FEDERAL COURT OF AUSTRALIA

Chen v Monash University [2015] FCA 130

FEDERAL COURT OF AUSTRALIA

Chen v Monash University [2015] FCA 130

CORRIGENDUM

1.    In paragraph 2 of the Reasons for Judgment, in the first sentence, the word “about” should be inserted between “those” and “whom” in the second line.

Associate:

Dated:    23 March 2105

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1    The applicant Dr Qizhi Chen, has made some 53 claims of sex discrimination and sexual harassment against Monash University and some of its senior academic staff. The discrimination and harassment were said to have occurred over a period of five years between 2008 and 2013. During this time Dr Chen was employed by the University as a Senior Lecturer and, later, an Associate Professor in the Department of Materials Engineering, Faculty of Engineering.

2    The allegations are serious and were advanced with great passion by Dr Chen. I have no doubt that she had a strong conviction that she had been wronged by those whom she complained. Following a long trial at which she attempted to make good her claims I have concluded that they are without foundation: she had engaged in a subjective reconstruction of innocent events through the prism of unsatisfied expectations of a personal and professional nature. Some of the allegations were, on testing, fanciful; each was unsustainable. For the reasons which follow her application must be dismissed.

3    The allegations have weighed heavily on those against whom they were directed. For over two years they have endured an independent internal University investigation, an investigation by the Human Rights Commission (“the Commission”) and this protracted proceeding. It is to be hoped that the University and the men and women whose reputations have been demeaned will obtain some relief from the outcome of this proceeding.

PROCEDURAL HISTORY

4    The jurisdiction of the Court to deal with Dr Chen’s complaint is conferred by s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HR Act”). Under Part IIB of that Act it is necessary, before approaching the Court, that an applicant lodge a complaint with the Commission. The Commission must then consider the complaint. If, having done so, the President determines to terminate the complaint advice to this effect is given to the applicant. A proceeding in the Court may then be commenced.

5    Section 46PO of the HR Act provides that the unlawful discrimination alleged in any application commenced in the Federal Circuit Court or this Court must either be the same as the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same acts, omissions or practices that were the subject of the terminated complaint. This Court has held that this provision prevents a complainant from relying, in a proceeding in the Court, on any act of unlawful discrimination which occurred after the relevant complaint had been lodged with the Commission: see Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 (Katz J); Maghiar v State of Western Australia [2002] FCA 262 at [18] (French J); Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [68] (Weinberg J); Crvenkovic v La Trobe University [2009] FCA 374 at [11] (Tracey J).

6    Dr Chen made her first complaint to the Commission on 26 December 2011. She amended her complaint on 26 July 2012. The Commission, having considered the complaint and the amended complaint, determined that “there [was] no reasonable prospect of the matter being settled by conciliation.” It terminated the complaint.

7    After the Commission’s determination Dr Chen commenced the present proceeding in the Federal Circuit Court. The proceeding was referred to this Court by order dated 19 August 2013.

8    There was a delay of some weeks between the conclusion of the evidence and the hearing of final submissions. During that period Dr Chen sought to further amend her application to allege other acts of discrimination and harassment by some of the respondents. The conduct about which she complained had taken place during and after the part of the trial during which evidence was received. These additional complaints had not been referred to the Commission. For this reason I refused Dr Chen leave to further amend her application.

CAUSES OF ACTION

9    As already noted Dr Chen’s case at trial was that she had been the victim of either sexual discrimination or harassment on numerous occasions. She alleged that the conduct which she objected, in each case, contravened the Sex Discrimination Act 1984 (Cth) (“the SDA”). She sought declarations and monetary and other relief in respect of this conduct.

10    Prior to trial Dr Chen had also alleged that some of the alleged misconduct constituted victimisation under the SDA or racial discrimination under the Racial Discrimination Act 1975 (Cth). Reliance on these provisions was abandoned at the outset of the hearing.

11    Section 94 of the SDA creates a criminal offence of committing an act of victimisation against another person. Such an act is taken to have been committed if the offender acts to the detriment of a complainant because that person had complained about conduct proscribed by the SDA. Dr Chen accepted that the Court could not entertain claims of victimisation because victimisation is a criminal offence and the Court lacks jurisdiction to deal with such charges: cf Walker v State of Victoria [2012] FCAFC 38 at [98] (Gray J, with whom Reeves J agreed). The respondents did not oppose these allegations being dealt with as sex discrimination claims which formed part of a course of conduct on the part of the University.

LEGISLATION

12    Section 5(1) of the SDA relevantly defines sex discrimination as follows:

“(1)    For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

(a)    the sex of the aggrieved person;

(b)    …

(c)    …

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.”

13    Section 14(2) of the SDA provides that:

“(1)    It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, marital status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:

(a)    in the terms or conditions of employment that the employer affords the employee;

(b)    by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;

(c)    by dismissing the employee; or

(d)    by subjecting the employee to any other detriment.”

14    By s 28B of the SDA it is unlawful for a person to sexually harass an employee of that person. It is also unlawful for an employee to sexually harass a fellow employee. The concept of sexual harassment is defined in s 28A in these terms:

“(1)    For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a)    the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b)    engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

(1A)    For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:

(a)    the sex, age, marital status, sexual preference, religious belief, race, colour, or national or ethnic origin, of the person harassed;

(b)    the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;

(c)    any disability of the person harassed;

(d)    any other relevant circumstance.

(2)    In this section:

conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.”

15    Sections 105 and 106 extend liability for contraventions of ss 14 and 28B of the SDA to persons other than those directly involved in the discriminatory conduct. These sections provide that:

“105 Liability of persons involved in unlawful acts

A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act.

106 Vicarious Liability etc.    

(1)    Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

(a)    an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or

(b)    an act that is unlawful under Division 3 of Part II;

the Act applies in relation to that person as if that person had done the act.

(2)    Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.”

Section 14 appears in Division 1 of Part II of the SDA and s 28B appears in Division 3 of Part II.

ONUS OF PROOF

16    Dr Chen bore the onus of establishing her claims in relation to sexual discrimination and harassment: see Qantas Airways Limited v Gama (2008) 167 FCR 537. The relevant standard is the balance of probabilities. The strength of the evidence necessary to meet that standard “will vary according to the nature of what is sought to be proved”: Gama at 577 (Branson J). In this case the allegations made by Dr Chen are, for the most part, serious and this must be borne in mind when assessing the strength of the evidence adduced in support of her claims: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; s 140 of the Evidence Act 1995 (Cth).

DRAMATIS PERSONAE

17    In the course of recounting and dealing with Dr Chen’s allegations it will be necessary to refer to a large number of individuals. The principal actors and the positions which they held at relevant times are as follows:

    Dr Qizhi Chen, the applicant.

    Professor Yi-Bing Cheng, Professor in the Faculty of Engineering, Monash University.

    Professor Chris Davies, Head of Department of Mechanical Engineering and Aerospace Engineering, Monash University.

    Ms Brenda Fortington, Business Manager, Faculty of Engineering, Monash University.

    Professor Qipeng Guo, Professor and Personal Chair at the Institute of Frontier Materials, Deakin University.

    Ms Norena Kavanagh, Human Resources Consultant, Kavanagh Consulting.

    Professor Murray Rudman, Associate Dean Research and Academic, Faculty of Engineering, Monash University.

    Professor John Sheridan, Deputy Dean, Faculty of Engineering, Monash University (January 1999 – April 2013).

    Professor George Simon, Head of Engineering Department, Faculty of Engineering, Monash University (2004 – October 2013).

    Professor Tam Sridhar, Vice President (China and India Research Institutes), Monash University (formerly Dean, Faculty of Engineering from 2003 to 2013).

    Dr Ian Watkins, formerly Facilities Manager of the Materials Engineering Department, Faculty of Engineering.

CREDIT

18    I found Dr Chen to be a most unimpressive witness. She was prone to giving long, unresponsive answers. She was over willing to interpret events in a way which reflected badly on those against whom allegations were made. She saw no problem in telling “white lies” in order to assist her case. When under cross-examination Dr Chen repeatedly anticipated questions from senior counsel for the respondents, and, before he had completed the question, she would often start to answer a question which she anticipated would be asked. She was aggressive and, from time to time, accused counsel of trying to “trick” her.

19    I, nonetheless, have adopted a cautious approach in assessing the reliability of Dr Chen’s evidence. When giving evidence and making submissions she mentioned various cultural differences and sensitivities such as respect for elders, the need for politeness in communication despite grievances and the appropriateness of physical contact in order to explain some of her conduct. It must also be borne in mind (as I do) that, just because some allegations made by her were plainly unsupportable, this did not mean that all were. I also took account of the fact that English is Dr Chen’s second language and that there may well have been times where her expression may have led to misunderstandings between her and her male colleagues. Language difficulties may also have impinged on some of her submissions and evidence at trial, despite her insistence that she was able to conduct her case without the assistance of an interpreter.

20    I consider that each of the witnesses, called by the University, did their best to give a truthful account of events about which they were asked. At times some of them appeared bemused by some of the suggestions made to them by Dr Chen. They were sometimes asked to recall discussions which had occurred some years earlier and to interpret some events in the same way that Dr Chen claimed to have done. To a large extent their evidence was supported directly or indirectly by documentary material.

21    I was conscious that, when Professors Simon and Davies were being accused by Dr Chen of seeking to damage her career, both men at times displayed a mixture of genuine sadness and anger at these suggestions.

OVERVIEW

22    Dr Chen commenced employment at the University in 2008. She had previously worked at Universities in China and Europe. She was engaged at the Senior Lecturer level. She held doctoral degrees. Her principal responsibilities were to teach, engage in research and assist in the administration of the Faculty.

23    In 2010 she raised the possibility of applying for promotion to Associate Professor with her supervisor, Professor Simon. He advised her against applying in that year because he considered that she had not demonstrated a capacity to attract funding for her research work. She accepted his advice. In 2011 she applied for promotion and her application was supported by Professor Simon. The application was unsuccessful, as was an appeal which she lodged alleging some procedural irregularities. Shortly afterwards a request made by her for promotion outside the normal cycle was also rejected by the then Dean, Professor Sridhar. This request had also been supported by Professor Simon.

24    Between 2008 and 2011 Dr Chen participated in the life of the Faculty without ever complaining of sexual discrimination or harassment. Once her attempt to obtain promotion in 2011 was unsuccessful she complained, for the first time, to the University and the Commission about such alleged misconduct on the part of her colleagues and University administrators. She identified a considerable number of events which she said constituted sex discrimination or harassment. She also made a general complaint that Professors Simon and Davies and others had, throughout this period, sought to “sabotage” her career progression.

