject line "RE: Request for phone conference" (Ex 23, V8, 110A pg 2): "… Also: Paul Savage told me that you were having to make several people from your theme redundant. Will this impact me? As I understand it, Vernon Cook is temporarily filling my permanent position. If his position is made redundant, then will that not be, effectively, making my permanent position redundant? Regards Gerry"
At 10:53am on the same day, Dr Osvath emailed the plaintiff and Cc'd Dr Houston with the subject line "RE: Request for phone conference" (Ex 23, V8, 110A pg 1): "… Furthermore, I am away on leave next week. Consequently, can I ask you to contact Geoff Houston about the teleconferences? Regarding the activities in the theme - yes we have suffered a very major cut in our budget, partly as a result of a realignment of the organisation's priorities (effectively the result of the SIP process) as well as Federal Budget cuts to CSIRO and some government programs… The process in CSIRO under the matrix structure means that when projects are closed or reduced for whatever reasons, the people who populated those projects revert to the "talent pool" (i.e. their capability). As projects are commenced, project leaders, stream leaders or theme leaders effectively "purchase" the required capabilities. Put in simple terms, people are redeployed to places where there is a need for the capabilities. So no, it's not a simple matter of making redundancies. As an inside, I do know that Geoff Garrett did comment in the press that he expected there to be of the order of 100 redundancies from CSIRO as the result of the Federal Budget cuts. However, that's certainly not something that is within my purview. Cheers Peter"
In cross-examination, Dr Osvath gave the following evidence in relation to his email dated 29 May 2008 (T944, 44-50; T945 1-6): "Q. Put in simple terms, people are redeployed to places where there is a need for their capabilities? A. That's correct, your Honour. That's the way the matrix was structured, your Honour. Q. It's not a simple matter of making redundancies? Do you see that? A. That's correct, your Honour. Q. You didn't tell Dr Swiegers that he was regarded as having no role, did you? A. No, your Honour, because it would have been a question of at this stage doing exactly that, which is essentially people would go back to their capability and then they would be purchased by theme leaders or project leaders who had money available and needed that particular skillset, your Honour."
Dr Osvath accepted that he did not take issue in the 29 May 2008 email in reply, the plaintiff's assertion about Dr Vernon Cook (research scientist).
In re-examination, Dr Osvath's evidence included the following (T951, 8-16; T951, 32-38): "Q. Do you recall you were asked some questions in cross‑examination about Vernon Cook, whether he filled Dr Swiegers role when on secondment? What do you say about that matter? A. Vernon Cook was appointed to do specific project work. Dr Swiegers was a level 7M and Vernon Cook was appointed as a level 5. Dr Swiegers' role was to supervise projects and to be involved in them at a very advanced level. The level 5 position was very much a position where one worked within a project at a much less senior level, so it was quite clear to me that Dr Cook was not a substitute for Dr Swiegers. … Q. What do you say about the appropriateness of telling Dr Swiegers in May 2008 that he didn't have a role? A. I don't think that it was appropriate for me to be involved in the potential redundancy. All I would do as a research group leader was to identify any positions that were available within my group, the funding for which was allocated so it wasn't as if I had the discretion to make a position available other than for specific funded, fully funded or co‑funded projects, your Honour."
On 13 June 2008, Mr Black emailed Mr Alex Allars and Mr Warren Smith and Cc'd Mr Cabraal, Drs Fisher and Savage in the email with the subject line "Re Dr Gerry Swiegers" (Ex 23, V8, T113): "Dear Alex/Warren We have been discussing what may be most appropriate course of action to take in regard to Dr Swiegers…currently on secondment to external co. and due to return to CMHT late July 2008 2 things 1 After going thru project review process (late 2007), SIP 3 process which has decreased appropriation support for Security theme and finally a process of seeking to match capability with project/theme needs we are at point where we do not believe we have (sic) position for Dr Swiegers on his return…ie potential redundancy 2 Dr Swiegers has recently done several things whilst on his secondment which lead us to believe that he may be in breach of the code of conduct..he is currently overseas and we have sought to have him arrange a meeting with the Chief of Division on his return so as to understand more completely what has transpired. If he is considered to have breached the code then we would need to pursue accordingly (esp in light of prior breach May 07 and warning of a breach Nov 06) Both the above are held to be reasonable and genuine events. In discussion yesterday it was thought that we should pursue one or other (sic). Given that Division believe both the above to be issues…….why would we not pursue both concurrently? Do you forsee any difficulties in doing this if they are justifiable? Your thoughts etc are most welcome regards Graham Black"
On 18 June 2008, Mr Black emailed Ms Karolidis Lee (CMHT, Parkville) and Cc'd Ms Allison Gourdie (Finance, Clayton) with the subject "RE: SIP and Budget - Potential People Impacts". Mr Black stated (Ex 23, V8, T118): "… Response from CMHT No of redundancies arising from SIP and budget 6 FTE in total with 3 individuals identified at this stage (2 redundancies arising from cuts to Security Theme budget) Redundancy action likely to proceed in period July to Dec 08 No of new positions requiring recruitment action arising from SIP and budget Only 2 new positions identified as direct consequence of budget… 2 postdoc positions funded from Capability Development Fund Other recruitment planned 4 positions if Idemesu contract proceeds."
In the plaintiff's third witness statement, dated 29 January 2015 (Ex F, 24), he stated that he met with Dr Savage on 23 July 2008 (see [187] above) to discuss his secondment extension and career plans, and that Dr Savage did not advise the plaintiff that he had no role or was regarded as redundant.
In cross-examination, the plaintiff gave the following evidence (T430, 39-50; T431, 1-5): "Q. "The process in CSIRO under the Matrix Structure means that when projects are closed or reduced for whatever reasons, people who populated those projects revert to the talent pool"? A. Yes. Q. "That is their capability", you see that? A. Yes. Q. So to sit in a capability doesn't necessarily mean you have got a job, you are in a pool? A. Yes. Q. "As projects are commenced, project leaders, stream leaders or theme leaders effectively purchase the required capabilities. Put in simple terms, people are redeployed to places where there is a need for the capabilities so no, it is not simply a matter of making redundancies"? A. Yes."
In cross-examination, Dr Savage gave the following evidence in relation to the 7 August 2008 meeting as outlined in [192] above (T686, 4-36): "Q. In the course of that meeting you did not advise Dr Swiegers that it had been determined that he was to be made redundant? A. He had not been determined to be made redundant at that point, your Honour. Q. You agreed with me that he'd been identified in a chart of persons of redundancies, correct, in June 2008? A. Yes, your Honour. Q. You had been involved in discussions about that matter? A. Yes, your Honour. Q. You knew that at that time? A. Yes, your Honour. Q. Correct? A. Yes, your Honour. Q. You had this meeting with Dr Swiegers on 8 August, at least. You didn't inform him of that matter at that meeting? A. No, your Honour. Q. Neither did Dr Fisher? A. No, your Honour. HIS HONOUR: You said 8 August. GIBIAN Q. I'm sorry, 7 August 2008, I apologise, your Honour. Subsequent to that meeting of 7 August 2008 you didn't engage in any further communication with Dr Swiegers in the second half of that year? A. No, your Honour."
In re-examination, Dr Savage was asked why in July 2008 he did not inform the plaintiff that he was likely to be made redundant. He stated (T692, 6-14): "A. Your Honour, in the redundancy process within CSIRO or in times of financial difficulty within CSIRO, we look at all the different possibilities about how we can save costs by contracting our staff numbers. At that time [July 2008], a great number of people are potentially thought of as being possible people for redundancy. There is no point in telling all of those people at that time that they are being considered. All that does is cause undue panic and unrest as you can imagine. So what we would normally do is wait until that ‑ those thoughts had been consolidated to the point where someone is actually potentially redundant and then they would be advised at that time."
In cross-examination, Dr Coia gave the following evidence in relation to the meeting on 8 December 2008 (T829, 28-34): "Q. Did Mr Black tell you, subsequent to your meeting, that he was proposing to send a letter to Dr Swiegers commencing the redundancy processes? A. No, he had not ‑ he had not told me that at that time. Q. Did he tell you it later? A. As far as I can recall, he didn't tell me, all I saw was that ‑ was that letter written."

[27]

