FEDERAL COURT OF AUSTRALIA

Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754

File number:

QUD 234 of 2017

Judge:

RANGIAH J

Date of judgment:

29 October 2019

Catchwords:

INDUSTRIAL ACTION – adverse action – where applicant alleges adverse action taken against her because of sex or sexual orientation – where applicant alleges to have exercised or proposed to exercise workplace rights – where applicant alleges adverse action taken or threatened with intent to coerce her not to exercise workplace rights – interaction between Fair Work Act 2009 (Cth) and Sex Discrimination Act 1984 (Cth) – vicarious liability of respondent for acts committed by employees

PRACTICE AND PROCEDURE – application to withdraw an admission made in amended defence – where application made in closing address – leave to withdraw not freely granted – application refused

Legislation:

Disability Discrimination Act 1992 (Cth) ss 15(2) and 16.02

Evidence Act 1995 (Cth) s 140

Fair Work Act 2009 (Cth) ss  340(1), 341(1), 342(1), 343(1), 345, 346, 351, 351(1), 351(2), 351(3), 360, 361(1), 545, 793(1)

Safety Rehabilitation and Compensation Act 1988 (Cth)

Science and Industry Research Act 1949 (Cth) s 8(2)

Sex Discrimination Act 1984 (Cth) ss 5, 14(2), 28A, 28B and 106

Federal Court Rules 2011 (Cth) r 16.02(3)

Cases cited:

Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175

Auimatagi v Australian Building and Construction Commissioner (2018) 363 ALR 246; [2018] FCAFC 191

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 350 ALR 190; [2018] HCA 3

Australian Building and Construction Commissioner v Hall (2018) 277 IR 75; [2018] FCAFC 83

Australian Building and Construction Commissioner v Upton (The Gorgon Construction Case) (2017) 270 IR 190; [2017] FCA 847

Australian Licensed Aircraft Engineers Association v International Aviation Services Pty Ltd (2011) 193 FCR 526

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Briginshaw v Briginshaw (1938) 60 CLR 336

Cigarette & Gift Warehouse v Whelan [2019] FCAFC 16

Commonwealth Bank of Australia v Finance Sector Union of Australia (2006) 154 IR 467; [2006] FCA 1048

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466

Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243

Dafallah v Fair Work Commission (2014) 225 FCR 559

Drabsch v Switzerland General Insurance Co Ltd (unreported, Supreme Court of New South Wales, 16 October 1996)

Esso Australia Pty Ltd v The Australian Workers’ Union (2016) 245 FCR 39

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Hutchinson Ports Appeal) [2019] FCAFC 69

Hollis v Vabu Pty Ltd (2001) 207 CLR 21

Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327; [2003] FCAFC 309

Kakavas v Crown Melbourne (2013) 250 CLR 392

Maritime Union Authority v Geraldton Port Authority (1999) 93 FCR 34

Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120

National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114

New South Wales v Lepore (2003) 212 CLR 511

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1

Prince Alfred College Inc v ADC (2016) 258 CLR 134

Qantas Airways Ltd v Australian Licenced Aircraft Engineers Association (2012) 202 FCR 244

RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424

Sayed v Construction, Forestry, Mining and Energy Union (2015) 149 ALD 88; [2015] FCA 27

Seven Network (Operations) Ltd v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378

Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1; [2014] FCA 271

Squires v Flight Stewards Association of Australia (1982) IR 155

State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441; [2014] FCAFC 184

Tattsbet Ltd v Morrow (2015) 233 FCR 46

Transport Workers Union of Australia v No Fuss Liquid Waste Pty Ltd (2011) FCA 982

Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181

Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285; [2017] FCA 1534

Salmond JW, Law of Torts, (Stevens and Haynes, 1907)

Date of hearing:

8–12, 15–19, 22–26, 29–30 October 2018

1–2 November 2018

Registry:

Queensland

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

666

Counsel for the Applicant:

Ms L Willson

Solicitor for the Applicant:

Parker Simmonds

Counsel for the Respondent:

Mr J Bourke QC with Ms R Sweet

Solicitor for the Respondent:

King & Wood Mallesons

ORDERS

QUD 234 of 2017

BETWEEN:

KATHERINE MARILLA MORTON

Applicant

AND:

COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION

Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

29 OCTOBER 2019

THE COURT DECLARES THAT:

1.    The respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) by the action of its employee, Heather Campbell, on about 3 August 2015, in failing to comply with the requirements of the Grievance Procedures under the CSIRO Enterprise Agreement 2011–2014 to perform her duties with professionalism when dealing with a complaint made by the applicant against Gavin Drury.

THE COURT ORDERS THAT:

2.    The respondent pay the applicant $1,000 by way of compensation for its contravention of s 340(1) of the Fair Work Act.

3.    The parties provide written submissions upon the questions of any penalty, other orders and costs on dates to be fixed.

4.    The proceeding is otherwise dismissed.

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

REASONS FOR JUDGMENT

TABLE OF CONTENTS

THE POSITIONS OF DR MORTON AND THE RELEVANT CSIRO EMPLOYEES

[6]

SUMMARY OF DR MORTON’S CLAIMS

[21]

Claim 1A

[22]

Dr Glencross

[22]

Dr Preston

[22]

Dr Cook

[22]

Claim 1

[22]

Claim 2

[22]

Claim 3

[22]

Claim 4

[22]

Claim 5

[22]

Claim 6

[22]

Claim 7

[22]

Claim 8

[22]

Claim 9

[22]

THE LEGISLATION

[22]

THE PRINCIPLES

[31]

Section 340(1) of the FW Act

[31]

Workplace rights

[33]

Adverse action

[37]

Adverse action taken because the person has exercised, or proposed to exercise, a workplace right

[45]

Section 343 of the FW Act

[49]

Section 351 of the FW Act

[58]

Section 793 of the FW Act and vicarious liability

[73]

Section 140 of the Evidence Act 1995 (Cth)

[80]

The evidence

[82]

ASSESSMENT OF THE WITNESSES

[85]

Assessment of Dr Morton’s evidence

[86]

Discrepancies between Dr Morton’s reporting of her level of functioning and her presentation in the witness box

[89]

Discrepancies between Dr Morton’s reporting of her level of functioning and the level of revealed through other sources

[100]

Dr Morton’s failure to make timely complaints about Dr Glencross, Dr Preston and Dr Cook

[117]

Various other discrepancies, implausibilities and inconsistencies

[144]

Assessment of Mr Croft’s evidence

[153]

Assessment of Dr Rees’ evidence

[162]

Assessment of Dr Mathew’s evidence

[173]

Assessment of Dr Glencross’ evidence

[178]

The application to withdraw an admission made in CSIRO’s amended defence

[189]

Assessment of Dr Cook’s evidence

[201]

Assessment of Dr Preston’s evidence

[205]

Assessment of the evidence of Ms Habilay, Ms Trenkner and Mr Blyth

[208]

Assessment of Mr Drury’s evidence

[214]

Assessment of Ms Campbell’s evidence

[219]

Assessment of Ms Walshs evidence

[222]

Assessment of Dr Manners evidence

[225]

Other witnesses

[228]

Conclusions upon the conflicts between Dr Mortons evidence and the evidence of other witnesses

[229]

CONSIDERATION OF CLAIM 1A

[231]

The allegations against Dr Glencross

[236]

Whether the events involving Dr Glencross happened as alleged by Dr Morton

[237]

Asking Dr Morton what her sexual preference was

[237]

The prostitute comment

[240]

The crows-feet comment

[247]

The riding-crop incident and the dominatrix comment

[254]

The cleavage comment

[273]

Whether any action taken by Dr Glencross was adverse action

[285]

The allegations against Dr Preston

[293]

The allegations against Dr Cook

[300]

Whether the events happened as alleged by Dr Morton

[301]

The dizzy blonde allegation

[301]

The scantily dressed woman email

[308]

The half-naked man and woman email

[311]

The candidates for a post-doctorate position email

[320]

The take a blonde to Tasmania comment

[323]

Whether Dr Cooks emails amounted to adverse action

[328]

Dr Morton’s allegations considered under the Sex Discrimination Act

[339]

Liability of CSIRO for acts of its employees

[350]

The allegation that CSIRO failed to address, or adequately address, Dr Glencross’ behaviour in a timely manner

[358]

The allegation that CSIRO afforded Dr Morton less favourable conditions of employment than would be experienced by a male

[385]

CONSIDERATION OF CLAIM 1

[390]

The allegation that CSIRO failed to address Dr Morton’s complaints about Dr Glencross behaviours towards her in a timely manner

[394]

The allegation that CSIRO removed Dr Morton as a team leader

[426]

The allegation that CSIRO decreased Dr Mortons allocation to the Huon project

[442]

The allegation that CSIRO dismissed Dr Morton from her employment by making her position redundant in circumstances where there was no genuine redundancy

[461]

CONSIDERATION OF CLAIM 2

[503]

CONSIDERATION OF CLAIM 3

[520]

The pleaded allegations

[520]

Dr Morton’s evidence

[526]

Mr Drurys evidence

[532]

Consideration of the evidence

[539]

Consideration of coercion allegations

[542]

The requirements of s 343(1) of the FW Act

[542]

The allegation that Mr Drury said, Three months off would not do your career any good

[548]

The allegation that Mr Drury represented that he was a clinician

[550]

The allegation that, despite medical advice, Mr Drury said he was going to begin to plan her return to work within the next couple of weeks

[551]

The allegation that Mr Drury contacted Dr Morton in early March 2015 before an investigator had been appointed

[556]

The allegation that Mr Drury told Dr Morton that if she did not file a Comcare claim, he would ensure that CSIRO would cover the treatment she needed

[557]

The allegations that CSIRO engaged in coercive conduct by removing Dr Morton as team leader, decreasing her allocation to the Huon project, and dismissing her from her employment by making her position redundant

[559]

Consideration of adverse action allegations

[561]

The allegation that Mr Drury said “Three months off would not do your career any good”

[561]

The allegation that Mr Drury represented that he was a clinician

[562]

The allegation that, despite medical advice, Mr Drury said he was going to begin to plan her return to work within the next couple of weeks

[563]

The allegation that Mr Drury contacted Dr Morton in early March 2015 before an investigator had been appointed

[565]

The allegation that Mr Drury told Dr Morton that if she did not file a Comcare claim, he would ensure that CSIRO would cover the treatment she needed

[566]

The allegations that CSIRO engaged in adverse action by removing Dr Morton as team leader, decreasing her allocation to the Huon project and dismissing her from her employment by making her position redundant

[567]

CONSIDERATION OF CLAIM 4

[569]

The pleaded allegations

[569]

The evidence

[572]

Whether Ms Campbell complied with the Grievance Procedures

[581]

Whether there was a contravention of s 340(1) of the FW Act

[591]

Vicarious liability

[594]

Other matters

[597]

CONSIDERATION OF CLAIM 5

[600]

CONSIDERATION OF CLAIM 6

[606]

CONSIDERATION OF CLAIM 7

[618]

CONSIDERATION OF CLAIM 8

[619]

CONSIDERATION OF CLAIM 9

[626]

CONSIDERATION OF COMPENSATION

[651]

CONCLUSION

[663]

RANGIAH J:

1    The applicant, Dr Katherine Morton (Dr Morton) seeks compensation and other relief against the respondent, Commonwealth Scientific and Industrial Research Organisation (CSIRO). Dr Morton was employed by CSIRO as a scientist between 2012 and 2016.

2    Dr Morton alleges that during the period of her employment, CSIRO:

(1)    contravened s 351(1) of the Fair Work Act 2009 (Cth) (the FW Act), by taking adverse action against her because of her sex or sexual orientation;

(2)    contravened s 340(1) of the FW Act, by taking adverse action against her because she exercised or proposed to exercise workplace rights; and

(3)    contravened s 343(1) of the FW Act, by taking or threatening to take action against her with intent to coerce her to not exercise workplace rights.

3    The principal focus of CSIRO’s defence is to:

(1)    deny that much of the conduct alleged by Dr Morton occurred;

(2)    deny that any conduct that did occur was “adverse action”; and

(3)    assert that if there was “adverse action”, it was not taken because Dr Morton exercised any workplace rights.

4    I will proceed by:

    Describing Dr Mortons position within CSIRO, and the positions of various CSIRO staff against whom her allegations are directed.

    Summarising the claims made in Dr Mortons further amended statement of claim.

    Setting out the relevant provisions of the FW Act.

    Considering the law concerning those provisions.

    Separately assessing the credibility and reliability of the more controversial witnesses.

    Considering each of the claims made in Dr Morton’s further amended statement of claim.

    Considering any compensation.

5    I will summarise the evidence in an Appendix to these reasons.

THE POSITIONS OF DR MORTON AND THE RELEVANT CSIRO EMPLOYEES

6    Dr Mortons further amended statement of claim makes allegations against a number of CSIRO employees. It is necessary to give a brief description of the positions and roles of those persons in order to give context to Dr Mortons claims.

7    Dr Morton commenced employment with CSIRO on 5 March 2012. She was a Level 6 scientist employed within the Aquaculture area of the Agriculture Business Unit (noting that the names of the various sections or units within CSIRO have varied over time). She was based at the Ecosciences Precinct (ESP) at Woolloongabba in Brisbane, but also carried out work at CSIROs aquaculture facility at Bribie Island, north of Brisbane.

8    On 28 November 2014, Dr Morton made a formal complaint against two of her colleagues, Dr Brett Glencross and Dr Nigel Preston, alleging sex discrimination, bullying and other misconduct. On 6 July 2015, Dr Morton was certified unfit for work with a psychiatric illness, and did not return to work. Her employment with CSIRO ended when her position was made redundant with effect from 11 November 2016.

9    Mr William Croft is Dr Mortons partner. They met in about November 2012. Mr Croft was employed at CSIRO until 2013.

10    Dr Glencross was a Level 8 scientist within the Aquaculture area of CSIRO. He was Dr Mortons immediate supervisor in respect of her scientific work. They had a difficult working relationship. Dr Mortons complaint against Dr Glencross was never formally investigated, as he left CSIRO in February 2015.

11    Dr Preston was Director of the Agriculture Business Unit until July 2015. He was the senior manager of Dr Mortons team. Dr Mortons formal complaint alleged that Dr Preston discriminated against her on the basis of her sex. An investigation commissioned by CSIRO found that the allegations against Dr Preston were not substantiated.

12    Dr Matthew Cook was a senior scientist in the Aquaculture area, occupying several different roles during the period when Dr Morton was employed at CSIRO. Dr Cook was Dr Mortons administrative line manager from March 2012 to August 2013 and again from July 2014 until her position was made redundant. Dr Cook and Dr Morton had a friendly relationship for much of that time, often involving the exchange of light-hearted banter in text messages and emails. Dr Morton made no complaints about Dr Cook while she was employed at CSIRO, but has now alleged that he sexually harassed her and discriminated against her on the basis of her sex.

13    Dr John Manners is the director of what is now the Agriculture and Food Business Unit. In February 2015, he decided that Dr Mortons complaint against Dr Preston should be investigated, and appointed Mr Trevor Van Dam, as the investigator. Dr Manners was also one of the persons who later authorised Dr Morton’s position being made redundant.

14    Ms Julie Carroll was employed at CSIRO as a human resources (HR) advisor. Dr Morton made verbal complaints to Ms Carroll about her difficult relationship with Dr Glencross.

15    Dr Sigrid Lehnert was a scientist at CSIRO. In October 2014, Dr Morton discussed her poor relationship with Dr Glencross with Dr Lehnert.

16    Ms Alysha Davis was a HR advisor in CSIRO’s Agriculture Business Unit. In November 2014, Dr Morton made a verbal complaint about Dr Glencross and Dr Preston to Ms Davis. Ms Davis managed the grievance process and various issues about Dr Mortons leave and other entitlements.

17    Mr Gavin Drury was an injury management coordinator employed by CSIRO. He was responsible for managing Dr Mortons case when she ceased work in July 2015. Dr Morton made a complaint about Mr Drury’s management of her case.

18    Ms Heather Campbell is a senior manager within CSIRO. She was responsible for dealing with Dr Morton’s complaint against Mr Drury. Ms Campbell decided that the complaint was not established.

19    Ms Lynne Gaal is a senior HR advisor. She was involved in managing Dr Mortons payroll and leave entitlements.

20    A number of other witnesses also gave evidence at the hearing, but it is unnecessary, at this stage, to describe their roles and positions. Their evidence is summarised in the Appendix to these reasons.

SUMMARY OF DR MORTON’S CLAIMS

21    In her further amended statement of claim, Dr Morton makes ten claims, described as Claim 1A to Claim 9. I will briefly summarise Dr Mortons claims.

Claim 1A

(1)    CSIRO contravened s 351(1) of the FW Act by taking adverse action against Dr Morton because of her sex or sexual orientation.

(2)    The adverse action consisted of:

(a)    Five incidents of sex discrimination or sexual harassment perpetrated by Dr Glencross, one by Dr Preston and five by Dr Cook.

(b)    Failing to address, or adequately address, Dr Glencross’ behaviour in a timely manner upon becoming aware of his conduct.

(c)    Affording Dr Morton less favourable conditions of employment than those that would be experienced by a male.

(3)    The incidents of sex discrimination or sexual harassment were:

Dr Glencross

(a)    On 26 April 2012, Dr Glencross asked Dr Morton what her sexual preference was.

(b)    On 2 May 2012, Dr Glencross referred to Dr Morton as a “prostitute”.

(c)    On 2 May 2012, Dr Glencross made a comment about Dr Morton’s “crow’s feet”.

(d)    On 16 October 2012, Dr Glencross slapped Dr Morton on her backside with a riding crop.

(e)    On 17 October 2012, Dr Glencross stared at Dr Morton’s breast area and said, “Women only wear pendants to draw attention to their cleavage. I don’t know why you bother Katherine, you don’t have any”.

Dr Preston

(f)    On 2 May 2012, Dr Preston called Dr Morton a “hussy”.

Dr Cook

(g)    On 9 August 2012, Dr Cook told Dr Morton that Dr Preston’s nickname for her was “dizzy blonde”.

(h)    On 10 September 2012, Dr Cook circulated an email with a picture of a scantily dressed woman.

(i)    On 7 November 2012, Dr Cook circulated an email with a picture of a half-naked man and a woman, describing them as candidates for positions at CSIRO.

(j)    On 19 March 2014, Dr Cook circulated an email discussing, in a sexualised way, the potential candidates for a post-doctorate position.

(k)    On 2 December 2014, Dr Cook said to Dr Morton, “take a blonde to Tasmania, dress her up and double your money”.

Claim 1

(1)    CSIRO contravened s 340(1) of the FW Act by taking adverse action against Dr Morton.

(2)    The adverse action consisted of:

(a)    Failing to address Dr Mortons complaints about Dr Glencross behaviour towards her in a timely manner after her complaint was made.

(b)    Removing Dr Morton as a team leader.

(c)    Decreasing her allocation to the Huon project.

(d)    Dismissing Dr Morton from her employment by making her position redundant in circumstances where there was no genuine redundancy.

(3)    The adverse action was taken because Dr Morton exercised the following workplace rights:

(a)    Making complaints to Dr Cook about Dr Glencross behaviour.

(b)    On 28 October 2014, making a complaint to Dr Lehnert about Dr Glencross behaviour.

(c)    On 28 November 2014, making a formal complaint about Dr Glencross behaviour.

(d)    On 6 November 2014, having a meeting with Ms Davis and Ms Sturton to discuss her complaint.

(e)    On 5 December 2014, meeting with Ms Davis who requested that Dr Morton submit her allegations in writing.

(f)    On 16 January 2015, submitting further information concerning the complaint.

Claim 2

(1)    CSIRO contravened s 340(1) of the FW Act by taking adverse action against Dr Morton.

(2)    The adverse action consisted of:

(a)    Permitting Dr Manners to manipulate the terms of reference for the investigation of Dr Preston’s conduct by reducing the time-frame for the review and not referring to Dr Morton’s allegations that Dr Preston had made inappropriate and inaccurate comments about her.

(b)    Removing Dr Morton as team leader.

(c)    Decreasing her allocation to the Huon project.

(3)    The adverse action was taken because Dr Morton exercised the following workplace rights:

(a)    In March 2015, notifying CSIRO that she wished to lodge a claim for workers compensation.

(b)    In October 2014, making a complaint against Dr Preston.

Claim 3

(1)    CSIRO contravened s 340(1) by taking adverse action against Dr Morton, and contravened s 343 by taking action against her with intent to coerce her to not exercise her workplace rights.

(2)    The adverse actions and the coercive actions consisted of:

(a)    On 8 July 2015, Mr Drury engaging in intimidating and coercive behaviour by:

(i)    stating, “Three months off would not do your career any good”;

(ii)    claiming he was qualified to advise her of this position as he was, “a clinician”;

(iii)    despite medical advice, Mr Drury saying he was going to plan her return to work, “within the next couple of weeks”.

(b)    Mr Drury first contacting Dr Morton in early March 2015, even though she was not notified of the appointment of an investigator into her grievance until 27 March 2015.

(c)    Mr Drury telling Dr Morton that if she did not file a claim with Comcare, then he would ensure that CSIRO would cover the treatment she needed.

(d)    Removing Dr Morton as team leader, decreasing her allocation to the Huon project and dismissing her from her employment by making her position redundant in circumstances where there was no genuine redundancy.

(3)    The adverse action and coercive action was taken because Dr Morton proposed to exercise the following workplace rights:

(a)    Make complaints or enquiries to exercise her entitlement to workers compensation benefits.

(b)    Initiate or participate in proceedings under a workplace law, namely the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).

Claim 4

(1)    CSIRO contravened s 340(1) of the FW Act by taking adverse action against Dr Morton.

(2)    The adverse action consisted of:

(a)    Mr Drury ignoring Dr Morton’s request to provide him with the name of his supervisor so that she could exercise a workplace right to make a complaint about his behaviours.

(b)    Dr Cook also failing to respond to the request that Dr Morton made to Mr Drury, despite being copied into the email.

(c)    Ms Pickering responding to Dr Morton’s complaint of 29 July 2015 by saying that she was no longer Mr Drury’s line manager, but copying Ms Campbell into the response.

(d)    On 3 August 2015, Ms Campbell taking no action to initiate a grievance process and instead dismissing Dr Mortons complaint.

