Victorian Civil and Administrative Tribunal|2014-11-06

The application to summarily dismiss the proceeding, followed the presentation of all the Applicant's evidence to the Tribunal.
The Respondents claim that the proceeding is frivolous, vexatious, misconceived or lacking in substance. They further claim that it is an abuse of process by reason of alternate proceedings running in another jurisdiction for bullying, victimisation and discrimination under the Accident Compensation Act 1985 ("the Workcover claim").
Section 75 of the Victorian Civil and Administrative Tribunal Act 1998, is the basis for an application for summary dismissal before the Tribunal and states:

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay another party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(3) The Tribunal's power to make an order under subsection (1) or (2) is exercisable by -

(a) the Tribunal as constituted for the proceeding; or

(4) An order under subsection (1) or (2) may be made on application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

Mr Weber submits that the onus of establishing a ground for summary termination rests with the party who has made the application[3]. He says the Tribunal should assume for the purposes of the application that the Applicant can prove all the allegations made in the Application. To this end the Applicant seeks that the strike out application by the Respondents for summary dismissal under section 75 of the VCAT Act be rejected on the grounds that the Applicant has demonstrated on the balance of probabilities in the evidence thus far, the Respondents have a case to answer in respect of these proceedings.[4]
While the Tribunal must exercise the greatest of caution in dismissing any case summarily, in the majority of cases in which summary dismissal is sought the Applicant has not put all the evidence before the Tribunal. The present application for summary dismissal has occurred after Mr Weber has lead all of his evidence. His case is at its highest. The questions for determination by the Tribunal, are the same as those that would have to be answered at the end of a hearing - Has Mr Weber established on the balance of probabilities that there has been discrimination or victimisation? Has Mr Weber established a basis for the argument that the Respondents have failed to provide reasonable adjustments to accommodate his disability? These questions will be answered below.
The Respondents submit that this proceeding is an abuse of process as the applicant has issued proceedings in the Magistrates' Court under the Accident Compensation Act 1985, seeking damages for bullying, discrimination and victimisation. They claim that the EO Act proceeding constitutes an abuse of process because this proceeding unnecessarily duplicates claims made in the other proceeding.
I reject the assertion by the Respondents that the claim by the Applicant is an abuse of process because of concurrent proceedings in the Magistrates' Court. The other litigation concerns different legislation and different matters for consideration. It is not an abuse of process to have proceedings related to the same facts, being heard at the same time. What is relevant is whether the facts give rise to different causes of action. I would however be required to take into account any award of damages in my consideration of what damages are appropriate compensation in the circumstances. Mr Weber would not be able to "double dip".

In order to address the claims of discrimination and victimisation and to gain an understanding of the matrix in which the relevant events occurred, it is necessary that I detail in some length the facts as they were presented in evidence.
Mr Weber has been employed by Deakin University as an Academic Level B Lecturer in the Faculty of Science, Engineering and Built Environment since the start of 2009.
He was responsible for reporting to his direct supervisor, Mr Elkadi (Head of School of Architecture and Building), with one of his roles being to teach the Construction Management Course.

Mr Weber complains that, because he has depression and because he has taken issue with workload allocations at the University, he has received excess workloads and poor performance ratings.
In late 2009, Deakin University staff received an email providing a proposed workload allocation for the following year. Discussions were then held with staff about the introduction of a Faculty workload model as opposed to a school based model which had been in place.
In December 2009, Mr Weber complained to Mr Elkadi about his workload allocation, describing it as unreasonable. Mr Elkadi responded by claiming that the workload was not excessive and that the Dean of the school had suggested all staff needed to teach more. He then asked Mr Weber for his calculations for the Faculty model workload.
Mr Weber continued to express his frustration about the proposal and was told the matter would be addressed in the New Year.
In February 2010, Mr Elkadi sent out an email to all staff stating that he had received complaints about the current workload.[5] Mr Weber claims he was the person being referred to in the email.
Later that afternoon, another staff member arranged a meeting between staff and the union to discuss work allocations. Mr Elkadi stepped in and advised the union would not be involved in the process. The following day he sent an email to all staff advising of his plans for the workload allocations and stating his intention to have it on a school based model.
Mr Weber replied to Mr Elkadi, copying in all academic staff. He again raised his concerns with his workload and the general attitude of the school in relation to the application of the Enterprise Bargaining Agreement (EA).[6] After setting out a number of principals in the EA, he stated "Needless to say, I could find more but lest we get bogged down too much, I think I have demonstrated on the Balance of Probabilities that the school is clearly at fault. To add insult to injury, you have attempted to turn this around and tried to make the Academic staff out to have wronged, when in actual fact it is the school that has wronged on this occasion, And to think that you have expressly stated that you are being bullied just continues to insult our intelligence. In fact it is the school that is Bullying us and I would suggest that there may well be a case for Harassment and Discrimination under the relevant Act".
Mr Elkadi then responded by referring back to an agreement about the workload. He then raised issues with Mr Weber's attendance at a scheduled workshop meeting. The email was sent only to Mr Weber.[7]
Mr Weber challenged the need for his attendance at the workshop, citing the EA in place at the University. During this email he also advised Mr Elkadi that "It is timely that I advise you that I suffer from Acute Depression." This occurred on 17 February 2010[8].
Two hours later, Mr Elkadi wrote an email to Mr Weber and copied in all staff. He referred back to the earlier email that was sent by Mr Weber correcting what he saw as inaccuracies of fact. He also stated "I would ask you to refrain from sending inflammatory and non-accurate round of emails".[9]
Mr Weber replied, copying in all staff: "I am entitled to bring to the attention of staff any anomalies that affect our employment conditions. Staff have a right to know."[10]
A further response from Mr Elkadi, which provided other staff with details of Mr Weber's work allocation[11], was then interpreted by Mr Weber as creating division and isolation through humiliation. Mr Elkadi asked Mr Weber to once again refrain from sending emails around to all staff and stated "For clarity to the staff in the architecture and Building, Mark's load is as 4 units in 2010 (one of the unit is shared with Priya) support for thesis supervision as everyone else in the School, with 0 research, and 0 administration".
The following day, Mr Weber advised Mr Elkadi that he was going to make a complaint against him of discrimination under the Victorian Equal Opportunity Act 1995 (Vic)[12].
The issue of the workload allocation and the model to be applied remained unresolved over the following months. Without a model in place, staff were given the option of deferring their biannual Performance Planning and Review (PPR). Mr Weber deferred.
In late October 2010, a new EA came into play. The result being that changes would now be required to the Faculty model workload allocation.
On 27 April 2011, Mr James Coulson (the Deputy Head of School) met with Mr Weber and completed a PPR for 2011, based on performance objectives. In August, the "Actual performance" rating was completed. Mr Weber received a "very good" rating as his performance outcome.
Mr Weber was not pleased with the outcome, and sought a review, which involved a reassessment by Mr Elkadi. After some heated discussion about his performance, Mr Weber's rating of "very good" was affirmed, with the notation "Excellent teaching performance".
Mr Weber complains that Mr Elkadi then failed to look at reward and recognition for achieving a "very good" rating and denied him the benefits that flow from an "outstanding" rating, which he believes he should have received.
In early 2012, Mr Weber was additionally assigned the role of Course Director of the Bachelor of Architectural Technology (BAT).
Later in the year, Mr Weber underwent a PPR for 2012. He was given a "satisfactory" rating. He sought a review of the result, but the grade was upheld.
Mr Weber then met with Mr Elkadi at the end of October to discuss his workload and his performance review, stating that his excess workload was affecting his ongoing medical condition. Mr Weber claims nothing was resolved at the meeting.
In early November 2012, a draft workload for 2013 was sent to all course directors, including Mr Weber. At this time a request from Linda Tivendale, Course Director, was made that Mr Weber teach an additional unit. Mr Weber advised Ms Tivendale that he would not be teaching the unit as his workload allocation was already excessive. He was advised that the additional unit was to replace a unit that had been removed.
On 6 December 2012, Mr Elkadi gave Mr Weber his workload allocation for the following year. Mr Weber's workload increased[13].
In February 2013, at an informal meeting with Ms Tivendale, Mr Weber raised his concerns with the workload model and his allocation. He advised Ms Tivendale that he would not be able to deliver two units assigned to him that year. He claims Ms Tivendale responded by saying the allocation had been assigned by Mr Elkadi and that the issue was not raised at the time of the allocation in December last year.
In March 2013, Mr Weber was advised that Anthony Mills, the Course Chair of Construction and Management, was to carry out the PPR for the year.
On 23 April 2013, Mr Weber met with Mr Mills and claims he was told that Mr Elkadi had advised him to increase Mr Weber's workload by having him undertake more research.
In May 2013, Mr Weber took issue with the results of the PPR from Mr Mills. He claimed the review had been conducted using an unqualified supervisor, the outcomes were deliberately and intentionally downgraded, and excess workload was applied in 2012 and 2013. He also raised the issue with Vice Chancellor Professor Jane Den Hollander.[14]
Mr Mills' results were reviewed by Vice Chancellor Trevor Day. The process was completed by late July 2013. Mr Weber was advised by Jane Sweeney (from HR) that the decision of the Vice Chancellor was final. The Vice Chancellor confirmed Mr Mills' result. A review of Mr Weber's workplace model was still being finalised.
The issue of the workload model also raised it's head on a school wide scale, when an email was sent from Mr Elkadi to all staff advising them that a new model was being developed[15].
Mr Weber responded by sending an email[16] out to staff advising them of their rights relating to the EA. He described the proposal as "already onerous on us the Academics, before it is even theoretically introduced." He went on to say "Make sure that you protect your basic employment rights as enshrined in your contract of employment. If you have any queries, please do not hesitate to contact me".
Three days later, Mr Elkadi wrote directly to Mr Weber[17] claiming his email "had raised unnecessary anxiety among staff in the school". He stated "I wrote to you on the 6th of June 2013 (attached below) to counsel you in relation to your behaviour ... While the emails do relate to different matters they both demonstrate behaviour which is uncooperative and divisive. I have also received concerns in relation to you approaching a number of staff yesterday to lobby against the proposal of a new workload model in the Faculty. I am concerned, that despite my efforts to support you, you continue to demonstrate inappropriate behaviour which is not in keeping with the Code of Conduct. I advise you that further issues in relation to your behaviour at work may attract disciplinary action in accordance with the Enterprise Agreement."
Mr Weber took the response to be victimisation[18], and continued with a further message to staff about his views on the workload model[19].
Around this time, Mr Weber was absent from a scheduled course committee meeting. He took offence at the way Ms Tivendale had recorded his non-attendance[20] and advised her that he was also making out a claim against her of discrimination and victimisation[21].
In September 2013, Professor Day advised Mr Weber that the mid year PPR would be carried out by him, due to complaints being made by Mr Weber against other supervisors. He also advised Mr Weber that he was still carrying out a review of the current workload model.[22]
Professor Day was subsequently advised that he was also a respondent to the proceeding before the Tribunal and that a Fair Work claim had been made - as such Mr Weber believed it would be inappropriate for there to be any review of a workplace model he was challenging, or a review by someone who had discriminated and victimised him[23].
Professor Day advised Mr Weber that he was unaware of any proceedings on foot, and confirmed his requirement for him to attend a PPR review. He stated "In the absence of any order from an external body that we should not proceed, I direct you to attend a PPR meeting with me at 2pm on the afternoon of Tuesday 8th October."[24]
Mr Weber sought to have the meeting deferred to enable him to have union representative present. Professor Day insisted on proceeding, until he was advised that the planned review was exacerbating Mr Weber's mental condition.[25] In an email of 7 October 2013[26], Professor Day advised Mr Weber that he was awaiting advice from HR as to whether the review should proceed and when. An attempt was made to reschedule the meeting for 14 October 2013 but Mr Weber advised that he had a medical certificate relating to his depression and would not be attending[27].
Mr Weber became unfit for work from this point on and there have been no further assessments of performance against workload allocation to date.