Matters of Evidence - reasons given for redundancy

In Dr Woodrow's first witness statement (Ex 33, 22) he stated: "Dr Swiegers become considered for retrenchment following various reviews of CMHT's portfolio that took place from 2005 to 2007, coupled with the inability to redeploy him elsewhere in CSIRO. I reviewed the documents that comprised the "business case" for Dr Swiegers' redundancy prior to these documents being sent off for approval at Executive level. I satisfied myself that the matters constituting the case for redundancy were correct. I then forwarded them to my Group Executive, Dr Steve Morton, at the request of Mr Graham Black, HR Advisor to CMHT. Based on my knowledge of the circumstances, Dr Swiegers was made genuinely redundant. This decision had nothing to do with Dr Swiegers' Whistleblower Complaint."
Dr Woodrow stated further (Ex 33, 79-87): "At this time, the CSIRO's Terms and Conditions allowed for the retrenchment of any officer who was in excess to the requirements of the organisation, as determined by an authorised person (Tab 13, cl.16). As the Business Unit Leader of CMHT, I was an authorised person to exercise the retrenchment power under cl.16 of the CSIRO's Terms and Conditions with respect to Dr Swiegers. As at late December 2008 / early 2009, the CSIRO had a procedure in place to ensure that no employee was retrenched without a business case being presented to justify the retrenchment. On or around 30 January 2009 at 10:00am, I received an email from Mr Black with attached two documents entitled: "Information Required for Redundancy" and "Redundancy Checklist for CEO". Those documents together are referred to within the CSIRO as the documents comprising the "business case" for retrenchment (Tab 177). Based on my review of these documents, I considered that the business case established that Dr Swiegers was in excess to the CSIRO's requirements, and I made the decision that Dr Swiegers should be retrenched on this basis. It was CSIRO's HR practice at the time that the business case be also sent to the relevant Group Executive, Dr Steve Morton, and to the two Deputy Chief Executives, Dr Alastair Robertson and Mr Mike Whelan, for approval. On 30 January 2009 at 5:44pm, I forwarded the business case for Dr Swiegers' retrenchment to Dr Morton (Tab 177). In this email, when requesting approval of Dr Swiegers' redundancy, I stated, in part: "This has been coming a long time and would have happened earlier except that Gerry [Swiegers] has been on secondment to a company. Gerry [Swiegers] is not contesting this action and has asked for fast tracking." (Tab 177) The reference to the fact that Dr Swiegers' redundancy had "been coming a long time and would have happened earlier that [he had] been on secondment to a company" is a reference to the fact that, prior to his secondment, Dr Swiegers was allocated to the MDI Project, which had subsequently been closed at the decision of the Project Review Committee in November 2007. All other things being equal, the decision to close the MDI Project would quite likely have led to Dr Swiegers being made redundant at or around the time of the closure, but for the fact that he was on secondment from that time until January 2009. Mr Whelan and Drs Morton and Robertson subsequently approved of my decision to retrench Dr Swiegers (Tab 180)."
On 21 May 2008, Dr Geoff Garrett, the Chief Executive of the CSIRO, sent an email to all staff in relation to upcoming budget cuts (Ex 23, V8, T107, pg 2), which stated in part: "… So we [the CSIRO] have just 0.75% increase to two-thirds of our funding next year and with our costs increasing with inflation at about 4%, as I indicated in my email of 14th May - with our salary bill close to 60% of our total expenses - it will not be possible to absorb this change without some job losses. Thus I would confirm that we still envisage a net reduction from CSIRO's current staffing level of 6350 over the next year of approximately 85 FTEs (Full Time Equivalents), in all probability around 100 staff…"
In May 2008, a presentation was given titled "SIP 3 and Budget Impact Briefing May 2008" (Ex 23, V8, T105). Page 24 of this document outlined the following: "Additional reduction in SIP 3 targeted areas ● Further scale back other lower priority SIP themes: ○ National security research program (theme 1048) - further consolidation of activities by 10% to save $1m p.a. ○ Scale back SIP implementation contingencies plus implement other minor theme saving opportunities - $1m p.a. ● Estimated savings $2m p.a."
Page 35 of this document titled "National Security Technology Partnerships" states (Ex 23, V8, T105): ● "Determine priorities - theme goal ○ Strategic ○ Partnered ○ Partnered with external revenue ● Identify projects for closure ● Communicate with other business units (CMIS, ICT, CMSE) ● Work to redeploy staff into other themes (NMF)"
Mr Black prepared a document titled "Redundancy Checklist for CEO", dated "June 2008-06-20" (hereinafter referred to as the 'redundancy checklist'), in which he stated (Ex 23, V10, T175, pg 1 and 5): "… SIP 3 outcomes had resulted in a loss of appropriation for 2008/09 (decrease of more than $1M) for our National Security Technology Partnerships (NSTP) theme with appropriation budget held flat for other themes within the CMHT portfolio. As a consequence, up to 5 FTEs will need to be lost from CMHT to cover funding shortfall. 2 of these positions will come as consequence of cuts to NSTP theme and other losses will be in areas where projects are concluding in the coming months and where no ongoing roles exist. … Within the National Security technology Partnerships Theme the decision was been taken to cease work on Modulated Digital Image (MDI) project activity. Significant resources had been devoted over the previous 3 years to finding a commercial partner for this technology. Unfortunately we had not been successful in attracting interest and whilst we have had reasonable interest and success in the area it has come at a high transaction-cost and so the decision to cease work in this area of security was been taken. 2. Funding arrangements (including history) Dr G Swiegers …"
In cross-examination, Dr Savage gave the following evidence in relation to the redundancy checklist (T692, 20-31): "Q. What is the purpose of such a budgetary table? A. The purpose of that table, your Honour, is to determine what the costs of a redundancy process for individuals at that level might be on the division, should the division decide to go down that path. Q. Does a person identified on such a budgetary table mean that they are going to be made redundant? A. Absolutely not, your Honour. Q. Is there an expectation that anyone identified on a budgetary table will be spoken to? A. No, your Honour, there is not."
On 16 December 2008, Mr Black emailed the plaintiff attaching a letter which is recorded in [37] above. The letter stated in part (Ex 23, V9, T157): "… This situation has arisen due to staffing changes in the National Security Technology Partnerships Theme necessitated by a decreased funding allocation through SIP 3 to the Theme."
In cross-examination, Mr Black gave the following evidence in relation to the 16 December 2008 letter and the "SIP 3 and Budget Impact Briefing May 2008" (T340, 16-50; T341, 1-9): "Q. You have said, in the second paragraph of this letter that, "The situation had arisen due to staffing changes in the National Security Technology Partnerships theme necessitated by deep freeze funding allocation through SIP 3 to the theme", do you see that? A. That is correct. Q. That was a reference to budgetary changes that occurred in the middle part of 2008? A. That is correct. Q. You have then indicated that you would explore opportunities within the division, you see that? A. That is correct. Q. Can I just make sure we are correctly understanding the SIP 3 process, can the witness be shown volume 8 of the CSIRO's materials, do you have that, Mr Black? A. Thank you. Q. Under tab 105 do you see there is a document that is headed "SIP 3 and budget impact briefing May 2008"? A. Yes. Q. I don't know whether you recall having seen this before but it is part of the CSIRO's documents in the case, can you recall seeing it before? A. No I don't. Q. In any event, you will see that just on the title page, the first page, that it is a reference to budget changes that occurred in May of 2008 and following, correct? A. Correct. Q. You will see on the second page of the document there is a reference in the second dot point to the National Security Research program, do you see that? A. I do. Q. Is that the matter you were making reference to in the letter of 16 December or can't you recall? A. I am unclear as to whether it is or not, I do not recall, yeah. Q. At least you are referring to the SIPs process, SIP 3 process generally speaking, correct? A. Yes."
In cross-examination, Mr Black further stated (T399, 30-40): "Q. You agree in this document, "Information required for redundancy" in relation to Dr Swiegers, you make no reference at all to the SIPS 3 process? A. That's correct. Q. As providing the background or reasoning for the retrenchment of Dr Swiegers, correct? A. That's correct. Q. Yet you inform Dr Swiegers that the reason for him being made redundant or being identified as redundant was the SIPS 3 process, correct? A. That's correct."
In relation to an indefinite employee, Mr Black gave the following evidence in cross-examination (T337, 9-32): "Q. I won't press the question. In the circumstances of an indefinite employee, unlike a term employee, their employment is not related to any particular project on which they work; correct? A. That is correct, your Honour. Q. An indefinite employee will work on a range of different projects throughout his or her career? A. That is generally correct, your Honour, yes. Q. And indeed often more than one at the same time; correct? A. Yes, that is correct. Q. It's correct to say that a project is simply something that the employee does during the course of their employment rather than defining the nature of their employment; correct? A. That is correct, your Honour. Q. The conclusion or discontinuance of a particular project doesn't necessarily have any impact on the ongoing employment of an indefinite employee; correct? A. That is correct, your Honour. Q. They will simply continue doing other work on other projects? A. That is correct."
In cross-examination, Dr Savage stated (T664, 4-41): "Q. You explain that within CSIRO the employees have indefinite status a project is a thing you do and it's not your job or position; do you see that? A. Yes, that's correct, your Honour. Q. You contrast that to a term staff who may be appointed for the duration of a specific project or task? A. Yes, that is correct. Q. You then refer to the process following the closure of the project; do you see that? A. Yes, I do. Q. Summarise it in this way. The CSIRO has term an indefinite employees? A. That's correct. Q. Term employees would be customarily engaged to work on a specific project or task? A. For a fixed term, that's correct, your Honour, yes. Q. Their employment being linked to engagement on the work on the particular project? A. Yes, that's correct. Q. Presumably when that work is concluded their employment would cease in accordance with the term unless there happened to be some other position that they could do to? A. Yes, your Honour, that would the common order of events. Q. An indefinite employee is in a different position in that they have what's in a general sense ten year employment with CSIRO? A. That's correct, your Honour. Q. That, as you say, that person's job is not linked to a particular project? A. That's correct, your Honour, yes. Q. If projects change the person will be accommodated with other project work that fits their skills and desires, to the extent possible? A. To the extent possible, that's correct, your Honour, yes."
In Dr Simpson's first witness statement (Ex 27, 38-39) he stated: "On top of the strategic decision to close the MDI project as outlined above, there was significant cuts to the CSIRO's budget as a result of the Federal Budget announcements in May 2008. The significance of the impact arising from those budget cuts is highlighted in an email from Geoff Garrett, the then Chief CSIRO (sic) who sent an email to all CSIRO staff on 21 May 2008 (Tab 107), that stated, in part: So, with just a 0.75% increase to two-thirds of our funding next year and with our costs increasing with inflation at around 4%, as I indicated in my email of 14th May - with our salary bill close to 60% of our total expenses - it will not be possible to absorb this change without some job losses. Thus I would confirm that we still envisage a net reduction from CSIRO's current staffing level of 6350 over the next year of approximately 85 FTEs (Full Time Equivalents), in all probability around 100 staff. Over the next weeks we will engage in appropriate consultation through the relevant line managers with those staff potentially affected. (my emphasis)"
Dr Simpson recounted that, based on his knowledge of the CSIRO, he had no reason to doubt the genuineness of the decision that the plaintiff was excess to the CSIRO's staffing requirements. Dr Simpson stated (Ex 27, 39): "Arising from the impact of those budget cuts, the appropriation funding allocation to the National Security Technology Partnerships Theme (SIP No. 1048) within CMHT was significantly reduced. This was the theme to which Dr Swiegers had been allocated prior to his secondment."
In cross-examination, Dr Simpson gave the following evidence (T780, 1-24): "Q. Yes, the closure of ‑ for an indefinite employee, a project is just a piece of work that they assist with from time to time in the course of their employment, correct? A. Yes, a scientist would have a number of projects normally running and move from one to the other as part of their normal business. Q. That is move one to another sequentially in the course of their employment, correct? A. Yes, it's not uncommon to have multiple projects going on. Q. That is at any one time they might be involved in conducting research works on a number of different projects at the same time, correct? A. Yes, yes. Q. And if one or other of those projects was to either reach its natural conclusion or work ceases on it for another reason, there's no reason to suggest that that would lead to any redundancy for that employee, correct? A. That would be correct. Q. The process that would occur is that the theme leader or the project leader would have a discussion with the employee and the scientist and talk about what projects they might move on to and how their capabilities could best be utilised, correct? A. Yes."
Dr Savage explained (Ex 20, 26): "I consider it unremarkable that Dr Swiegers was excess to staff requirements and subsequently retrenched in 2009. Many CSIRO officers were made redundant during 2008/2009. There had been substantial cuts to the budgets, which translated to, amongst other things, less money to spend on staff. Based on my knowledge of the organisation, I have no reason to doubt the genuineness of the decision."