25    Dr Chen relied on what she alleged was misconduct dating back to shortly after her appointment in 2008. At trial she accepted that, in most instances, she had not considered these events to be discriminatory or to have constituted harassment at the time at which they occurred. It was only after the rejection of her promotion application in 2011 that she reviewed and reassessed what had previously occurred and placed a malign construction on these events. Adverse events that occurred thereafter were also automatically assumed by her to have resulted from discrimination. Even minor slights took on a different character. Individually and collectively these acts were, in her mind, considered to be part of a process of sexual harassment and discrimination. She set about obtaining evidence to support her characterisation of these events. On a number of occasions she surreptitiously tape recorded conversations with colleagues and, in doing so, rather unsubtly, sought admissions from bemused interviewees.

26    In opening her case Dr Chen said that she had not complained about what she then said was sex discrimination and sexual harassment for three years because, during this time, she was on probation and did not wish to risk her position. When she gave evidence, however, she said that, it was only after the refusal of her promotion application, that she reconstructed the events which had occurred in the preceding three years and appreciated that they had had a sexual connotation.

27    I have carefully considered each of the allegations, made by Dr Chen. I have rejected each of them either because they cannot, as a matter of law, constitute sex discrimination or sexual harassment or because they are not supported by the evidence before the Court or both.

ALLEGATIONS

28    Dr Chen made allegations against a number of members of the Faculty of Engineering at Monash University, persons employed outside the University and the University itself. It will be convenient to deal with these allegations by reference to the person against whom they were levelled and the nature of the complaint.

Allegations of sexual harassment against Professor Simon (Allegations A, AA, 1, 2, 3, 5, 6, 7, 8, 9A, 10, 10A, 12, 13, 16, 17, 18, 19, 20, 20A, 23, 24, 25, 29, 38 and 49)

Inappropriate emails (Allegations A and AA)

29    Dr Chen raised a new allegation at trial which did not form part of her complaint to the Commission. The complaint related to two emails she received from Professor Simon. In the first email, dated 30 January 2008, Professor Simon wrote “I apologise that I need to go to bed now.” In the second, dated 21 March 2008, he wrote “I’m just off to bed.” Dr Chen complained that, in sending these emails, Professor Simon engaged in sexual harassment. This was because it was, in her view, inappropriate for a male colleague to make references to bed in a professional email and that Professor Simon was the only male colleague who had sent emails to her referring to a bed.

30    The “bed” references need to be understood in context. They appeared in emails in which Professor Simon was responding to emails from Dr Chen. Both were sent in the early hours of the morning – the first at 12:56 am and the second at 12:20 am. In each case Professor Simon was explaining why it was that his response was short. On the second occasion Dr Chen was overseas when the email was sent.

31    Neither communication involved sexual harassment.

Microphone removal (Allegation 1)

32    Dr Chen alleged that Professor Simon sexually harassed her on 5 June 2008 when, without her permission, he removed a microphone attached to her shirt collar and, while doing so, touched the skin on her chest with his left hand and pressed his right hand against her left breast.

33    Dr Chen had been giving a staff seminar. The microphone had been clipped to her shirt collar and was connected to a battery pack in her pocket. Dr Chen said that, after the lecture was over, and after most, but not all, of those attending had left the room, Professor Simon approached her. He removed the microphone and, while doing so, touched her chest and her breast.

34    Under cross-examination Dr Chen agreed that the touching could have been accidental and that she had made no complaint about it at the time.

35    Professor Simon had no recollection of removing the microphone from Dr Chen’s collar at the end of the lecture. He denied having sexual or romantic interests in Dr Chen and was adamant that he would never have intentionally and inappropriately touched her. He had first become aware of the allegation early in 2012 after Dr Chen had made her complaint to the Commission. In an email to Professor Simon on 8 January 2012 Dr Chen referred to the incident and said that it “look like accidents due or your careless (sic).” Contemporaneous emails, sent by Dr Chen, however, make no reference to the conduct which is now impugned and bespeak an apparently harmonious relationship between the two.

36    At best for Dr Chen her evidence raises the possibility that Professor Simon touched her accidently when removing the microphone. I accept his evidence that he did not deliberately touch her. Furthermore, it is highly unlikely that anything untoward occurred given the presence of other faculty members who were in close proximity at the time. Dr Chen’s failure to make any complaint for over three years and her acceptance that the conduct of which she complained may have been accidental tend against any finding of sexual harassment by Professor Simon.

“Write me while in the trip” email (Allegation 2)

37    On 5 June 2008 at approximately 9:15 pm, Dr Chen received an informal email from Professor Simon about his then forthcoming two week trip to Europe. Dr Chen alleged that Professor Simon engaged in sexual harassment by writing an “unnecessarily long and detailed [email to] a female colleague” in which he encouraged her to “write [him] while in the trip (sic).”

38    The email dealt with work-related matters. It covered a number of topics. Professor Simon told Dr Chen that he had enjoyed her seminar earlier in the day. He also advised her about the University’s requirements relating to her satisfactory completion of her probationary engagement. Professor Simon concluded the email with the words: “I am away for the next two weeks, but pls feel free to contact me by email, I will be checking regularly, if you have any questions.”

39    Dr Chen responded the following day in an email to Professor Simon in which she thanked him for his “kind words” about her seminar and said “have a good trip.”

40    The email contained nothing of a sexual nature. Dr Chen raised no objection to the contents of the email at the time. On the contrary, she responded to it.

41    In sending the email Professor Simon did not engage in any conduct of a sexual nature. Neither the sending of the email nor anything contained in it constituted sexual harassment.

42    Professor Simon was doing no more than being polite. Dr Chen appears to have so construed the email at the time she received it. In sending it Professor Simon did not harass Dr Chen.

Enquiry into Dr Chen’s marriage (Allegation 3)

43    Dr Chen alleged that Professor Simon sexually harassed her on 23 June 2008 when he went to her office and enquired whether she was still with her husband or whether she had gone out to meet new people.

44    Professor Simon strongly denied ever having asked Dr Chen anything about her husband. He specifically denied having asked her whether she was still “with” her husband or whether she was attempting to meet new people. I accept his denials.

45    In any event, very general enquiries of the kind alleged could not constitute sexual harassment.

Touching incident at desktop computer (Allegation 5)

46    On 22 August 2008, Professor Simon went to Dr Chen’s office to encourage her to attend the Australian Polymer Symposium Conference. Professor Simon offered to show Dr Chen the conference website using her computer. Dr Chen was working on documents at her desktop computer. According to Dr Chen, before she had had time to rise fully from her office chair, Professor Simon abruptly sat down. His legs brushed against her legs. Dr Chen also alleged that Professor Simon had touched her buttocks. Dr Chen said that she quickly moved away feeling shocked, humiliated, intimidated and embarrassed. At trial, both parties proceeded on the basis that this allegation was one of sexual harassment.

47    Under cross-examination Dr Chen conceded that her initial impression was that the physical contact between them could have been accidental. She had not suggested that Professor Simon had acted inappropriately until over three years later when she lodged her complaint with the Commission.

48    Professor Simon remembered the incident. He said that Dr Chen had got out of her seat in front of the computer so that he could sit down and operate it. So far as he was aware no physical contact had been made between them.

49    I am not satisfied that any physical contact occurred.

50    For completeness I would add that, even had accidental contact occurred, this could not have founded an allegation of sexual harassment.

The “peace and quiet” email (Allegation 6)

51    On or about 26 August 2008, Dr Chen was walking from a laboratory to her office building at Monash University when she was approached by Professor Simon. She said that Professor Simon had suggested that they meet to discuss her research work. During the conversation Professor Simon received a phone call from his wife. Professor Simon gestured to Dr Chen to remain silent while his wife was on the phone. After the call had concluded Professor Simon suggested that they have a ten minute meeting at that time to discuss her research. Dr Chen did not consider that ten minutes was a sufficient amount of time to deal with the matters which she wished to discuss and suggested an alternative meeting time. Dr Chen claimed that Professor Simon had an “upset face.” He suggested that Dr Chen schedule an appointment with his assistant. Dr Chen made an appointment through Professor Simon’s assistant and they met for 30 minutes the following day.

52    On that day, 27 August 2008, Professor Simon circulated an email about Monash University’s policy on sexual harassment. Dr Chen was concerned about the “upset face” and the email and, to avoid any misunderstandings, Dr Chen sent an email to Professor Simon explaining why she had suggested meeting at another time. In her email Dr Chen explained that she thought Professor Simon did not support her research because he had only suggested ten minutes for their meeting. Dr Chen alleged that Professor Simon sexually harassed her when he responded to her email with words which she said were to the effect: “I want to spend much longer than 10 min with you, in peace and quiet.” Dr Chen admitted that, at the time, she was uncertain about Professor Simon’s intent when he said that he wanted to spend time with her “in peace and quiet.”

53    At trial Dr Chen argued that, in making the “peace and quiet” statement Professor Simon had sexually harassed her. Under cross-examination, Dr Chen asserted that Professor Simon’s behaviour was motivated by his desire to trap her for consensual sex.

54    The email sent by Professor Simon to Dr Chen on 27 August 2008 was in evidence. What he said to her was that:

“I am sorry you misunderstood me the other day. When I first said ‘lets (sic) talk now’, I thought I had about 45 mins before I had to head home. Then, as you were going to get your things, I remembered I had to leave in 10 minutes to pick up my son from after school care! Since I wanted to talk to you in peace and quiet, for much more than 10 minutes, I thought it better to postpone our discussion til today.”

55    Professor Simon said that he used the phrase regularly to refer to a period of time in which he and the other person concerned could talk without being interrupted. Professor Simon was explaining to Dr Chen why he had suggested, on the previous day, that she should arrange an appointment with him at a time at which they would be able to talk without being interrupted. He was speaking about a past event and could not reasonably be understood to have been seeking to arrange a future sexual encounter with Dr Chen.

56    At the time Dr Chen did not consider that any improper suggestion had been made by Professor Simon. After the meeting had occurred she sent an email to Professor Simon in which she said that she felt “much better” and apologised for being rude to him.

57    Dr Chen distorted Professor Simon’s words in her complaint. Read in context the sentence about which she complains contains no sexual connotations. No sexual harassment was involved.

Intrusive and inappropriate conduct (Allegation 7)

58    Dr Chen claimed that Professor Simon had made a number of sexual advances towards her employing intrusive and inappropriate conduct. One such advance was said to have occurred on 30 September 2008, while Dr Chen was walking alone from an Engineering Faculty activity to her office. Dr Chen became conscious that she was being followed by Professor Simon. As they walked towards the building, Professor Simon caught up to her and walked close to her. According to Dr Chen the left side of his body touched the right side of her body for most of the time that they walked side by side. Dr Chen claimed that she kept trying to walk away from Professor Simon to maintain distance because she felt intimidated. She contended that his conduct amounted to sexual harassment.

59    Dr Chen made no contemporaneous complaint. The first occasion on which she suggested that any misconduct had occurred was in her complaint to the Commission over three years later.