Mr Weber claims that certain staff engaged in conduct designed to undermine his position of authority within the University.
On 23 February 2011, Mr Weber was appointed to the role of School Academic Progress Committee chair (APC), a position for level "C" lecturers within the University, by Mr Elkadi and Mr Coulson.
An email from Mr Coulson set out the role of the former APC chair.[28]
Mr Jones, summonsed to give evidence before the Tribunal, was also asked about the role of the APC chair. He had been in the position prior to Mr Weber's appointment. He said that the obligation of the APC chair was to look at individual cases. "The APC chair looks after the adherence of academic procedure and reports to the faculty". When questioned about what would happen if the APC identified any non-compliance with procedure, Mr Jones advised that the chair would report it to the Faculty Academic Progress Committee, and it would be the committee's responsibility to determine if it warranted investigation and action. Mr Jones stated that the APC chair was limited in the scope of the investigation to the specific issues identified in a complaint.
In November 2011, Mr Weber, in his role as APC chair, was advised by Mr Elkadi that there had been a complaint by four students about their results, he had looked into it, and was satisfied that they were marked appropriately.
Mr Weber then took it upon himself to investigate the matter. On 29 November 2011, he advised Mr Elkadi that he had some concerns with the high failure rate for the exam. The matter went no further.
In July 2012 a review request of an exam result was received. Mr Weber says he became concerned about the way the matter was dealt with. He sent a letter around to all staff advising that informal reviews should not be conducted and everything must go through the Faculty Academic Progress and Discipline Committee (FAPDC).[29]
It was at this time that Mr Weber sought clarification of the role of the APC chair. He asked the FAPDC Chair, Professor Malcolm Campbell for a guide on the "roles, responsibilities and authority of the APC chair". He was advised there was no guide.
Mr Weber then raised further concerns about the review process, when a further student review request was received in October 2012. He raised this with Mr Mills and Ms Tivendale. Mr Weber requested information and documentation from the Unit Chair to carry out an investigation into the request. Mr Elkadi also became involved in the investigation and provided his view on what the outcome of the review should be. He also refused a request by Mr Weber to direct the Unit Chair to provide the information requested. Mr Weber took great offence to the lack of Mr Elkadi's support and claims he was attempting to influence a decision being made as to the outcome[30].
Mr Weber then took his concerns with the Unit Chair, Mr Elkadi, and the review process, to Professor Campbell, who responded by taking over the review[31].
Mr Weber was not happy with the recommendation of Professor Campbell and on 20 November 2012, Mr Weber took his complaints with the review process to the Vice Chancellor. In the email, Mr Weber states "I need this to be bought to a head and dealt with urgently, as I am suffering extreme stress over this, including being unjustly ostracised by work colleagues. At the end of the day, I am simply an employee that does what he is told, however where legal, ethical and moral obligations are contravened, I cannot remain silent".[32]
Mr Weber was directed to meet with Professor Day. From this meeting, it was determined that Professor Campbell would convene a meeting with everyone to discuss the role of School APC chairs and the Heads of School in relation to academic progress and assessment issues.
On 2 May 2013, Mr Weber took his complaints over the review process and assessment practices to the Associate Head of School teaching and learning, Professor David Jones[33].
The following day, Mr Elkadi sent an email responding to the complaint to Professor Jones. He also sent an email directly to Mr Weber stating "It is very unfortunate that you create unfounded doubts when the School clearly does follow the procedures of the Assessment Panels...".[34]
Mr Weber responded to Mr Elkadi and copied everyone in, once again reasserting his concerns about the procedure being followed[35].
He also complained again to the Vice Chancellor about Mr Elkadi and raised the impact it was having on his health. The Vice Chancellor advised that she was looking into the complaint. As a result of raising the issues of his health, he was contacted by the Head of Human Resources, Gwen Tinkler. HR subsequently appointed Jane Sweeney, as Mr Weber's case manager.
On 6 May 2013, Mr Weber took matters further and offered to conduct a formal audit of all units, seeking Mr Elkadi's go ahead. His offer was rejected.
Mr Weber made further contact with the Vice Chancellor over the following weeks. The Vice Chancellor responded by stating that Professor Day was looking into the matters raised and that it was her opinion that Mr Weber and Mr Elkadi had a "fundamental difference of opinion".[36] The comment upset Mr Weber and he claims exacerbated his mental state. He once again called on the Vice Chancellor to act in the investigation.
On 24 May 2013, Mr Weber commenced an investigation into a special consideration application. He entered into an exchange of emails with the relevant Unit Chair for information and documentation, on each occasion copying in Mr Elkadi, Professor Jones, Mr Mills and Ms Tivendale.
On 28 May 2013, Mr Elkadi sent an email calling for an end to the investigation, advising that he had spoken with the Unit Chair and Ms Tivendale about the matter.
Mr Weber took objection to Mr Elkadi's involvement and complained to Professor Campbell.
Professor Campbell gave support to some of the concerns raised, and asked for clarification on a number of issues from Mr Elkadi.[37]
At this time, Mr Weber was contacted by the Universities Protected Disclosure Co-ordinator, Shirley Rooney.
Mr Weber then went on to seek support from Mr Elkadi to continue his investigation. Mr Elkadi responded by calling a meeting to discuss the issues.
On 31 May 2013, Mr Weber sent a detailed email to Pro Vice Chancellor Day, setting out email correspondence he claimed related to breaches of Academic Integrity. He also sent an email directly to Mr Elkadi (copied to Professor Campbell) taking issue with the action he had taken in relation to the investigation process. He stated "...you have intentionally frustrated my role as the FAPDC School Chair, undermining my position within the School particularly the Construction Management Stream, and further causing me unwarranted and unjustified stress, notwithstanding, harm caused to my credibility and reputation, given my substantive position within the School."[38]
In early June 2013, Mr Weber went on to seek further information from the Unit Chair, some of which was provided. When Mr Weber sought a direction from Mr Elkadi to the Unit Chair to provide the further information being sought, Mr Elkadi responded that he was of the view that all relevant information had now been provided. He went on "In order to avoid more lengthy email correspondence, I am asking you, and any other involved staff, to see the Associate Head of Teaching and Learning Professor Jones if you have any further queries and to refrain from any further correspondence. My advise (sic) is mainly to support you and other staff members and avoid any further deterioration of your relationship in the School." Mr Weber viewed the comments as him being told to stop all communication.[39]
On 5 June 2013, Mr Weber wrote to Mr Elkadi claiming that he was discriminating against him. He stated "You have deliberately, caused my position as FAPDC school chair to be compromised in respect of its authoritive position, and that as a consequence you have deliberately, intentionally and willingly caused my reputation within the school to be brought into severe disrepute. That in doing so you have discriminated against me, including but not limited to (a) treating me differently to other employees (b) causing me to be isolated and segregated from work colleagues (c) failing to provide me with the necessary resources to competently and professionally carry out my duties as FAPDC School Chair (d) causing my position as FAPDC school chair to be given more unpleasant or more difficult duties than others in the same position within Faculty or the University. That as a consequence of this admission by you that you were obviously aware of this deterioration of my relationship within the school (through your failure to actively support my role of FAPDC School Chair), you have deliberately and intentionally incited these detrimental and adverse actions including but not limited to discrimination." [40]
Mr Elkadi refused to comment on the allegations. He directed Mr Weber to cease sending emails in relation to his investigation, stating "I have been approached by a number of staff on this matter who are concerned and who are feeling intimidated and threatened by your behaviour towards them .... It is unfortunate that I need to counsel you in relation to your behaviour, but necessary in these circumstances. I expect you, at all times, to comply with the University's Code of Conduct. A failure to do so, or a failure to comply with a reasonable directive may result in disciplinary action in accordance with the Enterprise Agreement."[41]
Mr Weber regarded the comments as being victimisation for raising complaints of discrimination and put Mr Elkadi on notice that he would be amending his formal complaint.
Vice Chancellor Den Hollander and Professor Day were advised that formal complaints were being made against Mr Elkadi.
Pro Vice Chancellor Day responded by telling Mr Weber that he agreed with the concerns raised by Mr Elkadi, that he also found his tone inappropriate, and asked him to cease sending emails relating to the unit.[42] Mr Weber considered the response to be victimisation.
In July 2013, another complaint was received for investigation by Mr Weber. Mr Weber says the Unit Chair was again asked for information, but did not provide the documents requested.
He wrote to the Unit Chair advising him to provide the documents, and directing him to take any issue to Ms Tivendale and Mr Mills (both parties copied in to the email)[43].
Mr Mills subsequently advised Mr Weber that he had received a complaint in his role as (acting) Head of School, about the tone and nature of the emails that were being sent by him. He requested that Mr Weber cease asking for supplementary information until a meeting is held about his management style.
Mr Weber ignored the request, writing again to the Unit Chair, copying in Mr Mills. He received an urgent response from Mr Mills in which he instructed Mr Weber to cease all email communication with staff, related to his role as APC chair. Mr Weber responded, effectively advising Mr Mills that he would continue to do as he had done.[44] This response resulted in communication from Professor Campbell who instructed Mr Weber to cease all communication with staff about quality assurance issues. He went on to state "Your role as APC chair is not to investigate these issues, nor make allegations to staff directly". He advised Mr Weber that his role was to identify an issue and then refer it to Professor Campbell for follow up.[45]
Mr Weber resigned from his position as APC chair at the end of July 2013.[46] He claimed his role was neither supported at school level nor from the FAPDC. He has pursued the issues identified by him as APC chair, both internally and externally.
In July 2013, Mr Weber complained to Vice Chancellor Den Hollander about the review process and his role as APC chair, with particular reference to the Whistleblowers Protection Act 2001 and the Universities Academic Integrity Policy. He complained that he was mistreated by those he complained about and that his complaint was not dealt with appropriately. The Vice Chancellor asked not to be included in emails where she was not involved in any decision. Her request was supported and reiterated by the Universities Protected Disclosures Co-ordinator (PDC).
In October 2013, Mr Weber received a letter referring to the outcomes of an investigation into his complaints about process and academic integrity.
Mr Weber claims one outcome of the investigation and subsequent report was that he was accused of being defamatory and disrespectful in his dealings with other staff. [47] He claims he was denied natural justice in relation to responding to any allegations raised against him.
Mr Weber took his complaints about process and academic integrity to the Independent Broad Based Anti-Corruption Commission (IBAC) and a formal complaint to the Fair Work Ombudsman.
The Tribunal has not been made aware of the outcome of those complaints.