(e)    Ms Campbell not applying correct policy and procedures to Dr Mortons complaint against Mr Drury.

(f)    Decreasing Dr Morton’s allocation to the Huon project and dismissing her from her employment.

(3)    The adverse action was taken because Dr Morton had or exercised the following workplace rights:

(a)    On 24 July 2015, requesting that Mr Drury provide her with the name of his supervisor so that she could make a complaint about his behaviour.

(b)    On 29 July 2015, making a complaint to Ms Pickering about Mr Drury’s behaviour.

Claim 5

(1)    CSIRO contravened s 340(1) by taking adverse action against Dr Morton, and contravened s 343(1) by taking action against her with intent to coerce her not to exercise workplace rights.

(2)    The adverse action and coercive action consisted of:

(a)    Mr Drury engaging in a course of threatening behaviour as follows:

(i)    On 8 July 2015, telling Dr Morton that, Three months off would not do your career any good;

(ii)    Telling Dr Morton that he was qualified to advise her of this because he was a clinician;

(iii)    Stressing the obligations the applicant had under the SRC Act to begin to plan her return to work within the next couple of weeks;

(iv)    Telling her that if she did not make a workers’ compensation claim, CSIRO would pay for all expenses.

(b)    Removing Dr Morton as team leader, decreasing her allocation to the Huon project and dismissing her from her employment.

(3)    The workplace rights Dr Morton proposed to exercise were:

(a)    To claim workers compensation.

(b)    To initiate or participate in proceedings under the SRC Act.

Claim 6

(1)    CSIRO contravened s 340(1) of the FW Act by taking adverse action against Dr Morton.

(2)    The adverse action consisted of:

(a)    On 7 October 2015, placing the applicant on Sick Without Pay Type 2 (SW02) leave that did not count for service despite Dr Morton maintaining a balance of paid recreational leave.

(b)    Logging Dr Morton’s unpaid sick leave beyond the date of her medical certificate.

(c)    Decreasing Dr Morton’s allocation to the Huon project, transferring her allocation on the Huon project to another staff member and dismissing her from her employment.

(3)    The adverse action was taken because Dr Morton exercised her workplace rights to make a complaint or enquiry with CSIRO in relation to the terms and conditions of her employment by having her partner, Mr Croft, query her leave entitlements.

Claim 7

(1)    CSIRO contravened s 340(1) of the FW Act by taking adverse action against Dr Morton, and contravened s 345 of the FW Act by knowingly or recklessly making a false or misleading representation about the exercise of Dr Mortons right to return to work.

(2)    The adverse action consisted of:

(a)    Correspondence from Ms Somerville dated 25 February 2016 misrepresenting Dr Glencross and Dr Preston’s employment status and work location with CSIRO.

(b)    Dismissing Dr Morton from her employment.

(c)    Placing Dr Morton’s name on the voluntary redundancy substitution register, but not completing that process as CSIRO considered there were no available substitutions.

(3)    The adverse action was taken because Dr Morton exercised her workplace right to participate in a return to work process under the SRC Act.

(4)    The false or misleading representation was that CSIRO had taken steps to facilitate a safe return to work.

Claim 8

(1)    CSIRO contravened s 340 of the FW Act by taking adverse action against Dr Morton.

(2)    The adverse action consisted of:

(a)    Not offering Dr Morton an available position in the redeployment process or making her aware of such a position.

(b)    On 24 June and 14 July 2016, Ms Walsh advising Dr Morton that her position had been made redundant under the policy for voluntary redundancy.

(c)    Failing to undertake the mandatory redeployment process.

(d)    On 10 October 2016, advising Dr Morton that Mr Roy had given approval for the redundancy process to proceed.

(e)    On 28 October 2016, informing Dr Morton that her position had been made redundant.

(3)    The adverse action was taken because Dr Morton exercised her workplace right to the benefits of the CSIRO Enterprise Bargaining Agreement 20012014 (the Enterprise Bargaining Agreement), including its redundancy and redeployment process.

Claim 9

(1)    CSIRO contravened s 340 of the FW Act by taking adverse action against Dr Morton.

(2)    The adverse action consisted of:

(a)    Manually reducing Dr Morton’s sick leave balance by 73.5 hours.

(b)    Failing to properly consider, investigate or act on Dr Morton’s complaints.

(3)    The adverse action was taken because Dr Morton exercised her workplace right to make a complaint and enquiry in relation to the terms and conditions of her employment by emailing Ms Gaal about being logged on SWO2 unpaid sick leave despite her claim for workers compensation benefits having been accepted.

THE LEGISLATION

22    Part 3–1 of Ch 3 of the FW Act is entitled General protections. Division 3 of Part 3–1 is entitled Workplace rights.

23    Section 340 is within Div 3 and provides, relevantly:

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

(a)    because the other person:

   (i)    has a workplace right; or

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

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

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

Note    This subsection is a civil remedy provision (see Part 4–1).

24    Section 341 of the FW Act defines workplace right as follows:

Meaning of workplace right

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

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

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

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

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

Meaning of process or proceedings under a workplace law or workplace instrument

(2)    Each of the following is a process or proceedings under a workplace law or workplace instrument:

(k)    any other process or proceedings under a workplace law or workplace instrument.

25    Section 342(1) of the FW Act sets out a Table that describes when a person takes adverse action against another person. Under Item 1, adverse action is taken by an employer against an employee if the employer:

(a)    dismisses the employee; or

(b)    injures the employee in his or her employment; or

(c)    alters the position of the employee to the employees prejudice; or

(d)    discriminates between the employee and other employees of the employer.

26    Section 343 provides, relevantly:

343    Coercion

(1)    A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a)    exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b)    exercise, or propose to exercise, a workplace right in a particular way.

Note:    This subsection is a civil remedy provision (see Part 4 1).

27    Section 351 of the FW Act provides, relevantly:

351    Discrimination

(1)    An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the persons race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carers responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note:    This subsection is a civil remedy provision (see Part 4–1).

(2)    However, subsection (1) does not apply to action that is:

(a)    not unlawful under any anti-discrimination law in force in the place where the action is taken;

(3)    Each of the following is an anti-discrimination law:

(ad)    the Sex Discrimination Act 1984;

28    Section 360 of the FW Act provides:

360    Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

29    Section 361 of the FW Act provides, relevantly:

361    Reason for action to be presumed unless proved otherwise

(1)    If:

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

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

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

30    Section 793 of the FW Act provides, relevantly:

793    Liability of bodies corporate

Conduct of a body corporate

(1)    Any conduct engaged in on behalf of a body corporate:

(a)    by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2)    If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a)    that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b)    that the person had that state of mind.

THE PRINCIPLES

Section 340(1) of the FW Act

31    Under s 340(1) of the FW Act, a person must not take adverse action against another person because the other person, relevantly, exercised or proposes to exercise a workplace right. The applicant bears the onus of proving that:

(1)    the conduct alleged by the applicant occurred;

(2)    that conduct constitutes adverse action for the purposes of s 342(1);

(3)    the right alleged was a “workplace right”; and

(4)    the applicant had, exercised (or not exercised), or proposed to exercise (or proposed not to exercise), the workplace right.

(See Tattsbet Ltd v Morrow (2015) 233 FCR 46 at [119]; Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at [76].)

32    If s 361 of the FW Act is engaged, the onus is on the respondent to prove that the adverse action was not taken because the applicant had exercised (or did not exercise), or proposed to exercise (or proposed not to exercise), the workplace right.

Workplace rights

33    Dr Morton pleads that she exercised, or proposed to exercise, workplace rights within the meaning of that expression in s 341(1) of the FW Act. The workplace rights alleged include her right to make complaints under the Enterprise Agreement 2011-2014 (the Enterprise Agreement), to receive redundancy and redeployment benefits under the Enterprise Bargaining Agreement and to apply for and to receive benefits under the SRC Act.

34    In Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1; [2014] FCA 271, Dodds-Streeton J said at [29], in relation to a complaint:

(a)    a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;

(b)    the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;

(c)    the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;

(d)    the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);

(e)    a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;

(f)    a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and

(g)    a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.

35    Justice Dodds-Streeton added at [625], in a passage recently approved in Cigarette & Gift Warehouse v Whelan [2019] FCAFC 16 at [28]:

In my opinion, the requirement that the complaint be one that the employee is able to make in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.

36    I do not understand CSIRO to dispute that the rights pleaded by Dr Morton were workplace rights, or that Dr Morton had such rights. In some instances, however, CSIRO disputes that she in fact exercised those rights.

Adverse action

37    Under s 342(1) of the FW Act, adverse action, relevantly, consists of (a) an employer dismissing the employee; (b) injuring the employee in his or her employment; (c) altering the position of the employee to the employee’s prejudice; or (d) discriminating between the employee and other employees of the employer.

38    In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1, the High Court held at 18:

Paragraph (a) covers termination of employment; par (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.

39    In Maritime Union Authority v Geraldton Port Authority (1999) 93 FCR 34, Nicholson J held at [244] and [246] that an offer of voluntary redundancy is not a dismissal or a threat to injure an employee in his or her employment.

40    In Squires v Flight Stewards Association of Australia (1982) IR 155, the words “injure in his employment” were considered at 164:

The words injure in his employment are in the context of s.5 words of wide import. I do not regard them as referring only to financial injury or injury involving the deprivation of rights which the employee has under a contract of service. They are, in my view, applicable to any circumstance where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be seen injurious or prejudicial.

However, that expression seems to have been more narrowly construed in Patrick Stevedores.

41    In Qantas Airways Ltd v Australian Licenced Aircraft Engineers Association (2012) 202 FCR 244, the Full Court said at [32]:

The authorities thus establish that a prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or infringement of a legal right. It will occur if the alteration in the employee's position is real and substantial rather than merely possible or hypothetical.

42    In Auimatagi v Australian Building and Construction Commissioner (2018) 363 ALR 246; [2018] FCAFC 191, the Full Court held at [114] that “prejudice” is a word of wide import. The Full Court also held at [109] that prejudice is a matter of fact, and is therefore necessary to be proved.

43    I will consider the meaning of discriminate later in these reasons, in connection with s 351 of the FW Act.

44    For the purposes of this case, it is unnecessary to consider the precise distinctions between the four relevant categories of adverse action.

Adverse action taken because the person has exercised, or proposed to exercise, a workplace right

45    Section 361(1) of the FW Act provides, relevantly, that if the applicant has alleged that a person has taken action for a particular reason or with a particular intent, and taking that action for that reason or with that intent would constitute a contravention of Part 3, it is presumed that the action was taken for that reason or with that intent, unless the person proves otherwise.

46    In order to take advantage of s 361(1), an applicant must plead the relevant intention or reason and all the material facts concerning the contraventions alleged against the respondent: Australian Building and Construction Commissioner v Hall (2018) 277 IR 75; [2018] FCAFC 83 at [13]–[19].

47    In State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441; [2014] FCAFC 184, the Full Court described at [32] the principles from Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 as follows:

    The central question to be determined is one of fact. It is: Why was the adverse action taken?

    That question is to be answered having regard to all the facts established in the proceeding.

    The court is concerned to determine the actual reason or reasons which motivated the decision-maker. The court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.

    It will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.

    Even if the decision-maker gives evidence that he or she acted solely for non proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.

    If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.

48    In Hall, the Full Court held at [100]:

The orthodox approach to dealing with allegations of adverse action said to be engaged in “because” of a particular circumstance requires the party making such an allegation to establish the existence of the circumstance as an objective fact. If an applicant, on the whole of the evidence, establishes, to the Briginshaw standard, that the elements of a particular contravention (other than the reasons for the respondent taking action) exist and if the respondent wishes to avoid an adverse finding in respect of the alleged contravention the respondent will bear the onus to establish, on the balance of probabilities, that he or she had not acted for any proscribed reason. As has already been noted above, s 360 contemplates that there might be multiple reasons for a respondent taking action to the prejudice of the applicant. A reason will not be proscribed unless it is “a substantial and operative factor” in the respondents’ reasons for taking the adverse action.

(Citations omitted.)

Section 343 of the FW Act

49    Section 343(1) of the FW Act provides, relevantly, that a person must not take or threaten to take any action against another person with intent to coerce the other person to not exercise a workplace right.

50    Coercion under s 343(1) of the FW Act involves two elements:

(1)    an intention to negate choice; and

(2)    the use of unlawful, illegitimate or unconscionable means in relation to the exercise, non-exercise or proposed exercise, of a workplace right.

51    In relation to the first element, Weinberg J held in National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114 at [103]:

What is required is an intent to negate choice, and not merely an intent to influence or persuade or induce. Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.

52    Similarly, in Seven Network (Operations) Ltd v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 at [41], Merkel J said:

First it needs to be shown that it was intended that pressure be exerted which, in a practical sense will negate choice.

53    In National Tertiary Education Industry Union v Commonwealth, Weinberg J held at [97]:

The expression the intent to coerce should be construed as requiring something more than a mere inducement to comply. The term coercion connotes something akin to the use of force, or at least threat of harm to the interests of another.

54    In Esso Australia Pty Ltd v The Australian Workers’ Union (2016) 245 FCR 39, it was held at [194] that the second elementwhether the conduct is unlawful, illegitimate or unconscionable—involves an objective test.

55    In Commonwealth Bank of Australia v Finance Sector Union of Australia (2006) 154 IR 467; [2006] FCA 1048, it was held at [50] that conduct would be illegitimate if it would, strike the reasonable observer as seriously contrary to generally held notions of morality. In Kakavas v Crown Melbourne (2013) 250 CLR 392, the High Court held at [118] that there is unconscionable conduct where there is:

an unconscientious taking advantage by one party of some disabling condition or circumstance that seriously affects the ability of the other party to make a rational judgment as to his or her own best interests.

56    In Auimatagi, the Full Court held:

[157]     The notion of unconscionability, as imposing a standard of right behaviour formed around conscience, will take its content from the values and expected conduct in an industrial setting. It is a word best understood in its practical application to real life settings where there can be an articulation and expression of why, in an employment and industrial context, the pressure sought to be exerted should be ascribed such a description of departing from right behaviour.

[158]     Although illegitimacy can be seen to be a similar conception to unconscionability as a word connoting a degree of right behaviour, illegitimacy has emerged (rightly or wrongly) as its own separate category of behaviour…

[159]     The notion of proportionality has been said to inform the concept of illegitimacy, in an assessment whether there is a reasonable or justifiable connection between the nature of the demand made and the nature of the pressure exerted.

(Citations omitted.)

57    In Hall, the Full Court held at [26] that if there is a failure to plead the intent to negate choice required by the first element of coercion in s 343, the presumption under s 361 will not operate. The burden will then remain on the applicant to prove that the action was taken with the requisite intent. In that case, the Court concluded at [41] that the expression, intent to coerce, without more, was ambiguous and did not convey the particular intent required.

Section 351 of the FW Act

58    Section 351(1) of the FW Act provides that an employer must not take adverse action against a person who is an employee of the employer because of, relevantly, the person’s sex or sexual orientation. Under s 351(2)(a), 351(1) does not apply to action that is not unlawful under an applicable anti-discrimination law set out in s 351(3).

59    In Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181, O’Callaghan and Thawley JJ said:

  [114]     The general operation of s 351 can be stated in the following way.

[115]     First, putting to one side whether any of the exceptions in s 351(2) apply, the Court’s task in determining the application of s 351(1) is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason.

[116]     Secondly, where adverse action is taken as a result of a decision made by an individual within a corporation, the identification of the operative reasons for taking the adverse action turns on an inquiry into the mental processes of the relevant individual.

[117]     Thirdly, the object of that inquiry is to determine the actual reasons. These are determined from all of the facts and circumstances and inferences properly drawn from them. In light of s 361, one would ordinarily expect direct evidence from the individual responsible for the employer’s action as to their reasons for that action, which may properly include positive evidence that the action was not taken for a prohibited reason. Of course such statements must be assessed against all of the facts and circumstances

[118]     Fourthly, s 351(1) does not apply, even though it otherwise would have applied, if the relevant action falls within s 351(2)

(Citations omitted.)

60    Dr Morton submits that s 351(1) of the FW Act incorporates the anti-discrimination laws described in s 351(3), including the Sex Discrimination Act 1984 (Cth). She submits that any conduct that is sexual harassment or sex discrimination under the Sex Discrimination Act is necessarily also adverse action in contravention of s 351(1) of the FW Act.

61    The judgment of Perry J in RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424 is against that submission. In that case, Perry J held that the first instance judge erred in making a declaration that an employer had contravened s 351(1) of the FW Act by unlawfully terminating an employee’s employment in contravention of s 15(2) of the Disability Discrimination Act 1992 (Cth). Her Honour held that the primary judge had erred in several respects:

[112]    First, it is true that s 351(2) of the FW Act provides that s 351(1) does not apply to an action that is, relevantly, not unlawful under any anti-discrimination law, including the Disability Discrimination Act. However, the primary judge has effectively substituted the carve-out in s 351(2) for the test to be applied under s 351(1). However, the question under subs (1) is simply why did RailPro dismiss Mr Flavel?. Thus, if the dismissal was because of Mr Flavel’s mental disability, s 351(1) is breached unless the dismissal falls with one of the carve-outs in s 351(2)(a), s 351(2)(b) or s 351(2)(c). Save therefore where the adverse action is that defined in column 2, para (d) of Item 1 of the table in s 342(1) (ie that the employer discriminates between the employee and other employees of the employer), s 351(1) does not require that any comparison be undertaken between the treatment of the employee in question and any other employee(s). As such, s 351(1) relevantly prohibits specific conduct which the Parliament has adjudged to be discriminatory in a general sense, in contrast to s 15(2) of the Disability Discrimination Act where the comparison must still be made in the particular case in order to determine whether there has been a breach of that Act. Moreover under the Disability Discrimination Act, it suffices if an act is done for a proscribed reason even if it is not a substantial reason in contrast to the need to establish that the proscribed reason is a substantial and operative reason under the FW Act. Moreover it is sufficient under the Disability Discrimination Act if the discrimination is referrable to a perceived, as opposed to actual, disability or a disability of an associate (see disability defined in s 4(1) of the Disability Discrimination Act). That is not the case again under the FW Act.

[113]    Understood in its context, therefore, the purpose of the carve-out is simply to ensure that conduct which would not contravene the general anti-discrimination laws, including relevantly the Disability Discrimination Act, equally does not contravene the FW Act and thereby avoids a result whereby the FW Act imposed more onerous obligations upon an employer than those already imposed upon her or him under general anti-discrimination laws. It is, in other words, a limitation or a check upon the scope of the prohibition in s 351(1). In effect s 351 proscribes a subset of that which is proscribed under the Disability Discrimination Act.

[114]    The converse is not, however, true. It does not follow that conduct which contravenes the Disability Discrimination Act thereby also contravenes s 351(1) of the FW Act contrary to the assumption apparently made by the primary judge.

(Citations omitted).

62    Accordingly, Perry J held that contravention of the anti-discrimination laws described in s 351(3) does not necessarily mean that s 351(1) of the FW Act has also been contravened.

63    Dr Morton submits that in Sayed v Construction, Forestry, Mining and Energy Union (2015) 149 ALD 88; [2015] FCA 27, Mortimer J decided at [161] that, to contravene anti-discrimination law would also contravene s 351(1) as adverse action. CSIRO supports Dr Morton’s submission, asserting that Mortimer J held that s 351(1), incorporated the discrimination legislation, so that an employer contravening an anti-discrimination law would also engage in adverse action on the basis of discrimination. CSIRO then goes on to submit that Mortimer J’s approach was wrong.

64    In my opinion, the submissions of both Dr Morton and CSIRO misunderstand what Mortimer J held in Sayed at [161]. It is necessary to begin by considering the arguments raised before her Honour:

[154]    The respondent contended discriminates should be given the meaning which is attributed to it in anti-discrimination statutesnamely, less favourable treatment…

[155]    The respondent’s submissions did not grapple with indirect discrimination and how this would be encapsulated, given the rather tortured statutory definitions of that term

[156]    The respondent contends that the approach taken by Katzmann J in Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [40] supports its submission

[157]    In Pilbara Iron, Katzmann J observed (at [40]) that Item 1(d) speaks of discrimination occurring between employees and not against an employee, but concludes that, especially given the presence in Item 2 of the word against, there is no material difference. In the matter before her Honour, both parties accepted that discriminate should be construed as treat less favourably, so that her Honour did not have to decide this question. In contrast, the parties in this proceeding contended for different constructions…

[158]    The applicant submits discriminates in Item 1(d) should simply be construed as treating people differently. In this way, the attributes set out in s 351 then prohibit such different treatment by reference to a consideration irrelevant to the performance of an employee’s work…

[160]    I accept the applicant’s submission as a matter of construction in relation to Item 1(d)In my opinion, the language in Item 1(d), and its use of the word between, suggests the conduct which is to be examined is the way in which the employer targets the particular employee. Is that employee treated differently from other employees? By s 351, the irrelevant reasons for the different treatment…are then specified. The inquiry is thus a straightforward one, to that point, and does look only for differential treatment, as the applicant submits.

[161]    However, the terms of s 351(2), read with subs (3), then must be applied. Those provisions expressly pick up the detailed regimes of each of the territory, state and federal anti-discrimination statutes. In other words, the requirements that there be less favourable treatment, the complicated requirements for indirect discrimination, and the exceptions for which each statute provides are, through these provisions, incorporated so as to limit the protections given by Div 5 of Part 3-1 of the Fair Work Act in a way which is intended to mirror the limits under those other legislative schemes. When read as a whole, s 351 and s 342(1) Item 1(d) will operate to render only conduct proscribed under other anti-discrimination regimes as conduct contravening s 351. That, in substance, is the outcome for which the respondent contended, although not because of the meaning of discriminates in Item 1(d) of s 342(1), but rather at the subsequent step of the application of the prohibition in s 351.

65    It may be seen that Mortimer J was concerned with a narrow issuethe meaning of the phrase, discriminate between the employee and other employees of the employer, in Item 1(d) of the Table in s 342(1) of the FW Act. Her Honour held that the phrase does not itself require less favourable treatment of an employee. However, her Honour held that the effect of s 351(2) and (3) is that, unless the treatment of the relevant employee is less favourable, s 351(1) will not apply. That is because the employer’s action will not be unlawful under any anti-discrimination law unless it is less favourable treatment.