60    Professor Simon could not remember any physical contact occurring on this occasion but was adamant that he did not deliberately make any contact with Dr Chen.

61    Had Dr Chen thought, at the time, that something improper had occurred one would not expect her willingly to have placed herself in close proximity to Professor Simon on future occasions. Some three weeks later the Materials Engineering Students’ Association had arranged a dinner and invited some members of the academic staff. On the morning of 20 October 2008 Dr Chen sent an email to Professor Simon in which she said: “By the way, are you going to tonight’s dinner? I’m looking for someone who will drive to the restaurant. I am worrying about how to get there.” Professor Simon agreed to drive Dr Chen to the dinner.

62    I am not satisfied that Professor Simon made any deliberate physical contact with Dr Chen on 30 September 2008 or that she considered, at the time, that he had done so. No sexual harassment occurred.

The tie incident (Allegation 8)

63    On 20 October 2008, Dr Chen and Professor Simon both attended the Students’ Association dinner. Dr Chen said that, on their way to the dinner, on two occasions, Professor Simon asked her to tie up his tie. To avoid any tension she had politely refused with words to the effect: “Don’t worry about your tie, you look great.” These requests were said to constitute sexual harassment.

64    Professor Simon gave evidence that he rarely wore a tie and was often not confident, when he did so, that it was properly tied. He may have asked Dr Chen whether his tie was on straight. Such a question may well have evoked Dr Chen’s “you look good” remark. Professor Simon denied that he had asked Dr Chen to do up his tie.

65    Dr Chen did not raise any objection to Professor Simon’s conduct at the time and did not, in fact, do so for over three years. Her conduct immediately after the alleged requests was hardly consistent with any belief that she had been harassed. She asked Professor Simon to drive her home after the dinner and he did so. When he pulled up outside her home she reached over, put her hand on Professor Simon’s head, and gave him a “social kiss” by way of thanks for his assistance.

66    I reject this allegation.

“You can come to my office any time” (Allegation 9A)

67    Dr Chen alleged that Professor Simon sexually harassed her when, on two occasions, in 2008 and 2009, he sent emails to her containing words to the effect, “you don’t need to make any appointments, you can come to my office any time” and “you can be honest with me.”

68    These emails, if they existed, were not in evidence. Professor Simon acknowledged that he may have said to Dr Chen at some stage that she could come to his office without first making an appointment. This was because he was her academic supervisor.

69    I do not accept that emails containing the alleged statements were sent to Dr Chen by Professor Simon. Even had they been sent, their sending could not have amounted to sexual harassment.

Enquiry into Dr Chen’s accommodation arrangements in Europe (Allegation 10)

70    Dr Chen frequently travelled to Europe to visit her husband and son who resided in Brussels. She alleged that Professor Simon sexually harassed her on 5 January 2009 when he enquired whether, on these occasions, she stayed in a hotel or at her husband’s house. She claimed that Professor Simon also sought to obtain information about her marital relationship. She considered this to be an intrusive attempt to elicit information about her sex life with her husband.

71    Professor Simon denied ever asking Dr Chen about her husband or whether she stayed with him while in Europe. I accept his denial.

72    Dr Chen first made this allegation almost three years after the event. It is entirely inconsistent with her friendly dealings with Professor Simon in the immediate aftermath of this so-called harassment. On 6 January 2009 she sent him an email in which she told him that “[y]ou know how to cheer up people!” In April of that year she described him, in another email, as “a decent (and intelligent, did I tell you this before?) man” and “a great person” and expressed to him her “gratitude from the bottom of my heart, now and always.”

“I like to see you happy” email (Allegation 10A)

73    In mid-2009, Dr Chen was having difficulties with her computer. She complained that it was slow and frequently froze when she sent large email messages. Professor Simon offered to supply Dr Chen with a second hand computer which she was happy to accept. Dr Chen wrote an email to Professor Simon on 30 July 2009 to inform him that her new computer functioned much better than her old one. Professor Simon replied “great – I like to see you happy!” At trial, Dr Chen complained that the linguistic interpretation of “I like to see you happy” somehow made the comment inappropriate in a professional context. Dr Chen alleged that Professor Simon’s conduct constituted sexual harassment.

74    Professor Simon acknowledged sending this email but denied that it carried any sexual connotations.

75    Dr Chen’s complaint lacks substance. Professor Simon’s observation was no more than a cheerful response to Dr Chen’s good news. In no way could it or did it amount to sexual harassment.

Trip to China (Allegation 12)

76    In late 2009, Dr Chen and Professor Simon travelled to China for work. Dr Chen alleged that Professor Simon sexually harassed her while they travelled on a bus together in Changsha. When Dr Chen boarded the bus there were no seats available except for the seat next to Professor Simon. Dr Chen sat next to Professor Simon. She claimed that Professor Simon moved his leg so that it came into contact with her leg. When she moved her leg away Professor Simon again moved his leg so that it came into contact with her leg.

77    Professor Simon could not recall the events described by Dr Chen. He was, however, definite that, had they sat beside each other on a bus and had their legs touched, it would not have been the result of any deliberate conduct on his part. I accept this evidence.

78    Professor Simon was confronted with this allegation for the first time over two years after the trip had taken place.

79    This was another incident about which Dr Chen made no contemporaneous complaint. Had she considered that she was being harassed, it is surprising that, four days later, she sent an email to Professor Simon in which she said that she had “really enjoyed the days in Changsha, and recovering from my sickness of ARC.”

Dr Chen’s accommodation arrangements in Europe (Allegation 13)

80    Following their return from China, Dr Chen alleged that Professor Simon continued to engage in intrusive and inappropriate conduct by asking her, on 4 January 2010, whether she stayed with her husband when she was in Brussels. Dr Chen asserted that, in doing so, Professor Simon sexually harassed her.

81    Professor Simon denied ever having asked Dr Chen about her husband or whether she stayed with him in Brussels. I have already accepted this denial.

82    This allegation must be rejected.

Stalking by Professor Simon (Allegation 16)

83    On 9 June 2010, Dr Chen attended a departmental postgraduate conference at the Caulfield campus of Monash University. Professor Cheng had agreed to drive Dr Chen home after the conference. Dr Chen said that Professor Simon had left the function at least 30 minutes before Professor Cheng and herself. As Dr Chen and Professor Cheng were walking to Professor Cheng’s car they came across Professor Simon in the multi-story car park. Dr Chen alleged that Professor Cheng said words to the effect: “What is George doing here?” Dr Chen claimed that this left her with the impression that her colleague sensed that there was an issue between Professor Simon and herself. Professor Simon had approached them with what Dr Chen described as “a very upset face” and asked her which level his car was parked on. Dr Chen complained that Professor Simon had sexually harassed her by stalking her in the car park.

84    Professor Simon gave evidence that, when he returned to the car park after the conference, he could not find his car. He was walking around looking for it when he met Professor Cheng and Dr Chen. He had explained his difficulty to them. He denied that he was stalking Dr Chen at the time.

85    Professor Cheng confirmed Professor Simon’s account of the meeting and said that he did not think that Professor Simon was stalking either him or Dr Chen at the time. He considered that Professor Simon was genuinely having trouble finding his car.

86    I accept Professor Simon’s evidence. The encounter was entirely innocent. No stalking was involved.

Failure to walk to laboratory with Professor Simon (Allegation 17)

87    Dr Chen alleged that Professor Simon sexually harassed her on 10 June 2010, during a laboratory inspection at Monash University. Prior to the inspection Professor Simon’s secretary advised Dr Chen to “go to Lab 182 in Building 37, George will meet you in the lab.” Dr Chen walked to the lab where she met with Professor Simon. She observed that he was upset, and that he continued to be upset during the inspection. Dr Chen understood Professor Simon to be upset because she did not walk to the laboratory with him. After the laboratory inspection Professor Simon asked Dr Chen if she would like to walk with him back to the office building. When Dr Chen agreed, Professor Simon’s mood improved immediately.

88    Professor Simon denied being upset with Dr Chen because she had not walked to the laboratory building with him. He had not been expecting her to do so. His arrangement with her was that they would meet at the laboratory. Professor Simon’s understanding of the arrangement was confirmed by an email sent to him by his secretary in which she advised him that Dr Chen and another staff member would meet him at the laboratory. As already noted, the same advice had been given to Dr Chen.

89    If Professor Simon was upset in the course of the laboratory inspection, the cause was not Dr Chen’s failure to walk with him to the laboratory. There is no substance to this allegation.

Offer to attend overseas conferences (Allegation 18)

90    Dr Chen alleged that Professor Simon sexually harassed her as they walked together after the laboratory inspection. She said that he made a further sexual advance when she raised the possibility of obtaining departmental support for a scholarship for a candidate who was applying to undertake a PhD under her supervision. Although Professor Simon was reluctant to support her, he spontaneously said, “I’m happy to pay you to attend conferences in the UK or USA.” Dr Chen claimed that she was “confused” by this unwanted offer and did not respond. She continued to discuss the reason why she was requesting scholarship support from the Department. Professor Simon did not engage in the conversation until the moment before he parted ways with Dr Chen. Again, Professor Simon said “I’m happy to pay you to attend conferences in UK or USA.” Dr Chen asserted that, as head of the department, Professor Simon had the authority to approve and disapprove Dr Chen’s travel plans and could arrange his travel schedule to ensure that it coincided with hers.

91    Professor Simon could not remember the particular conversation. He said that it was not unusual for him to discuss conference opportunities with staff. He denied that, in his mind, there was any association between conference attendance and sexual relations between him and staff members. He was certainly not motivated by sexual considerations in any discussions he had with Dr Chen relating to conference travel.

92    Even on her own case Dr Chen’s reaction to the conversation was one of confusion. The offer by Professor Simon to facilitate conference travel by Dr Chen, if it occurred on this occasion, carried no sexual overtones. She did not claim to have suffered any offence, humiliation or intimidation as a result of Professor Simon’s remarks.

93    The sexual harassment allegation has not been made good.

Second “peace and quiet” reference (Allegation 19)

94    Dr Chen alleged that Professor Simon sexually harassed her on 14 June 2010 during a discussion regarding a grant application through VicHealth. Dr Chen suggested to Professor Simon that she should base her application on one of her research topics and that she would be willing to let Professor Simon lead the application. At the end of the conversation, Professor Simon said words to the effect: “Shall we have some peace and quiet?” Dr Chen ignored the question and walked away quickly.

95    Professor Simon did not recall the conversation. He repeated his denial that any use by him of the phrase “peace and quiet” carried any sexual innuendo.