Mr Weber argues that once the University became aware of his depression (disability), it was under an obligation to make reasonable adjustments to his workload.
The first reference to Mr Weber suffering from depression was when it was raised by him to Mr Elkadi in June 2010. There was no evidence presented to this Tribunal that his depression at that time affected his capacity to carry out the work that he was then allocated. There is also no evidence before the Tribunal that his depression was raised again by Mr Weber prior to mid 2013.
In May 2013, Mr Weber received an email from HR's Ms Sweeney, advising that she had been made aware of his depression, and offering her support to him. This was subsequently followed by an email requesting written evidence of his fitness for work, after he advised her that he had been advised by doctors to take extended leave and was overmedicating himself.
Mr Weber provided the medical certificate[48] and asked for an alternate supervisor to Mr Elkadi.
Ms Sweeney referred Mr Weber to the Universities Disability Support Unit, advising that it "has a responsibility for assisting staff and students to identify, access and implement such reasonable accommodations as may be necessary to assist them work and study."[49]
Mr Weber was contacted by the Disability support services manager on 28 June 2013, and subsequently met with and formulated a reasonable adjustment plan. The plan included the following recommendations:

"It is recommended that Mark have flexible working conditions, including the ability to have variable start and finish times and working from home. This would allow him to manage the impacts of his condition, while still ensuring Mark would be available on campus for timetabled teaching and student consultation times, and committee meetings and other service related commitments. At times when working from home, Mark will ensure that he is reasonably available for online and phone consultation with students and colleagues as needed.

It is recommended that Mark report directly, through an alternate supervisor, to the Head of School, for support and performance issues. It is understood not all academic staff report directly to the Head of School.

It is recommended that these adjustments be reviewed in 6 months time, or earlier if needed by a change in circumstances, or if there are aspects that are not working out."[50]