66    It may be observed that while the “adverse action” proscribed under s 351 is not confined to discrimination, the passage at [161] of Sayed was concerned only with the discrimination category of adverse action. Justice Mortimer held that ss 351(2) and (3) of the FW Act pick up the provisions of the anti-discrimination laws that operate to make actions not unlawful. Her Honour did not hold that s 351(1) picks up and incorporates provisions of the anti-discrimination laws that make actions unlawful.

67    Although Dr Morton and CSIRO submit that there is tension between the views of Perry J in RailPro and Mortimer J in Sayed, I can see no such tension. In RailPro, Perry J held that s 351(1) did not pick up and apply the offence provisions of the anti-discrimination legislation. That issue was not the subject of consideration in Sayed.

68    I reject the submission that s 351(1) of the FW Act operates to pick up the provisions of the Sex Discrimination Act that make certain actions unlawful, including the vicarious liability provisions. That would be an unlikely construction of s 351(1) when it makes no reference to the Sex Discrimination Act. That may be contrasted with ss 351(2) and (3), which expressly exclude the operation of s 351(1) where the relevant action is not unlawful under a relevant anti-discrimination law. There would be other difficulties with such an approach, including how to reconcile the vicarious liability provision in s 106 of the Sex Discrimination Act with s 793 of the FW Act. Further, if all s 351 did was mirror the anti-discrimination laws the provision refers to, there would be no need for s 351 at all. I also respectfully adopt the analysis of Perry J in RailPro Services.

69    In my opinion, s 351(1) of the FW Act stands independently from the anti-discrimination laws referred to in s 351(3). Therefore, conduct may contravene s 351(1) whether or not it conforms to the definitions of “sexual harassment” and “sex discrimination” under the Sex Discrimination Act. Further, s 351(1) does not pick up the vicarious liability provision in s 106 of the Sex Discrimination Act. However, under ss 351(2) and (3), the employer receives the benefits of any defences, exceptions or exemptions under the Sex Discrimination Act.

70    There is tension between the views expressed about the meaning of the phrase “discriminate between” in Item 1(d) in Sayed and in Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697. In Sayed, Mortimer J held at [158] that “discriminate between” in Item 1(d) should be construed as “treating people differently”. In contrast, in Pilbara Iron, Katzmann J accepted at [40][41] that “discriminate between” should be construed as “discriminate against”, and means treat less favourably”.

71    I prefer the construction given in Pilbara Iron. It is true that the phrase “discriminate between the employee and other employees” is used in Item 1(d) of the Table in s 342(1) of the FW Act, in contrast to phrases like discriminates against the employee” in Item 2(b) and 4(b) of the Table and ss 153, 195 and 354 of the FW Act. However, taking the opening words of s 342(1) into account, the provision reads, relevantly, that,a person takes adverse action against another person…ifthe employer…discriminates between the employee and other employees of the employer”. The phrase, read as a whole, suggests that it refers to conduct which discriminates against one employee (or a group of employees). That Item 1(d) of the Table in s 342(1) of the FW Act does not merely refer to different treatment, including favourable treatment, conforms to the other types of adverse action specified in the Table, each of which involves unfavourable treatment of an employee.

72    In addition, while it was held in Sayed that the concept of less favourable treatment is imported by the anti-discrimination laws described in s 351(3), the word “discriminate” in Item 1(d) applies also to other provisions, namely ss 340 and 346, which adopt the definition of “adverse action”. But the anti-discrimination laws are only picked up by s 351, not the other provisions. The protective purposes of ss 340 and 346 indicate that they are only concerned, relevantly, with less favourable treatment of an employee or group of employees. Accordingly, Item 1(d) requires less favourable treatment of an employee (or a group of employees) in comparison to other employees of the employer.

Section 793 of the FW Act and vicarious liability

73    Dr Morton relies upon s 793 of the FW Act and common law principles of vicarious liability to establish that CSIRO is liable for the alleged contraventions of s 351(1) of the FW Act by CSIRO through the conduct of Dr Glencross, Dr Preston and Dr Cook. CSIRO contends that CSIRO is not liable for any acts committed by its employees in the nature of sexual harassment or sex discrimination. Dr Morton also relies upon s 793 of the FW Act in respect of the other forms of adverse action and coercive action she alleges, but that is less controversial.

74    Under s 8(2) of the Science and Industry Research Act 1949 (Cth), CSIRO is a body corporate. The further amended statement of claim alleges, and the amended defence admits, that CSIRO is a national system employer. Although not expressly pleaded, it is implicit in the admission of that allegation that CSIRO employed Dr Morton and the persons of whose conduct she complains.

75    CSIRO argues that Dr Morton cannot rely upon s 793 of the FW Act as she has not pleaded the section. However, r 16.02(3) of the Federal Court Rules 2011 (Cth) allows, but does not require, a pleading to raise a point of law. What is required under r 16.02(1)(d) is the pleading of material facts. While the further amended statement of claim fails to expressly plead the material facts required to engage s 793, the parties have, as I have said, conducted the proceeding on the basis that CSIRO employed the persons against whom Dr Morton’s allegations are made. She has only sued CSIRO. Accordingly, she must be relying, implicitly, upon principles of vicarious liability. This is one of a number of deficiencies in the further amended statement of claim. However, CSIRO did not take issue with the pleading prior to its closing address, and I do not think that it can claim to be taken by surprise by Dr Morton’s reliance on s 793. She should not be prevented from relying upon that provision.

76    CSIRO conceded that common law principles of vicarious liability for a tort committed by an employee apply to the liability of an employer for contraventions of the FW Act by its employees. It is not obvious that the concession was correctly made. In Australian Building and Construction Commissioner v Upton (The Gorgon Construction Case) (2017) 270 IR 190; [2017] FCA 847, Barker J considered the issue but, at [224], expressly refrained from deciding it. It is unnecessary to decide the issue in the circumstances of this case. In the absence of reference to any other authority or argument, I will proceed upon an assumption that the concession was correctly made.

77    At common law, an employer is vicariously liable to third parties for tortious acts of the employee which are impliedly authorised; that is, acts committed while the employee is acting within the scope of his or her authority and performing the employment duties or acts incidental to the performance of those duties: see Halsbury’s Laws of Australia at [165–1045]. In New South Wales v Lepore (2003) 212 CLR 511, Gleeson CJ noted at [42] that Salmond JW, Law of Torts, (Stevens and Haynes, 1907) at p 83 it is stated that, “an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes—although improper modes—of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act”. Provided that there is necessary connection with the employment, an employer may be liable even if there has been an express prohibition against the wrongful conduct: see Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at [99], per McHugh J.

78    However, difficulties arise when considering whether an employee is liable for an intentional wrong perpetrated by an employee. In Prince Alfred College Inc v ADC (2016) 258 CLR 134, a case dealing with sexual abuse, the High Court said:

[80]    In cases of the kind here in question, the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability. As Lloyd shows, it is possible for a criminal offence to be an act for which the apparent performance of employment provides the occasion. Conversely, the fact that employment affords an opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability. As Deatons demonstrates, depending on the circumstances, a wrongful act for which employment provides an opportunity may yet be entirely unconnected with the employment. Even so, as Gleeson CJ identified in Lepore and the Canadian cases show, the role given to the employee and the nature of the employee’s responsibilities may justify the conclusion that the employment not only provided an opportunity but also was the occasion for the commission of the wrongful act. By way of example, it may be sufficient to hold an employer vicariously liable for a criminal act committed by an employee where, in the commission of that act, the employee used or took advantage of the position in which the employment placed the employee vis-à-vis the victim.

[81]    Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the occasion for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.

79    I have already held that s 351(1) of the FW Act does not incorporate the provisions of the Sex Discrimination Act that make sexual harassment and sex discrimination unlawful. On that basis, the vicarious liability provision in s 106 of the Sex Discrimination Act has no application in the present case.

Section 140 of the Evidence Act 1995 (Cth)

80    Section 140 of the Evidence Act provides:

(1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)    the nature of the cause of action or defence; and

(b)    the nature of the subject matter of the proceeding; and

(c)    the gravity of the matters alleged.

81    In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [31], the Full Court held that Dixon J’s discussion in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361363 of the operation of the civil standard of proof appositely expresses the considerations which s 140(2) of the Evidence Act require a Court to take into account. The considerations include that ss 340(1), 343(1) and 351(1) are civil remedy provisions, contravention of which exposes CSIRO to pecuniary penalties.

The evidence

82    The trial was conducted over 19 days from 8 October to 2 November 2018. A total of 32 witnesses gave evidence orally. Three other witnesses gave their evidence by affidavit and were not required for cross-examination.

83    The evidence of some of the witnesses was lengthy. In particular, Dr Morton gave evidence over seven days. There was a great deal of evidence and cross-examination of witnesses about allegations ultimately deleted from the amended statement of claim. This was not objected to, presumably because it was thought to be relevant by way of background, or to credit. However, it substantially lengthened the evidence.

84    In view of the number of witnesses called and the length of their evidence, I propose to summarise the evidence in an Appendix to these reasons, rather than in the body of these reasons. The Appendix should be read as part of these reasons.

ASSESSMENT OF THE WITNESSES

85    It is necessary to make an assessment of the credibility and reliability of the evidence given by the witnesses.

Assessment of Dr Mortons evidence

86    The credibility and reliability of Dr Mortons evidence is central to several, although not all, of the allegations she has made. I conclude that, except to the extent that it is adequately corroborated, her evidence is not credible or reliable.

87    My reasons for this conclusion may be divided into four interrelated categories. They are:

(1)    discrepancies between Dr Mortons reporting of her level of psychiatric functioning and her presentation in the witness box;

(2)    discrepancies between Dr Mortons reporting of her level of psychiatric functioning and the level revealed through other sources (such as social media and text messages);

(3)    Dr Morton’s failure to make timely complaints about the sexual harassment and sex discrimination allegedly perpetrated Dr Glencross, Dr Preston and Dr Cook;

(4)    various other discrepancies, implausibilities and inconsistencies in Dr Morton’s evidence; and

(5)    inconsistencies between Dr Mortons evidence and that of other witnesses whose evidence I consider credible and reliable.

88    I will address the first four of these categories at this stage.

Discrepancies between Dr Mortons reporting of her level of functioning and her presentation in the witness box

89    A striking feature of Dr Mortons evidence was the marked difference between her presentation while giving evidence and the presentation of her symptoms and level of functioning to examining psychiatrists.

90    Dr Morton gave her evidence-in-chief over three days and was cross-examined for a further four days. She appeared to have no difficulty understanding the questions she was asked. Her answers were generally responsive, except on some occasions when she appeared to be deliberately unresponsive. She spoke eloquently and remained composed. To my observation, she rarely hesitated before giving her answers, even under cross-examination. It was evident that her mind was sharp and adroit.

91    Dr Mortons concentration was remarkable. It did not flag, even towards the end of long days of giving evidence. She was taken to many emails, text messages and other documents, which she was able to read and understand, even under the pressure of being in the witness box, without apparent difficulty. Her command and knowledge of the documents in the case was impressive.

92    Dr Morton appeared to have an excellent memory of the fine details of the various allegations she made and the events that occurred. She exhibited considerable knowledge and recollection of the details of relevant CSIRO policies and industrial instruments, her leave entitlements and their interaction with her Comcare entitlements. Under cross-examination, she was readily able to give explanations of events and communications dating back to 2012. She often professed to be able to remember exactly what she was thinking or feeling at the relevant times and could recall the detail of conversations that occurred throughout the period of her employment since 2012. There were few occasions when Dr Morton claimed to be unable to remember an event or communication.

93    In terms of her concentration, memory, organisation of thought and adroitness in answering questions, I consider Dr Morton to be an impressive witness. But that is not to say that I found her a credible or reliable witness.

94    There was marked discrepancy between Dr Mortons performance as a witness and the symptoms she reported to psychiatrists, Dr Rees and Dr Mathew.

95    Dr Rees diagnosed Dr Morton with Major Depressive Disorder, which commenced in 2012. Dr Rees last examined her on 13 July 2018. There was no suggestion from Dr Morton that her condition had changed by the time the trial commenced about 2½ months later.

96    Dr Rees consistently reported Dr Morton as having complained of poor concentration, poor memory, reduced motivation, lethargy and difficulties with organisation. In his report of 1 August 2018, Dr Rees described his interview with Dr Morton before addressing some specific questions:

This most recent interview was consistent with previous interviews with Dr Morton. Her speech was slow and halting and her affect flat…Her speech was rambling and circumstantial. It was difficult to keep her to the subject at hand. She tended to either over elaborate or go off on a tangent.

In general, she was able to address my questions with appropriate answers but on many occasions, she continued to answer previous questions or provide remembered fragments of answers to previous questionsBy this, I mean that her answers are sometimes off topic and may relate to previous discussions. It represents a sticky adherence to topic and an unwillingness to move onto [other] materials.

There was no evidence of any psychotic thought content and although her replies were rambling and at times difficult to follow, there was no formal thought disorder. …

She described ongoing memory difficulties and these were apparent when asking her to recall previous content of our discussions. As noted, her intelligence is high and her insight regarding her situation appeared within normal limits.

… Certainly, inattention is a frequent problem in my consultations with Dr Katherine Morton and leads to them being longer and less productive than would be the case for an ordinary person of Dr Mortons intelligence.

Additionally, her personality type is markedly obsessional and tends to mean that she will become quite unwilling to move onto a new question or new content if she has not given what she would consider an adequate elaboration of previous answers…It also means that Dr Morton has difficulty focusing on the next question in any given interview. Dr Morton tends to be over inclusive when she eventually latches on to a topic and her answers are over elaborated and then tend to veer off to irrelevant or unnecessary content involving other areas.

In my opinion, the difficulties of interviewing Dr Morton are largely because of her inattention as a result of her personality style, memory difficulties and anxiety.

97    Dr Morton told Dr Mathew that her memory was not very good. She reported difficulties with her concentration, saying she was not reading books because of this and could not focus through a movie. She told Dr Mathew that her energy and self-care were poor and that sometimes she failed to shower for several weeks at a time.

98    In the witness box, Dr Morton exhibited no problems with concentration, memory, inattention, difficulty with organisation of thought, rambling speech, unwillingness to move on from a topic, continuing to answer previous questions, providing remembered fragments of answers to previous questions, over-elaboration or veering off to irrelevant or unnecessary content. If these were genuine problems, at least some of them are likely to have become apparent over the seven days over which Dr Morton gave evidence.

99    In my opinion, the excellent concentration, memory, organisation and quickness of mind demonstrated by Dr Morton in the witness box are so inconsistent with her reporting of her disabilities, that I must conclude that she engaged in substantial exaggeration when presenting her symptoms to her psychiatrists.

Discrepancies between Dr Mortons reporting of her level of functioning and the level of revealed through other sources

100    In addition to the symptoms described above, Dr Rees recorded Dr Morton as reporting she suffered from lethargy and loss of pleasure in activities she had previously found pleasurable. She told Dr Rees she had panic attacks, which tended to be related to apprehension regarding any activity that might take her outside of her property in rural Tasmania. Dr Rees also diagnosed her with Agoraphobia, the onset of which was about November 2016.

101    Dr Mathew recorded the symptoms reported by Dr Morton as including no longer enjoying activities such as baking, shopping, walking and catching up with friends. She said she had stopped most of these activities. She told Dr Mathew that she did not go out except for doctors’ appointment or groceries.

102    However, the evidence reveals that Dr Morton has engaged in a number of activities over the years that are inconsistent with the symptoms she reported to the psychiatrists.

103    In the first half of 2015, Dr Morton was still working at CSIRO as a scientist, although she had some time off work with various medical problems. Her Facebook posts show that she went on a holiday to Tasmania, sold numerous personal items on eBay, socialised and would go for long walks. She commenced a Masters of Business Administration (MBA) at the University of Queensland. In my opinion, Dr Morton attempted to play down the idea that the MBA course involved any difficulty. However, it is apparent that she, at least, had to regularly attend classes, read articles or chapters of text books, complete group and individual assignments and undertake examinations. She achieved a grade point average of 6.5 (from a maximum of 7) for Semester One 2015. She completed the course in the Semester Two of 2016.

104    Dr Morton did not tell Dr Matthew about her enrolment in the MBA. Dr Matthew indicated that if she had received special awards given by the Dean for high performance, he would need to re-evaluate his assessment of her functioning. Dr Rees at first said that he would not expect a person with Major Depressive Disorder to successfully complete an MBA, although he later said that submitting university assignments and organising papers would not be completely inconsistent with that condition. In my opinion, the ability of Dr Morton to undertake and complete the subjects required to obtain her MBA, let alone achieve her outstanding results, are inconsistent with the symptoms she reported to the psychiatrists, such poor concentration, memory and organisation, and lethargy.

105    On 6 July 2015, Dr Morton ceased work under a certificate from Dr Rees for three months off. However, she continued her MBA studies. Her Facebook posts show that during this time she was enjoying socialising and was still selling items on eBay. She received a Deans commendation for academic excellence, attaining a grade point average of 6.6 for Semester Two 2015. Dr Morton went on a holiday to Hawaii, where she reported on Facebook she was, having an awesome time.

106    In 2016, Dr Morton was posting on Facebook about going on long walks. She was on a panel of speakers at a women’s conference. She posted that she was celebrating finishing her eleventh MBA subject, receiving a redundancy and having a four month break until her next subject. I do not accept Mr Crofts evidence that they were not in fact celebrating. She also posted that she was celebrating her university marks and was baking. She attained a grade point average of 7.0 for her MBA in her third semester and 6 for her fourth and final semester. She completed her MBA with an overall GPA of 6.67 and received a 2016 Academic Excellence Award. She posted that she was going to the MBA Awards Dinner. She attended her graduation ceremony and posted a photograph of herself at the ceremony on Facebook.

107    In 2017, Dr Morton went on a cruise for 10 days to the South Pacific. The ship had several thousand people aboard. She claimed that she spent the majority of her time in her cabin and did not spend a lot of time socialising on the ship. Those claims must involve a concession that she at least spent some of her time out of the cabin and socialising. Her Facebook posts show that she was waiting for a bar at the quayside to open before boarding the ship and that, at the end of the cruise, she had attended the Sydney CBD sales and was in a bar at the airport in Sydney. I do not accept Dr Morton’s evidence that she had walked through the Sydney CBD at 5.30 am and that her reference to the CBD sales was a joke about the fact that nothing was open early in the morning. The content of the post does not support it being just a joke, and I formed the impression that she was simply making this part of her evidence up. The activities in Dr Morton’s posts are inconsistent with someone having panic attacks associated with leaving their property.

108    In 2017, Dr Morton travelled from Tasmania to Brisbane for a wedding. She denied that, as maid of honour, she had a central role in the wedding. That denial does not appear realistic. In my opinion, her willingness to attend the wedding (even of a close friend) is inconsistent with her reporting of panic attacks associated with leaving her property.

109    In 2017, Dr Morton appears to have been operating her rural property in Tasmania as a commercial venture, at least to the extent that it was purchased with a negatively geared loan. She was earning some income by selling and agisting sheep, although I accept that this was on a small scale. She had a financial advisor register a company to operate the business. Dr Morton purchased an investment property and engaged a project manager to look after repairs to the property. She had a list of things to do on her property, such as spraying thistles.

110    In 2017, Dr Morton posted on Facebook about a spot of light weekend reading, with a photograph of three books. While she denied reading two of the books, including one about animal nutrition, I do not accept her evidence. Rather, the post was consistent with her reading at least part of the books. At about that time, she was looking after sheep, demonstrated by another post where she talked about picking up a book about injuries to sheep. She admitted reading the third book, The Barefoot Investor, over a period of time, although she downplayed the amount of text involved.

111    Dr Morton posted on 26 September 2017, and I read a review of the SRC Act by QC Harding, interesting.. Under cross-examination, she admitted that she had read a section of the review, concerning superannuation.

112    In her Facebook post of 3 February 2017, Dr Morton referred to buying a container, packing 70 boxes, making appointments, doing the washing, catching up with friends and cooking. She concluded, Maybe I really am a superwoman. On 7 February 2017 she posted about getting 91 boxes packed and stacked. She was also looking at listings for property investments.

113    In 2018, Dr Morton was pondering the jobs market in or around Launceston for professionals. Whilst she denied that she was surveying the job market herself, her post at least demonstrated that she was interested in the job market. She posted on 1 May 2018 about scanning legal documents and her interest in topics such as human follicle populations in relation to age, genetic and environmental factors. She posted about retrieving an egg from under the roof of her hay shed, tracking down missing parcels and syringing electrolytes into lambs mouths, as well as going for a walk. She also accepted that she had to scan a lot of documents for the preparation of her case.

114    Further, in 2018, Dr Morton had the initiative and energy to launch a Facebook page called, The Sexually Assaulted Scientist.

115    In my opinion, many of the activities that Dr Morton engaged in from 2015 onwards are inconsistent with the symptoms she was reporting to psychiatrists. She demonstrated an ability to undertake an MBA and achieve excellent results, as well as reading other complex materials, such as part of a report on the SRC Act. She was interested in business and investment matters, as well as the care of animals at her property. She exercised and baked. She celebrated her achievements and milestones. She had the organisational skills and energy to sell items on eBay and to pack numerous boxes. She was able to earn some income from agisting and selling sheep, and able to purchase an investment property and organise to have it renovated. She holidayed in Tasmania, Hawaii and took a ten day cruise in the South Pacific. She travelled to Brisbane for a wedding, at which she was the maid of honour. These are just some of her activities which, I consider, are inconsistent with the reporting of her symptoms to psychiatrists.

116    In reaching the conclusion that many of Dr Mortons activities since 2015 are inconsistent with the symptoms that she reported, I have taken into account the possibility that doing a particular activity on an occasional good day may not represent the usual course of her condition. However, in my opinion, the overall pattern and frequency of the activities reported on her Facebook posts is inconsistent with any substantial loss of concentration, memory, organisation, lethargy, or interest in previously pleasurable activities, and the onset of panic attacks when leaving her property. Again, I am forced to the conclusion that Dr Morton substantially exaggerated in the reporting of her symptoms to the psychiatrists.