96    Having heard Professor Simon in the witness box over a long period I am sure that he would not have framed a question in the manner alleged by Dr Chen. It is possible that he suggested that he and Dr Chen should have a further discussion about the grant application when they could have some “peace and quiet” to do so. So much is suggested by an email from Dr Chen to Professor Simon on the following day in which she said:

“Thanks very much for sparing 1/2hr for me yesterday that you squeezed out from your busy schedules (sic) – highly appreciated!

I called vichealth, who said similar things to your (sic), so I had better not to waste time on this (sic).

It would be great to have a quality conversation, P & Q. Please feel free to let me know when you have time.”

Had Dr Chen believed, in June 2010, that Professor Simon was using the phrase “peace and quiet” as a euphemism for a sexual encounter and that she was offended by the suggestion, she would hardly have responded by suggesting that they “have a quality conversation, P & Q.”

97    As already held, Professor Simon used the phrase “peace and quiet” to refer to a time when an uninterrupted discussion between him and somebody else might occur.

98    This allegation has not been made out.

Rumours of an affair (Allegation 20)

99    Dr Chen alleged that Professor Simon sexually harassed her in the middle of 2010 when she became aware that she was the subject of rumours in the workplace that she was having an affair with him. She said that unnamed members of the Materials Engineering Department had begun asking her about her relationship with Professor Simon including questions such as, “Do you have any problems with George?”, “Let me know if you need any help”, “How are things going with George? I’m concerned about you”, “What’s your relationship with George?” and “Don’t keep things to yourself. Talk to people.”

100    Professor Simon denied having ever heard such rumours and having done anything which would have encouraged them.

101    Other members of the faculty who gave evidence and who were asked about the matter said that they were unaware of any such rumours. These included Professors Cheng, Davies, Rudman and Sridhar, Ms Fortington and Dr Watkins.

102    Dr Chen has failed to establish that Professor Simon was in any way responsible for such rumours, even if, contrary to the weight of the evidence, they were abroad. In these circumstances he cannot be found to have harassed her.

“Sorry I missed you today” email (Allegation 20A)

103    In October 2010, Dr Chen was unsuccessful in two applications for Australian Research Council (“ARC”) funding. Dr Chen expressed her intention to appeal the decision in an email to Ms Helen Papaefthimiou and Professor Simon. Professor Simon began his reply email with “sorry I missed you today” and went on to comment about the appeal. This email was not mentioned in Dr Chen’s complaint to the Commission. Nor was it included in her application in these proceedings. It was not until closing submissions that Dr Chen asserted that this email formed part of her sexual harassment claim.

104    It was not in dispute that Professor Simon had sent the email.

105    Given that no such complaint was considered by the Commission, it is not open to Dr Chen to pursue it in this Court. In any event it is devoid of substance.

“Materials Girls” song (Allegation 23)

106    Dr Chen alleged that Professor Simon sexually harassed her on 30 November 2010 at Dr Watkins’ farewell morning tea. At this event, Dr Watkins sang a song which he had composed entitled “Materials Girls”. Part of the lyrics read: “We need to get our materials boys to stop chasing materials girls.” Dr Chen said that she understood this to be a reference to the alleged affair between Professor Simon and herself.

107    Professor Simon confirmed that he had attended the function and heard the song sung by Dr Watkins. He regarded it as humorous and it had never occurred to him that it referred to him and Dr Chen.

108    Dr Watkins gave evidence that he was unaware of any rumours of any affair between Professor Simon and Dr Chen and that there was nothing in the lyrics of his song which had anything to do with them.

109    Professor Simon cannot be held to have harassed Dr Chen as the result of the singing of a song by another person. Professor Simon had no involvement in the composition of the song or of the lyrics.

Discussion regarding rumours of an affair (Allegation 24)

110    Dr Chen alleged that Professor Simon sexually harassed her on 8 December 2010 when she approached him to discuss the rumours of their supposed affair. Professor Simon responded that “[i]t’s ridiculous. I’m married.” Dr Chen then said “It’s because you are married, there are rumours.” “I can see that, you have a big ring on your finger. I have brutal directness. There isn’t mutual attraction.” Professor Simon said “I don’t feel that way.” Dr Chen said that she did not want anything beyond a professional relationship. Dr Chen alleged that, at that moment, Professor Simon looked very surprised and became speechless. As Dr Chen stood up she said “I hope we can address this issue peacefully and gracefully”. Professor Simon had responded in a very low voice saying “[t]hanks.”

111    Professor Simon well remembered the encounter. Dr Chen had suggested to him that the “materials girls” song was about them and that there was gossip going around about their relationship. Professor Simon told Dr Chen that “this is ridiculous, how can this be, on what basis is this …. it [has] no foundation”. Dr Chen had got angry and said that there was a mutual attraction between them and that that was ok but that they had never crossed any line. Professor Simon responded that there was no mutual attraction and that he “just want[ed] a professional relationship.” After Dr Chen had left, Professor Simon was sufficiently concerned by what had been said to telephone his wife and tell her about the conversation. A few hours later he sent her an email in which he recorded his recollection about what had transpired. He said that:

“Eventually, she explained that she thought the song [materials girls] made reference to gossip about her and me. I couldn’t believe this at first and when I asked her she said that she believed the song made reference to this. And she mentioned that once when she was in her room she heard people outside talking about her and me in a gossipy way. I was flabbergasted and said that’s ridiculous, I can’t believe that, what is that based on. This went on for a while, me saying that there was no foundation to it, that I couldn’t believe it. During this time I made the comment that it was terrible and I didn’t want to do anything about it because I didn’t want to give it oxygen. Qizhi made the comment that it was even out in the wider faculty that made me even more flabbergasted. At the same time I tried not to say anything to antagonize (sic) her or hurt her feelings. Somewhere at this point she mentioned that there was a strong mutual attraction between us but that we never went over the line, and she noted that I wore a strong wedding ring.”

112    It is to be remembered that these exchanges occurred in the course of a conversation which had been instigated by Dr Chen. Professor Simon was taken aback by Dr Chen’s suggestion that some type of mutual attraction existed and that this has been noticed and commented on by other members of the Faculty. She appears, on Professor Simon’s account, to have been angry when he rejected the notion of any mutual attraction.

113    There is a substantial similarity between the two versions of the conversation. Dr Chen does not point to any particular part of the conversation or any particular words uttered by Professor Simon that she regarded as being harassment. I can identify none. Certainly any rejection by him of a suggestion of mutual attraction could not amount to sexual harassment.

114    This allegation must be rejected.

Flight from Coffs Harbour to Sydney (Allegation 25)

115    Dr Chen made a number of allegations of sexual harassment against Professor Simon arising from events which took place on 16 February 2011 while Dr Chen and Professor Simon were travelling from Coffs Harbour to Sydney after attending a conference. Without consultation, Professor Simon and Dr Chen had booked the same flight for this leg of their journey back to Melbourne.

116    The first alleged incident occurred while Dr Chen and Professor Simon were in Coffs Harbour. According to Dr Chen, Professor Simon again enquired where she stayed when holidaying in Europe.

117    Dr Chen complained that the second incident occurred when Professor Simon suggested “[w]e should go to a nano conference in Germany around the middle of the year.”

118    The conduct identified in these two allegations does not constitute sexual harassment and may, immediately be put aside.

119    The third incident involved the seating allocation on the flight from Coffs Harbour to Sydney. Dr Chen alleged that Professor Simon requested that he be allocated a seat next to her. Professor Simon checked-in at the hotel before travelling to the airport. Dr Chen checked-in when she arrived at the airport. When asked by the attendant whether she preferred a window or an aisle seat Dr Chen replied that “it doesn’t matter” but expressed a preference to be seated towards the front of the plane so that she could get off quickly. Dr Chen was assigned seat 8D, an aisle seat. After Dr Chen completed her check-in, Professor Simon decided to re-check-in at the airline counter to confirm his seat and to check-in a small black bag. Dr Chen suggested that this was done “unnecessarily.” While boarding the plane, Dr Chen asked Professor Simon where his seat was located. She claimed she “surprisingly knew that Professor Simon’s seat was 8E next to hers.” Dr Chen offered to change seats with Professor Simon so that he could sit in the aisle seat. He declined her offer. Dr Chen noted that, while their row was full, most of the other rows were only occupied by two passengers. Dr Chen alleged that during the flight Professor Simon said words to the effect: “I’m a father. I have to stay married for the kids. Are you ok with that?”

120    The fourth incident occurred after Dr Chen and Professor Simon arrived in Sydney. They were catching separate flights back to Melbourne. Dr Chen alleged that, on two occasions, during the transfer Professor Simon asked her to “[h]ave dinner with [him] in the city.”

121    There was no dispute that Professor Simon and Dr Chen had travelled together on a Virgin Airlines flight from Coffs Harbour to Sydney on the afternoon of 16 February 2011. Professor Simon, however, denied that any inappropriate conduct on his part occurred before or during the flight. In particular, he denied making any change to his seat allocation at the airport after Dr Chen had been given her boarding pass. He said that it was Dr Chen who had touched him and made inappropriate suggestions to him on the flight. He had made a contemporaneous note of events.

122    Dr Chen agreed that she had suggested to Professor Simon that they share a taxi from the conference venue to the airport. She had checked in at the airport and had been allocated seat 8D.

123    Evidence called from a Virgin Airlines manager, based on computer records, established that Professor Simon had been allocated seat 8E by the airlines’ computer system the previous evening. This allocation had been confirmed when he checked in on-line from the hotel later in the morning. He had not changed his seating arrangements at the airport. He had not, therefore, contrived to be seated next to Dr Chen. In any event, sitting next to her on an aircraft could not constitute sexual harassment.

124    I accept Professor Simon’s denial that he sought, in any way, to importune Dr Chen during the flight. Any inappropriate conduct which occurred during the flight did not occur at Professor Simon’s instigation.

125    I also reject the evidence of Dr Chen that Professor Simon had asked her to have dinner with him in Sydney that night or, as she put in the alternative, in Melbourne. Professor Simon and Dr Chen were booked to fly on to Melbourne on different Virgin flights that night. Professor Simon’s flight was due to leave not long after the flight from Coffs Harbour arrived. Dr Chen was on a later flight. On any view there was no opportunity for them to go into Sydney for dinner and their differing arrival times in Melbourne that night would have made any dinner arrangements impractical.

126    Dr Chen made no contemporaneous complaint of misconduct by Professor Simon arising from these events. Professor Simon, on the other hand, prepared a written account of what had transpired and told his wife about these events. I accept his account which is supported by his detailed notes and the evidence of the Virgin Airlines manager.

127    These allegations must be rejected.

Discovery Early Career Research Award (DECRA) applications (Allegation 29)

128    Dr Chen alleged that Professor Simon endeavoured to sabotage her academic development by attempting to stop her securing an ARC Discovery Early Career Research Award. In her originating application, Dr Chen alleged that, in doing so, Professor Simon had engaged in sex discrimination. At trial, she characterised this allegation as one of sexual harassment.