In mid July, Ms Sweeney asked that the plan be agreed to by the Head of School (Mr Mills was acting in this position at the time). The review however did not go ahead, until mid August when Mr Elkadi had returned to the position as Head of School[51]. Mr Weber renewed his request for an alternate supervisor, and advised he would not attend the meeting with Mr Elkadi, asking the Disability manager to advocate on his behalf. Mr Weber was on sick leave at this time. No evidence was provided about whether this meeting went ahead.
During this time, Mr Weber carried out some of his work from home[52]. This had been the recommendation in the medical certificate from June and stated in the reasonable adjustment plan.
Ms Sweeney advised the request for an alternate supervisor should be picked up by the reasonable adjustments plan, but noted that the recommendation was not referred to by Mr Weber's doctor. Pro Vice-Chancellor Day was subsequently appointed Mr Weber's direct supervisor, replacing Mr Elkadi. Mr Weber complains Professor Day does not have the right experience for the job and would approach the role with a tainted mind because complaints were made against him.
Mr Weber complained about Ms Sweeney in August 2013 and as such she ceased to be his HR contact in September 2013.
On 9 October 2013 Mr Weber was contacted by Michael O'Donoghue, the Manager of Health and Wellbeing from the Human Resources Division. Mr O'Donoghue advised Mr Weber that he had been appointed to assist him with workplace issues, particularly related to his mental health, which included workplace adjustments.
Mr Weber was asked to submit to a medical examination to determine his fitness for work,[53] which would then be used to give the university "some clarity in managing your request regarding reasonable accommodation."
Mr Weber then advised Mr O'Donoghue that he had made a Workcover claim and had obtained a Certificate of Capacity. The University advised Mr Weber that it needed a doctor's opinion as to his capability of carrying out other duties, and whether he would be available for work and whether there were any restrictions on the type of work.[54] Mr Weber provided a "Certificate of Capacity" for the period from 9 October 2013 to 23 October 2013. The work restrictions recommended by the doctor were "Home based duties i.e. marking and general administrative work".[55]
Mr Weber advised that he would be meeting with the doctor the following week. He also advised that he had already met his annual workload allocation of 1575 hours, and any further work carried out would be in excess of this. He advised that he was currently completing the marking of the assessments for the units that he was responsible for, and completing the results for students.[56]
Mr Weber provided a subsequent Certificate of Capacity dated 30 October 2013, for the period from 23 October 2013 to 20 November 2013. The work restrictions were identified as "Home based duties ie marking and general administrative work, avoidance of contact with complaintees."[57]
Mr O'Donoghue then claims he tried calling Mr Weber several times, before sending an email seeking clarification of the work carried out by him.[58] Two weeks later, Mr Weber became unfit for any work duties.[59] This remained the case until March 2014.
On 25 March 2014, Mr Weber attended his doctor, and was provided with a Certificate of Capacity for the period 20 March 2014 to 18 April 2014. The doctor recommended that he return to work, but was to "Avoid contact with persons involved in litigation, alternate supervisor, primarily work from home to avoid contact."[60] He was subsequently given a certificate to 16 May 2014 in the same terms.[61]
The University advised that it was investigating accommodating the return to work recommendations. (These have been detailed in the following paragraphs related to Mr Weber's Workcover claim). The University was of the view that Mr Weber then became unavailable for any work from late April 2014, when it received the report and recommendations from an independent examiner. Mr Weber's own doctor provided a Certificate of Capacity, without any recommendations for any alternate duties from 17 May 2014.[62]
Mr Weber has not been available for any work since. The issue of whether reasonable adjustments were made from that point in time is not relevant.

Mr Weber claims that his treatment surrounding his Workcover claim has been unfavourable and amounts to victimisation. He relies on statements made by staff members to Workcover, requests for work to be carried out during his period of incapacity and the way his leave entitlements have been processed.
As a result of his depression, Mr Weber became unable to attend any work duties from November 2013. He attended a medical examination on 29 October 2013, with the Workcover insurer doctor, who advised that he had no capacity for alternate duties. [63]
Several Respondents made written statements to the Workcover insurer. Mr Weber considers their statements inflammatory and as such victimisation.
Whilst on sick leave, Mr Weber claims he was asked to carry out work duties. In December 2013[64] he was asked to provide information related to student results and this was followed up in January, when a request was made for the final results. The University also directed him to attend an independent medical examination at the end of January 2014. In a letter from Mr O'Donoghue, Mr Weber was advised that "If you do not attend this medical examination, please be aware that this will constitute evidence that you are unable to perform the duties required and may result in the termination of your employment (see clause 27.10)".[65]
Mr Weber took the above to be a threat he would be sacked. He replied in a letter to Mr O'Donoghue that the letter had caused him "significant stress and anxiety causing me severe depression including suicidal thoughts". He alleged that "the intend (sic) of the letter has been to deliberately, intentionally and wilfully cause me significant mental harm".[66]
Mr O'Donoghue replied, apologising for any distress caused, but confirmed the request for Mr Weber to attend the medical appointment. He then announced that Katherine Lukic was to take over as liaison with return to work and Workcover[67].
Mr O'Donoghue also raised the seriousness of Mr Weber's condition and what was occurring with Mr Weber's union representative. He once again requested Mr Weber attend a medical examination for the purposes of a professional opinion on his fitness for work.[68]
The seriousness of Mr Weber's health was confirmed in an email in February 2014, when HR referred to the independent examination carried out by the Workcover Insurer at that time.
On 25 February 2014, Mr Weber was advised that his request to access his long service leave before its accrual had been rejected. Ms Tinkler rejected the claim, stating that no exceptional circumstances were identified. He was asked to provide further information. Mr Weber replied by stating "_Under my current employment circumstances, I would have thought that my request for access to my LSL would have been considered exceptional, (The definition of exceptional meaning "unusual") given that I am currently suspended in a vacuum, pending the outcome of the Workcover claim. Alas, it would appear that the University does not want to assist me in this regard, rather cause further detriment to me given my medical condition. Unless this is reconsidered, I will consider this adverse and detrimental action by the University against me."[69]_Human Resources responded by advising Mr Weber that it did not consider a contested Workcover claim constituted exceptional circumstances.
On 16 March 2014, the University contacted Mr Weber to obtain the results for two students.[70] "This has become a matter of significant concern due to the considerable elapse of time. Therefore, notwithstanding your current leave arrangements, I now require you to provide me with the information needed to finalise the results for the two students. If you have completed the assessments, then please provide the final results to me. Alternatively, if you have not completed the assessments, then please provide the original copies of the assessments to me, so that I can arrange for these to be assessed by another member of staff."
Mr Weber advised the University that he was returning to work on 21 March 2014. The University replied by directing Mr Weber not to "attend work or carry out work on behalf of the University until further notice", except for the return of student results or paperwork. He was told that a certificate of capacity was required, and his full entitlements would resume to be paid. He was further advised that the University would be in a position to determine his capacity to safely and productively resume duties following an independent medical assessment planned for 2 April 2014.[71]
Mr Weber advised the University that he would not return student results until he could access Deakin Cloud (an on-line tool) to finalise the assessment.[72]
Mr Weber also took objection to the Return to Work Officer assigned to him. He complains that Professor Day did not have the required seniority and made unreasonable requests of him to carry out work related duties while he was "unfit for any work duties". He relies on an email received by Professor Day on 18 March 2014 which stated "My request (of 13 March 2014) that you provide me with information that will allow us to finalise the results for two students is materially distinct from the request previously made by Michael O'Donoghue"[73]. Despite repeated complaints about Professor Day, Mr Weber claims he remains his direct supervisor.
Mr Weber says the Vice Chancellor[74] has to take responsibility for not intervening and removing Professor Day from the position.
On 26 March 2014, Mr Weber provided the University with a Certificate for Capacity for the period 20 March 2014 to 18 April 2014.[75] The certificate referred to Mr Weber being able to carry out work related duties from home.
The University claims it was investigating whether reasonable adjustments could be made to accommodate Mr Weber. Professor Day advised "As you will appreciate, online teaching duties are not available as other arrangements have been put in place at the start of trimester and you had not advised at that time of a return to work. We are reviewing the availability of other duties from home, but significant work is unlikely to be identified. Scope for other duties is further restricted by aspects of the tone and content of your communications with several Deakin staff and managers. Deakin is also concerned that your doctor appears not to be fully aware of the limited capacity to work from home that arises for an academic at your level to provide useful work to the University. Nevertheless, until a thorough analysis of the availability of home-based duties for you is completed, from 7 April 2014 we will nominally allocate you a 50% workload and make the appropriate adjustment to your salary. Until advised otherwise, my direction that you not attend work or carry out any University duties continues to apply." [76]
Mr Weber attended a medical examination on 2 April 2014. He was advised of the results of the examination on 28 April 2014, and provided with a copy of the doctor's report. The advice from the doctor was that Mr Weber was incapable of any work for a three month period. This effectively meant that Mr Weber was on sick leave without pay, having used all his entitlements. Vice Chancellor den Hollander commented "I realise that this is a difficult period for you given your medical condition. I would encourage you to access the medical support and advice needed to speed your recovery. I would also encourage you to seriously consider the medical advice contained in (the) report."[77]
Mr Weber failed to attend the subsequent planned medical appointment on 2 July 2014, due to illness on the day. He remains unavailable for any work given his mental health.