Dr Morton’s failure to make timely complaints about Dr Glencross, Dr Preston and Dr Cook

117    Another area of concern about the credibility of Dr Mortons evidence is her failure to complain about the alleged sexual harassment and sex discrimination until years afterwards. In contrast, she had no hesitation in making complaints about Dr Glencross managerial style and decisions within a few months after she commenced work at CSIRO. The fact that her complaints of sexual harassment and sex discrimination were not raised earlier suggests that they have been recently fabricated.

118    There are eleven incidents of sexual harassment or sex discrimination alleged by Dr Morton in her further amended statement of claim. She alleges that Dr Glencross perpetrated five of these events between April and October 2012, namely: asking what her sexual preference was; referring to her as a prostitute; commenting about her crows-feet; slapping her on the backside with a riding crop; and commenting about her cleavage. There is also a further allegation, related to the riding crop incident, that Dr Morton had corrected Dr Glencross about a comment he made about the sexual practices of dominatrixes on 15 October 2012.

119    In respect of Dr Preston, one allegation is pleaded: that, in May 2012, he called Dr Morton a hussy.

120    There are five allegations pleaded against Dr Cook, between August 2012 and December 2014. It is alleged that he: told her that Dr Preston had a nickname for her of dizzy blonde; sent Dr Morton a picture of a scantily dressed woman; sent a picture of a half-naked man and a woman; discussed, in a sexualised way, the potential candidates for a position; and said, Take a blonde to Tasmania, dress her up and double your money.

121    The first time Dr Morton made any of these allegations in writing was in an email to Dr Preston on 25 October 2014, where she referred to unacceptable behaviours such as being slapped on the bottom with a riding crop and the cleavage comment.

122    Dr Cook agreed that Dr Morton had verbally mentioned the riding crop incident and cleavage comment in October 2012 and a version of the prostitute comment in April 2012. I accept Dr Cook’s evidence that in respect of the riding crop allegation, Dr Morton specifically said that she did not want any action to be taken. Dr Morton alleges that she raised these matters as complaints and expected Dr Cook to take action against Dr Glencross. But, if so, she is likely to have followed up her complaints in writing, bearing in mind that she was a prolific user of emails and text messages. There were no such emails or text messages. That Dr Morton had not made any complaints to Dr Cook about the riding crop incident and the cleavage comment was confirmed in her email of 25 October 2014 to Dr Preston, where she stated, While these behaviours are clearly unacceptable I chose not to pursue them any further at that time. Accordingly, Dr Morton confirmed that she had not made complaints about these matters and, implicitly, had not made complaints about any like behaviour. I accept Dr Cook’s evidence that Dr Morton mentioned the riding crop, cleavage and prostitute comments in passing and did not raise them as complaints.

123    Dr Morton made complaints about Dr Glencross and Dr Preston verbally on 6 November 2014 and then in an email of 28 November 2014. On 16 January 2015, Dr Morton submitted a formal document setting out her complaints (Grievance Document). It was lengthy and detailed, consisting of 26 pages and about 40 attachments. Within that document Dr Morton made, with considerable particularity, a number of complaints about Dr Glencross management style and his general behaviour towards her. However, the only complaints of sexual harassment or sex discrimination she raised against him were the riding crop incident and the cleavage comment. Dr Morton did not include allegations that Dr Glencross made the sexual preference, crows-feet and prostitute comments. The first time the first two of those allegations were raised was in her amended statement of claim filed on 6 March 2018.

124    Further, in her Grievance Document, Dr Morton did not make any allegations of sex discrimination or sexual harassment against Dr Preston. Dr Morton had said in an email to Dr Cook on 30 October 2012, Oh, and the Pres, said Ian is a gazzillionairre right before he called me a hussy. Mr Croft also mentioned in an email of 8 November 2015, that Dr Preston had called Dr Morton a hussy. Apart from those comments, nothing that could be construed as an allegation of sex discrimination or sexual harassment against Dr Preston was raised by Dr Morton until the amended statement of claim was filed.

125    In my opinion, if the sexual preference, the dominatrix, the prostitute and the crows-feet comments had been made by then, they are likely to have been mentioned by Dr Morton in the Grievance Document. Similarly, if Dr Preston had made the hussy comment, that is likely to have been included in the Grievance Document. Further, if the taking a blonde to Tasmania comment had been made by Dr Cook or if Dr Morton was offended by any of the emails he sent, that is likely to have been included in the Grievance Document.

126    Dr Mortons explanation for not including these comments in the Grievance Document is that her memory was poor. She told Ms Sturton in an email of 12 November 2014, that her memory was poor. However, Dr Morton took her time to compile the Grievance Document, submitting it over two months after she verbally raised her grievance in November 2014. She had no apparent difficulty in remembering her detailed allegations about Dr Glencross’ management style and decisions when she lodged the Grievance Document. She apparently had no difficulty remembering various allegations of sexual harassment and sex discrimination when she gave evidence, more than three years after the Grievance Document was submitted. In addition, as I have said, she considerably exaggerated her memory problems when reporting them to her psychiatrists. I do not accept that her memory could have been so poor that she would not have remembered these comments and would not have included them in the Grievance Document if they had occurred and she found them offensive.

127    Dr Morton claims she had told Mr Croft about each of the incidents. If she had told him, then, between them, they are likely to have ensured that they were all included in the Grievance Document. Mr Croft claims that he only proofread the Grievance Document, and did not assist Dr Morton with the content of the document. This is inconsistent with Dr Mortons evidence. I do not accept that aspect of Mr Crofts evidence, for reasons I will explain later.

128    In my opinion, the absence from the Grievance Document of three of the allegations now made against Dr Glencross, any allegations of sexual harassment or sex discrimination against Dr Preston, and any allegations at all about Dr Cook is quite inconsistent with Dr Morton’s allegations being true. I consider that if the comments Dr Morton now complains of had been made and had offended her, she would have included them in the Grievance Document.

129    In addition, Dr Morton consulted a psychologist, Ms Pavlov, between at least 30 April and 7 September 2013. Ms Pavlovs notes are in evidence. They demonstrate that Dr Morton made a number of complaints about the stress involved in her work, her work hours, workload, and issues with her boss (such as changing his mind, not communicating effectively, overwhelming her with tasks and not replying to emails or having regular meetings). However, Ms Pavlov’s notes do not refer to any behaviour by Dr Glencross of a sexual nature, and Dr Morton accepted in cross-examination that she did not raise these matters with Ms Pavlov. Dr Morton claims that she was shocked, embarrassed and humiliated by the incidents of sexual harassment or sex discrimination perpetrated by Dr Glencross. If that were the case, she is likely to have told Ms Pavlov about these incidents. She certainly had no hesitation in telling Ms Pavlov about other aspects of Dr Glencross conduct.

130    Similarly, Dr Morton consulted another psychologist, Dr Van Vuuren, between November 2014 and May 2015. Dr Morton did not raise any issue of a sexual nature as being a source of her stress or anxiety. Her explanation that she did not raise such matters because she was seeing Dr Van Vuuren for food issues and was seeing another psychologist, Dr Hand, primarily for her work issues, is implausible. Dr Morton had four sessions with Dr Van Vuuren before consulting Dr Hand. If Dr Morton had experienced the sexual harassment or sex discrimination she now claims caused her distress, it is improbable that she would not have mentioned that to Dr Van Vuuren.

131    Dr Morton gave evidence that she “mentioned and raised specifically the sexual issues” with Dr Hand. However, Dr Hand was not called to give evidence. I am unwilling to accept Dr Morton’s uncorroborated evidence that she raised such issues with Dr Hand.

132    Dr Morton commenced consulting a general practitioner, Dr Tucker, on 30 March 2013 about issues she was having with anxiety. When it was put to her that she had never raised with Dr Tucker that she had been sexually assaulted, she answered, Not specifically. No.. It is improbable that she would not have told Dr Tucker of the riding crop incident if, as she now claims, she regarded it as sexual assault.

133    Dr Morton filed a claim with the Fair Work Commission on 1 December 2016, and an amended claim on 29 March 2017. This claim did not raise any allegations against Dr Preston or Dr Cook. Dr Morton has not provided any plausible explanation for failing to raise the allegations until the amended statement was filed on 6 March 2018.

134    I do not accept Dr Mortons explanation for why she waited until her email to Dr Preston of 25 October 2014 to raise any complaints of sexual harassment. She said she had considered making a complaint in 2012, but, at that stage, was relatively new to the organisation and was on probation. She said she was primarily concerned with the damage that making a formal complaint would do to her career. Dr Mortons explanation is inconsistent with the fact that she had already been making complaints about Dr Glencross. She had started complaining about Dr Glencross shortcomings as a manager to Ms Carroll in about April or May 2012. She also complained in 2012 about Dr Glencross to Mr Brewer, and together they complained to Dr Worby in 2013. She complained about Dr Glencross to Dr Barron in 2013. She also complained about Dr Glencross at the role clarification meeting in February 2014.

135    I consider that it is now well understood that many women who are subjected to sexual harassment or sex discrimination in the workplace are reluctant to complain for fear that their careers may be damaged. However, Dr Morton was not reticent in making complaints about Dr Glencross behaviour and management style to a number of people within CSIRO, both senior and junior, starting several months after commencing at CSIRO. If, as she claims, Dr Glencross sexually assaulted and harassed her, it is quite improbable that she would not have also complained of that behaviour.

136    In her evidence, Dr Morton did not claim that she told Mr Brewer, Dr Glencross line manager and research group leader, about the sexual preference and cleavage comments. This contrasts with her further amended statement of claim, where she alleges she told him about the riding crop incident and the cleavage comment. Mr Brewer denied that Dr Morton raised any matters of a sexual nature with him. I accept his evidence.

137    Dr Morton alleged she told Dr Worby of each of the allegations she made against Dr Glencross. However, Dr Worby denied that any matters of a sexual nature were raised by Dr Morton. I accept his evidence.

138    Dr Morton gave evidence that she would have mentioned the cleavage comment to Ms Carroll. However, in cross-examination, Dr Morton conceded that when she met Ms Carroll in October 2014, she did not raise any allegations of a sexual nature against Dr Glencross. Ms Carroll denied that Dr Morton had told her that she had been subjected to the sexual harassment or sex discrimination she now alleges. I accept Ms Carrolls evidence.

139    Dr Morton claimed to have told Dr Barron about the cleavage comment, but could not recall whether she told her about the riding crop incident. This contrasts with the allegation in the further amended statement of claim, which alleges that Dr Morton told Dr Barron of each of the incidents she pleads against Dr Glencross. Dr Barron no longer works at CSIRO and was unable to be located by CSIROs lawyers. She did not give evidence. In cross-examination, Dr Morton agreed that she sent an email to Dr Cook on 3 December 2013 describing an interesting conversation she had with Dr Barron about Dr Glencross, but making no reference to any complaint about conduct of a sexual nature. If Dr Morton had complained about the cleavage comment to Dr Barron, she is likely to have at least mentioned Dr Barrons response in her email to Dr Cook. In view of the many other difficulties I have in accepting the credibility of Dr Mortons evidence where it is uncorroborated, I do not accept that she made any complaint of sexual harassment to Dr Barron.

140    Dr Cook accepted that Dr Morton had mentioned a version of the prostitute comment in May 2012, and the riding crop incident and the cleavage comment in October 2012, although as passing comments, rather than complaints. Dr Cook denied that Dr Morton told him about the sexual preference comment, the crows-feet comment or the dominatrix comment allegedly made on 15 October 2012. If those comments had been made, it is highly likely that she would have told Dr Cook about them. I accept Dr Cooks evidence that she did not.

141    Dr Cook and Dr Morton were clearly on very friendly terms while she was working at CSIRO. This is demonstrated by their many texts and emails bantering about coffee, alcohol, food and gossip about their colleagues. An example of their banter is that while Dr Morton was at dinner at the Norman Hotel on 15 October 2012, she provided a running commentary, by text message, to Dr Cook, about the conversation she was having with Dr Glencross and Dr Wade. If something as salacious as the dominatrix comment had been said at the dinner by Dr Glencross, it is probable that she would have immediately texted Dr Cook about it. There was no such text. Dr Mortons explanation that her phone may have run out of battery by that time, or that she may have told Dr Cook verbally about the comment, is implausible. Dr Cook denied that she told him of the comment, and I accept that evidence.

142    Dr Morton was also friendly with Mr Blyth, and they frequently exchanged test messages. Dr Morton accepted that she did not mention to him that anything of a sexual nature had occurred during her employment. Dr Morton said that was because Mr Blyth was a junior member of staff who would have no power to do anything about it. I do not accept that explanation. Mr Blyth gave evidence that Dr Morton had discussed issues concerning Dr Glencross management style with him. If she had any concerns about sexual harassment or sex discrimination by Dr Glencross, she is likely to have at least mentioned those matters to Mr Blyth.

143    Dr Morton had many opportunities to make complaints—to her colleagues, her psychologists and her doctorabout the sexual harassment or sex discrimination allegedly perpetrated by Dr Glencross, Dr Preston and Dr Cook. That she failed to raise any complaint about Dr Glencross prior to her email of 25 October 2014 undermines her evidence as to the truth of her allegations. Further, the absence of any complaints of sexual harassment or sex discrimination against Dr Preston and Dr Cook prior to the amended statement of claim of 6 March 2018 undermines Dr Morton’s evidence as to the truth of her allegations against them. I note that Mr Croft’s email of 8 November 2015 was not a complaint by Dr Morton, but even if it were to be so regarded, it was still made more than three years after the hussy comment allegedly made by Dr Preston. Further, the only allegation Mr Croft made against Dr Cook was about inappropriate sexual comments regarding people he was interviewing for a position, which may possibly be a reference to the email sent by Dr Cook on 7 November 2012 or 19 March 2014, or both. There was no reference to any of the other allegations now made against Dr Cook and, in any event, there is no plausible explanation for why these allegations were not included in the Grievance Document lodged on 16 January 2015, or otherwise raised at the same time as the allegations against Dr Glencross.

Various other discrepancies, implausibilities and inconsistencies

144    An area that causes me disquiet about Dr Morton’s evidence concerns contradictions within her evidence about whether she knew Mr Croft was going to secretly record her consultation with Dr Walker, a psychiatrist, on 16 June 2017. There is also a contradiction between Dr Mortons evidence and the evidence of Mr Croft on that issue.

145    Dr Walker had refused to consent to Dr Morton recording the consultation and she agreed, through her lawyers, that she would not do so. However, it was recorded. Under cross-examination, Dr Morton agreed that, despite her agreement not to do so, she proceeded with Mr Croft secretly record the consultation. She also agreed that she committed a serious deception upon Dr Walker in relation to that consultation. However, she later said, Mr Croft recorded the assessment, and I found out about it afterwards. In contrast, Mr Croft frankly admitted that he had told Dr Morton that he was going to record the consultation. On this issue, I accept the evidence of Mr Croft, which is consistent with Dr Mortons initial evidence. Dr Mortons willingness to deceive Dr Walker in connection with her claim was compounded by her willingness to deceive the Court about her deception.

146    Another example of deceptive conduct that Dr Morton engaged in concerns a photograph of her taken by Mr Croft on 9 July 2018, shortly before an appointment with Dr Walker, which she tendered into evidence. In the photograph, Dr Morton looks dishevelled. She agreed that the photograph was tendered for the purpose of showing the way she normally looked. She denied that she knew that Mr Croft was going to be taking the photograph and denied that she was posing for the photograph. However, the photograph itself shows Dr Morton looking directly into the camera. Further, she had placed her bag on the ground, which is consistent with waiting for the photograph to be taken. Mr Crofts evidence on this issue was variable. When asked, And she has put her bag down, hasnt she, to have her photograph taken?, he answered, Yes. Later, he denied that she knew that he was going to be taking the photograph. In my opinion, Dr Mortons evidence that she was unaware that the photograph was to be taken is implausible.

147    In a report of 11 October 2017, Dr Morton’s former general practitioner, Dr Shaw, observed that Dr Morton had always been clean and appropriately dressed at all appointments. In Dr Shaw’s oral evidence, he confirmed that Dr Morton was appropriately dressed at all appointments, as any other patient would be. He believed that she would have been washing herself, and certainly did not present as someone who had not taken substantial care of herself. Dr Shaw’s observations were inconsistent with Dr Morton’s oral evidence, in the context of her grooming, that, I have largely lost a lot of motivation and care and feelings of self-worth. They are also inconsistent with Dr Morton’s reporting to Dr Mathew that she was not attending to her hair and grooming. I prefer Dr Shaw’s evidence.

148    Dr Mortons evidence concerning her injured right wrist in April 2017 is also implausible. On 13 April 2017, she told staff at a medical facility that she had been tripped over by a dog two weeks before, and that she had again used her hand to break the fall. On 9 May 2017, Dr Morton attended Dr Shaw, telling him that she had punched a wall twice. When the inconsistency in accounts was pointed out to Dr Morton in cross-examination, she asserted that she had injured her wrist four times, twice due to incidents with a dog and twice due to punching the wall, all in April 2017. When asked whether she told Dr Shaw about the dog, she did not directly answer the question, but said that she believed that Dr Shaw, knew that we had a dog. When asked again, she said she did not recall whether she had told Dr Shaw about the incident, but that she, may have mentioned that. Dr Shaw confirmed that he had not documented anything about falling over a dog and could not recall being told that. He had only provided the specialist with her history of punching a wall, and said that if he was told about falling over a dog, he would have so advised the specialist.

149    In a Facebook post on 17 April 2017, Dr Morton referred to her dog pulling her over two weeks before, and said that she had, Been as sore as hell since. Her post continued that the dog had lurched again on that day and, the pain was unbearable hence a trip to the hospital. The idea that Dr Morton would then cause further pain to herself by punching the wall on two separate occasions is implausible.

150    Mr Crofts evidence was that there were only two events, one involving a dog and one involving punching a wall.

151    In my opinion, Dr Morton made up the story that she had injured her wrist by punching the wall twice, when the injury had in fact been caused by two incidents involving her dog, as she had initially reported on 13 April 2017. She is likely to have made up the story to support the idea that she had issues with anger and frustration as part of her psychiatric condition. Dr Morton later told Dr Rees that she had, hit a wall repeatedly at Easter. Subsequently, Dr Rees report of 13 July 2018 noted that, her anger and sense of injustice … would impede rehabilitation.

152    There are so many other implausible or inconsistent aspects of Dr Morton’s evidence that it is difficult to describe them all. However, some examples of the evidence that I found unsatisfactory are as follows:

    Denying that there was any joking around in the sampling room on 16 October 2012, when her Grievance Document clearly indicated that there was.

    Denying that Mr Croft had suggested the language of “sexually assaulted” and “attacker”, when text messages between Dr Morton and Mr Croft on 22 June 2015 demonstrate that he pressed Dr Morton to use that language.

    The sudden change in language used to describe the riding crop incident as a “sexual assault”, only a couple of weeks before consulting Dr Rees.

    Denying that her relationship with Dr Cook remained good up to when she ceased work, when, in fact, on 18 June 2015, they were exchanging friendly messages about restaurants in Tasmania.

    Implausible evidence that it just dawned on Dr Morton one day that the dominatrix comment was connected with the riding crop incident.

    Implausible evidence that Dr Morton had to remain at the dinner on 16 October 2016 because, as the most senior staff member there, she had to pay, when Dr Glencross was more senior.

    Prevaricating about whether, in her text messages to Mr Blyth on 9 December 2012, she was making a joke about sexual harassment within two months of her own sexual harassment.

    The implausibility of her answer that she did not believe that Dr Glencross knew the gender of her partner because she did not generally refer to her partners by gender.

    The inconsistency between Dr Morton’s assertion that she had already informed Dr Cook of the “hussy” comment and the text of Dr Morton’s email to Dr Cook of 30 October 2012, which suggests she had not.

    The implausibility of Dr Morton’s evidence that she complained verbally to Dr Cook about his emails, yet did not respond with any return email saying that they were inappropriate.

    The implausibility of Dr Morton’s evidence that Dr Cook’s email of 16 October 2012 (containing the “Bunny Lovin” lyrics) was inappropriate, in view of her response that she owed him a coffee for it.

    The improbability of Dr Morton interpreting the email from Dr Cook of 11 February 2013 (saying “bend me over and slap me with a cold barramundi”) as a reference to the riding crop incident.

    Telling Dr Mathew that Dr Glencross had told her to wear a short skirt on one occasion, when that allegation has not been pleaded and was not in her Grievance Document.

    Giving a number of non-responsive or evasive answers. An example is when asked whether there was no point in applying for a Voluntary Redundancy Substitution (VRS) if she thought her position was going to be made redundant, answering, “At this stage, when I applied for it, I could not see a path back to a career at CSIRO because of the way anything had been handled…”. A further example is that when asked about whether she was drinking with Dr Cook and Dr Glencross until 1 am following the dinner on 16 October 2012, she gave the evasive answer that there may have been other staff members there as well.

    At times, Dr Morton appeared to be making up aspects of her evidence as she went. I have referred to, and will later refer to, examples.

Assessment of Mr Crofts evidence

153    I consider that substantial parts of Mr Crofts evidence were not credible or reliable. There are significant inconsistencies and implausibilities in his evidence.

154    One area of implausibility concerns Mr Crofts role in the preparation of Dr Mortons Grievance Document dated 16 January 2015. Dr Mortons evidence was that Mr Croft had helped her with the preparation of the Grievance Document and its attachments, as well as proofreading. Mr Croft was cross-examined about why, if Dr Morton had told him about all the allegations of sexual harassment and sex discrimination and they had not been included in the Grievance Document, he would not have pointed that out to Dr Morton. His consistent response was that his role was only to proofread the Grievance Document for spelling and grammar, not to assist her with its contents. He did not claim that the alleged incidents had slipped his mind. It is implausible that, if Mr Croft was aware of all the complaints now made against Dr Glencross and Dr Morton, he would not have pointed out to Dr Morton that some were left out.

155    Mr Crofts insistence that he made no contribution to the Grievance Document other than proofing is quite inconsistent with his role in respect of other documents. For example, he admitted that he drafted the text message that Dr Morton cut and pasted and sent to Dr Cook on 22 June 2015. It is inconsistent with his explanation of his text message of 28 October 2014 that, I was telling Katherine what she should do in regards to the issues that was going on at work …. It is also inconsistent with the lengthy email he wrote to CSIRO on behalf of Dr Morton on 8 November 2015, in which he had no hesitation in expressing his strong opinions. In my view, it is quite unlikely that Mr Crofts only role concerning the Grievance Document was editing it for spelling and grammar. If he was aware of the allegations, including Dr Glencross asking Dr Morton about her sexual preference, referring to her as a prostitute and commenting about her crows-feet comment, he would have reminded Dr Morton to include them in the Grievance Document.