[28]

Matters of Evidence - contrast with treatment of other employees

In Dr Coia's first witness statement (Ex 30, 5) he stated: "I commenced employment with CSIRO on or about 9 June 1994 in the role of Postdoctoral Fellow. From 1995 to 2001, I variously held the positions of Research Scientist and Senior Research Scientist. From August 2001 to August 2005, I undertook a secondment to Diapep/EvoGenix as a Research Manager. After this secondment ended, I returned to the CSIRO."
On the topic of preferential treatment given to him upon his return from secondment, Dr Coia's evidence in cross-examination included the following (T803, 6-44): "Q. Two things about that. First, the secondment period that you had I think for a four year period, you were still physically located at the CSIRO laboratories at Parkville? A. That's correct. Q. Perhaps that assisted you, but in addition to that there were discussions initiated by the relevant management with you about identifying the projects that you'd work upon return? A. There was some discussion but I again, as I mentioned earlier, I did struggle to find my way back into CSIRO at that point. Q. Am I correct in understanding from that, that there was no obvious position for you to return to from the secondment? A. That's correct. As part of the secondment papers that I signed moving out there was no guarantee of a position upon return to CSIRO. Q. We'll stick with my question. Upon your return, there was no obvious position that you were taking up? A. That's correct. Q. But you returned and you managed to, in discussions with others no doubt, cobbled together some work that you could do going forward, correct? A. Correct. Q. That took a period of time and there was a bit of struggle, as you say? A. Correct. Q. You were not advised at that time that you were potentially redundant? A. No, not at that time. Q. Were you ever advised that you were potentially redundant? A. No, I was not because I can answer that question if you wish but‑‑ Q. You were never advised that you were potentially redundant, correct? A. That is correct. Q. That was the case even though there was no obvious position for you to return to upon the end of secondment, correct? A. That is correct."
Exhibit X is a calendar invitation requiring Drs Wilson, Simpson and Osvath to meet from 2:00pm - 2:30pm on the 7 December 2007: "When: Friday, 7 December 2007 2:00 PM-2:30 PM (GMT+10:00) Canberra, Melbourne, Sydney. Where: Greg S's office"
Dr Wilson sent Dr Ballard an email titled "RE: EFTs in nanotox project" (with Dr Osvath and Mr Black Cc'd/Bcc'd respectively) on 31 January 2008. He stated (Ex Z, pg 1): "Hi Mat, I think we're all agreed - we need to resolve your future asap And my apologies for any lack of clarity on my part. Correct me if I'm wrong - before Christmas our discussion was that you would, over a couple of months, identify an area where you could contribute your skills in a deep and meaningful way and that this would be your new home post MDI. (We also need to discuss what post-MDI means - but that's a separate matter.) I fully understand that your current 'dabbling' in a range of activities has been part of finding out where your contribution can be most effective - however this is not a state of affairs that can continue any longer. Like everyone else you need to belong and be accountable to a project. At that time the areas I suggested you explore were: 1. Pressure sensitive security features (part of a team with Lawry, Vern, Congji and me) 2. Theradel (John Tsanaktsidis RAFT-based bio-conjugates) 3. High Throughput Polymer Science (project leader of the Barrier Films project) 4. High Throughput Polymer Science (modelling?) 5. Modelling (Winkler) Clearly, the best outcome is a mutually-agreeable project where you can have the greatest impact and one that is commensurate with your CSOF level. However, the longer you vacillate - the more likely it is that your future will be chosen for you. Can you get back to me on where you are on this. In our new matrix structure - Peter, as your capability manager (or Graeme Moad if you're in Fit-for-function polymers) is the person who should really be handling your re-deployment. However I'm happy to be involved in whatever way I can. Regards Gerry"
In re-examination, Dr Simpson gave the following evidence (T796, 1-8): "Q. If Dr Swiegers was not at that time involved in MDI and Mr Lawry was 95% in MDI and Dr Ballard 100% MDI, are those three people in a different situation with the closure of MDI? A. Yes, they are. Q. Why is that? A. That's because Dr Ballard and Mr McCarthy are working on the MDI project and Dr Swiegers was on secondment and not working on the MDI project."
In cross-examination, Dr Woodrow was asked about the process that was engaged regarding Dr Ballard. He stated (T893, 28-30; T913, 38-50; T914, 1-5): "Q. They're reflective of the type of process that you would expect to follow from this type of event, correct? A. Yes, it's good, yes. … Q. Am I correct in assuming that with the cessation of the MDI project that Dr Swiegers, who was on secondment at that time, was in a position of disadvantage so far as the continuation of his employment with CSIRO as compared to those employees in CSIRO who were actually working on the MDI project? A. That Dr Swiegers was more disadvantaged are you asking, your Honour? Q. So far as continue on with employment with the CSIRO? A. Dr Swiegers was disadvantaged no more, no less than others, not through the decision of closing the project, but with respect to the opportunities of redeployment. So, yes, so each of those working on the MDI project were, I guess, equally affected by the closure of a project. The question then is what do you do with each of those individuals so you'd then seek to find positions for the individuals. Actually Dr Swiegers, at that time was less affected because he was already employed elsewhere on secondment and the others were more immediately affected because they were dependent upon that project, at that time, for continuing employment unless we could find a redeployment opportunity. We were able to find them a redeployment opportunity."

[29]