Mr Weber claims that he has been victimised, by being restricted in his communication with staff, following his complaints under the EO Act.
On 22 August 2013, Vice Chancellor den Hollander directed Mr Weber not to include her in emails related to the review of the PPR, as there was no decision that she needed to make.[78] When Mr Weber advised that he would continue to keep her informed of matters "relating to issues that she was fully aware of"[79], he received an email from the University solicitor stating "Please extend the courtesy and respect due to the Vice-Chancellor and abide by her request to not correspond with her in relation to this matter."[80]
The explanation from the University for the directive was provided in a subsequent email which stated "I confirm that the Vice-Chancellor has requested that you not copy her into your emails. In this specific instance, you were communicating with HRD about your PPR and the PPR review process. The Vice-Chancellor was not making an assessment that your issues are incidental or minor, but only that she has no direct role to play in relation to the process that you are engaged in. The University has approximately 3000 staff and it is not feasible for the Vice-Chancellor to receive and read every staff email. You have made the Vice-Chancellor aware of your disclosure which is entirely appropriate. In relation to managing your disclosure, we have put into place a mode of communication which is through me...... You may also communicate with your welfare manager, Ms Gwen Tinkler, in relation to your disclosures and any relevant matter including raising your concerns about detrimental action."[81]
On 15 November 2013, the head of HR, Ms Tinkler sent an email to Mr Weber[82] - "I understand that you have recently sent emails to several Deakin University staff informing them about proposed or actual legal action you are taking against them. This has caused these staff distress and presents a risk to their health, wellbeing and psychological safety. I direct you to cease communicating with Deakin staff concerning proposed or actual legal action. Any future communications from you regarding proposed or actual legal action must be sent to the University's solicitors office ... I also direct you not to send communications to Deakin staff that reasonably could be interpreted as harassing or intimidatory ... You must not, either personally or through intermediaries, approach any Deakin staff member that you have corresponded with concerning any proposed or actual legal action. If you need to contact or meet with one of these staff members concerning University business that does not involve legal or other adverse action you should contact them by email to make suitable arrangements. The staff members involved have been similarly instructed not to have contact with you other than by email on normal University business. This is consistent with your recent Certificate of Capacity, dated 30 October 2013."
Mr Weber continued to email staff. In particular serving them with a copy of the application against them. This occurred on 31 January 2014.[83]
On 10 February 2014, the University solicitor, Kate Young, advised Mr Weber that his emails were being diverted to her. She stated that the diversions were occurring as a result of some staff members finding his emails distressing.[84] Mr Weber subsequently joined Ms Young to this proceeding, claiming her actions where discriminatory and victimising.
At around this time, Mr Weber was removed from some University services, including Deakin Cloud and email global mailing lists. Mr Weber argues that the inference to be drawn from this is that there was a deliberate attempt to isolate and marginalise him from his work colleagues.
Ms Manita Stokes, school manager for administrative services, confirmed she was directed to remove Mr Weber from Deakin Cloud and the global email. She received the direction from Professor Mills, who had been directed by Pro Vice Chancellor Day. Ms Stokes says she was told that it was "because Mr Weber was making contact with staff within the school and they were distressed. I was told to remove him because of the distress he was causing." [85]
Mr Weber says at the time the restriction was put in place his state of mind was not very healthy. He says that "a person with normal capacity may see it as reasonable, but for him, this situation creates a spiral condition."[86]

Mr Weber made a number of complaints about staff members prior to initiating proceedings in the Tribunal. The complaints concerned the same issues the subject of this proceeding - academic misconduct and management process, workload allocation, failure to recognise or reward work appropriately, discrimination and victimisation. The forums in which Mr Weber has sought a hearing, include a formal complaint to senior management, IBAC, Fair Work and Workcover[87].
As a result of raising these complaints, Mr Weber claims he was victimised in the workplace by not being provided the proper protection from his disclosures.
In May 2013, Mr Weber was advised that Shirley Rooney from the Universities Legal department was the Protected Disclosures Co-ordinator and that HR'S Ms Sweeney could assist him while the complaints were in train.[88]
On 10 June 2013, Ms Rooney advised Mr Weber that she did not consider that the disclosures made by him triggered the University's obligations under either the Whistleblowers Protection Act 2001 or the Protected Disclosure Act 2012. She went on to say "I do not believe your disclosures indicate that you have reasonable grounds for believing that the University or any of it's employees has engaged, is engaging or proposes to engage in "improper conduct", as that term is defined in the relevant legislation. Nor am I of the view that your disclosures indicate that you have reasonable grounds for believing that the University or any of its employees has taken, is taking or proposes to take "detrimental action" as that term is defined. I have therefore reached the conclusion that Deakin University is not obliged to refer your disclosures to the Independent Broad-based Anti-Corruption Commission (IBAC) under the PDA. You are, of course, entitled to raise your concerns directly with IBAC should you wish to do so." Ms Rooney then stated that the issues would be further investigated internally and that "I would like to reassure you that all reasonable steps will be taken to ensure that the issues that you have raised will be dealt with appropriately and confidentially. This means that information will only be disseminated to staff with a genuine need to know in order to conduct the appropriate investigation, to apply the appropriate procedures and to implement any recommended outcomes."
Mr Weber has at all times advised the affected parties of any complaints he has made against them.

Mr Weber lodged this proceeding with the Tribunal in November 2013. He had however raised the issue of discrimination under the EO Act well before, through emails to senior management and staff directly and through formal complaints at the University.
He has asked the Tribunal to infer that he was treated adversely as a result of his complaints about discrimination. He says that if an allegation has been made against someone, they should take no further active role in dealing with that person. He says that's because every decision they make is made with a "tainted mind".

Discrimination is defined under section 7 of the EO Act. It relevantly provides:

(a) direct or indirect discrimination on the basis of an attribute; or

(b) a contravention of section 17, 19, 20, 22, 32, 33, 40, 45, 54, 55 or 56.

Direct discrimination is further defined in section 8 of the EO Act :

(1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

(2) In determining whether a person directly discriminates it is irrelevant -

(a) whether or not that person is aware of the discrimination or considers the treatment to be unfavourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

Indirect discrimination is defined in section 9 of the EO Act and relevantly provides :

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and

An employer discriminates against an employee if reasonable adjustments are not offered to accommodate the employee's disability. Section 20 of the EO Act relevantly provides :

Employer must make reasonable adjustments for person offered employment or employee with a disability

(1) This section applies to a person with a disability who -

(b) requires adjustments in order to perform the genuine and reasonable requirements of the employment.

(2) The employer must make reasonable adjustments unless the person or employee could not or cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made.

(3) In determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered, including -

(a) the person's or employee's circumstances, including the nature of his or her disability; and

(b) the nature of the employee's role or the role that is being offered; and

(d) the financial circumstances of the employer; and

(e) the size and nature of the workplace and the employer's business; and

(f) the effect on the workplace and the employer's business of making the adjustment including -

(ii) the number of persons who would benefit from or be disadvantaged by doing so;

(iii) the impact on efficiency and productivity and, if applicable, on customer service of doing so; and

(g) the consequences for the employer of making the adjustment; and

(h) the consequences for the person or employee of not making the adjustment; and

(i) any relevant action plan made under Part 3 of the Disability Discrimination Act 1992 of the Commonwealth; and

(j) if the employer is a public sector body within the meaning of section 38 of the Disability Act 2006, any relevant Disability Action Plan made under that section.

(4) For the purposes of subsection (2), in determining whether or not the person or employee could or can adequately perform the genuine and reasonable requirements of the employment, all the relevant facts and circumstances must be considered, including -

(a) the person's or employee's training, qualifications and experience;

(b) the person's or employee's current performance in the employment, if applicable.

The burden of establishing reasonable adjustments has been made, falls on the First Respondent, the University.
Discrimination may be established by an applicant, without clear words or conduct, that an employer was motivated by one of the attributes identified in the Act. An inference from other facts may be drawn.[89] The question for a tribunal determining such a claim is whether the alleged discrimination is the most probable explanation for the employer's conduct.[90]

The Tribunal is satisfied that Mr Weber has the attributes of (a) disability (his depression being first identified in 2010 and again advised to the University in 2013) (b) employment activity (his role as APC chair) and (c) industrial association (his challenge to workload allocation and complaints about academic integrity) as defined under the EO Act.

Mr Weber relies on the following to establish he has received unfavourable treatment: (a) performance review ratings not in accordance with his work performance, (b) workload allocation, (c) lack of support in his role as APC chair and (d) an exacerbation of his depression.
I have made a preliminary assumption for the purposes of an assessment of the merits of the claim, that Mr Weber has established the unfavourable treatment on which he relies.