129    Professor Simon denied ever having attempted to undermine Dr Chen’s professional academic advancement. In the case of this award he had corresponded with her with a view to ensuring that she met the eligibility criteria. He did nothing to undermine her application.

130    Professor Simon’s limited involvement with Dr Chen’s application can, on no view, amount to sexual harassment.

Conference attendance (Allegation 38)

131    Dr Chen alleged that Professor Simon engaged in sexual harassment on 31 August 2011, while discussing Dr Chen’s request for scholarships so that she could recruit PhD students. According to Dr Chen, Professor Simon told her “[y]ou need to go to conference. I’m happy to pay for you. Which conferences do you want to go to?” Dr Chen asserted that, by making this statement, Professor Simon was using his authority to provide funding for work-related conferences and travel, to create opportunities for him to go on overseas trips with her so he could conduct an affair with her.

132    Professor Simon acknowledged that, from time to time, he had suggested to Dr Chen that she should attend relevant conferences in order to assist in enhancing her academic profile.

133    Any such offer was entirely appropriate and had no sexual connotations.

134    This allegation lacks substance.

Failure to avoid Dr Chen (Allegation 49)

135    Dr Chen alleged that Professor Simon sexually harassed her on 30 May 2013 when he did not seek to avoid her when she was assigned to sit with him to examine a final year student.

136    This allegation was originally pleaded as an instance of sex discrimination. It was re-cast at trial by Dr Chen as sexual harassment. This allegation was not before the Commission and, strictly speaking, the Court does not have jurisdiction to entertain it. The respondents suggested that this allegation should proceed nonetheless on the basis that it fitted into a category of continuing conduct which Dr Chen alleged amounted to academic bullying.

137    This incident occurred after Dr Chen had made her complaints and investigations had been undertaken by the University. Her view was that she should not be required to associate or collaborate in any way with Professor Simon. Neither Professor Simon nor Dr Chen sought to be appointed as examiners of the student’s project. Their allocation to this task was made by other faculty officers. In addition to the student and the examiners, two supervisors were to be in attendance during the examination. In the event Dr Chen did not participate because she chose not to act as a co-examiner with Professor Simon.

138    On no view can this event be regarded as sexual harassment of Dr Chen and certainly not harassment by Professor Simon.

Allegations of sex discrimination against Professor Simon (Allegations 4, 9, 14, 26, 27, 32, 35, 46 and 48)

Academic “sabotage” (Allegation 4)

139    In her reply outline Dr Chen made a general allegation that Professor Simon had “attempted to sabotage her academic development at various critical moments.” She specifically referred to a suggestion by Professor Simon, said to have been made in about July 2008, that, “she should not have collaborators in her grant applications.” This, she contended, amounted to sex discrimination.

140    Professor Simon denied the allegations. I accept his denials. Far from seeking to undermine Dr Chen’s progress Professor Simon was, over a long period, a strong supporter of Dr Chen. He prepared favourable evaluations in support of Dr Chen’s promotion applications, nominated Dr Chen for a LIEF grant, supported Dr Chen’s research and sought to assist Dr Chen’s PhD student to secure entry to the University.

141    This allegation has not been made out.

The “poaching” of Professor Stevens (Allegation 9)

142    Dr Chen alleged that, because she had rejected Professor Simon’s sexual advances, he had “poached” her international collaborator for an ARC grant application. That collaborator was Professor Molly Stevens.

143    This poaching was said to have occurred about December 2008 and to have constituted sex discrimination.

144    Professor Simon acknowledged that, at one time he had sought to collaborate with Professor Stevens but that nothing had come of the proposal. Any such collaboration would not have been inconsistent with a collaboration between Professor Stevens and Dr Chen. He supported such collaboration and, in an effort to facilitate it, wrote a letter of introduction for Dr Chen. Dr Chen forwarded the introduction to Professor Stevens under cover of an email in which she said, of Professor Simon, that he had “a sense of wonderful and excellent leadership.”

145    I am far from satisfied that any attempted “poaching” occurred. Even had it occurred it could not have amounted to sexual discrimination.

Dr Chen’s promotion application (Allegation 14)

146    On 5 May 2010, Dr Chen informed Professor Simon of her intention to apply for a promotion. She did so during the mid-year performance reviews. She considered that she was eligible to apply in accordance with the University’s promotion guidelines. Academic promotion required the support of the head the department. Dr Chen sought the advice of Professor Simon about her prospects of promotion given her recent progress in research and teaching. Dr Chen alleged that Professor Simon replied with words to the effect that “above promotion, I’d like to review your annual performance.” Dr Chen claimed that, when she showed Professor Simon her publications and teaching evaluation reports, Professor Simon made random negative comments about her publications and, when reading her teaching evaluation form, he enquired whether her students learned a lot.

147    Dr Chen alleged that Professor Simon discouraged her from applying for promotion by advising her not to refer to achievements prior to her employment at Monash University in any application and by informing her that the department already had a number of male applicants seeking promotion. Professor Simon encouraged Dr Chen to “wait for another year” due to the number of applicants applying in 2010. To avoid conflict, and as a result of Professor Simon’s unsupportive response, Dr Chen chose not to apply for a promotion at that time. Dr Chen claimed that she was pressured to forgo a career development opportunity due to Professor Simon’s behaviour. She also alleged that Professor Simon discriminated against her on the ground of her sex by treating her less favourably than he would a male in the same or similar circumstances.

148    Professor Simon confirmed that Dr Chen had approached him in May 2010 to discuss the possibility of her applying for a promotion. He was concerned that Dr Chen had not, at that stage, obtained any external research grants and that she had not supervised any doctoral students. As a result of the discussion there was mutual agreement that Dr Chen should postpone any promotion application until the following year. Professor Simon stressed that there were no quotas on promotion and that the presence of male applicants in the field would not have had any bearing on Dr Chen’s chances of success had she been qualified for promotion.

149    Shortly after this discussion Professor Simon prepared a performance assessment on Dr Chen in his capacity as her academic supervisor. He reported that:

“Qizhi’s research is going very well, she is publishing a significant number of papers in journals with high impact factors. Qizhi is appropriately strongly focussed on presenting her work in the best journals possible. She is highly productive, including papers from work done by 4th year students. She has made good linkages in Australia and elsewhere. She is a strong participant in the Biological Engineering laboratories. She has graduated her first student and is starting to grow a good size group. She remains focussed on further building her number of postgraduates, and is also involved in the IIT-Monash Academy. Recently she has been patenting work on adhesives.”

Such a positive assessment does not sit comfortably with the allegation that Professor Simon was seeking to “sabotage” Dr Chen’s academic career.

150    Professor Simon denied all of the negative comments attributed to him and, in particular, the alleged enquiry about whether her students learned a lot and any reference to the number of male applicants for promotion that year. I accept Professor Simon’s denials.

151    This allegation must be rejected.

Interference with Dr Chen’s academic collaborators (Allegation 26)

152    Dr Chen alleged that Professor Simon discriminated against her because of her sex by interfering with her academic collaboration with other male colleagues because she had rejected his sexual advances. She said that Professor Simon had sought to interfere with what she said was or would have been a productive collaboration with Professor Wayne Cook on polymer materials. On 16 February 2011, Professor Simon was said to have advised Dr Chen not to collaborate with Professor Cook because he would be retiring in the near future. Professor Simon encouraged Dr Chen to collaborate with Professor Yuri Estrin, who is older than Professor Cook and worked in a different research area from Dr Chen. This is another example of an allegation of victimisation which, at trial, was pressed as one of sex discrimination.

153    Professor Simon agreed that he had advised Dr Chen that Professor Cook might be going to retire in three to five years. He had told her the he considered that it was good that she was collaborating with Professor Cook but suggested that she may want to consider also collaboration with other members of the department including Professor Estrin.

154    Dr Chen’s accusation does not sit easily with an email exchange between Professor Simon and her a few months later. Dr Chen was preparing an application for funding from the ARC. Dr Chen asked Professor Simon whether he was interested in working on a project with her for which she was seeking funding. Professor Simon responded that he was prepared to assist her but did not think that he could help sufficiently to justify him becoming formally involved. He recommended that Dr Chen should consider approaching Professor Cook who was a world expert in the area. Dr Chen responded that:

“After reading a few literatures (sic), I anticipate that I would expect too much from you if you get involved formally. I’ll talk with Wayne [Cook] over the project – thanks for your advice. I appreciate it – I really do!

Thanks also for being honest with me.”

155    These exchanges are hardly suggestive of discrimination against Dr Chen. Nor do they bespeak any perception, on her part, that this was the case.

156    Rather, this complaint provides yet another example of Dr Chen retrospectively interpreting innocent events and seeking to use them as examples of sexual harassment or discrimination. In this instance she told the University (in January 2012) that she had been “very confused” by Professor Simon’s suggestion that she should not collaborate with Professor Cook and that she had “to turn [her] head to the personal side so as to understand what he was really communicating with me”. That was that Professor Cook was “old, older than him” and that Professor Simon was jealous “like a man on the dating market.”

157    This allegation lacks substance.

Introduction to Professor Guo (Allegation 27)

158    In early February 2011 Professor Simon had, according to Dr Chen, given her personal details to Professor Qipeng Guo, a Professor from Deakin University, for “no justifiable work-related reason.” Dr Chen alleged that Professor Simon had done this because she had rejected his sexual advances. In her application, Dr Chen claimed that, in doing so, Professor Simon had engaged in victimisation. At trial this allegation was re-characterised by Dr Chen as sex discrimination.

159    In her complaint to the Commission Dr Chen said that she had become aware that Professor Simon had given her personal details to Professor Guo when Professor Guo approached her and said that he knew her through Professor Simon. Professor Guo, who was single, had hinted to her that “he wanted to develop personal relationship (sic) with [her] (even mentioned marriage, a very Chinese behaviour), suggested me to apply for a job from Deakin (sic).”

160    Professor Simon denied ever having disclosed any personal details about Dr Chen to Professor Guo. Professor Guo confirmed that this was the case. Furthermore, he deposed that he had never sought a sexual or personal relationship with Dr Chen.

161    I accept Professor Simon’s denial.

False information about promotion application (Allegation 32)

162    Dr Chen alleged that Professor Simon engaged in sex discrimination, after she had rejected his sexual advances, by providing her with false information in relation to promotion applications and awards. Dr Chen claimed that Professor Simon “attempted to sabotage her academic development at various critical moments” including during the promotion round in 2011 because Professor Simon “provided a (sic) critically misleading advice … that disadvantaged her application materials.” This advice related to whether she could place reliance on work done before she came to Monash.