Matters of Evidence - redeployment of the plaintiff

The CSIRO Enterprise Agreements (Exs A and B) in Sch 3 contain procedures to be applied in the event of redeployment.
In the plaintiff's first witness statement (Ex D, 123, 125-126) he stated: "Between 18 December and 23 December 2008 Dr John Carras, the deputy Chief of the CSIRO Division of Energy Technology, and myself exchanged a number of emails in which I requested an immediate transfer to his Division. Dr Carras had offered to support a position for me at his Division in June - July 2009, at which time new funding would be available to him. The request for an immediate transfer was denied as the funding was not yet available. Annexed and marked GS77 is a copy of the email exchange between 18 December and 23 December 2008. Annexed and marked GS78 is a copy of an email, dated 30 January 2009, from Mr Black to Dr Woodrow saying that opportunities for my redeployment had been unsuccessful and approval was needed from Dr Woodrow's supervisor, Dr Steve Morton, for the redundancy. I became aware of this email from documents produced in these proceedings. On 9 February 2009 I was informed by Mr Black that he had undertaken a search for a position for me across the entirety of CSIRO and that no position was available for me…"
In the plaintiff's third witness statement he recounted (Ex F, 41): "On the day that I returned from Secondment, 27 January 2009, I met with Mr Black. At the meeting I said words to Mr Black to the effect that "I will do any job for which I am qualified within the Melbourne area."
The plaintiff's evidence in cross-examination relating to the 27 January 2009 meeting with Mr Black included the following (T129, 23-28): "Q. You told him at this meeting that you were only prepared to consider roles at CSIRO in Melbourne? A. Yes, correct. Q. You never said anything about being prepared to work at a lower level? A. I said to him I will do any job for which I'm qualified."
In Mr Black's first witness statement (Ex 7, 25-28) under the heading "Redeployment efforts" he stated: "I had communication directly with various managers at the CSIRO regarding the search for suitable vacancies for Dr Swiegers' redeployment. Examples of these interactions in the search for redeployment opportunities are contained in the CSIRO documents folder (Tabs 165 to 174). Furthermore, when an employee is identified as "potentially excess", the HR Division enters the details of that employee into its internal database, Redeploy. This database is accessed by the CSIRO's HR and recruitment staff Australia-wide to enable them to identify internal candidates who are available for upcoming positions. Although I have no specific recollection of entering Dr Swiegers' details onto Redeploy, I or one of my team would have done this as a matter of course in our redeployment efforts. During the redeployment phase, Dr Swiegers had access to all vacancies across the CSIRO via the intranet, and had been informed that he had such access. Ultimately, no roles were identified to enable the redeployment of Dr Swiegers within the CSIRO."
Mr Black further stated (Ex 7, 46): "Dr Swiegers did not confirm to me that he would consider available roles lower than his existing substantive level. However, when we met on 27 January 2009, he told me that he would not consider roles outside of Melbourne."
In cross-examination, Mr Black gave the following evidence (T372, 21-33): "Q. If you were genuinely interested in developing a plan for someone returned from secondment the first thing you would do is discuss the matter with the individual concerned isn't it? A. I would expect the manager to do that with them. Q. The relevant managers were either Dr Wilson or Dr Osvath, correct? A. That's correct. Q. If there was a genuine proposal to develop a plan for a return from secondment you would expect that Dr Wilson or Dr Osvath would have discussed the matter with Dr Swiegers at the earliest possible occasion, correct? A. Yes, that's correct."
In Dr Osvath's first witness statement (Ex 36, 43) he stated: "I advised Mr Black that there were no positions available within my Stream into which Dr Swiegers could be redeployed. This information was correct. This was not surprising given the following: (a) I was leader of a Stream that was being significantly downsized at the time, and we had just closed a whole suite of projects within the Theme; (b) In addition to the closure of the MDI project, the other substantive piece of work that Dr Swiegers had performed prior to his secondment had been relocated as part of the DataTrace joint venture. That is, the very success of the DataTrace technology meant that this entire area of endeavour had ceased at CSIRO with the advent of DataTrace."
In an email to Mr Black, Mr Patrick Hartley and Dr Savage, dated 13 June 2008, Dr Osvath stated (Ex 23, V8, T114): "… Gerry would in the first instance return to PIP capability. However, I feel I am probably not the best person to handle the question of his return to the organisation, in that he may have a perception about me, based on the ongoing case. Therefore, Greg Coia would be the next person in the line management structure, and he is sufficiently removed from the ongoing matters to be able to handle it. Views? Peter"
In cross-examination, Dr Osvath gave the following evidence (T948, 18-24): "Q. You wished to stand back from any involvement in Dr Swiegers' return from secondment; correct? A. I did, your Honour. Q. You did stand back from that and arrangements were made for Dr Coia to become involved; that's right? A. That's correct, your Honour."
In an email to the plaintiff dated 17 June 2008, with the subject "Return to CSIRO", Dr Coia stated (Ex 23, V8, T117): "I am currently the Research Program Leader for the Biology Program which encompasses the Photo Induced Processes capability group. I have been made aware that you are due to return to CSIRO after secondment and it is likely that you would probably be placed within this group. As you probably know, CSIRO has adopted a matrix structure and my task has been to work with Theme Leaders to find roles for staff within the Division. I would therefore like to have a brief discussion with you in the near future so that I can try to make your transition back to CSIRO as smooth as possible…"
In Dr Coia's first witness statement, he said that "subsequent to sending this email, I learned that Dr Swiegers' leave without pay was extended until late 2008. As a result, this discussion was forestalled" (Ex 30, 15).
Dr Coia further stated (Ex 30, 10-12, 16-18 and 31): "In or around mid June 2008, Mr Black and I were both in attendance at a meeting regarding various human resources matters. During this meeting, Mr Black told me that one of CMHT's research scientists, Dr Swiegers, was shortly due to return to the CSIRO, following a period of leave without pay during which he had undertaken a secondment to DataDot Technology Ltd (DataDot). I had not previously come across Dr Swiegers and was unaware of his work within the CSIRO or his secondment. Mr Black requested that I sit down with Dr Swiegers and find out what he wanted to do at the end of his secondment. Mr Black asked me to explain the recent changes to the CSIRO's operations to Dr Swiegers, specifically the introduction of the matrix management structure, as well as the budget cuts to the Security Theme within the Division. Mr Black said to me that, due to a restructure and reallocation of resources within the Division, the Division did not currently have a position for Dr Swiegers. Mr Black said to me that, if it was Dr Swiegers' intention to return to the CSIRO, then he wanted me to assist Dr Swiegers to identify a role within one of the projects currently being undertaken by the Division. He also asked me to talk with Project Leaders at the CSIRO in this regard, in order to assist with Dr Swiegers' smooth transition back to the CSIRO. I took contemporaneous notes of this meeting (Tab 116). I confirm that the matters set out in the notes are correct. On 1 December 2008, I sent a follow up email to Dr Swiegers, seeking to arrange a meeting with him to discuss his return to CSIRO in early 2009 (Tab 148). 8 December 2008: Meeting with Dr Swiegers Dr Swiegers and I subsequently met on 8 December 2008 for about an hour at a coffee shop in Camberwell. It was a fairly informal meeting and our discussion was amicable. I took contemporaneous notes of this meeting (Tab 152). I confirm that the matters set out in these notes are correct. I told Dr Swiegers that there was not a definitive position for him to go back to when he returned from secondment. I explained that there had been funding cuts to the Security Theme but that opportunities did exist. I referred to an email that Dr Peter Osvath, Theme Leader, National Security Technology Partnership, had send (sic) Dr Swiegers about a Theme Leader position that had become vacant (Tab 151) and encouraged Dr Swiegers to consider applying for that role. I also said that there were a number of Research Program Leader and Research Group Leader roles where "Expressions of Interest" were being sought and offered to send him details of these positions and to circulate his CV. Other than my meeting with Dr Swiegers' on 8 December 2008 and our subsequent email communications outlined in my statement above, I was not involved in any further discussions pertaining to the implementation or approval of Dr Swiegers redundancy."
On 8 December 2008, Dr Coia emailed the plaintiff with the subject "Today's conversation", as outlined in [127] above. On 9 December 2008, the plaintiff replied to Dr Coia's email (Ex 23, V9, T154): "Hi Greg I will reiterate what I said at the meeting. You asked what I intend to do upon the conclusion of my secondment? I said that my intention at this point in time was to return to CSIRO and take a substantial period of leave. I anticipated that the leave would be up to one year and involve a mixture of recreation and long-service leave at half pay. I did not wish to discuss my reasons for taking leave, however I intend to re-evaluate my involvement with CSIRO during the leave period. As such, I do not forsee that I will apply for any sort of new position within CSIRO at this stage. … The only other possible variant that I could envisage at this stage is that, after having taken leave, I may physically return to CSIRO in July-August 2009 with the intention of moving to the Division of Energy Technology in order to take up a project there. That scenario would be dependant on a number of factors, including my willingness to undertake such a project with CSIRO. I am, nevertheless, alerting you to this possibility. Regards Gerry Swiegers" Dr Coia forwarded the above email to Mr Black on 9 December 2008.
In cross-examination, Dr Coia gave the following evidence (T815, 22-28; T828, 24-50; T829, 1-6): "Q. You also then didn't follow up with project leaders or have any further discussions at that point about Dr Swiegers' return? A. That is correct. Q. You then took some further steps in December of 2008, I take it then you had no further involvement with Dr Swiegers between June and December? A. That is correct. … Q. Then at paragraph 31 you say, "Other than my meeting with Dr Swiegers on 8 December 2008 and our subsequent email communications outlined in my statement above I was not involved in any further discussions pertaining to the implementation of the approval", do you see that? A. To the approval of Dr Swiegers' redundancy, that's correct yes. Yes, that is correct. Q. The extent of your involvement was the meeting of the 8th ‑ in December at least, was the meeting of 8 December? A. Correct. Q. And the email communications from you to Dr Swiegers, Dr Swiegers in reply and forwarding it to Mr Black? A. Yes. Q. You didn't have further discussions with Mr Black about the process to follow on from there? A. That's correct. Q. Or have any further involvement with Dr Swiegers' employment? A. No further involvement at that point. Q. You didn't get back to Dr Swiegers about the options that he raised about taking leave and returning to the energy division? A. No I did not. Q. You didn't get back to him about the research projects program leader or research group leader jobs that you had mentioned in the meeting? A. No I did not. Q. You didn't speak to theme leaders about roles or work that Dr Swiegers could undertake? A. That is correct."
In cross-examination, Mr Black gave the following evidence (T402, 14-49): "Q. Dr Swiegers returned from secondment on 27 January 2009? A. That's correct. Q. I think you met with him either on that day or the next day; do you recall which one it was? A. I think the 27th. Q. In any event at that meeting Dr Swiegers advised you that he could only accept a position in Melbourne because of his family situation; do you recall that? A. That is correct. Q. He indicated to you that he would work in any job that he was qualified for? A. That is not correct. Q. He said that he would have a position in the energy division in July with Dr Carras? A. That is not correct. Q. He proposed taking leave until July? A. That is not correct. Q. You said that it would not be permitted? A. That is not correct. Q. You were aware that Dr Swiegers had proposed as an option taking up a position in July in the energy division to Dr Coia? A. I was aware that Dr Swiegers had made an informal inquiry about taking leave. Q. Did you ever ask him about that matter? A. No, I did not. Q. Did you ever make any investigations of Dr Carras as to whether or not there was a position available for Dr Swiegers? A. No I did not."
On 28 January 2009, Mr Black emailed the "P&C Staff - Leadership Team" with the subject "Seeking redeployment options". He stated (Ex 23, V10, T165): "Dear all CMHT Melbourne is seeking redeployment options for an officer who is surplus to our current staffing requirements. Please respond or provide a nil response by Friday 30th Jan 2009 as to whether you have any current or likely future vacancies for which this officer could be considered in Melbourne only. I can provide more detailed information and/or a confidential copy of the CV on request. CSOF 7 - Research Scientist/Engineer: Chemistry (Inorganic ) Location: Any CSIRO Division located in Melbourne. The officer is not prepared to consider opportunities outside the Melbourne Region Thank you for your assistance with this, Graham"
Mr Black received the following replies to his email on 28 January 2009 between 10:42am and 1:33pm (Ex 23, V10, T166-171): "Hi Graham I'm not aware of any suitable opports in Minerals Clayton for your CSOF7 officer, either now or in the foreseeable future. I will let you know if anything changes. Cheers LINDA" … "Sorry Graham - no known vacancies coming up in CLI at that level. Cheers, Greta" … "Dear Graham, Entomology are unable to assist in this redeployment as we do not have a presence in the Melbourne region. Kind regards, Kylie" … "Nil Response from Publishing and Corporate Groups Dallas Richmond" … "Hi Graham We don't have any positions based in Melbourne Regards, Dominica" … "Hi Graham No opportunities in CMSE I'm afraid, we have just completed a recruitment campaign and all Divisional vacancies have been actioned. Regards Paul"
In cross-examination, Mr Black gave the following evidence in relation to the replies he received to his email of 28 January 2009 (T345-348; Ex 23, V10, T166-T171): "Q. You will see that Ms Polla responded three minutes after your email, correct? A. Yes. Q. You would accept it is fair to assume that she did not conduct any investigation or any consultation with any other person before responding to your email? A. Certainly not with any other person. Q. In any event, what she did or did not do, you don't know? A. That is correct. Q. Made no inquiry about, you made no inquiry of her? A. That is correct. … Q. I take you to the response of Ms Colla which was tab 166. Tab 167 and these are the responses to your email of 28 January 2009. Do you have tab 167? A. Yes. Q. Do you see that's a one line reply from Greta Dabrowski? A. That is correct. Q. And she was, at that stage, at least, people and culture manager for livestock injuries; is that right? A. That is correct. Q. And she's responded at 11 past 11, half an hour later? A. That is correct. Q. And you also made no inquiries of Ms Dabrowski as to what investigations, if any, she conducted before responding to your query? A. That is correct. … Q. Again you made no inquiries as to the steps that were taken or not taken by Ms Kuiper‑‑ A. That is correct. Q. ‑‑to formulate that response? A. That's correct, your Honour. Q. The next response is 169 from ‑ the email address doesn't appear but it's from Dallas Richmond? A. That is correct. Q. Is that a he or a she; do you know? A. He. Q. He has responded as people and culture manager for, I assume, the publishing and corporate groups? A. That's correct. Q. At 11.25am and again you made no inquiries as to the inquiries made or not made by Mr Richmond? A. That is correct. Q. Tab 170 is the response from Dominca Walsh; do you see that? A. That's correct. Q. It's 11.57am on the same day? A. That's correct. Q. She, Ms Walsh, was at that point people and culture manager for CSIRO plant industry? A. That's correct. Q. Again you made no inquiries as to the steps taken by Ms Walsh to explore redeployment options or not? A. That's correct."
On 30 January 2009, Mr Black emailed Dr Woodrow with the subject "Gerry Swiegers redundancy proposal". He stated (Ex 23, V10, T175): "Dear Graeme Opportunities for redeployment to other areas of CSIRO have been explored without success. We now need to get Steve Morton's approval to proceeding with redundancy. Attached are relevant docs. Please give me a call if you wish to discuss. It would be great if we can get this fast tracked thru Steve's office."
In cross-examination, Mr Black agreed that he was the person responsible for undertaking attempts to redeploy the plaintiff (T341, 26-28). Mr Black further agreed that he did not wait the two days that he had given people to respond before he came to the conclusion in his email dated 30 January 2009 (T350, 43-45). He gave the following evidence (T350, 25-41): "Q. You will see that is an email message that you have sent to Dr Woodrow? A. That is correct. Q. Headed "Gerry Swiegers' Redundancy Proposal"? A. That is correct. Q. You had sent that on Friday 30 January at 10am? A. That is correct. Q. You have said in the first sentence of your message to Dr Woodrow, "Opportunities for redeployment to other areas of CSIRO have been explored without success"? A. That is correct. Q. That was a reference to the steps you had taken by the email of 28 January 2009 and the responses that you had received to date? A. That is correct."
Mr Black gave the following evidence in relation to advising officers that may be potentially redundant (T334, 44-50; T335, 1-3): "Q. You understood that the purposes of the requirement to advise an officer that they may be potentially redundant is to ensure that they have the maximum opportunity to avoid that outcome? A. That is correct, your Honour. Q. To ensure that the employees are not retrenched unless they are truly excess to the staffing requirements of CSIRO? A. That is correct, your Honour. Q. If there is work that could be done by the employee, the employee should be retained in CSIRO employment rather than being forced into retrenchment? A. That is correct."
In re-examination, Mr Black gave the following evidence (T414, 46-50; T415, 1-10): "Q. You were also criticised for not waiting the full two days for all people to respond to your request. Why did you not wait the full two days? A. I was quite aware of Dr Swiegers request to leave as soon as possible and I was also in my mind that any late advice of a potential vacancy could be taken up at any time up to the date of Dr Swiegers ultimate cessation. So the timeframe is not an impediment to consideration of any roles that may be identified prior to departure. Q. You were also criticised because you made these requests seeking redeployment opportunities to the various HR areas and not to the actual operational scientists, what do you say about the appropriateness of doing that? A. My procedures complied with standard CSIRO operating procedures. It would be ‑ I am unaware that individual scientists or senior managers would ever be advised in such a way. We would always go through HR."
In Dr Woodrow's first witness statement (Ex 33, 23) he stated: "I was not involved in the efforts to redeploy Dr Swiegers. That is not unusual. It is not part of my role to manage the redeployment of staff."
In cross-examination, Dr Woodrow said that he was not involved in any attempts to find any other roles or work for the plaintiff in the period after December, or the end of January, because this was a "matter which was left to HR to pursue" (T904, 37). Dr Woodrow gave the following evidence in relation to the first sentence in the email from Mr Black dated 30 January 2009, see [353] above (T907, 17-25): "Q. It's correct to say you didn't know what steps had been taken to explore other redeployment opportunities? A. No, I'm generally aware of the procedures but I didn't know of them in detail what had happened in this instance, no, that's correct. Q. That is you didn't have any knowledge, other than that sentence, as to what had been done or not done in respect of Dr Swiegers in exploring other opportunities; correct? A. That is correct, yes."
As to the Theme Leader position, the plaintiff's evidence in cross-examination included the following (T75, 34-47): "Q. In December 2008 when you were told that there was a job that you should go for, project leader job, right? A. Yes. Q. And was going to be a promotion, level eight, correct? A. Yes. I don't know if it was going to be a level eight. Q. We'll come back to that. I suggest to you it was going to be a level eight. A. I didn't understand it as that at the time. Q. You didn't even bother to look into it, did you? A. No, because it was very clear that the people who would be assessing that position, who would be on the selection panel, would be some of the whistle blower respondents."
On 20 February 2009, the plaintiff emailed Mr Black, see [42] above. In cross-examination, he gave the following evidence in relation to the email (T132, 35-36): "Q. You agree you're - by that, indicating I'll take the early cessation option? A. Yes."