156    Mr Croft gave inconsistent and implausible evidence concerning the text message Dr Morton sent to Dr Cook on 22 June 2015. His evidence was initially that he had composed the text message in Dr Mortons presence. When asked why, in that case, they were texting each other, he said that she needed the message in text on her phone so that she could copy it and send it. After being taken to other text messages sent at the time showing Dr Morton was at the airport on her way back to Brisbane, Mr Croft admitted that she was not in his presence during the exchange of text messages. That is not something Mr Croft could have simply been mistaken about. The idea that they would be together, but sending each other a series of text messages, was far-fetched. I consider that he fabricated his initial evidence that he composed the message of 22 June 2015 while in Dr Mortons presence.

157    Dr Morton invited Dr Glencross to a party for Mr Croft’s redundancy and a Christmas party at their home. It was put to Mr Croft that if he considered that Dr Glencross had sexually assaulted his partner, he would not want him in their home. He said, Absolutely, but it would be bullying for her not to invite him when she invited the whole group. The idea that Mr Croft or Dr Morton would be concerned about bullying Dr Glencross by not inviting him if he had sexually assaulted Dr Morton is absurd.

158    When Mr Croft was asked whether he assumed that after the sexual assault, Dr Morton would never allow herself to be alone to be with Dr Glencross, he gave a peculiar answer: Probably, yes. Because, you know, I trust her. However, Dr Morton conceded that there may have been times when she was alone with Dr Glencross in a car. If Mr Croft regarded Dr Glencross as his partners sexual attacker, he would have insisted on her never being alone in a car with him.

159    Mr Croft admitted that he had secretly taped the interview with Dr Walker on 16 June 2017. He denied that Dr Morton had promised not to tape the meeting. However, that denial is quite inconsistent with Dr Mortons own agreement, through her solicitors, not to tape the consultation.

160    Mr Croft admitted that in 2017, he applied for a licence to get a gun to have on their property. That makes his evidence that there were a number of times when Dr Morton said that she was suicidal implausible. If she was suicidal, it is quite improbable that he would have wanted Dr Morton to have access to a gun.

161    Mr Crofts correspondence with CSIRO, taken together with his oral evidence, suggests that he was very much involved in directing Dr Mortons claims. He assumed the role of Dr Morton’s advocate in her dealings with CSIRO. For example, he insisted on CSIRO communicating with him and not Dr Morton, while at the same time refusing to obtain a written authority from Dr Morton to allow that to occur. In my opinion, Mr Croft’s role as an advocate for Dr Morton was reflected in the manner and content of his evidence in the witness box, where substantial parts of his evidence appeared overly defensive of Dr Mortons case, exaggerated and implausible.

Assessment of Dr Rees evidence

162    Dr Rees has been Dr Mortons treating psychiatrist since 6 July 2015. He diagnosed Dr Morton with Major Depressive Disorder and Agoraphobia.

163    It is apparent that Dr Rees diagnoses were largely based upon what Dr Morton told him about her symptoms and events at CSIRO. He acknowledged that, 90% of diagnosis is history. Dr Rees expressed the opinion that Dr Morton’s psychiatric conditions were the result of workplace-related events dating from October 2012. As will be seen, I generally reject the factual premises of the allegations Dr Morton conveyed to Dr Rees that she was sexually assaulted and otherwise sexually harassed and discriminated against. Therefore, Dr Rees’ opinion that Dr Morton’s psychiatric condition resulted from such workplace events cannot be accepted.

164    In making his diagnoses, Dr Rees accepted Dr Mortons subjective reporting of the symptoms she suffered, such as poor concentration and memory, loss of interest in activities and difficulties with organisation. However, as I have found, Dr Mortons reporting of such symptoms was highly exaggerated.

165    Further, Dr Morton failed to inform Dr Rees of many of the activities she carried out between 2015 and 2018. When Dr Rees was taken to activities that Dr Morton had not disclosed, his responses varied. For example, he agreed that the activities described in Dr Mortons Facebook posts of 8 and 12 January and 9 and 24 February 2014 were not what, would be expected of someone with Major Depressive Disorder. He initially agreed that he would not expect a person with Major Depressive Disorder to successfully complete an MBA, but later said that submitting university assignments, organising papers and exercising was not completely inconsistent with the condition. Dr Rees agreed that it was unusual that a person with Major Depressive Disorder would be able to speak at a conference, but guessed that, as a one-off, people were able to lift themselves up and present something. He said he did not consider that going on an overseas cruise or obtaining an academic excellence award for her MBA was inconsistent with Major Depressive Disorder. When asked whether going on a cruise was consistent with Dr Morton having Agoraphobia, Dr Rees response was that the cruise may have preceded the onset, saying that the first mention of panic attacks in his notes was 24 November 2016. However, the cruise was in January 2017.

166    In my opinion, two matters arise from Dr Mortons exaggeration of her symptoms. Firstly, it undermines Dr Rees diagnoses of Major Depressive Disorder and Agoraphobia, which depended substantially upon Dr Mortons reporting of her symptoms.

167    Secondly, Dr Rees responses to Dr Mortons exaggerations, both in his reports and in his oral evidence, reveal him to be an advocate for Dr Mortons case. He was too uncritical of her reporting and too readily dismissed facts and matters that were inconsistent with her case. For example, when taken to Dr Morton’s Facebook post of 5 January 2014, Dr Rees initial response was to say, Facebook is fiction. When asked whether he would ordinarily expect a person with Major Depressive Disorder to go on a four-hour walk, he answered, I think you are nit-picking, quite frankly. In his report of 1 August 2018, Dr Rees was at pains to explain away inconsistencies identified by Dr Walker, and explain why the various activities she posted about on Facebook were not inconsistent with his diagnoses. In that report, he often simply uncritically recited Dr Mortons explanations.

168    Dr Rees issued an initial certificate on 6 July 2015 certifying Dr Morton as unfit for work for three months, a second certificate on 30 September 2015 for a further six months, and then a third certificate on 11 February 2016 for a further twelve months. When asked in cross-examination about issuing the twelve month certificate, Dr Rees said:

It was my way of saying to – I think it was Comcare at the time, I am not sure – that formal assessment of this woman by a third party would basically be harassment …

Dr Rees said later:

I considered that her having independent examinations on a frequent basis would be injurious to her mental state. As a doctor I wanted to reduce injury to her, and I think that, quite frankly, in everybodys best interests.

169    I accept Dr Mathew’s evidence that it would be improper for a psychiatrist to issue a lengthy medical certificate in an attempt to stop Comcare from arranging an independent medical examination. In my opinion, for Dr Rees to issue a certificate saying that Dr Morton was unfit for work for twelve months when his purpose was to apparently prevent independent medical examinations was disingenuous. It reflects a failure by Dr Rees to maintain his objectivity.

170    A further indication of Dr Rees loss of objectivity is that, despite first seeing Dr Morton on 6 July 2015, Dr Rees was prepared to make a retrospective diagnosis of Major Depressive Disorder since October 2012. When asked in cross-examination whether that was really getting into guess-work territory, he admitted, Its an extrapolation, yes. It is difficult to see how Dr Rees could have made and maintained that retrospective diagnosis based only upon Dr Morton’s subjective reporting of her symptoms, when she had continued to function as a high-level scientist for the remainder of 2012 and in 2013 and 2014, including receiving a promotion to team-leader.

171    I consider that Dr Rees underplayed the contribution of stressors other than the work factors Dr Morton claimed caused her psychiatric condition. Those factors included a twisted bowel requiring surgery, gastrointestinal problems and bloating, causing Dr Morton to rapidly gain weight at times and fear returning to her previous state of morbid obesity, for which she had undergone lap-banding. In her evidence, Dr Morton referred to the terror and anxiety that my weight gain triggered.

172    I do not accept Dr Rees diagnoses of Major Depressive Disorder and Agoraphobia. The diagnostic criteria for Major Depressive Disorder are in evidence. I am not satisfied that Dr Morton meets, or met, any of them in view of her exaggerations of her symptoms. I am not satisfied that she has the panic attacks associated with leaving her farm that she asserts. To the extent that Dr Rees attributed her psychiatric condition to the allegations she makes in her further amended statement of claim, I also reject that opinion. I also reject Dr Rees opinion that Dr Morton is unsuitable for any future employment, particularly in view of my observations of her in the witness box and her demonstrated ability to perform at a high level in her MBA.

Assessment of Dr Mathews evidence

173    Dr Mathew diagnosed Dr Morton with Major Depressive Disorder and Adjustment Disorder with Anxious Mood. He also expressed the opinion that she sustained the injury the course of her employment with CSIRO, and that she is unfit for any work, now, or in the future. Dr Mathew took into account the history provided to him by Dr Morton, her appearance at the interview and other information, such as the records he was provided with.

174    The difficulty with accepting Dr Mathews opinion is that he relied, to a substantial extent, upon Dr Mortons reporting of events at work and her symptoms. Further, Dr Morton failed to provide Dr Mathew with important information, including that she had commenced and completed her MBA and achieved excellent marks. Dr Mathew agreed that a number of the activities Dr Morton posted about on Facebook were inconsistent with the symptoms she reported. He agreed that it would be a significant matter if Dr Morton could groom herself appropriately for the appointment with him, but chose not to do so—I have accepted Dr Shaw’s evidence which shows that she was able to do so.

175    In addition, Dr Mathew proceeded upon an acceptance of Dr Morton’s allegations as to what happened in the workplace, but, as will be seen, I reject almost all of those allegations. That undermines the opinions expressed by him.

176    Further, the acceptance of the symptoms and the events described by Dr Mathew led him to place too little weight upon other issues that Dr Morton faced in 2014 and 2015, including surgery for a twisted bowel, gastrointestinal problems that resulted in her rapidly gaining weight at times and the fear of returning to her previous state of morbid obesity.

177    In view of these matters, I find that Dr Mathews diagnosis is not accurate or reliable. I do not accept Dr Mathews opinion that Dr Morton has the psychiatric conditions he diagnosed. Nor do I accept Dr Mathews opinion that she sustained any psychiatric injury as a result of the workplace events alleged by Dr Morton, nor that she is unfit for any work, now, or in the future.

Assessment of Dr Glencross evidence

178    Dr Morton submits that Dr Glencross had a motive to lie, due to the damage to his reputation that acceptance of her allegations would cause. She also submits that Dr Glencross memory was poor and otherwise appeared to be selective. She argues that his evidence appears to have been influenced by discussions with other witnesses in the case or otherwise suggested to him in preparation for trial. She submits that Dr Glencross evidence upon the controversial issues should be rejected.

179    From the written material and Dr Glencross oral evidence, I formed the impression that he was very much focussed upon the success of the scientific experiments and projects he was engaged in at CSIRO, and tended to be insensitive to the needs and sensitivities of those who worked under his supervision. That is consistent with the opinions of witnesses, such as Dr Worby, who seemed to regard him an excellent scientist but a poor manager.

180    Dr Glencross poor management skills and insensitivity seemed to be reflected in a number of the complaints that Dr Morton made about his behaviour in the period from about May 2012 onwards. For example, Dr Morton complained about his poor communication, tendency to change his mind, failure to respond to emails, and criticising staff. Dr Glencross could be unnecessarily rude in his correspondence. That was demonstrated, for example, in his email to Dr Morton, when she overspent the sampling budget. The last straw for Dr Morton before she made a formal complaint in November 2014, seems to have been Dr Glencross editing the wrong version of her manuscript, but failing to adequately acknowledge his error and appearing to deflect the error into criticism of her manuscript.

181    In his dealings with Dr Morton, Dr Glencross was focussed upon her achieving results in her scientific work, including attracting external funding and achieving publications. That was because Dr Mortons success would be beneficial for the group he led. Dr Glencross formed the view that Dr Morton was not achieving that which she was employed to do in terms of scientific outcomes, publications and attracting external funding, and was excessively focussed on more peripheral issues of management and administration.

182    In these circumstances, there was a clash between Dr Glencross and Dr Morton. Dr Morton perceived Dr Glencross, amongst other things, as failing to give her consistent direction in her work and as rude and insensitive. Dr Glencross perceived that Dr Morton was not achieving the outcomes he expected.

183    Dr Glencross insensitivity, rudeness and other faults do not necessarily mean that his evidence is not credible and reliable. I consider that, generally, he gave his evidence honestly and reliably. He appeared to be genuinely baffled about many of the allegations of sexual harassment and sex discrimination made against him by Dr Morton.

184    However, I have two reservations about Dr Glencross evidence. The first is his reasons for leaving Dr Morton off the list of co-authors in the Aquaculture article. Dr Glencross submitted the article for publication in June 2015, after he had left CSIRO. His evidence was that he did not think that Dr Morton had done enough work to justify a full authorship, but he considered that an acknowledgment may have been justified. Despite that, no acknowledgment had been given to Dr Morton. That, together with the fact that she had been listed as an author on the manuscript, has caused me some doubt as to whether Dr Glencross honestly believed that her contribution did not warrant her being listed as a co-author.

185    However, Dr Morton joined CSIRO well after the inception of the BAR-12-16 Project. Dr Glencross’ explanation for including her name on the reportthat he was trying to help her to generate some industry credibility and visibility—is plausible. Further, once Dr Glencross was advised by CSIRO that it wanted Dr Morton to be added as a co-author, he arranged for that to be done. In the end, I have concluded that there was a genuine disagreement between Dr Glencross and Dr Morton as to the extent of the work she had done in respect of the project.

186    My second reservation concerns Dr Glencross’ evidence that he had no recollection of seeing a riding crop in the sampling room on 16 October 2012. Dr Morton’s evidence that a riding crop was present in the sampling room that day is supported by Ms Trenkner, Ms Habilay and Mr Blyth, whose evidence I accept. Ms Trenkners evidence was that she saw Dr Glencross placing the riding crop on a shelf. Dr Glencross was able to clearly remember other events concerned with Dr Mortons allegations, such as the conversation at the James Cook University campus, the context of his comment about pendants and events at the Agriculture Australia Conference. It is therefore quite peculiar that he professed not to remember the riding crop. It must have been a singular and memorable event for a riding crop to be brandished about in the sampling room. I do not accept that Dr Glencross could have lost his memory of the riding crop. I consider that Dr Glencross was not honest in his evidence that he could not recall the riding crop.

187    I formed the impression that, apart from the aspect of his evidence that I have rejected, Dr Glencross was generally frank when giving his evidence. He was defensive at times, but that was not unnatural, given the nature of the allegations made against him. His evidence was largely undisturbed by his extensive cross-examination.

188    Except in the respect I have identified concerning Dr Glencross’ memory of the riding crop, I consider that his evidence was credible and reliable.

The application to withdraw an admission made in CSIRO’s amended defence

189    Dr Glencross denial that he had no recollection of any riding crop sits oddly with para 2A(c) of CSIROs further amended defence, which alleges that:

Mortons behaviour continued for a period of time, after which, in the presence of the other staff members, Dr Glencross picked up the riding crop, tapped Morton on the buttocks and said words to the effect of thats enough, get back to work.

190    This is a convenient place to mention that CSIRO applied to amend para 2A(3)(iv) of the amended defence by deleting the words, picked up the riding crop, tapped Morton on the buttocks. That application was made in the course of CSIROs closing address, after it was pointed out there was an inconsistency between CSIROs submission that Dr Morton fabricated the allegation that she had been hit on the buttocks with a riding crop and the admission in the amended defence that she had been hit on the buttocks with a riding crop. The effect of the amendment would be to withdraw the admission. Dr Morton, unsurprisingly, opposed the amendment.

191    The explanation given by CSIROs senior counsel for the making of the admission was forensic error. The error was said to be that the circumstances were assessed and a conclusion reached that it was likely that Dr Morton was hit. It was argued that there was no prejudice to Dr Morton resulting from the withdrawal because the cross-examination of the witnesses would have been no different and no other witnesses would have been called, Dr Mortons case being that only she and Dr Glencross were in the room during the incident.

192    Dr Mortons counsel argued that no adequate explanation had been given for why the admission had been made and why it was now sought to be withdrawn at such a late stage. She argued that she may well have conducted the case in a different way if the admission had not been made or if the admission had been withdrawn prior to trial. In particular, there were several CSIRO staff members who were present on the sampling day and who were not called by CSIRO, who might have otherwise been called to give evidence by Dr Morton if not for the admission.

193    In Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327; [2003] FCAFC 309, the Full Court considered the principles to be applied in an application for leave to withdraw an admission. The Full Court held at [18] that the Court had a broad discretion to weigh up all matters with the overall question being to ensure that there was a fair trial. The Full Court cited with approval the following passage from the judgment of Santow J in Drabsch v Switzerland General Insurance Co Ltd (unreported, Supreme Court of New South Wales, 16 October 1996):

1.    Where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted …

2.    The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guidelines being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded …

3.    Where a court is satisfied that admissions have been made after consideration and advice such as from the parties expert and after full opportunity to consider its case and whether the admission should be made, submissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn …

4.    It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the FW Actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission …

5.    …[A] court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with costs orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited on the other party.

194    I am not satisfied that CSIRO has provided some good reason for permitting the admissions to be withdrawn. While counsel for CSIRO said from the bar table, apparently on instructions, that there was a forensic error in pleading that Dr Morton was hit on the backside, there was no evidence from the lawyer who settled the amended defence that he or she made such an error. It is possible that, for example, the admissions were not an error, but based upon the statement taken from a witness who was not called, or a witness who was called and later gave different evidence. In the absence of evidence, the reasons for making the admission are merely a matter of speculation.

195    Further, I am not satisfied that an adequate explanation has been provided as to why the application to withdraw the admission was made at such a late stage. The answer may well be that it was not thought of earlier, but that is not a satisfactory explanation. The parties were required to provide outlines of the evidence prior to trial, so there can be no assertion that the lawyers for CSIRO were taken by surprise by the fact that none of CSIRO’s witnesses gave evidence that they saw Dr Glencross hitting Dr Morton with the riding crop. Counsel for Dr Morton opened her case relying, in part, upon the admission, so that CSIRO’s lawyers were well aware that it formed a significant part of Dr Mortons case. Senior Counsel for CSIRO opened his case on the basis that, “Dr Glencross took the riding crop, slapped her, and said something along the lines, ‘let’s get back to work’, and put the riding crop away”.

196    The entitlement of a party to a hearing on the merits may be given somewhat less weight than was suggested in the fifth point in Drabsch in view of the more recent judgment of the High Court in Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 at [111]–[113]. That is particularly so given the very late stage of the lengthy trial at which the application to amend was made, and the fact that it would be necessary to allow the evidence to be reopened in order to afford Dr Morton procedural fairness.

197    Although counsel for Dr Morton did not submit that cross-examination would have proceeded differently had the admission not been made, some allowance must be made for the fact that CSIRO had not foreshadowed its application and there was no time for counsel to carefully consider how the trial might have been run differently. If the application for leave to withdraw had been made prior to the trial and supported by evidence, the witnesses who were called may have been cross-examined differently; their cross-examination perhaps informed by any explanation for the making of the admissions provided by the lawyer who prepared the further amended defence. Further, even though Dr Morton maintained that she and Dr Glencross were alone in the room at the time she was hit, her case would have been assisted by eliciting evidence from any witnesses who saw her being hit. There were two laboratory technicians who appear to have been present at the Bribie Island facility that day who were not called by CSIRO, but who, in the absence of the admission, might have been called by Dr Morton. It is difficult to assess, in retrospect, precisely how the case might have been run if the application to withdraw had been made and decided earlier. However, I am satisfied that, at least, Dr Morton may have run the case differently. To accede to the application to withdraw the admission would be to deprive Dr Morton of that opportunity, unless she were given the chance to have the evidence reopened. It is simply too late and too inconvenient to allow that to happen, after a trial of such length and complexity.

198    CSIROs counsel submitted that leave to withdraw the admission should be granted because it has been shown that the admissions are contrary to the actual factual position. However, it is far from apparent that the admissions are inconsistent with the factual position. The state of the evidence is that Ms Trenkner said that Dr Glencross had hold of the riding crop. That is consistent with part of the admissions now sought to be withdrawn. Dr Morton gave evidence that she was hit on the backside with a riding crop by Dr Glencross. Although Dr Glencross denied that, para 2A(c) of CSIROs further amended defence is consistent with that part of Dr Mortons evidence. In my opinion, it cannot be said that the admission is necessarily inconsistent with the facts.

199    It is significant that the admissions in the further amended defence were made by CSIRO with the assistance of their lawyers, with a full opportunity to consider the case, with deliberateness and formality, and in circumstances where Dr Morton accepted and relied upon the admission. In such circumstances, as was said in Drabsch, leave to withdraw the admission should not be freely granted.

200    In all the circumstances, the CSIROs application to amend its further amended defence to withdraw the admissions contained in para 2A(c)(iv) of the amended defence should be refused.

Assessment of Dr Cooks evidence

201    Dr Morton submits that Dr Cooks evidence should not be accepted upon the controversial issues. She submits that Dr Cook has a motive to lie due to the repercussions he could face if her allegations are accepted. She submits that he was often evasive in answering simple questions.

202    A number of aspects of Dr Cooks conduct in the workplace revealed by the evidence leave him open to criticism. Dr Cook, together with Dr Morton, denigrated colleagues behind their backs, sometimes in vulgar and nasty ways. He also distributed emails containing sexually-charged content and photographs, demonstrating a puerile and adolescent sense of humour that was inappropriate to display in a workplace.

203    However, I do not think these faults should necessarily lead to any conclusion that Dr Cooks evidence was not credible or reliable. Dr Cook at least admitted his role in sending the relevant emails. He also acknowledged that Dr Morton was a capable and talented scientist. He acknowledged that Dr Mortons lack of publications was not entirely her fault, and that there were factors outside her control that hindered her in obtaining external funding. He admitted that at the meeting with Dr Morton on 22 October 2014, some of the language used could have come across as a bit harsh. He appeared to me to readily make concessions favourable to Dr Morton. While clearly embarrassed about his behaviour, he was willing to admit to his own faults.