163    This allegation was initially brought as one of victimisation but it was re-cast at trial.

164    Dr Chen had sought Professor Simon’s advice when framing her application for promotion in 2011. Having read the draft Professor Simon advised Dr Chen not to rely too heavily on research undertaken by her prior to starting work at Monash. This he believed was in her best interests. This was because the University’s promotion policy provided that a candidate for promotion who was employed by Monash at the same or a higher level than the position previously held could rely on achievements at that level of appointment at the previous university. Professor Simon understood that Dr Chen had not previously been employed at a level C (Senior Lecturer) position, and for that reason, advised her not to include the research she had undertaken prior to commencing at Monash. Otherwise Professor Simon had commented favourably on the contents of Dr Chen’s application. She appeared to appreciate this at the time when she sent him an email thanking him for his assistance.

165    Professor Simon subsequently provided a written endorsement of Dr Chen’s application. He strongly “support[ed] her promotion” and, in doing so, made favourable references to her teaching ability, her research and her broader service to the University.

166    No “sabotage” occurred. On the contrary Professor Simon did what he could to assist Dr Chen to obtain promotion. He did not engage in any sexual discrimination against her.

Relocation of Dr Chen to Southeast University (Allegation 35)

167    Dr Chen alleged that, following her rejection of Professor Simon’s sexual advances, he discriminated against her on the ground of her sex by attempting to arrange for her to move to Southeast University in China. Dr Chen claimed that Professor Simon said words to the effect that “[y]ou don’t fit into the community.” This was said to have happened in mid-2011 after Dr Chen’s promotion application had not been successful.

168    These allegations were denied by Professor Simon. They are not consistent with the documentary evidence. It was Dr Chen who had expressed a desire to leave Monash University because she had not been successful in obtaining research grants. She believed that “the unhealthy ARC system [had] badly slowed down [her] career development.” She did not anticipate that there would be any significant “positive changes in the near future.”

169    When Dr Chen had failed to obtain promotions in 2010 and 2011 she decided to apply for academic positions overseas, including at the Southeast University. She attributed her failure to obtain ARC grants as a lead researcher to “corruption” in the ARC. She was also resentful of the fact that some of her colleagues whom she regarded as being less worthy than herself (at least in teaching and publication) had been promoted when she had not. She did not, at that time, suggest that Professor Simon was in any way responsible for her inability to be promoted to Associate Professor. On the contrary, she valued his support sufficiently to nominate him as a referee when she made applications for positions at other Universities. It was “with regret” that Professor Simon agreed to write a reference for Dr Chen. Professor Simon gave evidence (which I accept) that he was concerned that Dr Chen might leave and was doing what he could to retain her at Monash. One important step that he took was to support her application for promotion outside the normal cycle. He also tried to persuade Dr Chen to stay by offering her “a kind of mini ‘research accelerator’” with one of her students to assist her to obtain future ARC grants and promotions.

170    Dr Chen has failed to establish any factual foundation for these allegations.

False information regarding promotion application (Allegation 46)

171    Dr Chen alleged that, following her rejection of Professor Simon’s sexual advances, he had engaged in sex discrimination by providing false information in relation to her promotion and award applications.

172    These allegations were very broad and non-specific. They add nothing to allegation 32 which has already been dealt with (see above at [162]-[166]. They evoked a general denial from Professor Simon who pointed to the many occasions on which he had actively supported Dr Chen’s career advancement. His considerable assistance to Dr Chen is recorded elsewhere in these reasons.

173    Dr Chen has failed to make good this complaint.

Signing of application form (Allegation 48)

174    Dr Chen alleged that Professor Simon had discriminated against her by reason of her sex by seeking to avoid signing a written application by her for a teaching award. This was said to have occurred in April 2013.

175    Dr Chen had wished to apply for the Dean’s Excellence in Teaching Award. On 24 April 2013, at 5:12 pm, she sent an email to Professor Simon to which was attached her application form. She drew his attention to the deadline for the lodging of applications which was at 5:00 pm on 26 April 2013. Professor Simon evidently received the email and, at 6:03 pm, sent an email to his personal assistant to ask her whether an electronic signature could be placed on the application form. The following day was ANZAC day and a public holiday. At about 2:47 pm on 26 April 2013 Professor Simon’s personal assistant sent an email to Dr Chen in which she advised that:

“Just to let you know that I cannot guarantee that I can get George [Simon] to do it by 5:00 pm. He has back-to-back meetings and people are waiting for him all the time.”

176    It is this email which appears to have led Dr Chen to think that Professor Simon was seeking to prejudice her by failing to provide the necessary signature.

177    This apprehension was quickly disabused. Professor Simon signed the application form and his personal assistant provided it to Dr Chen in good time for her to lodge her application by the deadline.

178    There is no factual foundation for this allegation.

Allegation of sexual harassment and sex discrimination against Professor Simon (Allegation 47)

Relocation to Dr Chen’s office (Allegation 47)

179    Dr Chen alleged that Professor Simon sexually harassed her and engaged in sex discrimination by attempting to have an office next to his allocated to her.

180    In February 2013 arrangements were being made to move some of the faculty offices to a new building. Dr Chen was advised that she had been allocated a new office which was next door to one which had been allocated to Professor Simon. Dr Chen alleged that this had occurred at Professor Simon’s direction.

181    Professor Simon denied having anything to do with the decision to make these allocations. The decision had been made by Ms Fortington.

182    Ms Fortington confirmed that she had made the decision and had placed Dr Chen in an office near Professor Simon so that Dr Chen could be close to the students whom she supervised.

183    When Dr Chen became aware of the allocation she requested that she be moved to another office some distance from the one to be occupied by Professor Simon. Her request was granted.

184    Dr Chen has failed to establish any factual foundation for her allegations of harassment and discrimination against Professor Simon in relation to this incident.

Allegation of sex discrimination against Professor Simon and Professor Rudman (Allegation 42)

New Qualification for Early Career Researcher Award (Allegation 42)

185    In January 2012 Dr Chen lodged an internal complaint about what she considered to be the unacceptable behaviour of Professor Simon and others. It was later made to the Commission. Dr Chen alleged that, following her complaint to the University in November 2011, Professor Simon and Professor Rudman engaged in sex discrimination by imposing a new criterion for the award of the Early Career Researcher Award. Dr Chen contended that the purpose of this change was to prevent her from receiving the award.

186    This award had been available for many years and had been based on the applicant’s achievements over the previous five years. In 2012, Professor Simon announced that the award would be for research conducted between 2009 and 2011 inclusive. Dr Chen believed that this change reduced her chance of winning the award. This was because she had a number of publications in 2007 and 2008 and two “high-impact” publications in 2008 and 2012. Dr Chen contended that she was one of two academics in her department who were eligible for the award and that the change only applied to her department.

187    On 19 March 2012 Professor Simon advised all staff in the department that the change had been made. Dr Chen immediately queried the accuracy of this advice. This led to some email exchanges between Professors Rudman and Simon which led them to the view that the five year criterion continued to apply. Almost immediately Professor Simon sent an email to all departmental staff advising that the award was for research completed within the previous five years and not the three year period earlier advised. On the following day Professor Simon sent an email to Dr Chen advising her that she was correct in her understanding of the relevant period.

188    It is evident that both Professors Rudman and Simon had made a mistake. Once it was drawn to their attention by Dr Chen and they had made inquiries they promptly corrected the error. Dr Chen was so advised. She suffered no prejudice.

189    Both Professors Rudman and Simon denied that their mistake about the eligibility criterion for the award was intended to or did disadvantage Dr Chen. I accept their denials.

190    This allegation lacks any factual basis.

Allegations of sexual harassment against Professor Davies (Allegations 11 and 15)

Professor Davies stared at Dr Chen (Allegation 11)

191    Dr Chen alleged that Professor Davies sexually harassed her on 2 July 2009, following a Faculty talk presented by her, when he stood at her office door and stared at her in what she described as an embarrassing and intimidating manner.

192    Professor Davies denied ever having stared at Dr Chen in such a manner. He also denied ever having been sexually attracted to her or romantically interested in her.

193    None of this evidence was challenged when Professor Davies was cross-examined.

194    Dr Chen made no complaint about this alleged misconduct at or about the time at which it was said to have occurred.

195    I accept Professor Davies’ denials.

iPad sperm game (Allegation 15)

196    On 31 May 2010, Dr Chen attended a discussion day with members of the Department of Material Engineering. She alleged that Professor Davies sexually harassed her when he escorted her away from other members of the department to show her a game on his iPad. Dr Chen recalled that the objective of the game was to drag what she said was sperm through water to one of the four boxes located in the corners of the screen. This was done using an iPad pen.

197    Dr Chen asserted that this incident caused her distress and humiliation and that she felt threatened by Professor Davies’ conduct.

198    Professor Davies gave evidence that he had taken delivery of a new iPad about four days before the meeting. He had downloaded a game called “Harbour Master”. It depicted boats moving across a screen towards harbours. In the course of the day Professor Davies said that he had demonstrated his iPad’s functionality to a number of those present. Dr Chen may have been one of these but he did not single her out or take her aside to show her the iPad. He said that he could not have moved any images on the screen by using an iPad pen because he did not have one on the day of the meeting.

199    Dr Chen made no contemporaneous complaint about Professor Davies’ alleged conduct. She did, however, produce what she said was a contemporaneous note depicting a drawing of the screen image which she said she had made at the time. I harbour considerable reservations about this evidence. This “note” was not produced to the Commission when she made her complaint. It was first produced as an attachment to her application to the Court which was filed on 28 February 2013.

200    Once the University was seized of this allegation it arranged for Professor Davies’ iPad to be subjected to forensic examination. That examination found no evidence of a “sperm game” ever having been downloaded on Professor Davies’ iPad. The purchase history of items which he had downloaded was also examined and found no purchase of such a game.

201    Dr Chen was unable to identify any game which met the description of the one she said she had viewed on Professor Davies’ iPad.

202    I am not satisfied that Professor Davies ever showed Dr Chen the “sperm game” on which this allegation is founded. I consider that it is far more likely that the game which Dr Chen saw on the iPad screen was the Harbour Master game. She has reconstructed an innocent event which caused her no concern at the time and has misused it in an attempt to malign Professor Davies. I reject the allegation.

Allegations of sex discrimination against Professor Davies (Allegations 28, 30, 31 and 33)

Failure to accept one of Dr Chen’s prospective students as a PhD candidate (Allegation 28)

203    Dr Chen alleged that Professor Davies sexually discriminated against her by failing to allow one of her prospective students to enrol for a PhD degree.