[30]

Consideration

I am not persuaded on the balance of probabilities that the decision to cancel the MDI project had anything to do with the Whistleblower Complaint, or any feelings of antipathy against the plaintiff. Like other projects within the CMHT, the MDI project was subject to review by the Project Review Committee.
During the hearing of this case, it became evident to me that the CSIRO had limited resources and decisions about projects had to be made so as to free up available resources for higher priority projects. The MDI project had not brought in substantial commercial interest. As Dr Savage explained, the significant efforts to attract interest in the technology had not led to customers willing to take on the MDI project.
Although Drs Woodrow, Wilson, Simpson and Osvath were involved in the decision to close the MDI project and had been subjects of the Whistleblower Complaint, I am satisfied that their support for the cancellation of the project was founded on commercial and strategic considerations and not upon animus for the plaintiff.
It appears likely that there was a meeting on or around 19 October 2007, between at least Mr Black, Drs Osvath and Simpson, during which the plaintiff's return from the secondment was discussed. This meeting took place before the decision to close the MDI project. I find it unremarkable that such a meeting would occur when a CSIRO employee was to return to CMHT following an external secondment. The matter to be considered was where the plaintiff would fit within the Division upon his return in mid-2008.
I do not find that the difficulties that these witnesses experienced in recalling the meeting detracts from their credibility. It is hardly surprising given their senior positions and the plaintiff's delay in commencing these proceedings that the meeting could not readily be remembered.
In the passage quoted at [282] above, Dr Osvath outlined the possible difficulties fitting the plaintiff within the Division upon his return, as most of the plaintiff's work prior to the secondment had been "spun out" to DataTrace and there wasn't money to fund a new project. Furthermore, the MDI project had been a small part of the plaintiff's work.
I am not satisfied that this meeting had any nefarious purpose, such as a plan to get rid of the plaintiff from the CSIRO. It was a meeting to remind the senior scientists to give thought to the projects that the plaintiff could possibly be assigned to, upon his return from secondment.
Furthermore, the plaintiff has not established on the balance of probabilities that a decision had been made, as early as November 2007, that he would be made redundant.
It is common ground that Dr Ballard and Mr McCarthy were informally advised of potential redeployment opportunities in December 2007 and January 2008.
I accept Dr Simpson's testimony that there was "not such a linear direct connection" between the closure of the MDI project and the plaintiff's redundancy. Dr Ballard and Mr McCarthy were working on the project at the time of the closure, whereas the plaintiff was 100 per cent engaged with DataDot.
It is easy to understand Dr Woodrow's evidence that the plaintiff would quite likely have been made redundant at or around the time of the MDI closure, but he was not, as he was on secondment until January 2009. I accept Dr Woodrow's evidence that it "was far too early a stage to be considering it for Dr Swiegers, a potential redundancy because we still had time to run to find an alternative position for him since he was on secondment" (see [290] above).
Mr Black's "cesscalcs request" in Ms Pinkard's email (Ex K) does not establish that a firm conclusion had been reached that the plaintiff was to be made redundant. Similar to the redundancy checklist prepared by Mr Black in June 2008, the purpose of the request was to determine the financial impact of the plaintiff's redundancy if such a decision was in fact to be made.
In my view, the plaintiff's criticism of the reason given in the letter of 16 December 2008 (Ex 23, V9, T159) for the plaintiff's redundancy being "necessitated by a decreased funding allocation through SIP 3 to the Theme" does not withstand scrutiny. No decision had been made in November 2007 concerning his redundancy. It is evident from Dr Simpson's testimony that there were significant cuts to the CSIRO's budget as a result of Federal Budget announcements in May 2008. The email from Dr Garrett, sent to all of the CSIRO staff on 21 May 2008, envisaged a net reduction "over the next year of approximately 85 FTE (Full Time Equivalents), in all probability around 100 staff" (see [324] above). I find as a matter of fact that those budget cuts diminished significantly the funding allocation to the National Security Technology Partnerships Theme, to which the plaintiff had been allocated prior to his secondment, and eventually led to the approval of the plaintiff's redundancy.
The redundancy checklist indicates that the SIP 3 outcomes had resulted in a loss of appropriation "for 2008/09 (decrease of more than $1M) for our National Security Technology Partnerships (NSTP) theme…" (see [317] above). Mr Black opined that as a consequence up to five full time positions "will need to be lost from CMHT to cover funding shortfall" (see [317] above).
I am not persuaded the plaintiff's complaint has been established that, contrary to the defendant's obligations, he was not advised he was regarded as redundant for in excess of 12 months. The defendant was neither obliged to inform the plaintiff in November 2007 nor June 2008 that he was regarded as being redundant as a decision had not been taken that he was to be made redundant, nor was he likely to be made redundant at those times.
Although the plaintiff had been "identified" in the redundancy checklist, Dr Savage gave evidence that a great number of people were, in July 2008, "potentially thought of as being possible people for redundancy" and that there was no point in telling them all that they were being considered as that would cause undue panic and unrest. Dr Savage explained that they would wait "until…those thoughts had been consolidated to the point where someone is actually potentially redundant and then they would be advised at that time" (see [310] above). Dr Savage testified that the purpose of the redundancy checklist was to determine the cost of the redundancy process for individual CSIRO officers, should the Division decide to go down the redundancy path. He said that the fact that a person was identified on the redundancy checklist did not mean that the person was going to be made redundant.
Dr Savage's testimony is consistent with the approach adopted by Mr Black, Drs Coia and Woodrow. Dr Woodrow was, as the Business Unit Leader of CMHT, the "Authorised Person" who could exercise the retrenchment power under cl 16.1 of the Terms and Conditions of Service.
The defendant was not required to advise the plaintiff "of the situation" and provide him with the "comprehensive information" concerning "redundancy procedures" and the other matters referred to in cl 3(a) (Ex A) until it appeared that the plaintiff "[was] likely to become excess to Divisional or Business Unit requirements." Such a determination could not be made without appropriate consideration, as it might lead (if there were no apparent redeployment opportunities) to five weeks' notice of termination being given under cl 3(e), one calendar month after the receipt of formal advice under cl 3(a).
Dr Coia's evidence supports a conclusion that a determination that the plaintiff was "likely to become excess" could not have been properly made in June 2008. Mr Black asked Dr Coia to assist the plaintiff in identifying a role within one of the CMHT's current projects. He was also requested to assist the plaintiff with a "smooth transition back to the CSIRO" (see [346] above). Dr Coia emailed the plaintiff, in accordance with Mr Black's request, on 17 June 2008. The plaintiff was due to return from secondment to the CSIRO on 24 July 2008. However, his secondment was extended until 27 January 2009. Dr Coia explained that the discussion with the plaintiff was forestalled as a result of the extension of the secondment.
Furthermore, Dr Coia's testimony is inconsistent with the plaintiff's case that his redundancy was founded upon the ill-will that the respondents to the Whistleblower Complaint held against him. The plaintiff's allegations of bad faith in terms of his redundancy did not extend to Dr Coia.
The plaintiff was informed by Dr Coia at their meeting on 8 December 2008 that there was no definitive position for him upon his return from secondment. Dr Coia told him about the funding cuts and encouraged him to apply for a Theme Leader position that had become vacant.
Mr Black emailed the plaintiff on 16 December 2008, attaching a letter which confirmed, inter alia, Dr Coia's verbal advice that the CSIRO may not have a role at CMHT for him upon his return from secondment. He was also encouraged to apply for senior roles that were vacant within the Division.
Dr Osvath had, on 4 December 2008, emailed the plaintiff and others, inviting them to apply for an internal vacancy for the role of National Security Technology Partnership Theme Leader. The plaintiff did not apply for the Theme Leader position.
I am not satisfied that the plaintiff has established on the balance of probabilities that the defendant was required to notify him at a time earlier than December 2008 that he was likely to become excess to the CMHT's requirements. I accept the defendant's argument that the plaintiff was appropriately informed by Dr Coia and Mr Black that he was likely to become excess to CMHT's requirements as his secondment was coming to a definite conclusion, the work he had previously performed was not being undertaken and CMHT's budget had been significantly reduced.
In my view, the plaintiff's complaint of delay in being notified of the redundancy is without merit. It is pertinent to note that, notwithstanding the deal of attention given to the issue of delay during the trial, it was not pleaded by the plaintiff either in the further ASOC or his Outline of Facts and Issues. Mr Gibian accepted that, to the extent that the plaintiff was alleging non-adherence to the R&R Policy, it could only evidence a lack of bona fides in the redundancy process and no separate claim for damages was being agitated.
Another submission was that the defendant did not make a genuine effort to redeploy the plaintiff. I have previously referred to Mr Black's request to Dr Coia to assist the plaintiff to identify a role within one of CMHT's projects.
Dr Osvath, who was one of the respondents to the Whistleblower Complaint, had previously made arrangements for Dr Coia to become involved in assisting the plaintiff as he wished to stand back from any involvement in the plaintiff's return from secondment. I accept that Dr Osvath did so as he wanted to avoid any suggestion of partiality. The actions of Dr Osvath and the involvement of Dr Coia support the genuineness of efforts to redeploy the plaintiff.
The plaintiff was critical of the steps taken by Mr Black in late 2009 to ascertain whether there were any redeployment opportunities within CSIRO. Clause 3(a) required the carrying out of a CSIRO-wide survey of existing and foreseeable vacancies at, or one level below, the plaintiff's substantive CSOF level and in the same functional area. Mr Black was particularly criticised for taking no steps to ascertain what consideration (if any) had been given to his request and for failing to wait until the expiration of the two day limit which were both contained in his 28 January 2009 email.
The plaintiff, however, had met with Mr Black on 27 January 2009. He told Mr Black that he would only consider roles at the CSIRO in Melbourne. Mr Black had also been asked for a calculation of the early cessation payment with a termination date of 8 February 2009 by an earlier email on the same day.
On 28 January 2009, Mr Black emailed "the P&C Staff - Leadership Team". Given the plaintiff's instructions, the enquiry was sensibly confined to current or future vacancies in Melbourne. Responses were required by 30 January 2009, but were received between 10:42am and 1:33pm on 28 January 2009.
At about 10:00am on 30 January 2009, Mr Black sent an email to Dr Woodrow, the attachments to which included the "business case" for the plaintiff's retrenchment. Dr Woodrow acted upon this material in deciding that the business case established that the plaintiff was in excess to the CSIRO's requirements.
I am not persuaded that Mr Black's actions reveal that his efforts to redeploy the plaintiff were not genuine. As the scope of the enquiry was limited to Melbourne, it is unsurprising that the email was answered quickly. Mr Black was, in my opinion, entitled to act on the responses that he received without further enquiry. Furthermore, the plaintiff had indicated his interest in taking the "early cessation" option and expediting the termination process. In any event, there is simply no evidence that any of the responses were false or mistaken. Moreover, the plaintiff has not demonstrated there were, in fact, current or future vacancies that were suitable for a "CSOF 7 - Research Scientist/Engineer: Chemistry (Inorganic)" who was not prepared to consider opportunities outside the Melbourne region, which may have been discovered by Mr Black upon further enquiry, or by delaying his advice to Dr Woodrow.
As a consequence of the plaintiff's instructions, the defendant was not obliged to carry out a "CSIRO-wide" survey.
There was some disagreement about what was said at the 27 January 2009 meeting between the plaintiff and Mr Black. Whilst the plaintiff did not dispute that he had told Mr Black that he would not consider roles outside Melbourne, it was his evidence that he said he would do any job for which he was qualified. Mr Black's testimony was that the plaintiff neither at the meeting nor at any other time addressed the issue of whether he would accept a role at a lower substantive level. He denied that the plaintiff said any such thing.
I do not accept that the plaintiff told Mr Black that he was prepared to do any job for which he was qualified. Such a conversation does not stand happily with his email on the same day to Mr Black requesting the "early cessation" option with a termination date of 8 February 2009. Furthermore, the sense of desperation that might be inferred from a highly qualified and experienced CSOF 7M scientist being prepared to accept employment at lower CSOF levels is inconsistent with the lack of urgency previously displayed by the plaintiff in seeking another position within the CSIRO and his decision not to apply for the Theme Leader position.
Notwithstanding the advice that he had received in December 2008 about the lack of a future role in CMHT and the requests that month by Dr Coia and Mr Black for his curriculum vitae, this document was not sent to Mr Black until 28 January 2009. The plaintiff had been on holidays for five weeks and made little effort (if any) to access the "Redeploy" CSIRO intranet database site which set out all available job vacancies in the CSIRO. The Theme Leader position had a substantive classification of CSOF8. The plaintiff explained that he did not look into this opportunity as some of the people on the selection panel would be Whistleblower respondents. The plaintiff's failure to make an enquiry as to the constitution of the selection panel indicates a lack of commitment in remaining within the CSIRO. His belief that continuing to work co-operatively on a daily basis with Whistleblower respondents would be very difficult for him appears to have impacted upon his desire to continue his employment with the defendant.
The plaintiff's evidence of the conversation is not found in any email or other correspondence. There is simply nothing independent of the plaintiff that supports his version of the conversation. I accept Mr Black's evidence that the plaintiff never said any such thing.
I should also mention the plaintiff's claim that the redundancy had been forced on him. In my opinion, there is no evidence supporting that contention.
The attention drawn by the plaintiff to Dr Coia's return from secondment does not assist him in establishing that the efforts to redeploy him were not genuine. Certainly, it was the case that Dr Coia struggled to find his way back to the CSIRO after the secondment to Diapep/Evo Genix ended and, for a time, some work was cobbled together for him, but all of this occurred in late 2005 and not in 2009. There is no evidence of the budgetary restraints (if any) that the CSIRO was operating under at that time or the requirements of the relevant Divisional or Business Unit.