The key question to be answered in determining if Mr Weber has suffered discrimination under the EO Act, is whether there is a connection between the unfavourable treatment he says he has received and any or all of his attributes.
It is not sufficient that Mr Weber just identify that he has received unfavourable treatment, he must establish that the treatment has arisen as a result of one of his attributes. The attribute need not be the sole reason for the unfavourable treatment, but it must be a substantial reason. Direct evidence or a concession that the attribute was the reason for the treatment is very rarely forthcoming. The Tribunal may infer that the attribute was the reason, based on the circumstances of the case.

Was Mr Weber's depression a substantial reason for any unfavourable treatment? I am of the view that it wasn't.
While there had been a reference to Mr Weber having depression in 2010, this disability was not a matter that was made known to staff until May 2013. It was not a matter the reviewer had knowledge of in the 2011 performance assessment and had not been referred to before Mr Elkadi for almost 2 years when he undertook Mr Weber's 2012 performance review.
There is evidence that the increased workload allocation that Mr Weber experienced, was part of a plan across the entire University. There were directions that each staff member had to take on additional work. There is no evidence to suggest that Mr Weber was singled out, or that his depression was a reason for the increase workload, let alone a substantial reason.
There is no evidence to suggest that the directions related to the function of the APC chair arose as a result of Mr Weber's disability. The evidence leads to the conclusion that there was a difference of opinion on the role of the APC chair that was the substantial reason for any perceived unfavourable treatment or lack of support.
Further there is no evidence that connects the Respondents knowledge of Mr Weber's disability with any action that then resulted in a decline in his mental health. If anything the opposite is true. In all communication and dealings with Mr Weber, the Respondents were sensitive to his condition and modified their behaviour accordingly. Human Resources was actively engaged in taking steps to avoid Mr Weber's depression getting any worse, with referrals to appropriate assistance.

Was Mr Weber's employment activity a substantial reason for the unfavourable treatment he received? I am of the view that it wasn't.
There is no evidence linking the results of any of the performance reviews with any challenge by Mr Weber to previous results. When there was a challenge to a result, the University responded by undertaking a review with a different member of staff. There is no evidence of any collusion between examiners or influence by one over another. The evidence does not suggest that those who were carrying out the review did anything but measure Mr Weber's performance against his workload allocation. I am also not satisfied that Mr Weber's challenge to his workload allocation was a reason for his rating, let alone a substantial reason. The University was increasing the workload of all staff. It would have been detrimental to their objective to have staff unable to reach the targets already in place. I am also unable to infer that a challenge to academic practice and procedure gave rise to the performance rating. Mr Weber's lecturing, teaching, research and administrative role was quite separate to his role as APC chair.
For reasons already stated, I am of the view that the major reason behind the increase to workload allocation was a directive across the University for all Staff to increase their output. There is no evidence that leads to an inference that Mr Weber's employment activity was even a consideration in the change to his workload.
There is no evidence that Mr Weber's employment activity gave rise to any lack of support in his role as APC chair. The actions of Mr Elkadi (in refusing to support requests for further information and documents) and Professor Campbell (in taking over an investigation) were consistent with trying to contain Mr Weber's investigation to issues raised in the complaints. It was only when Mr Weber went outside the scope of the complaint and looked at quality assurance, that action was taken. I am of the view that the actions of Mr Elkadi and Professor Campbell were as a result of looking after the interests of other staff and the University rather than any reprisal for Mr Weber's employment activity.
There is no evidence of any relationship between Mr Weber's employment activity and the worsening of his depression. If anything, when Mr Weber attempted to make a connection between the two (suggesting that the University was trying to take him to the edge in retaliation for him challenging the decisions and activities of staff and the policy and procedure of the school) the Respondents appeared to give Mr Weber greater freedom out of concern for his mental health. They did not take him to task about his behaviour, but instead restricted their management practice in a bid to improve Mr Weber's situation.

Was Mr Weber's involvement in industrial activity a substantial reason for any unfavourable treatment he received? I am of the view it was not.
Potentially an inference could be drawn that the challenge by Mr Weber to workload allocation and the change to the workplace model could have impacted on the result of his 2012 performance review. However while it could be raised as a possible reason for the rating given by Mr Elkadi (who was the subject of the industrial activity), it does not then explain the confirmation of that result by another reviewer. It also does not explain the appointment of Mr Weber as APC chair by Mr Elkadi at around the same time. Even if an inference could be drawn that the industrial activity was a reason for the poor performance rating, there is no evidence it was a substantial reason. The more probable explanation for the result is that it was based on an assessment of performance against a workload model which was, on Mr Weber's view, excessive. It is also of note that much of Mr Weber's time during 2012 was consumed with challenging University policy and procedure.
The challenge to workload allocation by Mr Weber in 2010 does not appear to be a basis for an increase to workloads or a change to the planned workload model that occurred in 2011. The proposed workload model change and increase to workloads was introduced across the University and was not related to the actions of Mr Weber alone. The industrial activity that Mr Weber thereafter engaged in occurred after the changes to workload allocation were touted and therefore could not have been a reason for the change.
I can find no evidence of any connection between the support given to the role of the APC chair and Mr Weber's challenge to workload allocations, by inference or otherwise. The burden of establishing a connection lies with Mr Weber. He has failed to satisfy the Tribunal that the industrial activity was a reason for his treatment as APC chair.
I don't propose to reiterate my views in relation to the Universities activities in managing Mr Weber's depression. For the reasons already stated, there is no evidence that any industrial activity by Mr Weber was a driving force behind any treatment on the part of the University related to his depression.
The Tribunal is of the view that the evidence of the Applicant at its highest does not establish that Mr Weber received unfavourable treatment as a result of any of his attributes. As such Mr Weber has not been discriminated against, as defined by section 7(1) (a) of the EO Act.

A failure to make reasonable adjustments to a person with a disability can give rise to a claim of discrimination under the EO Act. Once it is established that the employee has a disability, it is up to the employer to satisfy the Tribunal on the balance of probabilities that reasonable adjustments have been made.
Mr Weber submits the University, through its employees, failed to make reasonable adjustments to his work duties to accommodate his mental illness. He submits that from June 2013, recommendations were made by his doctor to work from home, an adjustment plan was formulated by the Universities Disability Services Manager, but Mr Elkadi failed to approve these adjustments. He further submits that a proposal to work from home in April 2014 was also rejected by Professor Day[91].
As part of the reasonable adjustments, Mr Weber also sought the appointment of alternative supervisors. He made this request on the basis that he had made claims of discrimination against Mr Elkadi, Mr Mills and Professor Day. Mr Weber submits that there were alternative supervisors available to the University from either within the School, Faculty or even outside the Faculty.
Mr Weber also submits that the reasonable adjustments should have included assistance by way of counselling. He says he was offered some "limited free counselling paid for by the University by way of the Employee Assistance Program (EAP)". He says this was at his discretion to take. He says there was no ongoing managed proactive assistance and as such the "Applicant was simply hung out to dry and left to fend for himself".[92]
The University argues that in order for the Applicant to establish a claim for reasonable adjustments, the applicant must first show that he suffered a disability within the meaning of the EO Act [93] at the point in time that he says the University failed to make reasonable adjustments to accommodate his disability.
The University claims the applicant has failed to prove through the evidence of any independent medical practitioner: (a) the fact of a diagnosis of a depressive illness or other alleged disability; (b) the date of a diagnosis of a depressive illness or other alleged disability; (c) the exact nature and severity of diagnosis of a depressive illness or other alleged disability (d) the history of that depressive illness or other alleged disability (e) the impact of that depressive illness or other alleged disability and capacity to work as a lecturer in Construction Management in Architecture and Building / Science and Technology faculty of Deakin University at Geelong (f) the reasonable adjustments required (if any) in the workplace to permit the applicant to work in his role at the University; and (g) the effect of the alleged instances of discrimination and/or victimisation on that illness/disability (specifically, whether the alleged worsening of his symptoms is due to any of the events that allegedly occurred since he filed his original complaint).
The Respondents further submit that if the Tribunal is satisfied that there is a disability, the evidence shows that the University endeavoured to extend, support and facilitate adjustments to the applicants working arrangements as soon as possible after receipt of the applicant's medical certificate.
The Respondents contend that Mr Weber was allowed to perform some duties from home, but his work was limited given the fact he was employed as a lecturer focusing on teaching and service and there had been improper communication using email in the past.