204    In March 2011, Dr Chen was approached by a prospective, self-funded Chinese candidate for postgraduate studies. Professor Davies, who, at that time, was the Associate Dean responsible for research activities, was involved in establishing the equivalency of the student’s credentials in order to determine whether he qualified for postgraduate studies at Monash University. This was necessary because the student had an undergraduate degree from a Chinese university. His qualification had to be compared with that of an Australian undergraduate qualification. Professor Davies initially considered that, in order for approval to be granted, it was necessary that the student have the equivalent of a first class honours Australian undergraduate degree. A degree of that quality would have attracted a scholarship to pursue doctoral studies at Monash University. Professor Davies assessed the student’s qualification as equivalent to an honours (class 2 – division B) Australian degree and, therefore, refused to admit the student to doctoral studies. Dr Chen queried this decision. She understood the minimum entrance level required by the University was H2B. Dr Chen was aware of several students, including one of her own past PhD students, who had been approved with an H2B equivalency.

205    Professor Davies reconsidered his decision in the light of Dr Chen’s query. He took further advice and made further inquiries. The result was that, on 9 May 2011, he approved the student’s admission as a PhD candidate at the University. In the meantime, however, the student had decided to pursue his studies elsewhere.

206    During evidence Dr Chen refined her complaint to one of undue delay. She accepted that she would not have made the allegation if the student had come to Monash under her supervision.

207    No basis exists for the allegation that Professor Davies’ conduct in dealing with the student’s application involved any sexual discrimination by him against Dr Chen.

Professor Davies’ refusal to discuss potential PhD student (Allegation 30)

208    Dr Chen alleged that, when she sought to approach Professor Davies to ask him for the reasons for his initial decision to reject the student’s candidacy, Professor Davies had refused to discuss the matter with her. This, she said, constituted sexual discrimination.

209    Professor Davies could not recall any approach from Dr Chen in which she sought to discuss the matter with him. He said that, if he had declined to speak to her, it would have been because he was too busy at the time and not because of her gender.

210    At the time Dr Chen did not complain that Professor Davies had discriminated against her. Even if it be accepted that Professor Davies declined to discuss the matter with Dr Chen no basis exists, in the evidence, for attributing this failure to discrimination on the ground of Dr Chen’s gender.

211    It may be noted in this context that one of the persons whom Dr Chen approached in an effort to gain support for the acceptance of the student’s candidacy was Professor Simon. On the day on which Professor Davies agreed to approve the student’s enrolment, Dr Chen wrote to Professor Simon saying:

“Huge thanks once more, George, for your great support. It’s unbelievably fast, because of you.

I remember this, not just by the list (stuck on the wall) but with gratitude inside of me.”

Professor Simon responded by saying that he was glad that he could help and that he had spoken to Professor Davies about the matter. He also made various suggestions to Dr Chen about how the student’s status at the university might be improved once he had arrived.

Professor Davies’ failure to consider a scholarship for a prospective PhD student (Allegation 31)

212    In June 2011, Dr Chen was approached by a prospective PhD student, Surendra Jain, who was seeking a scholarship to undertake a second PhD. He had completed a PhD in computer modelling of carbon and proposed to complete a second PhD in tissue engineering. Professor Davies objected to the granting of the scholarship on the ground that there was a Faculty policy which prevented students who were attempting their second PhD from applying for a scholarship. As a result, Dr Chen had been unable to recruit this candidate and she was forced to forgo supervision of another PhD candidate.

213    Dr Chen argued that the Monash Research Graduate School Scholarships policy provided that, where the area of study for a second PhD degree is significantly different from the first, a scholarship could be considered in relation to the second course. Dr Chen requested a copy of the Faculty policy on scholarships and consulted with Ms Cassandra Meagher, the Faculty co-ordinator of Monash University Scholarship applications. This occurred in October 2011. Dr Chen alleged that Ms Meagher was not aware of the Faculty policy which had been cited by Professor Davies. Dr Chen alleged that Professor Davies’ conduct constituted sexual discrimination. She further alleged that Professor Davies had applied arbitrary versions of the University policy in respect of two of her PhD students because she had confronted him about the iPad game. She asserted that the loss of her two PhD students contributed to the denial of her promotion application in 2011.

214    The Faculty policy on which Professor Davies relied when he made his decision was, as he said, that scholarships would not be offered to students who were undertaking studies towards a second PhD degree. Professor Davies’ decision gave effect to this policy. The fact that another Faculty administrator was unaware of it is of no moment.

215    Professor Davies denied that his decision was influenced in any way by Dr Chen’s gender. I accept his denial.

Incorrect advice about quantitative performance standards (Allegation 33)

216    Dr Chen alleged that she was “purposefully” given the wrong quantitative performance standards before she made her promotion application in June 2011. The person against whom this allegation is brought is unclear. In Dr Chen’s application to the Court this allegation was levelled only against Professor Davies. During cross-examination, on 11 March 2014, Dr Chen asserted that she brought the allegation against Professor Davies and Monash University. In her amended application, dated 16 May 2014, she claimed that Professor Davies and Professor Sridhar were both involved in the alleged conduct.

217    At trial, Dr Chen asserted that Professor Davies and/or Professor Sridhar attempted to sabotage her academic development by instructing Ms Lyn Broadstock, the Faculty’s promotion co-ordinator, deliberately to give Dr Chen the wrong performance standards. Dr Chen alleged that this conduct discriminated against her of the grounds of her sex.

218    In the middle of 2011 Dr Chen was preparing her promotion application. She had sought information relating to the “quantitative standards” which candidates were required to meet. The standards related to the amount of research funding which a candidate had attracted.

219    On 9 June 2011 Mr Broadstock sent Dr Chen a document which set out “performance measures”. She told Dr Chen that the document contained the standards which had been approved by the University. It was common ground that the information contained in the document was not correct.

220    Dr Chen was concerned that she had not been given the correct advice and she raised the matter with Professor Simon. Professor Simon took the matter up with Professor Davies. Professor Davies subsequently advised him that Ms Broadstock may have distributed the wrong document and advised that the “correct version had been approved by the faculty board” and was to be found “at the academic promotions link and is attached to this email.” Professor Simon then wrote to Dr Chen advising her that:

“It turns out that [Ms Broadstock] may have given you the wrong [document] (supplied mistakenly or something common to her).

The link I gave is correct.”

221    Dr Chen responded by sending Professor Simon an email in which she said that:

“…I am grateful to you, who gave me a hand and patiently, gentle-manfully and firmly pulling me out of the puddle which myself was not aware that I was in.

I owe you big thanks!”

222    Dr Chen was given incorrect advice by Ms Broadstock. This occurred inadvertently. There is no evidence to suggest that the advice was given at the direction of Professor Davies or anyone else. As soon as Dr Chen had queried the accuracy of the information which had been supplied to her, Professors Davies and Simon made inquiries. They discovered the error and immediately corrected it. Dr Chen was in no way prejudiced.

223    There is no factual basis for this allegation of discrimination.

Allegations of sex discrimination against Monash University (Allegations 21, 22, 36, 37, 39 and 40)

Academic bullying (Allegation 21)

224    Dr Chen alleged that since October or November 2010, Professor Simon, Professor Sridhar and Professor Davies “committed illegal academic bully conducts (sic) in the most critical performance aspects aiming at constructive dismissal.”

225    At trial this allegation was advanced as one of sex discrimination. It was not developed further by Dr Chen. It appeared that Dr Chen had collected, under this head, each of the complaints which she had made about the conduct of the three Professors towards her after the end of 2010. These complaints have been dealt with separately in these reasons. Each has been rejected.

226    Each of the three Professors gave evidence denying any bullying of Dr Chen. I accept their denials.

Threat to terminate employment (Allegation 22)

227    Dr Chen made an allegation of sex discrimination against Monash University based on some things said to her by Professor Sridhar on 16 November 2010. On this occasion Professor Sridhar met with Dr Chen to enquire whether she had any problems with Professor Simon. Dr Chen informed Professor Sridhar that Professor Simon was attempting to undervalue her performance. Professor Sridhar did not offer any assistance and instead responded by saying “[f]orget recognition. Do your research and teaching.” Dr Chen alleged that, at the end of the conversation, Professor Sridhar noted that the University was in financial crisis and had just dismissed hundreds of staff members and indicated that more might follow in 2011. Dr Chen understood this to be a threat to her future employment with the University.

228    Professor Sridhar recalled having a meeting with Dr Chen in which they had discussed her work. He may well have referred to the University’s financial difficulties in the course of that conversation but the reference to this matter carried no implied threat to Dr Chen’s employment. He also denied any discrimination against her on the grounds of sex. I accept Professor Sridhar’s denials. There is no support in the evidence for any suggestion that Professor Sridhar or other members of the Faculty had considered terminating Dr Chen’s services at this time. On the contrary, Professor Simon, in particular, was actively seeking to assist Dr Chen in advancing her career at the University.

229    There is no factual foundation for Dr Chen’s allegation. It must be rejected.

Failure to promote (Allegation 36)

230    As already recounted, in June 2011, Dr Chen applied for an academic promotion from Senior Lecturer to Associate Professor. Professor Davies was a member of the promotion committee in that year. Dr Chen asserted that she had what she described as “a history of conflict between [herself] and [Professor] Davies”, including:

    The incident with the iPad “sperm game” (Allegation 15);

    Professor Davies treatment of two of Dr Chen’s proposed PhD candidates (Allegation 31); and

    An unpleasant conversation between Dr Chen and Professor Davies about the disapproval of a self-funded PhD student (Allegation 28).

231    Dr Chen understood that, under the Monash University Diversity Policy, applicants who met some, but not all, of the criteria in research, education or service might still be eligible for promotion. Dr Chen considered herself to be an academic who had provided great service to the University. She did not believe that proper consideration was given by the committee to the Diversity Policy when deciding to reject her application and deny an appeal. She also noted that her research student numbers were reduced because Professor Davies erred in initially refusing to admit the applicant for entry to a PhD course.

232    Dr Chen complained that she was aware of at least three other (male) candidates from other departments of the Faculty who were promoted in 2011. She considered that her performance was as valuable to the University as that of the other candidates who received promotions. She noted that she had achieved excellent scores in the Unit Evaluation Report and MonQueST, a student evaluation report. Dr Chen alleged that Professor Davies and Monash University engaged in direct sex discrimination against her by treating her less favourably than they would a male in the same or similar circumstances. She further alleged that three members of the 2011 promotion committee, including Professor Davies, had conflicts of interest when considering her application. She asserted that Professor Davies interfered with her promotion application.

233    Professor Davies gave evidence that he was a member of the Promotions Committee in 2011. There were eight other members. Dr Chen’s application had been considered in detail on its merits. The Committee had voted by a majority (7-2) against promotion. The majority view was that the application had been made “too early” in Dr Chen’s career. While she had established a good teaching record she had not demonstrated a capacity to attract research funding.

234    Professor Davies could not recall how he voted but confirmed that he had considered voting for and against Dr Chen. He denied that his decision had in any way been influenced by extraneous factors. In particular, up until that time, Dr Chen had said nothing to him about the iPad “sperm game”. She had raised that issue with him for the first time on 17 October 2011. Professor Davies also said that it was not unusual for first applications for promotion to be unsuccessful.