[32]

Argument

The plaintiff referred to research work that was available and required by the CSIRO that was suitable for his skills, experience and capabilities at the time he was identified as being redundant and his employment was terminated. He pointed to cl 4.2(b)(iii) of the Document of Appointment and argued that he would be considered "excess to the CSIRO's staffing requirements" only if there was no available work for the plaintiff to undertake. He submitted that when considering whether a person was excess to staffing requirements or rather, could be redeployed, the assessment should not be limited to advertised established positions and cited Technical and Further Education Commission t/as TAFE NSW v Pykett [2014] FWCFB 714; (2014) 240 IR 130.
A number of employees who were engaged in the 2008/2009 period to perform work that the plaintiff said that he was qualified to perform and could perform, were identified. Particular reference was made to Dr Michelle Groarke. The plaintiff stated that although formally appointed as an organic chemist, Dr Groarke's recruitment was prompted by the need for a scientist to perform work on the Idemitsu project which required high level organometallic chemistry skills. It was submitted that the work on the Idemitsu project fell precisely within the field of organometallic chemistry in which the plaintiff had been trained and had worked for many years. Reference was further made to Dr Cook, who had been undertaking work on the Idemitsu project prior to Dr Groarke's commencement, and to the evidence that no substantive difference could be discerned between the work that Dr Groarke was tasked with and the plaintiff's role at the CSIRO in the years leading up to his secondment.
The plaintiff referred to work being available in the Photo Induced Processes area in 2008 and 2009 that was suitable for him, and to his evidence that at the time of Dr Osvath's email dated 29 May 2008, Drs Watkins and Brown were working on the development of organic photovoltaic solar cells and LEDs. The plaintiff's evidence that four scientists were recruited to undertake work in relation to organic solar cells and LEDs in the period between July 2008 and April 2009 was mentioned.
Another submission was that the plaintiff had developed a future role for himself at the CET Division in consultation with Dr Carras. His role awaited formalisation via the SIP process due to occur in July 2009, but the plaintiff was not permitted to utilise his existing leave entitlements in order to allow him to take up such a position in the middle of 2009.
The defendant submitted that the plaintiff's case that the hiring of the CSOF 3-5 scientists was evidence of a "sham" redundancy was misconceived, as the plaintiff did not apply for any of these roles and was overqualified for them. Furthermore, under the relevant retrenchment power, the CSIRO was entitled to have regard to the efficient working of the organisation and the defendant had a legitimate discretion not to place the plaintiff, a CSOF 7M, in a CSOF 3-5 position and instead retrench him. It was said that the CSIRO exercised this discretion genuinely and in good faith.
The defendant contended that Dr Cook's appointment was irrelevant and "another red herring" raised by the plaintiff (DWS 58). Reference was made to the implication in the further ASOC that Dr Cook was originally hired in a CSOF 5 position in February 2009, whereas he was in fact hired in a CSOF 5 position in January 2007, and his appointment was extended due to extenuating circumstances. It was pointed out that in any event, Dr Cook was at all times on a fixed term contract and he ceased work at the CSIRO on 16 February 2010.
The defendant argued that the plaintiff eschewed all assistance that he was offered by Dr Coia at the 8 December 2008 meeting, including Dr Coia's request for the plaintiff's curriculum vitae so he could circulate it. This was said even to be the case when he got back from holidays in January 2008. The defendant contended that the plaintiff did not intend to apply for any positions at CSIRO at the time and wanted to keep his options open to returning to DataTrace. Further reference was made to Mr Black's request in his letter dated 16 December 2008 for the plaintiff to forward his curriculum vitae and for other information. However, no contact was made for five weeks by the plaintiff with the CSIRO when he went on holidays.
The defendant submitted that the plaintiff knew that the CET option was untenable and that Dr Carras, in a letter to him on 23 December 2008, plainly stated that his request could not be accommodated. In any event, the project was dependent upon an agreement being reached between the UOW, CSIRO, Monash University and Princeton University that was not concluded and did not proceed.