204    I consider that Dr Cook was a frank witness. I do not think cross-examination revealed his answers to be inconsistent, implausible or evasive. I accept his evidence as credible and reliable.

Assessment of Dr Prestons evidence

205    Dr Morton submits that Dr Preston has a motive to maintain his version of events, since he is directly accused of engaging in discrimination against Dr Morton on the basis of her sex by making derogatory comments about her.

206    Perhaps the most significant aspect of Dr Prestons cross-examination was that he admitted that he had sent a memorandum to Dr Cook (before Dr Cook was to be interviewed by Mr Van Dam) relating to events that occurred on 22 October 2014, despite being told by HR that he should not discuss the events with other witnesses. He had earlier denied such communication with Dr Cook. I accept that Dr Preston sent the email to ensure that Dr Cook was aware of Dr Prestons version of events before Dr Cook was interviewed. It should not have been done. However, I do not consider this to have been an attempt to encourage Dr Cook to give inaccurate or false evidence. Further, his initial denials of such a communication was more likely to be a lapse of memory than any deliberate untruth.

207    Overall, I consider that Dr Preston gave his evidence in a straightforward and frank manner. His evidence was substantially undisturbed under cross-examination. I accept Dr Prestons evidence as being credible and reliable.

Assessment of the evidence of Ms Habilay, Ms Trenkner and Mr Blyth

208    I will consider the evidence of Ms Trenkner, Ms Habilay and Mr Blyth together because there is a direct conflict between their evidence and the evidence of Dr Morton as to events involving the riding crop in the sampling room at the Bribie Island aquaculture facility.

209    Ms Trenkner gave evidence that on 16 October 2012, Dr Morton had hold of the riding crop and was joking around by hitting other staff playfully on the buttocks and thighs. In cross-examination, it was put to Ms Trenkner that she and Dr Glencross had together made up a story about Dr Morton having the riding crop. She denied that allegation. There is no basis to accept the suggestion that Ms Trenkner and Dr Glencross got together to concoct her evidence. It may be noted that, in fact, Ms Trenkner is the only witness whose evidence supports Dr Mortons evidence that Dr Glencross had hold of the riding crop that day. There is no apparent reason for Ms Trenkner to have fabricated her evidence. She was a straight-forward witness. I accept her evidence as credible and reliable.

210    Ms Habilay gave evidence that Dr Morton was holding the riding crop and pretending to whip a horse. Ms Habilay was a frank and straight-forward witness. I do not think that there is room for any conclusion that she was mistaken in her evidence. I accept her evidence as accurate and reliable.

211    Mr Blyth gave evidence that Dr Morton had not made any complaint to him about sexual harassment or sex discrimination. Mr Blyth also gave evidence that Dr Morton flicked him playfully with the riding crop on 16 October 2012. His evidence was that she also did so several times subsequently.

212    In cross-examination, Mr Blyth was asked about a discrepancy between his outline of evidence which said that Dr Morton had flicked people on the subsequent occasions, and his evidence that only he was flicked. Mr Blyth explained that the reference to “people” in his outline was based on information that had been given to him. I do not think the discrepancy is of any consequence.

213    Mr Blyth was a frank and straight-forward witness. He had a good relationship with Dr Morton when she was at CSIRO, and there is no apparent reason for him to have fabricated his evidence. I consider that his evidence was credible and reliable.

Assessment of Mr Drurys evidence

214    There is a direct conflict between the evidence of Mr Drury and Dr Morton about their discussions over the telephone in March and July 2015. Under cross-examination, Mr Drury was challenged as to matters including whether he had a vested interest in getting people back to work, whether he was unhappy about the fact that Dr Rees had given Dr Morton three months off work, whether he made a misleading statement in calling himself a clinician and whether he held a grudge against Dr Morton because she had made a complaint against him.

215    Mr Drury said that he had made detailed notes of his conversations with Dr Morton, but the notes were not produced. Ms Caroline Cook, who was not required for cross-examination, deposed that she was unable to find any notes. In oral submissions, there was some criticism of either CSIRO and Mr Drury for failing to produce the notes. I accept that Mr Drury made notes, that he left them behind when he left CSIRO, and they are now missing. I do not accept that any adverse inference should be drawn from the failure to produce the notes.

216    Some of Mr Drury’s emails at the time of his dealings with Dr Morton were quite defensive of his management of the case. For example, he wrote that, “There is a pattern of behaviour here which is quite alarming. I will need the full support of HSC and HR to manage this case”. I consider that this defensiveness was a not unnatural reaction to the hostility that Dr Morton was demonstrating in response to Mr Drury’s attempts to engage with her, with the aim of achieving her return to work. I do not consider that it reflects adversely upon his credit.

217    Mr Drury was also quite defensive during his cross-examination, but that was a not unnatural reaction to being accused of giving false evidence and engaging in unprofessional behaviour. I do not think that his credit was damaged by the cross-examination.

218    I am satisfied that Mr Drurys evidence was honest and reliable.

Assessment of Ms Campbells evidence

219    Ms Campbell was challenged upon issues including whether she had responded to Dr Mortons complaint against Mr Drury by merely copying and pasting an email that had been drafted by Mr Drury.

220    I am not satisfied as to the reliability of Ms Campbells evidence. Ms Campbell said that she had properly investigated the complaint. However, when taken to the email chain between Dr Morton and Mr Drury that informed Dr Morton’s complaint, she said that she had not seen those emails. She accepted that she did not ask to see the emails. Mr Drury drafted a response to Dr Morton, and Ms Campbell substantially cut and pasted the draft and sent it to Dr Morton.

221    As I will discuss, I do not accept that Ms Campbell investigated Dr Mortons complaint against Mr Drury to the standard required under the Grievance Procedures in the Enterprise Agreement.

Assessment of Ms Walshs evidence

222    Ms Walsh was challenged upon a number of issues, including whether Dr Mortons redundancy was contrived to get rid of her from CSIRO.

223    I consider that Ms Walsh gave her evidence in a frank and straight-forward manner. She impressed me as a person who acted with professionalism. In particular, I accept that she proceeded with arrangements for Dr Mortons redundancy in order to facilitate her request that she be made redundant.

224    I accept that Ms Walshs evidence was credible and reliable.

Assessment of Dr Manners evidence

225    Dr Manners was cross-examined about matters including whether he took Dr Mortons VRS request as a green light to get rid of her from CSIRO.

226    I consider that Dr Manners gave his evidence in a straightforward and frank way. He impressed me as a professional administrator, who acted with professionalism in his dealings in relation to Dr Morton.

227    I accept that Dr Manners evidence was credible and reliable.

Other witnesses

228    The evidence of the other witnesses was not challenged in Dr Morton’s closing submissions. I accept the evidence of each of those witnesses, which is summarised in the Appendix to these reasons.

Conclusions upon the conflicts between Dr Mortons evidence and the evidence of other witnesses

229    There were inconsistencies between the evidence of Dr Morton, and the evidence of a number of the witnesses called by CSIRO, particularly Dr Glencross, Dr Preston, Dr Cook and Mr Drury. Where Dr Mortons evidence conflicts with the evidence of CSIROs witnesses, I prefer the evidence of the latter, subject to the exception I have indicated in respect of Dr Glencross’ evidence. I am only prepared to accept Dr Morton’s evidence to the extent that it is admitted or adequately corroborated by evidence other than that of Mr Croft.

230    I find that Mr Croft’s evidence was generally unreliable. The primary purpose of Mr Croft’s evidence was to provide evidence of recent complaints by Dr Morton. However, I find that by 16 January 2015, the only allegations of sex discrimination or sexual harassment Dr Morton had told him about were those included in the Grievance Document, namely the riding crop incident and the cleavage comment. It is likely that she told him about that incident and comment at about the time she referred to them in her email to Dr Preston of 25 October 2014. She must also have told him at some stage after she submitted her Grievance Document about the allegations made in his letter of 8 November 2015. Except to that limited extent, I find that Mr Croft’s evidence does not corroborate Dr Morton’s allegations.

CONSIDERATION OF CLAIM 1A

231    Claim 1A is contained within paragraphs 1A(1) to (6) of the further amended statement of claim. The pleading alleges that CSIRO contravened s 351(1) of the FW Act by taking adverse action against Dr Morton because of her sex or sexual orientation.

232    Dr Morton alleges that CSIRO contravened s 351(1) of the FW Act by:

(1)    Dr Glencross, Dr Preston and Dr Cook engaging in acts of sexual harassment or sex discrimination against her;

(2)    failing to address, or adequately address, Dr Glencross behaviour in a timely manner upon becoming aware of his conduct, including through Dr Mortons complaints; and

(3)    affording her less favourable conditions of employment, by reason of the conduct described in the two preceding paragraphs, than would be experienced by a male in the same circumstances.

233    Dr Morton’s allegations of contraventions of s 351(1) of the FW Act raise the following issues for consideration:

(1)    whether the incidents alleged by Dr Morton happened, and whether they happened in the way alleged;

(2)    whether any action taken against Dr Morton was adverse action;

(3)    whether any adverse action was taken because of Dr Morton’s sex or sexual orientation; and

(4)    whether CSIRO is liable for any action taken by its employees.

234    I will consider each of these questions to the extent that it is practicable to do so. By that, I mean that if the first question is answered adversely to Dr Morton, the answers to some of the remaining questions may become too theoretical, speculative, or impractical to answer.

235    My consideration of the allegations should, of course, be understood in light of my assessment of the evidence of the witnesses.

The allegations against Dr Glencross

236    Dr Mortons pleading alleges that Dr Glencross engaged in sexual harassment or sex discrimination against her by:

(1)    asking her what her sexual preference was;

(2)    referring to her as a prostitute;

(3)    making a comment about her crows-feet;

(4)    slapping her on the backside with a riding crop; and

(5)    staring at her breast area and saying, Women only wear pendants to draw attention to their cleavage. I dont know why you bother Katherine, you dont have any.

Whether the events involving Dr Glencross happened as alleged by Dr Morton

Asking Dr Morton what her sexual preference was

237    Dr Morton alleges that on 26 April 2012 at the James Cook University campus, Dr Glencross noticed a young female Asian student and commented that he was not attracted to Asians, but he found Eurasians particularly sexually attractive. Dr Morton alleges that Dr Glencross then asked her what her sexual preference was, but she did not respond to the question. She alleges that the question made her feel extremely uncomfortable and shocked.

238    Dr Glencross version of the event was that he saw a woman of Asian appearance and made a comment, she’s cute. His evidence was that, in response, Dr Morton asked, Do you like Asian women?. Dr Glencross responded, They are not really my type. I prefer Eurasian, Latino or sort of Mediterranean women in appearance. He said that was the end of the conversation.

239    I do not accept that Dr Glencross asked Dr Morton what her sexual preference was. If that comment had been made, Dr Morton is likely to have complained about that to some of her colleagues at CSIRO, as she did about other aspects of his conduct. It is also likely that she would have told her treating psychologists and doctor about it, and complained of it in her Grievance Document submitted on 16 January 2015, as she did about other aspects of Dr Glencross conduct. She did not do any of these things. If the comment had been made, it is likely she would have made some complaint about it much earlier than her amended statement of claim filed on 6 March 2018. I reject Dr Mortons evidence that Dr Glencross asked her what her sexual preference was.

The prostitute comment

240    Dr Morton alleges that on 2 May 2012 at the Aquaculture Australia conference in Melbourne, Dr Glencross referred to her as a prostitute. Paragraph 1A(1)(b) of the further amended statement of claim, pleads that:

Dr Brett Glencross referred to the Applicant as a Prostitute referring to the Applicants dress and appearance, in the presence of a potential barramundi farming investor, Marty Phillips.

241    Dr Mortons evidence varied substantially from the pleaded allegation. Her evidence was that she made a comment to Dr Glencross that people in Melbourne were better dressed than people in Brisbane, and that she should have worn smarter clothes to the opening drinks and reception, instead of jeans. She commented that she had a nice Prada cocktail dress, which would probably have been more suitable. She told Dr Glencross that the dress cost $5,000 or $6,000. She alleges that he responded, What, were you a prostitute?. She said she was humiliated, shocked and upset.

242    Dr Glencross evidence was that Dr Morton was wearing a ball gown, and he said, Thats a bit OTT. He said that she said people spend a lot more money on clothing in Dubai, and that she had spent a lot more money on clothing there because she earnt a lot more. He denied he had referred to Dr Morton as a prostitute.

243    I prefer Dr Glencross evidence. Dr Mortons evidence was inconsistent with the allegation she made in her pleading that Dr Glencross made the prostitute comment in reference to her dress and appearance. The pleading must be understood as referring to Dr Mortons dress and appearance at the time the comment was made. However, her evidence was that the comment was made in relation to a dress that she owned, but was not then wearing.

244    Further, although Dr Morton pleaded that the prostitute comment was made in the presence of Mr Phillips, her evidence was that she was alone with Dr Glencross when he made the comment. I do not accept her explanation that the discrepancy, must have slipped through the cracks. It is more likely that she adjusted her evidence once it became apparent that Mr Phillips was to be called and that his outline of evidence would not support her allegation.

245    Dr Cook accepted that Dr Morton had told him that Dr Glencross had made a comment using the word prostitute in reference to the attire that she was wearing, but said she did not indicate that she was upset by the comment. He said she said it almost in passing when discussing how the conference went. There are two things that may be said about this evidence. First, Dr Cooks evidence that she said the comment was made about what she was wearing is inconsistent with Dr Mortons evidence. Second, Dr Cooks evidence that the comment was made almost in passing is inconsistent with Dr Mortons evidence that the comment made her feel humiliated, shocked and upset. Although I accept that Dr Morton told Dr Cook that Dr Glencross had referred to her as a prostitute, I do not accept that it is true that he in fact made that comment.

246    Apart from mentioning the prostitute comment to Dr Cook, Dr Morton did not make any complaint about it until her amended statement of claim was filed on 6 March 2018. If the comment had actually been made, she is likely to have complained of it much earlier, together with other complaints she made about Dr Glencross. I reject Dr Mortons evidence that Dr Glencross referred to her as a prostitute.

The crows-feet comment

247    Dr Morton alleges that on 2 May 2012 at the Aquaculture Australia Conference, Dr Glencross made a comment in relation to her crows-feet, referring to her facial wrinkles. Dr Mortons evidence was that when she smiled at something Mr Phillips had said, Dr Glencross remarked, You know you have crows-feet when you smile. Dr Morton said she felt stunned, shocked, humiliated and confused. Dr Glencrosss evidence was that he did not make any comment to Dr Morton about crows-feet.

248    Mr Phillips could not recall Dr Glencross making any comment about Dr Morton’s crows-feet. I accept his evidence that if it had been made, he is likely to have remembered it because he would have regarded it as out of character for Dr Glencross to make such a comment.

249    Dr Morton claimed that she told Dr Cook about the crows-feet comment when she returned to Brisbane. Dr Cook denied this. In contrast, he frankly admitted that other comments attributed to Dr Glencross had been mentioned to him. I consider it unlikely that Dr Cook was either mistaken or lying about the crows-feet comment. I prefer his evidence.

250    If the crows-feet comment had been made and Dr Morton felt stunned, shocked, humiliated and confused, she is likely to have complained of it earlier than in her amended the statement of claim.

251    In cross-examination, it was put to Dr Morton that she was comfortable with, and frequently commented on her crows-feet. She was taken to an email sent to Dr Wade, copied to Ms Valparto and Dr Glencross, where she referred to her photographs and said, Naturally I look shocking in all of them, but he said he would Photoshop out my crows-feet. Dr Morton said that the people in the email were all well aware of Dr Glencross crows-feet comment and this was a pointed reference to that comment. However, upon further questioning, she agreed that she had never met Ms Valparto and had only spoken to her via email. I consider that this was an example of Dr Morton being prepared to make up evidence under cross-examination.

252    Dr Morton sent a text message to Dr Cook on 13 February 2012 where she said, crows-feet must have been the give-away. Dr Morton also responded to an email where Dr Cook said Ryan looks all of 10 years old, by saying Maybe I need to give him my crows-feet. These references to crows-feet appear to be part of the humorous, self-deprecating way that Dr Morton talked about herself, rather than sarcastic comments, pointed at what Dr Glencross had said. I can appreciate that a self-deprecating comment made about oneself is one thing, but the same comment made by another person may be offensive. However, Dr Mortons evidence that she was stunned, shocked, humiliated and confused by Dr Glencross referring to her crows-feet seems to me to be exaggerated and contrived.

253    I reject Dr Mortons evidence that Dr Glencross made the crows-feet comment.

The riding-crop incident and the dominatrix comment

254    Dr Morton alleges that on 16 October 2012, Dr Glencross slapped her on the backside with a riding crop. She associates this event with an incident that allegedly occurred the night before at a dinner at the Norman Hotel, where she corrected Dr Glencross after he brought up the subject of dominatrixes and how they had sexual relations with their clients. Dr Glencross denied that he had initiated any conversation about dominatrixes.

255    During the dinner on the night of 15 October 2012, Dr Morton was exchanging text messages with Dr Cook, relaying her conversation with Dr Glencross and Dr Wade as it happened. Dr Morton and Dr Cook were making fun of Dr Glencross and Dr Wade behind their backs, speculating that they had a homosexual relationship. If a topic as salacious as dominatrixes had been brought up by Dr Glencross, Dr Morton is likely to have immediately texted Dr Cook about that. She did not. Her explanation that her phone may have run out of battery, or may have been out of reach, seems contrived. Nor did she tell Dr Cook about it later, for example, when he walked her home two nights later.

256    Dr Wade and Ms Trenkner were said by Dr Morton to have been present when the discussion about dominatrixes occurred. However, Ms Trenkner gave evidence that, if Dr Glencross had initiated such a discussion, she would have recalled it. Dr Wade said he did not recall that topic, but felt as though he would remember it if it had been brought up. I accept their evidence.

257    Further, that Dr Morton did not mention the dominatrix comment, whether to her colleagues at CSIRO, or her treating psychologists or doctor, until the amended statement of claim was filed on 6 March 2018, is inconsistent with the comment having been made.

258    I reject Dr Mortons evidence that the dominatrix comment was made. I consider that she fabricated that evidence to add a sexual or punitive connotation to the riding crop incident that occurred the following day.

259    Dr Morton alleges that on 16 October 2012, she was setting up the blood collection station at the Bribie Island aquaculture facility when she was slapped on the buttocks with a riding crop by Dr Glencross. She gave evidence that she was alone in the room with Dr Glencross at that time, and he did not say anything when he hit her. She said she was shocked and humiliated. She did not say anything to Dr Glencross.

260    Under cross-examination, Dr Morton denied that she had seen riding equipment in the back of Ms Trenkners car, or that Ms Trenkner showed her any riding equipment. She denied bringing a riding-crop into the sampling room, and waving it around as if she were riding a horse, and denied that she was jokingly hitting people on the buttocks and thighs.

261    Dr Morton said that there was no joking around that morning. Her evidence was inconsistent with her Grievance Document where she had said, During the unpacking and setting up of the sample collection equipment, the riding crop was noticed and several staff made jokes about its use in speeding up the sample collection.. When that was pointed out to her, she said that other staff may have made jokes, but she was not participating in the joking.

262    Ms Trenkner gave evidence that Dr Morton asked to have a look at her riding gear, and they went to her car to look at it. Dr Cook gave evidence that Dr Morton later told him that she had brought the riding crop into the sampling room. Ms Trenkner said that Dr Morton was mucking around in the sampling room with the riding crop, tapping her and a couple of others around the buttocks and thigh regions, mimicking how one would tap a horse. Ms Habilay said she saw Dr Morton holding the riding crop and pretending to whip a horse. Mr Blyth gave evidence that Dr Morton had flicked him playfully with the riding crop, and did so on several occasions after that day. I prefer the evidence of these witnesses to the evidence of Dr Morton.

263    I reject the evidence of Dr Morton that any incident with Dr Glencross occurred during the set-up of the sampling room. I accept Ms Trenkner’s evidence that they went to look at the riding gear in her car during a break in the sampling, so the riding crop could not have been in the sampling room until then. If Dr Morton’s claim that she had been hit with the riding crop during the set-up and felt humiliated is true, it is hardly likely that she would have engaged in the same behaviour with other staff later that morning. It is also unlikely that Dr Glencross and Dr Morton could have been alone in the sampling room at any time that day, given the number of staff present. Further, the idea that Dr Glencross would just come up behind Dr Morton and hit her with the riding crop without either of them saying anything seems far-fetched. That event would have been so bizarre that Dr Morton would have shared it in detail with Dr Cook, given their other exchanges of gossip laced with sexual innuendo about Dr Glencross.

264    I have indicated that I do not accept Dr Glencross evidence that he had no recollection of seeing a riding crop in the sampling room. I accept Ms Trenkners evidence that she saw Dr Glencross putting the riding crop on a shelf. Ms Trenkner’s evidence is consistent with Dr Mortons evidence to the extent that they agree that Dr Glencross had hold of the riding crop in the sampling room at some stage. Because it must have been such a singular occurrence for a riding crop to be present in the sampling room, I do not accept that Dr Glencross could have forgotten about it.

265    I accept Ms Trenkners evidence that she heard Dr Glencross saying, Thats enough of that. Its time to get back to work. That is consistent with Dr Glencross own evidence that he told the staff to get back to work. Ms Trenkner then saw Dr Glencross place the riding crop on the shelf. She did not see Dr Glencross hit Dr Morton. However, having regard to Ms Trenkners evidence that Dr Glencross made the comment and then had hold of the riding crop, I accept that Dr Glencross tapped her on the backside at about that time. The tap is likely to have taken place when Dr Glencross made the comment and before he placed the riding crop on the shelf. That Dr Glencross tapped Dr Morton on the backside with the riding crop is admitted by CSIRO in its amended defence.

266    Although I accept that Dr Morton was tapped on the backside with riding crop by Dr Glencross, it is necessary to examine the context in which that incident occurred.

267    I accept that it was a busy sampling day, involving taking double the usual number of samples, and that Dr Morton and Ms Trenkner were joking around with the riding crop in a break between samples. Dr Glencross was diligent, hard-working and energetic in the performance of his work. Dr Morton was mucking around with the riding crop in the way described by the witnesses. When Dr Glencross tapped Dr Morton with the riding crop, he made the comment, Thats enough of that. Its time to get back to work. I accept that Dr Glencross took hold of the riding crop and tapped Dr Morton on the backside as a signal to get back to work accompanying his words. He then put the riding crop away, consistent with wanting the staff to get back to work.