I disagree with the submission that Mr Weber has failed to establish that he has a disability under the EO Act. There is enough medical evidence that has been presented to the Tribunal, both from his GP and independent medical examiners from the Workcover insurer, that support the presentation of a mental illness being present from at least June 2013. There is also sufficient anecdotal evidence of Mr Weber's decline in mental health. This is evidenced repeatedly in the email communication and has been a constant theme throughout these proceedings. There is no evidence that contradicts or undermines the diagnosis of depression.

While the Respondents have the burden of establishing that reasonable adjustments have been made and have yet to present any evidence themselves - the documents presented by the Applicant speak for themselves.
Mr Weber advised the University of his disability and presented a medical certificate in June 2013. The University immediately engaged a Disability Services manager who formulated a "reasonable adjustment" plan. The recommendations contained in the plan included doing some duties from home and having an alternate supervisor appointed. Mr Weber carried out some marking and other duties from home from June 2013. The appointment of an alternate supervisor was not addressed, prior to Mr Weber becoming unfit for any work from November 2013.
The Tribunal is satisfied that, for the period referred to, the University had made adjustments to Mr Weber's work that were reasonable in the circumstances. The University accommodated an immediate work from home. I also take the view that the appointment of an alternate supervisor would have been futile, given Mr Weber had made complaints against any member of staff who challenged him. He had already complained about those in positions of authority, including the Head of School, Acting Head of School, the Pro Vice Chancellors and the Vice Chancellor. Mr Weber has suggested there were alternate supervisors available but has failed to provide evidence of who they might be, or what other function they played at the University and whether they would have been appropriate.
Mr Weber submits that he was then available for work again on restricted duties from March 2014, but his request for reasonable adjustments at that time was refused.
The evidence does not support the assertion that his request was rejected. Instead the email shows that the University was concerned about Mr Weber's health, given that he had been unavailable for work duties in any capacity for some five months[94] and that previous independent examinations had determined his mental health had been serious. It sought to have him independently assessed to determine his capacity for work. The results of this examination were provided on 28 April 2014, at which time Mr Weber was not deemed fit for any duties[95].
The evidence from Professor Day was also that home duties were not available at that time for Mr Weber, as it was half way through the semester. There was also ongoing concerns related to any work from home by Mr Weber because of the necessity that would have on him contacting other staff members by email. The University had expressed repeated concerns about the nature and tone of emails that Mr Weber was sending to other staff, and the impact that was having on the health and wellbeing of those employees.
In considering whether reasonable adjustments have been made, the Tribunal must look at whether the adjustments proposed were reasonable given the nature of the work and the work environment.
I am of the view that the adjustments being sought by Mr Weber were not reasonable or practical for the reasons identified.
Given the evidence presented by Mr Weber, there is no substance to the claim that reasonable adjustments were not made by the University.

Mr Weber alleges that he has been victimised as a result of raising complaints against the Respondents under the EO Act.
A person must not victimise another person.[96]
Section 104 of the EO Act defines what is mean by victimisation. It provides :

(1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person -

(a) has brought a dispute to the Commission for dispute resolution; or

(b) has made a complaint against any person under the old Act; or

(d) has given evidence or information, or produced a document, in connection with -

(i) any proceedings under this Act or the old Act; or

(ii) any investigation conducted by the Commission; or

(e) has attended a compulsory conference or mediation at the Tribunal in any proceedings under this Act or the old Act; or

(f) has otherwise done anything in accordance with this Act or the old Act in relation to any person; or

(g) has alleged that any person has contravened a provision of Part 4 or 6 or this Part, or Part 3, 5 or 6 of the old Act, unless the allegation is false and was not made in good faith; or

(i) would contravene a provision of Part 4 or 6 or this Part; or

(ii) would have contravened a provision of Part 3, 5 or 6 of the old Act -

or because the person believes that the other person or the associate has done or intends to do any of those things.

(2) It is sufficient for subsection (1)(g) that the allegation states the act or omission that would constitute the contravention without actually stating that this Act, or a provision of this Act, has been contravened.

(3) In determining whether a person victimises another person it is irrelevant -

(a) whether or not a factor in subsection(1) is the only or dominant reason for the treatment or threatened treatment provided that it is a substantial reason;

(b) whether the person acts alone or in association with any other person.

(4) In this section, old Act means the Equal Opportunity Act 1995, as in force before its repeal.

A claim for victimisation must firstly establish that the applicant has suffered a detriment caused by the respondents and secondly, that the complaints about discrimination and victimisation were the substantial reason for the harm suffered.

Mr Weber submits that the detrimental treatment he has received has been (a) being injured in his employment (by suffering further mental harm), (b) his employment position has been altered to his prejudice, and (c) there has been discrimination between him and other employees[97].
I have once again assumed at this point that the facts support a finding that Mr Weber has suffered the detriments he complains of.

EO Act Complaint the Substantial Reason for Detriment

The key question for determination is whether Mr Weber has established a link between the detriment he suffered and the complaints he made under the EO Act.
The Respondents submit that he has not established a link between the alleged instances of victimisation and any disadvantage or "material difference in treatment".
I agree with the Respondents. There is no evidence that the University or any of its staff took any retaliatory action for complaints made under the EO Act.
Mr Weber argues that the University has "used veil of threats of disciplinary action against him in a hollow, unlawful and unreasonable manner, thus causing psychological and mental harm to him in the context of apprehension, anxiety, suicidal thoughts and actions."[98]
The cause of the decline in Mr Weber's mental health is unclear. The suggestion in the medical reports appears to be more about Mr Weber's perception of the actions of the University rather than the actual conduct itself. There is no evidence that there has been any action on the part of the University to cause Mr Weber mental harm. Even if such a connection could be made, there is no evidence that leads to a conclusion that any complaints under the EO Act were a reason behind such activity.
Mr Weber submits that he has suffered harm by having his position of employment and standing within the University altered. He relies on the lack of support he received as APC chair and the removal of his access to other staff through email as evidence of the harm.
Mr Weber states that his role as the APC School chair had been intentionally frustrated, and his position within the School, particularly the Construction Management Stream, was undermined causing harm to his credibility and reputation. He says further that the actions of removing him from email was the University acting heavy handed in attempting to oppress him from expressing his views.
The Respondents submit that the Applicant has failed to produce any evidence in relation to how his work conditions in the role of APC chair were "more unpleasant and unfavourable as compared to someone else in the same position".
I am not satisfied that Mr Weber's position within the University has suffered any harm as a result of any actions on the part of the Respondents, either while Mr Weber was APC chair or arising from his removal from the global email system. Any harm that Mr Weber has suffered to his reputation or standing within the University is more than likely attributable to the actions by Mr Weber himself and the nature and tone of the emails he sent to staff members.
I agree with the Respondents that Mr Weber has also failed to establish that he was treated any differently in his role as APC chair than others before him. The evidence of Mr Jones was that there were limitations on the role of the APC chair. Mr Weber's actions were only limited when he attempted to go beyond the scope of the role. Therefore if any harm was suffered it arose as a direct result of his own actions. Mr Weber resigned from the position of APC chair. There is no evidence that he was sacked or asked to resign.
The removal of Mr Weber from the email system was made at the request of staff who had complained that they found the tone and content of emails from Mr Weber distressing. Those staff already had a tainted view of Mr Weber. There is no evidence that their opinion of Mr Weber suffered any further decline as a result of his removal from the email system.
The Tribunal is not satisfied that the Applicant has established any link between a change to his position at the University, and any actions by the Respondents.
Mr Weber further contends that the University has not responded appropriately to his Workcover claim as a result of the complaints he has made under the EO Act.
Mr Weber suggests that his Workcover claim has been impacted by the actions of Mr El Khadi and Mr Day. There is no evidence before the Tribunal that this has been the case, it is an assumption only by Mr Weber[99]. Further, during cross examination, Mr Weber conceded that there had been no delay in processing his claim. The claim that any of the Respondents have caused harm to Mr Weber's Workcover claim is unsupported by the evidence.
Mr Weber claims that his confidentiality was breached by the University when he made disclosures and complaints to them about the conduct of staff and breaches of academic integrity.
The Respondents submit that the applicant has led no evidence to support an allegation that there has been any breach of responsibility by the PDC.
I agree. There is no evidence that the University treated any of the complaints other than confidentially, restricting the information to only those that needed to know. There is however repeated evidence of Mr Weber himself making contact with those whose actions he took issue with, and telling them that he was making a complaint against them.
The Tribunal is not satisfied that there has been any breach of confidentiality by the Respondents in relation to any disclosures.
Mr Weber also submits that the Tribunal should infer that he has suffered a detriment from several Respondents, in particular the Vice Chancellor, Mr Day, Mr O'Donoghue and Ms Tinkler[100] because of the mere fact that a claim has been made against them. He submits that they would have a tainted view of him and should have removed themselves from any involvement with any decision affecting him.
While the Tribunal might be able to infer (given some foundation) the reason that an applicant has suffered harm is as a result of a complaint made under the EO Act, it cannot infer that there has been a detriment. The Applicant must establish on the balance of probabilities that he has suffered a detriment. Such a detriment cannot be inferred.
There is no evidence that Mr Weber has suffered harm at the hands of any of the Respondents. Further if there was any detriment, there is no evidence that any of the actions of the Respondents arose as a result of the complaints Mr Weber had made against them.
The University submits that it has only taken management action in direct response to Mr Weber's conduct, and not arising from any complaint of discrimination or victimisation.[101] There is no evidence that contradicts this assertion by the University or supports a claim by Mr Weber. The application related to victimisation is accordingly dismissed as lacking in substance.