235    Dr Chen sought to challenge the refusal through a University appeal process. She relied on what she claimed to have been a procedural irregularity. She made no complaint of sexual discrimination.

236    There is no evidence to support Dr Chen’s allegation that either Professor Davies or the University discriminated against her on the grounds of sex when dealing with her promotion application. The complaint must be rejected.

Feedback session following denial of promotion (Allegation 37)

237    On 24 August 2011, Dr Chen met with Professor Sridhar to discuss her promotion application. During the conversation Professor Sridhar informed Dr Chen that she needed to “improve [her] teaching” and “show excellent independent teaching skills.” She said that Professor Sridhar had acknowledged that she had obtained high MonQueST scores but had said that these were not given much weight by promotions committees. Dr Chen’s perception was that Professor Sridhar’s comments were an attempt to disregard her teaching performance. She alleged that his conduct constituted sex discrimination.

238    Professor Sridhar acknowledged that he had had a “feedback session” with Dr Chen following the Promotion Committee’s decision. It was likely that teaching performance had been discussed because it was one of the criteria for promotion. He did not seek to devalue Dr Chen’s teaching ability. He would not have said that the Committee did not really have regard to MonQueST scores. What he would have, perhaps, said was that these scores were not the only evaluation tool taken into account. The principal measure was unit evaluation results.

239    Even if Dr Chen’s account of this conversation were accepted, there is nothing which was said by Professor Sridhar which would support a complaint of sex discrimination.

Rejection of promotion appeal (Allegation 39)

240    In September 2011, Dr Chen wrote to the University seeking reconsideration of her promotion application. She requested a rehearing on the basis of procedural irregularities. These irregularities included being provided with the incorrect quantitative academic performance standards and being advised by Professor Simon not to include any achievements that pre-dated her employment with Monash University in her application.

241    Dr Chen contended that she followed the relevant Monash University policy when she made her review application to the Faculty Associate Professor Promotion Rehearing Committee (“the Review Committee”) by including evidence of procedural irregularities at the first step of the appeal process. On 26 September 2011, the Review Committee concluded that Dr Chen had failed to establish a prima facie case for a rehearing of her application for promotion and she was so advised by the Deputy Vice Chancellor. The Review Committee considered that the grounds she had advanced for a rehearing did not meet the requirement of a procedural irregularity leading to a material disadvantage. Dr Chen alleged that Monash University engaged in sex discrimination by rejecting her application for a rehearing.

242    An examination of the records of the Review Committee’s deliberations disclosed no impropriety. At least one of the irregularities on which she relied had been corrected before her original application had been considered. Dr Chen’s appeal was rejected on its merits. The correctness of the decision is not in issue in the present proceeding. What is material is that there is not the slightest hint that the appeal committee discriminated against Dr Chen on the ground of sex.

Rejection of alternative application for promotion (Allegation 40)

243    Dr Chen alleged that Monash University, through the actions of Professor Sridhar, engaged in sex discrimination on 13 December 2011 when he rejected her request for an accelerated promotion. Dr Chen alleged that Professor Sridhar said words to the effect: “[The committee] cannot accept the fact that whenever we make a decision against you, there is always a big appeal … We expect you to accept the decision and move on, … whether it is fair or not is not the point. The decision is that we do not want to revisit”.

244    Academic promotion at Monash University was normally dealt with annually when applications were made and considered. Provision was made for promotions to occur, in exceptional circumstances, outside this cycle. Typically, this would occur when the University was seeking to retain the services of an academic who had been made an offer by another institution.

245    Dr Chen sought to obtain promotion through this process late in 2011. Having considered her application Professor Sridhar wrote to her on 11 December 2011 advising her that “[i]n circumstances where you were so recently considered for promotion and had a full opportunity to put the merits of your application to the relevant promotions committee, I see no justification for me to initiate a request for a counter offer even if you are made an offer by another institution.” Two days later Dr Chen had a meeting with Professor Sridhar to discuss his decision. Unbeknown to Professor Sridhar Dr Chen tape recorded the conversation. The words attributed to Professor Sridhar appear on a transcript of the recording.

246    A reading of the full transcript puts Professor Sridhar’s remarks in context. He was seeking to persuade Dr Chen to look forward rather than dwell on her unsuccessful promotion application. There is certainly an element of frustration with Dr Chen’s persistence in pursing her promotion claim. What is significant, however, for present purposes is that there is not the slightest suggestion, in the course of the conversation, that Professor Sridhar’s decision was in any way based on sex discrimination. The allegation lacks substance.

Allegations of sex discrimination against Professor Simon, Professor Davies, Professor Sridhar and Monash University following internal complaint (Allegations 34, 41, 45 and 44)

247    On 5 October 2011, Dr Chen made a complaint by email to Ms Lisa Warman, the Human Resources representative of the Engineering Faculty, about what she said was the unacceptable behaviour by Professor Davies. She raised her concerns again on 20 October 2011.

248    On 6 November 2011, she filed an internal complaint with Ms Leah Zaks and Mr Andrew Picouleau which detailed the unacceptable behaviour she attributed to Professor Davies.

249    In late January 2012, Dr Chen filed an internal complaint with Mr Steven Smith which set out what she said was unacceptable behaviour by Professor Davies, Professor Simon and Monash University. On 13 February 2012, the University advised Dr Chen that it had engaged the services of an independent external consultant, Ms Norena Kavanagh, to make preliminary inquiries into the matters set out in the complaint.

250    On 22 February 2012, Ms Kavanagh met with Dr Chen to conduct preliminary inquiries into her complaints. In March 2012, Ms Kavanagh prepared a report on her findings and concluded that it was not necessary to conduct a formal investigation into Dr Chen’s complaint.

251    On 29 March 2012, Dr Chen met with Ms Amanda Robertson, Human Resources Director of Monash University, to discuss Ms Kavanagh’s report. At the meeting, Dr Chen raised her concerns about what she said were inaccuracies in the report and complained about what she considered to be the unfairness and irresponsibility of the decision.

252    Dr Chen made a number of allegations about the conduct of Professor Rudman and other Monash University employees that she says resulted from the making of her complaint.

Incorrect statements about Dr Chen’s research performance in 2011 and 2012 (Allegations 34 and 45)

253    Dr Chen alleged that, following her complaints, Professor Rudman had made a number of factually incorrect statements about Dr Chen’s research performance in her 2011 and 2012 reports. These reports were a critical part of an applicant’s promotion application. Dr Chen raised this issue with Professor Rudman. The reports were later revised. Dr Chen alleged that Professor Rudman discriminated against her by reason of her sex by incorporating the errors in his original report.

254    The 2011 report was written by Professor Rudman in about July of that year.

255    Professor Rudman gave evidence that he had sought to write a report which fairly assessed Dr Chen’s research work. He provided a draft to her and she told him that the report contained certain errors. Having been so advised Professor Rudman made appropriate corrections. Those corrections were made before the report had been considered by the Promotions Committee. The errors had no impact on Dr Chen’s promotion application.

256    Even before the corrections were made, the report was generally positive and favourable to Dr Chen.

257    There is no basis for any suggestion that, the errors, made by Professor Rudman, were attributable to sex discrimination. In particular, Professor Rudman was new to the University and Dr Chen’s first complaints about sexual discrimination were not made until 5 October 2011, well after the errors were made. Furthermore, Professor Rudman corrected those errors.

258    The 2012 research report, prepared by Professor Rudman, also contained some errors. Again Dr Chen pointed them out and, again corrections were made before the report was considered by the Promotions Committee.

259    Professor Rudman gave evidence that he had sought to write a report that accurately and fairly assessed Dr Chen’s work. When the mistakes were drawn to his attention he corrected them. He denied that the errors were attributable to sex discrimination.

260    I accept Professor Rudman’s denial. The contrary assertion is fanciful. Professor Rudman acknowledged that he had made some mistakes and corrected them. He sat as a member of the Promotions Committee in 2012. He voted in favour of Dr Chen’s promotion. She was promoted.

Negative remarks about internal research grant application (Allegation 41)

261    Dr Chen alleged that, following an informal complaint by her to the University, Professor Rudman engaged in sex discrimination by making negative remarks about her work to the reviewers of the internal research grant scheme. This was said to have caused her 2011 application for an internal research grant to be denied.

262    On 5 October 2011 Dr Chen made the complaint to an officer of the University’s Human Relations Department about what she said was unacceptable behaviour on the part of Professor Davies. At or about this time she had made an application for funding under the Engineering Seed Funding Scheme. She had been successful in obtaining grants under this scheme in 2009 and 2010.

263    In late November 2011 Professor Rudman wrote to her advising that her application had been unsuccessful. He provided her with “feedback” from the panel which had determined to reject the application. That feedback included Dr Chen’s failure to provide the panel with certain reports, her failure to make a case that she was the best researcher for the proposed project, confusion as to the current state of some relevant research, a failure by Dr Chen to explain the expected outcome of her research and the need for her to pay more attention to the layout of her application.

264    Professor Rudman gave evidence that the decision had been made by the panel. He was a member of the panel and had considered Dr Chen’s application on its merits having regard to the merits of competing applications. He considered that Dr Chen’s application was deficient in a number of respects, namely, those outlined by the panel.

265    He denied having discriminated against Dr Chen by reason of her gender when making the decision. I accept his denial.

Award of Excellence in Master’s Thesis (Allegation 44)

266    Dr Chen alleged that, following her complaint to the University about Professor Davies, a number of University employees discriminated against her by reason of her sex. These included Professor Rudman who, she claimed, had denied her postgraduate student, Ms Shuling Liang, the Award of Excellence in Master’s Thesis because Dr Chen was her supervisor.

267    Dr Chen said that Ms Liang had produced six quality publications when most Master’s degree students produce no journal articles or 1-2 articles at most. For this reason, Dr Chen asserted that Ms Liang’s publications were exceptional and outstanding. Dr Chen claimed that awards given to research students are an important indicator of the academic performance of their supervisors.

268    Professor Rudman gave evidence that he was a member of the selection panel which was chaired by Professor Emanuele Viterbo. There were four candidates whose work was considered for the award. Both he and Professor Viterbo read the candidates’ contributions to the literature and assessed those contributions on the merits. Ms Liang was chosen as the runner up to the successful candidate.

269    Dr Chen was not in a position to gainsay the evidence of Professor Rudman about the assessment process. This was because she had not read any of the publications which had been prepared by the other three candidates. In these circumstances there is no reason to doubt Professor Rudman’s evidence that a bona fide assessment was made by the two committee members on which they were agreed. The basis of their assessment was academic merit and nothing else. This allegation must be rejected.

DISPOSITION

270    The application must be dismissed with costs.

Associate:

Dated:    27 February 2015