268    I do not accept Dr Mortons evidence that Dr Glencross slapped her hard with the riding crop. It must have been a light hit, because Ms Trenkner would have otherwise noticedshe said that if a riding crop is swung vigorously, it makes a sound. I do not accept that Dr Glencross said nothing when he tapped Dr Morton on the backside. Dr Mortons evidence that Dr Glencross just hit her out of the blue and said nothing is implausible.

269    Dr Morton claimed to be shocked and humiliated by being hit with the riding crop. She claimed to have regarded the event as a sexual assault and Dr Glencross as her attacker. There are a number of reasons for rejecting these aspects of her evidence.

270    Dr Cooks evidence, which I accept, was that, on about 19 October 2012, Dr Morton said in passing, And by the way, Brett hit me with a riding crop. Dr Cook noted that Dr Glencross conduct sounded a bit odd and made a comment that, Perhaps it was so everyone would hurry up. He asked if there was anything that needed to be done and Dr Morton said, No, no. That is fine. Dr Morton and Dr Cook had a very friendly relationship. I consider that Dr Morton would have taken the opportunity to confide in Dr Cook if, as she says, she felt shocked, humiliated and that she had been sexually assaulted. Dr Morton now says she complained to Dr Cook and expected to do something about it. However, I do not accept that she made any complaint about Dr Glencross behaviour, as she acknowledged in her email of 25 October 2014.

271    Dr Morton travelled by car with Dr Glencross to and from Bribie Island on a number of occasions after 16 October 2012. She accepted that, on some of those occasions, she may have been alone in the car with him. It is implausible that she would have even contemplated travelling alone in a car with someone who she regarded as her attacker and who had sexually assaulted her. Dr Mortons friendly and joking interactions with Dr Glencross by text message on occasions when she picked him up from his home after the incident are also inconsistent with her having regarded him in that way. Dr Morton invited Dr Glencross to parties at the home she shared with Dr Croft. It is implausible that she would have done so if she regarded him as her attacker.

272    Further, it is hardly likely that Dr Morton would have flicked Mr Blyth with the riding crop on later occasions if, as she asserts, she felt shocked and humiliated by Dr Glencross’ similar conduct towards her.

The cleavage comment

273    In her further amended statement of claim, Dr Morton alleges that on 17 October 2012, Dr Glencross stared at her breast area and said:

Women only wear pendants to draw attention to their cleavage. I dont know why you bother Katherine, you dont have any.

274    Dr Morton alleges that the comment was made during a dinner at the Norman Hotel. She said she felt quite horrified, embarrassed and humiliated. Under cross-examination, Dr Morton said she had been talking to somebody seated to her left and heard her name. She looked across and said Sorry?. She said that Dr Glencross then repeated the statement regarding her cleavage and included her name.

275    Dr Glencross version was that, during the dinner, there was a discussion about a comedy television show, The Office. The discussion was about whether women wear pendants to draw attention to their cleavage. A video clip from The Office was played in Court, involving an conversation where, on a first date, a man informs a woman that women wear necklaces to draw attention to their breasts, and the conversation becomes more awkward the more the man tries to retrieve the situation. Dr Glencross denied that he said, I dont know why you bother, Katherine. You dont have any.

276    I prefer Dr Glencross version. I accept that there was a conversation between Dr Glencross and others, in the context of the skit from The Office, about whether women wear pendants to draw attention to their breasts. Dr Morton, although seated at the same table, was not involved in that conversation. She looked up and heard some words from Dr Glencross which she appears to have interpreted as referring to her. It may be noted that Dr Morton did not mention in her evidence, the allegation in her pleading that Dr Glencross had pointed to her cleavage.

277    It may be that Dr Morton overheard part of the conversation and thought that it was directed at her. It is possible that she mistakenly thought that Dr Glencross had been making a comment about her cleavage. It is unnecessary to reach a conclusion as to precisely what Dr Morton thought. Whatever her perception, I accept Dr Glencross evidence that he did not make the comment attributed to him by Dr Morton.

278    Dr Cook gave evidence that Dr Morton told him about the cleavage comment as he was walking her home from the dinner. He said that Dr Morton described the incident almost as an anecdote about how the evening went, and did not say that she was upset by the comment or ask him to do anything about it.

279    Dr Morton sent an email to Mr Blyth the following morning:

Meanwhile Im at work (will be driving bunny to the airport!) & was up to 1 am drinking with him and & Cook!.

280    The reference to “bunny” was to Dr Glencross. I accept that Dr Morton was up drinking until late with Dr Glencross. If, as she says, she felt horrified, embarrassed and humiliated by a comment he made (not to mention his sexual assault upon her the day before), it is quite implausible that she would have done so.

281    Further, if Dr Morton felt horrified, embarrassed and humiliated by his behaviour, she is unlikely to have offered to drive Dr Glencross to the airport the following day. When asked whether she was anticipating personally driving Dr Glencross to the airport, she denied that, and said that she assumed there was an issue with autocorrect in her text message. That answer was quite implausible, given what appears to be quite deliberate language and punctuation.

282    It may also be noted that Dr Morton sent a text message to Dr Cook on the morning of 18 October 2012, saying:

Meanwhile, bunny refused my lift to the airport & told me to go write my review!

283    Dr Mortons denied that she was offering to personally drive Dr Glencross to the airport, saying that her reference to, my lift, was because she had organised the lift, so she thought of it as being mine in terms of a product she had produced. That explanation simply does not ring true and is another example of Dr Morton’s tendency to make up answers.

284    The evidence demonstrates that Dr Morton offered to drive Dr Glencross to the airport on 18 September 2012. It is implausible that she would have done so if, the night before, he had made a comment about her cleavage that left her horrified, embarrassed, and humiliated, and if, two days before, he had sexually assaulted her.

Whether any action taken by Dr Glencross was adverse action

285    Under Item 1 of the Table set out in s 342(1) of the FW Act, adverse action is taken by an employer against an employee if the employer:

(a)    dismisses the employee; or

(b)    injures the employee in his or her employment; or

(c)    alters the position of the employee to the employees prejudice; or

(d)    discriminates between the employee and the other employees of the employer.

286    I have rejected Dr Mortons evidence that Dr Glencross made the sexual preference, prostitute, crows-feet and cleavage comments. As that alleged conduct did not happen, there was no relevant adverse action taken against Dr Morton by CSIRO.

287    While I have accepted Dr Mortons allegation that Dr Glencross hit her on the backside with a riding crop, in considering whether that was adverse action, it is necessary to consider the context in which the incident occurred. In that respect, I have rejected much of Dr Mortons evidence. The context was that, between batches of fish on a very busy sampling day, Dr Morton was jokingly tapping other members of staff on their thighs and backsides with the riding crop. Dr Glencross took hold of the riding crop and said, Thats enough of that. Its time to get back to work, tapping Dr Morton on the backside with the riding crop. That was done as a signal to get on with her work.

288    I do not accept that Dr Morton in fact felt humiliated, offended or insulted by being tapped on the backside with the riding crop, nor would any reasonable person in her position. That would be inconsistent with her actions in doing precisely the same thing to others on that day, and to Mr Blyth on subsequent occasions. It would also be inconsistent with mentioning the incident to Dr Cook in passing, rather than making a complaint. It would be inconsistent with Dr Morton accepting that she may have subsequently been alone in a car with Dr Glencross and inviting him to parties to her home. It would be inconsistent with failing to raise any complaint about the incident for two years, despite complaining about other aspects of Dr Glencross’ conduct to CSIRO staff in that period.

289    In that context, Dr Glencross cannot be found to have taken adverse action in contravention of s 351(1) of the FW Act by discriminating between Dr Morton and other employees. It was not less favourable treatment of Dr Morton than other employees. It is plain that neither Dr Morton, nor the other employees, regarded her tapping them on the thighs and backside with a riding crop as unfavourable treatment—it was just playful mucking-around, to use Ms Trenkner’s expression. In those circumstances, the tap on the backside with the riding crop by Dr Glencross cannot be considered unfavourable treatment of Dr Morton. Although Dr Morton was the only employee Dr Glencross tapped with the riding crop, that was because she was the main person involved in hitting or flicking other employees. I do not accept that Dr Glencross action was a form of chastisement or punishment, or that it was in any way sexual. It was simply a light-hearted signal to emphasise his words about getting back to work. Since Dr Glencross conduct was not unfavourable treatment, it cannot amount to less favourable treatment of Dr Morton compared to other employees.

290    In Patrick Stevedoring, the High Court at 18 described the phrase injures the employee in his or her employment” as referring to “injury of any compensable kind”. The broader conception in Squires required treatment that was “injurious or prejudicial”. In this case, there was no compensable injury, harm or prejudice of any kind to Dr Morton as a result of the riding crop incident. I do not accept that Dr Morton was injured in her employment.

291    In Patrick Stevedoring, the expression “alters the position of the employee to the employee’s prejudice was described as any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. The riding crop incident caused no adverse effect upon on, or deterioration in, any advantages enjoyed by Dr Morton.

292    Accordingly, I find that Dr Glencross action in tapping Dr Morton on the backside with the riding crop was not adverse action within s 351(1) of the FW Act.

The allegations against Dr Preston

293    Dr Morton alleges that on 2 May 2012, at the Aquaculture Australia Conference in Melbourne, she was approached by Dr Preston at a dinner. She alleges that Dr Preston commented to her, You are just a hussy. Dr Morton alleges that Dr Prestons tone of voice was fairly light-hearted and dismissive. She alleges that Mr Donovan was present when the comment was made. She said she felt upset.

294    On 30 October 2012, Dr Morton sent Dr Cook an email which said, oh, and the Pres said Ian is a gazzillionairre right before he called me a hussy. Dr Morton states that this was a reference to Dr Preston whispering to her that Ian, a client, was a gazillionaire, right before calling her a hussy. She said she believed that Dr Preston was suggesting that she should be overtly friendly to clients in order to attempt to secure research funding.

295    Dr Preston denied that he made any comment to Dr Morton using the word hussy.

296    Having regard to my assessment of the general lack of credibility of Dr Morton’s evidence, I prefer Dr Prestons evidence. I am assisted in finding that Dr Preston did not make the alleged comment by the absence of any reference to the comment in Dr Mortons Grievance Document of 16 January 2014, despite her making other complaints about him. Nor was it mentioned in her email of 25 October 2014 to Dr Preston complaining about his comments about other matters. The complaint was not raised until the amended statement of claim on 6 March 2018.

297    Further, Mr Donovan gave evidence that he did not recall Dr Preston saying, Youre just a hussy. His evidence was that he would remember something like that if it were said. I accept Mr Donovans evidence.

298    The tone of Dr Mortons email of 30 October 2012 as a whole was light and joking. That is indicated by language such as gazillionaire. It contains nothing suggesting that Dr Morton was upset about the comment Dr Preston had allegedly made some six months before. Dr Morton may have simply been making a joke that Dr Preston called her a hussy, without it being true that he did so. Whatever the reason for the statement in the email, I do not accept that Dr Preston actually said it.

299    Dr Morton also alleges that Dr Cook told her that Dr Prestons nickname for her was dizzy blonde. Dr Preston denied that he had that nickname for Dr Morton. He denied that he had a nickname for any staff member. I accept Dr Prestons evidence.

The allegations against Dr Cook

300    Dr Morton makes the following allegations against Dr Cook:

(1)    on 9 August 2012, Dr Cook told Dr Morton that Dr Prestons nickname for her was dizzy blonde;

(2)    on 10 September 2012, Dr Cook circulated an email with a picture of a scantily dressed woman;

(3)    on 7 November 2012, Dr Cook circulated an email with a picture of a half-naked man and woman, describing them as candidates for positions at CSIRO;

(4)    on 19 March 2014, Dr Cook circulated an email discussing, in a sexualised way, the potential candidates for a post-doctorate position; and

(5)    on 2 December 2014, Dr Cook said to Dr Morton, take a blonde to Tasmania, dress her up and double your money.

Whether the events happened as alleged by Dr Morton

The dizzy blonde allegation

301    Dr Morton alleges that on 9 August 2012:

Dr Mathew Cook told the Applicant that Dr Nigel Prestons nickname for the Applicant was dizzy blonde.

302    Dr Morton did not mention this allegation in her evidence-in-chief. However, she was cross-examined about the allegation. It relates to an email exchange between Dr Morton and Dr Cook on 9 August 2012. Dr Morton wrote:

PS Has Nigel told you what my nickname is? First rule of nicknaming, you have to tell the person!

303    Dr Cook responded:

I think its dizzy blonde????

No-one has mentioned mine but I assume it is rather derogatory.

304    Dr Morton responded:

Wouldnt surprise me! (The blonde bit)

Yours is just Darth though I would love to know what Mel says…

305    Dr Cook gave evidence that he had not actually heard Dr Preston use the name dizzy blonde in respect of Dr Morton. He said that his comment was based upon Dr Preston having once said, She comes across as a bit of a dizzy blonde, when he asked Dr Preston about his impression of Dr Morton.

306    It is not entirely clear from the pleading whether the allegation is against Dr Cook, for informing Dr Morton that Dr Preston had that nickname for her; or against Dr Preston, for telling Dr Cook that he had that nickname for Dr Morton. If it is the latter, then I have accepted Dr Prestons evidence that he did not have that nickname for her, and that he did not tell Dr Cook that he had that nickname for her. If it is the former, I do not accept that Dr Cook informed Dr Morton that it was Dr Preston’s nickname for her. Dr Cooks email was in response to Dr Morton asking whether Dr Preston had told her what her nickname was. Dr Cooks response, punctuated with four question marks, indicated that he was guessing that it could be dizzy blonde. It was not a communication that Dr Preston in fact had that nickname for her. Further, Dr Mortons response, Wouldnt surprise me… does not suggest that she understood Dr Cook to have communicated that Dr Preston in fact had that nickname for her. In addition, her response does not indicate that she took any offence at any such nickname.

307    I reject the allegation that Dr Cook told Dr Morton that Dr Preston’s nickname for her was dizzy blonde.

The scantily dressed woman email

308    Dr Morton alleges that on 10 September 2012, Dr Cook circulated an email with a picture of a scantily dressed woman. The email was sent to Dr Morton and one other female and two male members of staff. The subject-line of the email was, Love it. The email attached a document entitled, How people in science see each other. The document contained a number of photographs in a grid pattern showing, in a humorous way, how various people in science perceive others in science. One photograph shows how an undergraduate is perceived by a PL/Professor. That photograph is of a woman in revealing clothes bending over what may be the bonnet of a car. The remainder of the photographs contain no sexual innuendo.

309    One of the recipients of Dr Cooks email responded, Can I meet your undergraduate please Professor Cook. Dr Cook replied, Nah, she is all mine!. Dr Morton responded:

Can I have an undergraduate too, please? Except I would like to request mine from the 2013 firemans calendar. Ta.

310    Under cross-examination, Dr Morton denied that she was participating in the joke, saying that she was making a pointed comment. I do not accept Dr Mortons evidence. She clearly saw humour in the email and participated in the joke by requesting an undergraduate from a Firemens Calendar. There is nothing in her response to indicate that she was offended by any of the emails in the chain.

The half-naked man and woman email

311    Dr Morton alleges that on 7 November 2012, Dr Cook sent her an email with a picture of a half-naked man and a half-naked woman, describing them as candidates for positions at CSIRO.

312    There was an exchange of emails between Dr Morton and Dr Cook on that date. An email from Dr Cook had the subject-line, Guess who is here…. The email went on to say:

Here are the top two candidates, I have my preference.

313    The email attached photographs of a muscular man with no shirt on and a buxom woman whose shirt barely conceals her breasts.

314    Dr Morton replied:

Hmmm…well clearly both need CSIRO merchandise…

If I have correctly assumed your preference, then you could be on-to something—we could use her to distract the powers that be whilst we run up crazy ass expenses on work trips to say Hawaii do science.

PS

Where is my CSIRO shirt? Natalie has one! The giving of a CSIRO shirt to one employee and not all could be considered bullying! :)

315    Dr Cook responded:

I like the shirt being worn in the picture. Again, probably biased. Sorry, better get back to science (no sign of Natalie, Julie or anyone for that matter)!

316    Dr Morton responded:

That is because they are all at the surf club having a meeting with their new theme leader and her PA! Geez…you really are out of the loop!

Hmmm…as long as it was CSIRO branded it would be okay. Not suitable for those with no cleavage, so the CSIRO needs to fund my boob job…

I should get back to science, but I have about 500 pages of lipid metabolism in fish to read :(

317    Dr Cooks evidence was that this exchange of emails was made in the context of Dr Preston planning to retire. He said that his intention was to make a joke that he and Dr Morton would be on the selection panel for Dr Prestons replacement and it would be a hard choice between the two candidates he had sent through. He says that Dr Morton did not complain to him about that email.

318    Under cross-examination, Dr Morton denied that she was participating in a joke with Dr Cook. She said she was trying to change the subject. She said that her comment, Not suitable for those with no cleavage, so the CSIRO needs to fund my boob job, was a sarcastic and pointed comment, being a reference to the comment Dr Glencross had previously made about her cleavage.

319    It is evident that Dr Morton was in fact participating in a joke with Dr Cook. That was indicated by her comments such as, we could use her to distract the powers that be whilst we run up crazy ass expenses on work trips to say Hawaii do science. I do not accept that the reference to no cleavage and boob job were pointed references to any comments previously made by Dr Glencross. Instead, they are a further indication that Dr Morton was participating in the joke. I do not accept that she found the email offensive.

The candidates for a post-doctorate position email

320    Dr Morton alleges that on 19 March 2014, Dr Cook circulated an email discussing, in a sexualised way, the potential candidates for a post-doctorate position. This involved an exchange of emails between Dr Cook, Dr Morton and Dr Taylor, who comprised the selection panel for a post-doctorate position. Dr Cook had said:

Richard cant move past [name deleted].

I believe he has pinned her picture up in his office!

321    That was a reference to a candidate who had applied for the position and had included her photograph with her application. Dr Morton replied saying:

So were appointing three applicants to look cute, plainly (sic) experiments, manage hamsters & brewing…

Can I amend the duties to include making my coffee…

322    Again, Dr Morton was clearly participating in a joke with Dr Cook and Dr Taylor. I do not accept that she was offended by Dr Cooks email.

The take a blonde to Tasmania comment

323    Dr Morton alleges that on 2 December 2014, Dr Cook said to her, Take a blonde to Tasmania, dress her up and double your money.

324    Dr Morton and Dr Cook had a meeting with a client in Hobart. Dr Morton said that the chief vet seemed impressed and offered to increase the cash component of the research funding. Her evidence was that after the meeting, Dr Cook said, Take a blonde to Tasmania, dress her up, and double your money. Dr Morton said she felt quite disgusted and humiliated. She said she had recently filed a formal grievance about behaviours of that type from senior managers, and it was still continuing.

325    Dr Cook denied making that comment. I prefer Dr Cooks evidence. Dr Morton exchanged text messages with Dr Cook in which they arranged to meet for breakfast the following morning. She accepted that there was no hint from her text messages with Dr Cook that she felt quite disgusted and humiliated, and was upset with him. If the comment had been made, and she felt that way, she would hardly have agreed to meet Dr Cook for breakfast.

326    Dr Mortons evidence was that she had already made a formal complaint about similar behaviour from senior managers, and it was continuing. If it were true that Dr Cook had made the comment, the ideal opportunity to raise it was in her Grievance Document, delivered six weeks later on 16 January 2015. In fact, Dr Morton agreed that she had raised no such allegation against Dr Cook until the amended the statement of claim was filed on 6 March 2018. It is implausible that, if Dr Cook had made the offensive comment, she would not have complained of it earlier.

327    I reject Dr Mortons evidence that Dr Cook made the comment alleged.

Whether Dr Cooks emails amounted to adverse action

328    Dr Morton and Dr Cook had a very friendly relationship in which they often exchanged light-hearted emails and text messages sharing banter about topics including food, alcohol and gossip about other CSIRO staff members. It was in the context of that relationship that Dr Cook sent the emails that Dr Morton now complains of.

329    Dr Mortons responses to the emails indicate that she regarded them as jokes and was not offended by them. In fact, Dr Morton participated in the jokes through her own comments in response. Dr Morton and Dr Cook seemed to share a similar sense of humour.

330    At times, Dr Morton initiated emails with Dr Cook making jokes containing sexual innuendos. In an email she sent to Dr Cook (who was a cyclist) on 4 April 2014, she said:

I have discovered that cyclists have a phrase, bonking. Which seems quite different to the reproductive biologists usage. This made me giggle uncontrollably, drug induced, and now my abdo hurts.

331    Both Dr Morton and Dr Cook thought it was funny to speculate about Dr Glencross and Dr Wade having a homosexual relationship. That may be seen in Dr Cooks Bunny Lovin lyrics, which he attached to an email on 15 October 2012, saying, Imagine Nick and Brett in mankinis singing. The lyrics contained crude sexual references. Dr Mortons response was, I owe you a coffee for that one!!!”. It is quite clear that Dr Morton appreciated the joke involved in that email and was not offended by it.

332    Five days later, Dr Morton texted photographs of home-made gingerbread men (which she described as ninjabreads) to Dr Cook. One of the ninjabreads had been decorated as if it was wearing a mankini. The caption accompanying the texted photo was, Recognise this one?. The following week, Dr Morton took the mankini-ninjabread into work. She took a photograph of an apparently unwitting Dr Wade posing with the ninjabread and sent it to Dr Cook. It is apparent this part of the joke, which had a sexual connotation, was initiated by Dr Morton.

333    Dr Morton agreed that on 9 December 2012 she sent a text message to Mr Blyth where she said:

Boogie hey. I would take a picture of our booze, but we are all too pissed. Now I am being teased about my slutty Santa bowl!!!…

I think the quote of the night is, ‘Fancy a handful of my nuts’.

334    These communications demonstrate that Dr Morton was no prude when it came to jokes containing sexual innuendos. It is implausible that she was offended by the emails Dr Cook sent her. She was a willing participant in the jokes involved in the emails that she now complains of. I reject her evidence that she told Dr Cook verbally that she found some of them offensive. If she found any of them offensive, she is likely to have said so by return email. She did not. In fact, she found them amusing.