[33]

Matters of Evidence

In para 29(a) of the further ASOC and in the plaintiff's first witness statement, he identified scientists from the CSIRO that conducted research that was claimed to be comparable, or substantially comparable, to that of the plaintiff's work. He stated (Ex D, 133): "a. Dr Birendra Singh, who commenced employment as a Research Scientist (CSOF 5) on 12 November 2008. Annexed and marked GS87 is a copy of the Document of Appointment for Dr Singh in which his key duty was stated to be "In collaboration with team members to design, implement and conduct research in the fabrication of organic field effect transistors, organic light emitting diodes and organic solar cells, to test the efficacy of new change transport and emissive materials for plastic electronics. b. Dr Giovanni Fanchini, commenced employment as a Research Scientist (CSOF 5) on 26 November 2008. Annexed and marked GS88 is a copy of the Document of Appointment for Dr Fanchini in which his key duty was stated to be: "In collaboration with team members to design, implement and conduct research in the fabrication of organic solar cells, organic light emitting diodes and organic field effect transistors to test the efficacy of new charge transport and emissive materials for plastic electronics." c. Dr Christopher Dunn, commenced employment as a Research Scientist (CSOF 5) on 10 March 2009. Annexed and marked GS89 is a copy of the Document of Appointment for Dr Dunn in which his key duty was stated to be: "In collaboration with team members to design, implement and conduct research in the fabrication of organic field effect transistors, organic light emitting diodes and organic solar cells to test the efficacy of new change transport and emissive materials for plastic electronics". d. Dr Juo Hai Li, who accepted employment as a Scientist (CSOF 4) on 20 April 2009. Annexed and marked GS90 is a copy of the Document of Appointment for Dr Li in which his key duty was stated to be: "In collaboration with team members to design, implement and conduct research in the fabrication of organic light emitting diodes to test the efficacy of new charge transport and emissive materials for organic light emitting diodes."
The plaintiff explained that he believed he was qualified and capable of performing the work of the four scientists referred to above. In addition to this, the plaintiff identified two other people, Dr Groarke and Mr Peter Gray, who he considered to work specifically in his field of training and speciality. He stated (Ex D, 135): "a. Dr Michelle Groarke, commenced employment at CSIRO Molecular and Health Technologies on 19 January 2009. While she was formally appointed as an organic chemist, her duties encompassed synthesizing metal-based luminescent metal complexes and their precursors which falls precisely within the field of Organometallic chemistry in which I was trained and in which I had worked for many years, including in the Security Devices research group. Annexed and marked GS91 is a copy of Dr Groarke's case for Merit Promotion, dated 13 October 2010 and signed by both her and her supervisor, in which her role is described. This document states (in the second bullet point of the "Case Summary"): "Dr Groarke's role was the challenging task of developing new blue phosphorescent iridium materials…". Further in the same document, it states (in the seventh line of the section entitled "Case Detail"): "This was a completely new area of research for Dr Groarke and involved a steep learning curve. Dr Groarke's key accountabilities lay in the development of new iridium organometallic materials for use as blue phosphorescent dopants in OLED's". b. Mr Peter Gray, who commenced employment as a Research Projects Officer (CSOF 3) in synthetic inorganic chemistry on 10 November 2009. Annexed and marked GS92 is a copy of the "Approval to Appoint" document for Mr Gray. In section 9 of its Appendix A, the document states that the position requires skills in the "physical and organometallic area".
The plaintiff stated that he could not "discern any substantive difference between the work that Dr Groarke was tasked with, and [his] role at CSIRO in the years leading up to his secondment" (Ex D, 136). He explained that while Dr Groarke was formally appointed as an organic chemist in January 2009, her duties encompassed synthesising metal-based luminescent metal complexes and their precursors, which fell precisely within the field of organometallic chemistry in which the plaintiff had worked for many years, including in the NSTP.
In cross-examination, the plaintiff agreed that Dr Groarke was appointed a research scientist and synthetic organic chemist at CSOF5, with a salary of $81,000 (T178, 29-50). The plaintiff gave further evidence that the work Dr Groarke "actually ended up doing was completely different to what had been advertised" (T181, 12-15).
The plaintiff recounted in his first witness statement (Ex D, 127 and 128): "I later came to discover that in mid-January 2009, a scientist hired in 2006/2007 to replace me while I was on secondment, Dr Vernon Cook, was offered a new 6-month full-time position at my Division of CSIRO. Dr Cook had identical qualifications and experience to me, and was to work on a project that fitted the role I had carried out at CSIRO. Dr Cook declined the position, which was instead converted to a 1-month position to terminate on 12 February 2009… From other documents produced in these proceedings, I became aware that on 12 February 2009, Dr Wilson approved a re-offer of the earlier 6-month contract to Dr Vernon Cook, in the form of a 1 year, half-time position. Dr Cook accepted that position and commenced work on Friday, 16 February 2009…"
In Dr Cook's first witness statement dated 15 September 2013, he stated (Ex P, 24): "In my professional opinion, because of his scientific expertise, Dr Swiegers could have done the job to which Dr Groarke was appointed. As I have observed over a number of years both in person and in the chemical literature the quality of Dr Swiegers work I am absolutely certain he would have excelled in this position."
In his witness statement in reply dated 16 June 2014, Dr Cook said (Ex Q, 60-61): "I say also in response that I am very well aware of the job grade levels within CSIRO. While CSOF 5 was much lower than Dr Swiegers' previous position of CSOF 7, there was precedence within CSIRO for job descriptions to be amended with extra responsibilities to be removed or added to make a role better suited to an ongoing staff member. It was not uncommon within CSIRO that, due to budget constraints, candidates were more likely to get higher levels of responsibilities at a lower job grade. I recall a Dr Ken Van Langenberg held a CSOF 6 position, but performed the role and responsibilities of a Stream Leader."
In cross-examination, Dr Cook gave the following evidence (T499, 10-41): "Q. Dr Cook, you're trying to use this case, aren't you, as a de facto appeal process on the fact that Dr Michelle Groarke beat you for a permanent position in CSIRO? A. No. Q. You're also trying to use this case to get back against Dr Wilson for some perceived injustice you feel? A. No. Q. In fact you have an axe to grind against CSIRO generally? A. No. Q. You're upset you were never made a permanent employee? A. I would have liked to have been but, no. Q. You say you're not upset that you were never made a permanent employee of CSIRO? A. I would have liked to have been a permanent employee but I certainly haven't got an axe to grind about that and that's not why I'm here. Q. Are you upset that you didn't secure permanency at CSIRO? A. I would have liked to have, yes. Q. You feel bitter and twisted against Dr Michelle Groarke, don't you, because she got a job that you applied for? A. No. Q. You blamed CSIRO for what you think is the failure of your research career A. No. Q. Correct? A. I do not blame CSIRO for that."
In further cross-examination, Dr Cook stated that he was not aware that the plaintiff never applied for the job to which Dr Groarke was appointed, and agreed that if the role was made available to the plaintiff at CSOF5, it would have been "a demotion" (T510, 10-13).
In the plaintiff's third witness statement, (Ex F, 20, 23 and 29) he gave evidence about his involvement in the CET Division, which included the following: "In late 2007, the University partners in the catalysis technology - Monash University, Wollongong University, and Princeton University - commenced negotiations toward a formal Strategic Alliance Agreement governing the catalysis technology. The defendant was formally invited to join the alliance... … Dr Carras and I later attended a meeting at the University of Wollongong which was aimed at formalising the collaboration between the institutional partners to the catalysis project and planning the pathway forward (i.e. to commercialise the technology)… … On 3 October 2008, a teleconference was held between representatives of the participating institutions. Dr Carras and Mr Briggs, employees of the Defendant and I participated in the teleconference. The discussion revolved around the plan for a "Strategic Alliance" that would jointly conduct research work on the Biomimetic Catalysis technology and seek investment to that end…"
The following emails were sent by the plaintiff on 18 December 2008, and by Dr Carras in reply on 23 December 2008 (Ex D, Ann GS77): "Hello John I am due to return to my Division of CSIRO on Jan 24, and have requested some long-service leave (until late July). I heard from our HR person today saying that I had to be allocated to a group in order to take long service leave. Because the Document Security group that I was attached to has been cut, I will not be able to go back to it and will instead go into the "pool" on my return. This apparently means that I have to wait in the pool until I am allocated before going on long service leave. I recall you mentioning that you were intending to put the catalysis project up for the Science Investment Process this year and the outcome of that would be known in July. Given that, would there be any chance of me moving to Energy Technology on Jan 24 and taking LSL then? That way, I would return from leave at around the time that the catalysis project would start. … Regards and many thanks for your assistance Gerry Swiegers." "Gerry, As you may be aware we are under budget constraints at the moment, including the energy domain, and I'm afraid that CET can't accommodate your request. All the best for the Festive Season John."
The plaintiff's evidence on his future role at the CET Division included the following (T118, 3-37; T461, 24-31): "Q. He's saying ‑ he's not saying it's okay in July, he's saying we've got budget restraints, we can't accommodate your request to put you in the group, to park you there‑‑ A. No, he meant, and I spoke with him afterwards as well‑‑ Q. Please‑‑ A. No, he meant that they could not take me immediately and accommodate me immediately. They could only accommodate me in July, and the reason for that is that they had to go through this SIP process which could create a project and would create a budget item for me. Q. You know that email says no such thing. A. But that is what he said to me. HIS HONOUR Q. You had a conservation with him, did you? A. Yes, I spoke with him, your Honour. I actually met up with Dr Carras after I got back from leave. We met at a conference, actually at Wollongong University, and I spoke with him again, and I asked him again, and he said to me, "Yes, they are planning to do this. They were planning to create a new project", and I'd been working with him for two years at that stage, to create this program in his division, and he was interested, he expressed interest all the way through. We were busy negotiating with all the strategic partners to get that created and there's evidence in my third witness statement, plenty of evidence to that effect and the idea was in the next science investment processes which occurred every June or July he would be putting that in as a new project and he assured me or he felt very confident that he would get that in as a project and that it would then have a budget code and that I would then be able to transfer. Then I would be the leader of that project. BOURKE Q. You say we'll find all that evidence in your third statement? A. Yes. … A. So Dr Carras was the deputy head of that division and my experience is that a person of that seniority proposing a project would definitely get it funded. He was also diverting resources of the division, that's legal resources and et cetera to develop a legal agreement. So at that stage in late 2008 there was a legal agreement being circulated between the parties so the University of Wollongong, Princeton, Monash University and CSIRO and this was bouncing around between the parties to decide and their legal ‑ the energy technology legal staff were actively involved in it."
In Professor Stanley Wild's witness statement, dated 20 January 2014, he stated (Ex R, 26-27): "… It is also my view that Dr Swiegers would have been capable of performing the key duties described in Dr Groarke's documents of appointment and Case for Merit Promotion. My experience of Dr Swiegers' work leads me to the view that he would have performed that work exceptionally. In all respects, of the three scientists in contention for the position in question, Drs Swiegers, Cook and Groarke, Dr Swiegers is the strongest and most capable person of carrying out, with distinction, the work of the group."
In Mr Black's third witness statement, dated 19 April 2015, he said that Dr Cook was correct in observing that a CSOF5 is a much lower level than a CSOF7. However, Mr Black said that Dr Cook's statement at paragraph 60 of his reply witness statement was incorrect because "job descriptions are directed to identifying the role that CSIRO requires to be performed. Job descriptions are not created or varied simply to suit what may be the skill set of any relevant person" (Ex 9, 6). Mr Black explained that even though he was not aware of the precise details of Dr Ken Van Langenberg, he thought it was unremarkable that an officer employed in a CSOF6 position would perform the role of a stream leader in order to attempt to demonstrate the competencies required for promotion to CSOF7.
In Mr Black's first witness statement, he explained that an appointment at CSOF5 is "quite different" to an appointment at CSOF7. Mr Black stated that there is "approximately $40,000 to $50,000 difference in remuneration, and approximately 8 to 10 years in terms of experience as a scientist" (Ex 7, 40). He said that there is a huge difference in the CSIRO's expectations of appointees at these varying levels (Ex 23, T18A). Mr Black further stated (Ex 7, 35-36): "Based on over two decades of experience in Human Resources, and having overseen the redeployment process carried out by CSIRO in relation to around a hundred employees, I can say that I observed nothing untoward in the redeployment process with respect to Dr Swiegers and the redundancy was genuine. Futhermore, at no stage during the redundancy and redeployment process did Dr Swiegers inform me that he viewed the redundancy process as a sham or otherwise improperly motivated so as to terminate his employment, or that he did not believe that he was genuinely excess to the CSIRO's staffing requirements or that his redundancy was not valid for any other reason."
In cross-examination, Mr Black agreed that it was correct that, from time to time, particular research tasks were completed by research scientists at different CSOF levels (T407, 23-27).
In Dr Wilson's first witness statement, he stated (Ex 16, 45 and 116): "Based on my knowledge of the organisation, I have no reason to doubt that Dr Swiegers was genuinely excess to the staffing requirements of the CSIRO and that his retrenchment was justified and unimpeachable. … Dr Michelle Groarke was appointed to a CSOF Level 5 position which was, again, significantly junior to Dr Swiegers' position of Level 7M. Dr Groarke was appointed to her position through an open, transparent and competitive process. Further, Dr Groarke was appointed to provide deep expertise and a fresh insight to the relevant Capability (the Functional Small Moleclues Group led by Dr Peter Duggan. Her synthetic chemisty skills were in a different area to Dr Swiegers but arguably at an equal or higher level..."
In cross-examination, Dr Wilson gave the following evidence (T649, 3-15): "Q. Dr Cook was working on a project for Idemitsu? A. Correct. Q. And Dr Groarke worked on that project once employed? A. Yes, correct. Q. I think you were not involved at all in the recruitment of Dr Groarke; is that right? A. That's correct. Q. You don't suggest, do you, that Dr Swiegers could not undertake the work on the Idemitsu project, that is it was suitable for his skills and experience? A. Correct."
In Dr Peter Duggan's witness statement dated 17 April 2014, he said (Ex 32, 27): "It is correct that Dr Swiegers was not considered for the Idemitsu Role, or any of the CSOF5 roles. He did not apply for these roles. The Recruitment Panel only considered individuals who applied for these positions. If Dr Swiegers had applied, his application would have been given due consideration by the Recruitment Panel. For the purposes of making this statement, I have reviewed Dr Swiegers's curriculum vitae which was provided to the CSIRO on or around late January 2009 (Tab 164). Based on my review of this document, and noting that Dr Swiegers was a CSOF Level 7M scientist, I consider that, if Dr Swiegers had applied for the Idemitsu Role, it is most likely that he would not have been interviewed, because he was significantly overqualified. In addition, and as mentioned above, part of the aim of recruiting research scientists at CSOF Level 5 at that time to address issues of succession planning within CSIRO and the FSM Group specifically. At the relevant time, the FSM Group had sufficient capability at a senior level commensurate to that of Dr Swiegers."
In cross-examination, Dr Duggan agreed that the plaintiff is a talented and experienced organometallic chemist, who he didn't have any doubt would have been able to perform the work that was involved in the Idemitsu project (T846, 48-50; T847, 4-6).