An employee may be joined as a respondent in proceedings related to discrimination and victimisation under the EO Act, if a complainant can establish that they actively took part in a contravention of the Act.
Section 105 of the EO Act prohibits any person from authorising or assisting discrimination. It states :

A person must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of Part 4 or 6 or this Part.

Mr Weber claims that s.105 does not require an actual contravention, but rather comes into play by the mere act of the first person.
The Respondents submit that the Applicant has failed to make out a claim that any of the 2nd to 12th Respondents have breached section 105 of the EO Act, as there is no evidence that another Respondent has contravened a provision of Part 4, 6 or 7 of the EO Act.
The Applicant is incorrect. A contravention of the EO Act must first be established before there is any basis for liability, where a third person assists that contravention.
For the reasons detailed above, Mr Weber has failed to establish that there has been a contravention of any of the relevant provisions of the EO Act. His claim under section 105 must therefore fail and is accordingly dismissed.
Alternatively, an employee may also be personally liable for actions taken in the course of their employment. Section 109 of the EO Act provides that:

Vicarious liability of employers and principals

If a person in the course of employment or while acting as an agent -

(a) contravenes a provision of Part 4 or 6 or this Part; or

(b) engages in any conduct that would, if engaged in by the person's employer or principal, contravene a provision of Part 4 or 6 or this Part -

both the person and the employer or principal must be taken to have contravened the provision and a person may bring a dispute to the Commission for dispute resolution or make an application to the Tribunal against either or both of them.

The Respondents submit that the Applicant has failed to adduce any evidence that any of the second to twelfth Respondents, in their individual capacity requested, assisted, instructed, induced, encouraged, authorised or assisted the University or any other respondent to contravene any provision under Part 4, 6 or 7 of the EO Act.
Similarly, to establish a claim for vicarious liability of an employee, the Applicant must first prove that the employer has contravened a relevant provision of the EO Act. Mr Weber has failed to establish either discrimination or victimisation by the University. The claim against the second to twelfth Respondents is dismissed.

The evidence presented to the Tribunal does not support a claim of discrimination or victimisation under the EO Act.
There is no evidence, either directly or by inference, which leads to a conclusion that any of the Respondents have engaged in any unfavourable treatment towards Mr Weber as a result of him having any of the attributes identified. I take the view that the actions taken by the University have been more about managing Mr Weber and his conduct. I find that the University and it's staff have been very sensitive to Mr Weber's mental health and have had to engage in a challenging balancing act - between not wanting to take action that results in an exacerbation of Mr Weber's condition - while protecting the interests of other staff and their obligations under University procedure and governing employment laws and regulations.
Mr Weber has not satisfied the Tribunal on the evidence presented, that he has been treated unfavourably because of any of the attributes identified. The Tribunal is also not satisfied that he has been victimised as a result of his complaints of discrimination under the EO Act.
The Respondents application for summary dismissal is granted. The order of the Tribunal is that the Application is dismissed. The scheduled resumption of the hearing on 17 November 2014 is vacated. The Respondents are given liberty to apply to the Tribunal for costs, such liberty to be exercised on or before 15 December 2014. If an application for costs is made, the principal registrar is directed to refer the matter to me for consideration as to the appropriate directions to make for filing submissions.[102]

I am conscious of the fact that Mr Weber may be distressed by the conclusions I have reached. This has been at the forefront of my mind as I considered the evidence. During the hearing, and subsequently, I have been made aware of how precarious Mr Weber is feeling. I have no doubt that during the past three years, culminating in this proceeding, his mental health has suffered considerably. I encourage Mr Weber to seek support from appropriate professionals.

[1] See sections 7, 8 and 10 of the EO Act which define discrimination and direct discrimination and deal with motive.

[2] Mr Weber suggests in submissions the Respondents bear the burden of proof of establishing that their decision making was objective rather than subjective, relying on the decision of National Tertiary Education Union v Royal Melbourne Institute of Technology [2013]FWA 451. That decision relates to a claim for unfair dismissal. In such an adverse action proceeding, the reverse onus of proof requires the employer to positively demonstrate that the action taken against the employee was not for a prohibited reason. The EO Act clearly sets out that the burden of establishing that the Applicant has suffered a detriment because of the substantial reason of his attribute, falls on the applicant and not the respondent. The reverse onus however does apply in relation to an assessment of whether reasonable adjustments have been made.

[3] Mr Weber makes reference in his written submissions to the decision of Forrester v AIMS Corporation (2004) VSC 2006. This decision concerned a strike out application prior to the hearing.

[4] Para 92 of the Applicant's Written Submissions.

[5] Exhibit MW016 - "I have heard that there has been a complaint from the Staff in the School about the current workload".... "Two people have challenged some of the figures but on overall there was no complaint" ..... "Two members of staff sent me email claiming that they are talking on behalf of other members of staff. After discussion, it was clear that this is not the case."

[15] Exhibit MW163a - email dated 26 August 2013.

[20] Exhibit MW245 - "Apologies - Hilary Davies; Richard Tucker, Priya Rajagopalan; Eric Chan; Mark Luther; Mark Weber did not attend."

[25] Statement of Complaint - paragraph 297. Exhibit 281 "You have now caused my illness to be exacerbated and as such caused me a significant detriment in affecting my personal wellbeing."

[40] A copy of the email was sent to Professor Jones and Professor Campbell. Professor Day was also advised that Mr Weber was making a formal complaint against Mr Elkadi.

[44] Exhibit MW162 - ".... Students are entitled to be protected from such clandestine activities (where they are affected by such actions), and as such I am there indirect advocate. I will not shift my focus from that responsibility."

[50] Email from Merrin McCracken to Jane Sweeney dated 15 July 2013.

[51] Email from Merrin McCracken to Hisham Elkhadi dated 14 August 2013.

[52] Evidence conceded in cross examination during the hearing.

[59] Supplementary documents pages 187 - 192.

[63] Supplementary documents pages 198-203.

[71] Supplementary documents page 51 - email from Professor Trevor Day.

[75] Email to Human Resources - Supplementary documents page 62.

[83] Supplementary documents pages 13-24.

[85] Oral evidence given at the Tribunal hearing.

[87] Mr Weber himself disclosed the complaints during the course of the hearing. They formed the substance of many of the allegations made against the University and the staff. The staff referred to in the complaints are Respondents in this proceeding and were always aware of the complaints. The Tribunal has not made any further disclosure in these reasons, than those the Applicant has already disclosed.

[89] Oyekanmi v National Forge Operations Pty Ltd [1995] VADT 3.

[92] Para 89 of Applicants Written Submissions

[93] AB v Ballarat Christian College [2013] VCAT 1790

[97] Written submissions of applicant, para 77.

[98] Para 84 of Applicants Written Submissions

[99] Para 91 of Applicants Written Submissions - Exhibits 163h and 285a which were objected to by the Respondents on the basis of confidentiality, with the documents part of a claim under the Accident Compensation Act 1985(ACA).

[100] The third, Eighth, Ninth and Tenth respondents.

[102] The Tribunal notes that the Respondents have referred to seeking costs in their submissions. The Respondents are required to advise the registrar in writing if they wish to seek costs, in accordance with the Orders made.

Civil and Administrative Tribunal Act 1998

Opportunity Act 2010

Opportunity Act 1995

Discrimination Act 1992

Accident Compensation Act 1985

Weber v Deakin University (Human Rights) [2014] VCAT 1440 (6 November 2014)

Weber v Deakin University

At a glance

Court

Decision date

Source

Judgment (125 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (1)

Weber v Deakin University (Human Rights) [2014] VCAT 1440 (6 November 2014)