[34]

Consideration

Clause 4.2(b)(iii) of the Document of Appointment provides: "4.2 Your appointment may be terminated: … (b) by CSIRO in the event of - … (iii) your becoming excess to CSIRO's staffing requirements."
The plaintiff's argument was that he would only be considered "excess to CSIRO's staffing requirements" if there was no available work for the plaintiff to undertake. In considering the construction of cl 4.2(b)(iii), the plaintiff referred the judgment in Pykett of the Full Bench of the Fair Work Commission where the Full Bench said at [36]: "…For the purposes of s 389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee."
The Full Bench was considering s 389(2) of the Fair Work Act 2009 (Cth) and not a term of an employment agreement, such as that found in cl 4.2(b)(iii). In any event, the citation of Pykett [it] is helpful at least to the extent of comprehending the plaintiff's argument. As I understand the submission, available work for a CSOF scientist with the plaintiff's learning and experience would not mean available work as a cleaner or in another menial role, but must be work that was not only available, but reasonable in all the circumstances for the plaintiff to be redeployed in.
The following Table discloses the employment details of the CSIRO scientists, who were identified in para 29(a) of the further ASOC: Date of Offer Date of Acceptance Who Classification Pay Offered CSIRO Docs Tab 26 May 2008 10 July 2008 Dr Giovani Fanchini CSOF5 $xx,xxx to $xx,xxx V8, T109 8 July 2008 16 July 2008 Dr Birendra Singh CSOF5 $xx,xxx to $xx,xxx V8, T128 31 July 2008 10 August 2008 Dr Michelle Groarke CSOF5 $xx,xxx to $xx,xxx V8, T133 9 October 2008 13 October 2008 Dr Christoph-er Dunn CSOF5 $xx,xxx to $xx,xxx V9, T140 28 October 2008 23 October 2008 Peter Gray CSOF3 $xx,xxx to $xx,xxx V9, T141 20 April 2009 21 April 2009 Dr Juo Hao Li CSOF4 $xx,xxx to $xx,xxx V10, T192

[35]

I note that Dr Groarke did not commence her employment with the CSIRO until January 2009.
With the exception of Dr Juo Hao Li, the positions were offered and accepted prior to the determination in December 2008 that the plaintiff was likely to become excess to the CMHT's requirements. Whilst I accept that the plaintiff was qualified and capable of performing the work of each of the scientists detailed in the Table, all of the positions were at a classification that was much lower than the plaintiff's position of CSOF7. The highest classification offered (four positions) was at CSOF5.
As Mr Black explained, an appointment at CSOF5 was "quite different" to an appointment at CSOF7. There was, he said, approximately $40,000 to $50,000 difference in remuneration, and approximately 8 to 10 years in terms of experience as a scientist. At the time of termination, the plaintiff's gross salary was $121,485, whereas the highest salary for the advertised CSOF5 positions was $81,429. Dr Groarke was paid $81,000.
Dr Li's appointment was at CSOF4 and Mr Gray at CSOF3. These appointment grades were far below a CSOF7. The highest salary for the advertised CSOF4 position was $76,195 and $61,681 for CSOF3 position.
The plaintiff did not apply for any of the positions that were advertised prior to his termination, which is hardly surprising as his qualifications well exceeded those that were required for these roles.
It is convenient to mention the position of Dr Cook. The plaintiff pleads in para 27 of the further ASOC: "Following the formal advice to the Plaintiff that he was to be made redundant, and prior to the redundancy having effect, the Defendant offered Vernon Cook employment in the Plaintiff's role. Dr Cook accepted the position and commenced work on 13 February 2009."
The pleading is inaccurate and inconsistent with the evidence. Dr Cook commenced employment with the CSIRO on 15 January 2007 on a fixed term contract as a CSOF5 officer in the position of Research Scientist Inorganic Synthetic Chemist in the Transformational Products through Electromagnetic Theme. His position was extended for one month, from 15 January 2009 to 14 February 2009, in the position of Research Scientist, Photo Induced Processes. The contract term was extended from 16 February 2009 for one year, and expired on 16 February 2010. Dr Cook has not worked for the defendant since that time.
Dr Cook, at all times, was employed as a CSOF5 officer who, the plaintiff accepted in cross-examination, was not in his league as a scientist. That was obviously the case, given the plaintiff's high qualifications and experience. Dr Cook is presently employed as a secondary school teacher.
The plaintiff was never employed at the CSOF5 Level, but progressed from being a CSOF6 officer to CSOF7M. His employment was converted to indefinite status in December 1998. The position to which Dr Cook was appointed to, on a short-term contract in January 2009, was unrelated to the plaintiff's role prior to his secondment. Dr Cook did not at any time work on the MDI project or the Biomimetic Catalysis project which had occupied much of the plaintiff's work before his secondment.
I find that Dr Cook was not offered, and did not accept, employment in the plaintiff's position in February 2009 or at any other time.
As to the reasonableness of the plaintiff being redeployed in any of the identified CSOF5 positions, I found Dr Duggan's evidence to be helpful and, quite frankly, a matter of common sense. Dr Duggan expressed the opinion that if the plaintiff had applied for the Idemitsu Role (a CSOF5 position), it was most likely that he would not have been interviewed, because he was significantly overqualified.
Dr Cook accepted that if Dr Groarke's role had been offered to the plaintiff at CSOF5, it would have been a demotion.
In my opinion, a proper consideration of cl 4.2(b)(iii) of the Document of Appointment should not ignore cl 3(a) of the R&R Policy. The CSIRO-wide survey of existing and foreseeable vacancies, which the defendant was obliged to carry out, did not extend beyond one level below the officer's substantive CSOF Level.
The plaintiff was significantly overqualified for any of the positions identified in para 29(a) of the further ASOC. Another matter that the defendant was entitled to consider prior to appointing the plaintiff as a CSOF3 to CSOF5 level officer, were the provisions of cls 6 (a)(i), 6(b) and 6(d)(iii) of the CSIRO Enterprise Agreement 2005-2008. As the plaintiff was over 45 years of age, upon the transfer to a position of lower classification, he was entitled to receive, if an election was made to take the income maintenance option, payments for 14 months to bring his salary up to the salary received immediately before the date of redeployment.
I am not satisfied on the balance of probabilities that it was reasonable in all the circumstances to redeploy the plaintiff in any of those positions.
I turn now to what was said to be the plaintiff's future role at the CET Division. It is plain from the reply email by Dr Carras on 23 December 2008, that the plaintiff's request to move to Energy Technology was rejected. The reason given by Dr Carras was "budget constraints", which is consistent with the budget cuts that the CSIRO had suffered.
During his testimony, the plaintiff said that he met with Dr Carras at the UOW after he returned from leave. According to the plaintiff, Dr Carras told him that he would be putting together a new project, it would then have a budget code and he would be able to transfer. The plaintiff was to be the project leader.
The egregious feature about this conversation is there is simply no independent evidence that supports it. There are no emails or other correspondence between the plaintiff and Dr Carras (and anyone else) evidencing it. Furthermore, there is no mention of the conversation in any of the plaintiff's witness statements. I do not accept the plaintiff's evidence that such a conversation occurred.
In any event, the Biomimetic Catalysis technology research discussions which the plaintiff had participated in late 2007 and 2008, did not come to fruition. The University partners in the catalysis technology, Monash University, the UOW and Princeton University, were unable to reach agreement and the proposed arrangement was discontinued on 23 September 2009. There is no evidence of any other project that was available for the plaintiff in the CET Division in 2009.

Swiegers v Commonwealth Scientific and Industrial Research Organisation

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Cases Cited (31)

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