335    Dr Morton’s Grievance Document did not make any complaints at all about Dr Cook. Some ten months later, in his email of 8 November 2015, Mr Croft referred to, “Dr Cook’s general inappropriate workplace behaviours of inappropriate sexual comments regarding people he was interviewing for a position”. Apart from that, no allegations of sexual harassment or sex discrimination allegations against Dr Cook were raised until the amended statement of claim. That is an indication that her claim to have been offended by Dr Cook’s emails is a recent invention.

336    While Dr Morton pleaded five allegations of emails or comments alleged to constitute sexual harassment or sex discrimination by Dr Cook, she gave evidence of receiving other emails which she allegedly found inappropriate or offensive. These include emails of: 26 July 2012, in which Dr Cook referred to surfing porn; 16 October 2012, containing the “Bunny Lovinlyrics; 8 November 2012, referring to “titty bars”; and 11 February 2013, referring to being slapped with a cold barramundi. Dr Morton’s responses to the first two of these emails clearly indicate that she joined in the joke and was not offended. She made no complaint of being offended by the third and fourth until she gave evidence. In respect of the fourth, her evidence that she thought Dr Cook was referring to the riding crop incident is implausible. I have been left with the impression of Dr Morton recently trawling through the material trying to find emails sent in the context of her friendly relationship with Dr Cook, which she could claim to have been offended by. I do not accept that she was offended by any of these emails.

337    I do not accept that Dr Cooks emails injured Dr Morton in her employment, altered her position to her prejudice, or discriminated between her and the other employees.

338    I find that Dr Cooks emails were not adverse action taken against Dr Morton.

Dr Morton’s allegations considered under the Sex Discrimination Act

339    I have held, contrary to Dr Morton’s submission, that the sexual harassment and sex discrimination provisions of the Sex Discrimination Act are not picked up by s 351(1) of the FW Act. In case I am wrong in that conclusion, I will consider the allegations upon the assumption that those provisions do apply.

340    Section 28B of the Sex Discrimination Act provides that it is unlawful for an employee to sexually harass a fellow employee. Section 28A provides:

28A    Meaning of sexual harassment

(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, sexual orientation, gender identity, intersex status, marital or relationship status, 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.

341    Section 14(2) of the Sex Discrimination Act provides, relevantly, that it is unlawful for an employer to discriminate against an employee on the grounds of, relevantly, the employee’s sex or sexual orientation in the terms or conditions of employment that the employer affords to the employee, or by subjecting the employee to any other detriment.

342    Section 5 of the Sex Discrimination Act describes sex discrimination as follows:

5    Sex discrimination

(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)    a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c)    a characteristic that is generally imputed to persons of the sex of the aggrieved person;

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 a different sex.

(2)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

343    I have found that Dr Glencross did not make the sexual preference, prostitute, crows-feet and cleavage comments. I have found that Dr Preston did not make the hussy comment. Further, I have found that Dr Cook did not tell Dr Morton that Dr Preston’s nickname for her was dizzy blonde, or make the Take a blonde to Tasmania comment. Therefore, these allegations of sexual harassment or sex discrimination cannot succeed.

344    I have accepted that the riding crop incident occurred, although not in the way alleged by Dr Morton. I do not accept that this was sexual harassment within s 28A of the Sex Discrimination Act because: firstly, the conduct was not unwelcome; secondly, the conduct was not of a sexual nature; and thirdly, a reasonable person would not have anticipated the possibility that Dr Morton would be offended, humiliated or intimidated. That Dr Glencross’ conduct was not unwelcome is indicated by the fact that Dr Morton engaged in similar conduct on the same day and subsequent days, and the fact that she mentioned the incident only in passing to Dr Cook and did not make a complaint about it for two years. I have rejected her evidence that she was in fact shocked and humiliated. Dr Glencross’ conduct was not of a sexual nature—in the same way that Dr Morton’s similar conduct was not of a sexual nature—but was merely a signal to prompt her to get on with her work. A reasonable person would not have anticipated that Dr Morton would be offended, humiliated, or intimidated, since she had been engaging in the same conduct.

345    Further, I do not accept that the riding crop incident involved sex discrimination against Dr Morton within s 5 of the Sex Discrimination Act. I do not accept that Dr Morton’s sex had anything to do with Dr Glencross tapping her on the backside with the riding crop. It was done in response to her similar behaviour and to signal her to get back to work. I do not accept that a man would have been treated differently in the same circumstances.

346    I have found that Dr Cook sent the emails with a picture of a scantily dressed woman, an email with a picture of a half-naked man and woman and an email discussing (in an allegedly sexualised way) the potential candidates for a post-doctorate position. Sending the first two of the emails can be considered to involve conduct of a sexual nature. I do not accept that the third email (which merely said, Richard cant move past [name deleted]. I believe he has pinned her picture up in his office!) involved conduct of a sexual nature.

347    Dr Morton clearly participated in the jokes through her replies. She gave no indication in her replies that she was offended by the emails, and I reject her evidence that she was. The emails were sent in circumstances where Dr Cook and Dr Morton got on very well and shared a similar sense of humour, demonstrated by the mankini-ninjabread photograph sent by Dr Morton to Dr Cook. I do not accept that Dr Cook sending any of the emails complained of was sexual harassment, because the conduct was not unwelcome, nor would a reasonable person have anticipated that Dr Morton would be offended, humiliated, or intimidated by receiving the emails.

348    Further, sending the emails was not sex discrimination because a man would not have been treated differently. The emails were sent, not because Dr Morton was a woman, but because Dr Cook and Dr Morton had a friendly relationship which involved sharing light-hearted and joking emails and text messages. Further, two of the emails were also sent to male recipients.

349    Accordingly, even if s 351(1) of the FW Act picked up and applied the Sex Discrimination Act, I would not have found that Dr Morton was subjected to sexual harassment or sex discrimination.

Liability of CSIRO for acts of its employees

350    I will consider whether CSIRO would have contravened s 351 of the FW Act upon an assumption that Dr Glencross, Dr Preston and Dr Cook took the actions alleged against them.

351    Section 793 of the FW Act provides, relevantly, that any conduct engaged in on behalf of a body corporate by an employee within the scope of his or her actual or apparent authority is taken to have been engaged in also by the body.

352    Dr Glencross, Dr Preston and Dr Cook were each employees of CSIRO. Each of them was in a superior position to Dr Morton within the organisation. The allegations made against them involve acts of adverse action in the nature of sexual harassment or sex discrimination against Dr Morton.

353    I do not accept that any of the acts alleged were engaged in on behalf of CSIRO, nor that they were within the scope of the employees’ actual or apparent authority. The employees were not authorised, or apparently authorised, by CSIRO to engage in acts of sexual harassment or sex discrimination, such as making sexually-charged comments to other employees or sending lewd emails. To the contrary, CSIRO had in place policies which made it clear that it would not tolerate any form of harassment or discrimination. Each of Dr Glencross, Dr Preston and Dr Cook had been given training by CSIRO about appropriate workplace conduct which made it clear that such conduct was prohibited. I do not accept that s 793 of the FW Act applies to their conduct.

354    Dr Morton submits that CSIRO is vicariously liable for the adverse action consisting of sexual harassment and sex discrimination of its employees under common law principles. I will proceed on the assumption that these principles are relevant.

355    The traditional common law requirement was that the employee's wrongful act be committed in the course, or scope, of employment. However, in Prince Alfred College, the High Court at [81] said that the relevant approach is to consider whether the apparent performance of any special role that the employer has assigned to the employee may have given the “occasion” for the wrongful act. The relevant features include authority, power, trust, control and the ability to achieve intimacy with the victim. Where an employee takes advantage of such a position with respect to the victim, the wrongful act may be regarded as committed in the course, or scope, of employment and, as such, render the employer vicariously liable.

356    In the present case, the positions given to Dr Glencross, Dr Preston and Dr Cook lack such features. While they were in superior positions to Dr Morton, the extent of that superiority was quite limited. It did not, for example, deter Dr Morton from making complaints about Dr Glencross’ management style both to Dr Glencross and others, or Dr Morton complaining to Dr Preston about his comments. Dr Cook and Dr Morton were on very friendly terms, but that was not related to Dr Cook’s position. I would not find that any relevant conduct of Dr Glencross, Dr Preston and Dr Cook was “occasioned” by their positions.

357    Therefore, even if I had found that Dr Glencross, Dr Preston or Dr Cook had engaged in the adverse action alleged, I would not have found that CSIRO contravened s 351(1) of the FW Act.

The allegation that CSIRO failed to address, or adequately address, Dr Glencross behaviour in a timely manner

358    In paragraph 1A(5)(b) of the further amended statement of claim, Dr Morton alleges that:

The Respondent failed to address or adequately address Dr Brett Glencross’ behaviour in relation to the Applicant in a timely manner, upon becoming aware of such conduct, including the Applicant’s complaints.

359    The relevant behaviour is not particularised. However, in the context of Claim 1A as a whole, it must refer only to Dr Glencross’ alleged sexual harassment and sex discrimination against Dr Morton, and not to the bullying and mismanagement allegations contained in the Grievance Document.

360    Dr Morton’s written submissions are inadequate in respect of this claim, and the allegations were not made much clearer in oral submissions. It was explained in oral submissions that the allegation is that Dr Morton complained of sexual harassment and sex discrimination against Dr Glencross to various people at CSIRO, but they failed to act upon her complaints contrary to the requirements of the Enterprise Agreement. However, precisely what CSIRO’s staff were required to do, and what they failed to do, was never made clear.

361    The Enterprise Agreement deals with Grievance Procedures in Schedule 4. In cl 2 of the Grievance Procedures, under the heading, Matters Covered, the procedures are said to apply to matters including officers’ concerns about, issues arising from decisions or actions connected to their employment. The Matters Not Covered include workers’ compensation issues.

362    Clause 4 of the Grievance Procedures has the heading Principles, and requires, inter alia, confidentiality, fairness and timeliness. The Principles require that, All complaints should be dealt with promptly and thoroughly with a view to finding a resolution as soon as practical.

363    Clause 5 of the Grievance Procedures deals with Responsibilities. It provides that managers have the responsibility to, inter alia: ensure that decisions on managing people are ethical and transparent; demonstrate to staff that their concerns are important by taking steps to swiftly address them and resolve any issues as they arise; and comply with the CSIRO Code of Conduct and Values.

364    Under the CSIRO Code of Conduct and Values, staff are required to, inter alia: act ethically; act in good faith and in the best interests of CSIRO; act with care and diligence; and perform their duties competently and with professionalism, honesty and integrity. All CSIRO staff are made responsible for doing something about any illegal behaviour or behaviour outside the spirit of the Code of Conduct. Further, the Code of Conduct requires staff, particularly supervisors and managers, to be aware of the responsibilities placed upon them by CSIRO’s Equal Opportunity Policy. The Equal Opportunity Policy makes supervisors and managers responsible for being aware of and identifying bullying or discrimination in the workplace and eliminating inappropriate behaviour regardless of whether a complaint is received about that behaviour. The Conduct and Ethics—Misconduct Policy states that, if a Business Unit suspects that a breach of the Code of Conduct has occurred, and formal counselling is not considered adequate, the Business Unit Leader must initiate an inquiry.

365    The Grievance Procedures in the Enterprise Agreement set out two stages for the resolution of complaints. Stage 1 is Informal Resolution. Step 1 of Stage 1 is for the officer to discuss the matter with their manager in an effort to reach a resolution. The officer should explain what action or decision is the cause of their complaint: what specifically is their complaint; what is the impact of that decision or action; and what is the preferred outcome or result they are seeking. Step 2 is for the officer to discuss the matter with the next level of management. Step 3 is to consider a range of options to help resolve the issue including facilitation and mediation.

366    Stage 2 involves Formal Resolution. Step 1 is for the officer to initiate the formal process by writing to a Senior Manager. The Senior Manager will encourage the parties to attempt to resolve the matter using the informal procedures detailed at Stage 1. Step 2 is for the Senior Manger to appoint an Administrator and an Independent Investigator. There are also four further steps which may be undertaken.

367    It may be seen that Step 1 of the Informal Resolution process does not require a formal or written complaint to be made. However, it is apparent that not every discussion initiated by an officer with a manager about an action or decision the officer is concerned about will necessarily amount to a complaint under the Grievance Procedures. Staff may well question actions or decisions without making any complaint about them. There is no clear delineation between discussions that are complaints and those that are not. That is left to the common-sense of the officer and the manager.

368    Where a complaint is made, Stage 1 of the Informal Resolution procedures leaves considerable flexibility as to how the complaint is to be dealt with. That flexibility recognises that early, informal resolution will work in many, or most, cases, and that is preferable for all parties. While the manager’s responsibilities include taking steps to swiftly address the officer’s concerns and resolve any issues as they arise, that may require the manager to do very little, depending on the circumstances. For example, sometimes merely explaining a decision or action to the officer may be sufficient. Much will depend upon the outcome the officer wants or what the officer wants done. Having said that, as the Equal Opportunity Policy recognises, in some circumstances, a manager is required to take action regardless of whether a staff member wants particular behaviour to be dealt with. The flexibility built into Stage 1 recognises that a one size fits all approach is not appropriate for managers to deal with the great variety of circumstances that may arise in the workplace.

369    I accept Dr Cook’s evidence that Dr Morton did not raise her allegations about Dr Glencross making the sexual preference and crows-feet comments with him. Therefore, no complaint was made about these matters.

370    Dr Morton mentioned the alleged prostitute comment, the cleavage comment and the riding crop incident to Dr Cook. However, as I have found, she mentioned these incidents in passing, rather than raising them as complaints against Dr Glencross. It must be remembered that while Dr Cook was Dr Morton’s administrative manager, they were also on very friendly terms, frequently exchanging gossip. In the context in which these incidents were relayed to Dr Cook, I do not accept that Dr Morton said or suggested that these incidents involved sex discrimination or sexual harassment or another kind of misconduct. I find that these alleged incidents were not discussed with Dr Cook as concerns or complaints. Even if Stage 1 of the Informal Resolution process applied, Dr Morton did not indicate that she sought any outcome or result, and there is nothing further that Dr Cook was required to do under the Grievance Procedures in the circumstances. Further, in respect of the riding crop allegation, Dr Morton specifically told Dr Cook that she did not want any action to be taken.

371    Dr Morton sent an email to Dr Preston on 25 October 2014 in which she referred to the riding crop incident and the cleavage comment. She stated:

While these behaviours are clearly unacceptable I chose not to pursue them any further at that time.

372    Accordingly, Dr Morton confirmed that she had never made complaints about these matters and, implicitly, had not made complaints about any other similar behaviour. Further, even in her Grievance Document of 16 January 2015, Dr Morton only made complaints about the riding crop allegation and the cleavage comment, but not the other alleged comments.

373    I do not accept that Dr Cook became aware that Dr Morton was making any complaint in the nature of sexual harassment or sex discrimination about Dr Glencross until her email to Dr Preston of 25 October 2014. Dr Preston was senior to Dr Cook and the email was directed to Dr Preston. I do not accept that there was any failure by Dr Cook to address, or adequately address, Dr Glencross alleged behaviour.

374    There is no plausible evidence that, prior to Dr Mortons email to Dr Preston of 25 October 2014, she had spoken to any CSIRO staff-member about sexual harassment or sex discrimination by Dr Glencross. I reject the allegations in the further amended statement of claim that Dr Morton told Ms Carroll, Dr Barron, Mr Brewer, and Dr Worby of the alleged sexual harassment and sex discrimination perpetrated by Dr Glencross.

375    Under cross-examination, Dr Morton was asked whether she agreed that she had not pursued the riding crop and sexual preference comment allegations. Her response was, No. Beyond telling Dr Cook of those, I had not formally pursued them. Neither do I accept that she informally pursued these or any other allegations of sexual harassment or sex discrimination.

376    The responsibilities that managers have under the Equal Opportunity Policy are incorporated into the Code of Conduct, which, in turn, is incorporated into the managers’ responsibilities under the Grievance Procedures in the Enterprise Agreement. I do not accept that any manager breached responsibilities under the Equal Opportunity Policy, or the Code of Conduct, in respect of Dr Morton’s allegations of sex discrimination and sexual harassment. In particular, to the extent that Dr Morton alleged that Dr Cook was required to take action upon her mentioning the alleged prostitute comment, the cleavage comment and the riding crop incident, I reject that allegation. The way the comments were relayed to Dr Cook must be considered. Context is particularly important in a case like this, where a particular complexion is now sought to be placed on a few words said years ago. The particular circumstances, including the tone, nuance, and interpretation of the person the words were said to, must be taken into account. I accept that, from the way Dr Morton relayed the comments and the incident in passing, it was not indicated to Dr Cook that the alleged behaviour was offensive, such that there was a breach of the Code of Conduct or the Equal Opportunity Policy. When he did ask about the riding crop incident, Dr Morton indicated that she did not want any action to be taken and, while that was not necessarily decisive of what Dr Cook should have done, I am not satisfied that he was required to take any action in circumstances where it is apparent that Dr Morton was not offended.

377    The further amended statement of claim alleges that Dr Morton discussed the riding crop and cleavage allegations with Dr Preston on 22 October 2014, but she gave no evidence in support of that allegation. Dr Preston received Dr Morton’s email of 25 October 2014, which did refer to those allegations. Dr Preston replied, asking that they have a discussion when he returned from Africa. They did not have such a meeting, because Dr Morton said that she did not want to meet Dr Preston. Dr Preston’s dealings with Dr Morton were then overtaken by her informal complaints against him and Dr Glencross made on 6 November 2014, and then her formal written complaint on 28 November 2014. I do not accept that there was more that Dr Preston ought to have done to address Dr Glencross’ alleged behaviour once the allegations were brought to his attention.

378    At the meeting with Ms Davis and Ms Sturton on 6 November 2014, Dr Morton discussed various complaints against Dr Glencross and Dr Preston and said that she would put them in writing. Dr Morton explained that she was busy with her work and would not be able to do that until January 2015. On 28 November 2014, she made a written complaint, which invoked the Formal Resolution process under the Grievance Procedures. On 16 January 2015, she submitted her detailed Grievance Document.

379    On 22 January 2015, Dr Manners sent an email to Dr Morton explaining his role as a delegate regarding the grievance. Dr Glencross provided a letter to CSIRO on 30 January 2015 saying he was resigning with effect from 27 February 2015.

380    After a preliminary information gathering process, Dr Manners wrote to Dr Morton on 15 March 2015, saying that he had decided to appoint Mr Van Dam to investigate her complaint against Dr Preston. Dr Manners also said he was required by CSIROs Misconduct Procedure to discontinue the inquiry into Dr Glencross conduct, as he had left the organisation. In my opinion, Dr Manners acted in a timely manner after receiving the Grievance Document of 16 January 2015.

381    In these circumstances, I reject the allegation that CSIRO, or any of its officers, failed to address, or adequately address, Dr Glencross alleged sexual harassment or sex discrimination in a timely manner in accordance with the Grievance Procedures, upon becoming aware of Dr Morton’s allegations.

382    If I had found that CSIRO failed to address, or adequately address, Dr Glencross’ alleged sexual harassment or sex discrimination in a timely manner upon becoming aware of his alleged behaviour, a question would have arisen as to whether this was adverse action within the meaning of s 342(1) of the FW Act. I would have found that it was adverse action, because CSIRO’s failure to address Dr Morton’s complaints in accordance with the Grievance Procedures altered her position to her prejudice.

383    The question would then have arisen as to whether such adverse action was taken because of Dr Morton’s sex or sexual preference. The onus would have been on CSIRO to prove that these were not reasons for the adverse action. I would have held that CSIRO discharged this onus. Each of the relevant managers, namely Dr Cook, Dr Preston, Dr Manners, Ms Davis, and Ms Sturton, gave evidence that they did not take any action against Dr Morton because of her sex or sexual preference. I accept their evidence.

384    For these reasons, Dr Morton’s allegation that CSIRO contravened s 351(1) of the FW Act by failing to address, or adequately address, Dr Glencross’ alleged sexual harassment or sex discrimination in a timely manner, must be rejected.

The allegation that CSIRO afforded Dr Morton less favourable conditions of employment than would be experienced by a male

385    Dr Morton alleges that CSIRO afforded her less favourable conditions of employment than would be experienced by a male in the same circumstances by reason of the sexual harassment and sex discrimination and that CSIROs failure to address, or adequately address, Dr Glencross behaviour in a timely manner that she alleges.

386    I have found that the riding crop incident was not less favourable treatment of Dr Morton, and that the incident would have been no different if she were a male. Further, I have found that the emails sent by Dr Cook to Dr Morton did not constitute less favourable treatment of her, and would have been no different if she were a male. I have rejected Dr Morton’s other allegations of adverse action constituted by sexual harassment or sex discrimination.

387    Further, I have rejected the allegation that CSIRO failed to address, or adequately address, Dr Glencross behaviour in a timely manner.

388    Each of the witnesses called by CSIRO denied that they treated Dr Morton unfavourably on the basis of her sex. I accept that evidence. I reject the allegation that CSIRO afforded Dr Morton less favourable conditions of employment than would be experienced by a male in the same circumstances.

389    I find that CSIRO did not contravene s 351(1) of the FW Act as alleged in Claim 1A.

CONSIDERATION OF CLAIM 1

390    Claim 1 is contained in paragraphs 3 to 6A of the further amended statement of claim. Paragraph 6 alleges that CSIRO contravened s 340(1) of the FW Act by taking adverse action against Dr Morton because she exercised workplace rights to make complaints and enquiries.

391    The allegations of contravention of s 340(1) made in Claim 1, and in other claims, raise the following issues for consideration:

(1)    whether the events alleged by Dr Morton happened, and whether they happened in the way alleged;

(2)    whether any action taken against Dr Morton was “adverse action”;

(3)    whether the rights pleaded by Dr Morton are “workplace rights”;

(4)    whether Dr Morton exercised any such “workplace rights”;

(5)    whether any adverse action was taken because Dr Morton exercised the pleaded workplace rights; and

(6)    whether CSIRO is liable for any actions taken by its employees.

392    I will deal with these issues in relation to each of Dr Morton’s claims of contraventions of s 340(1). However, in some instances, it will be impracticable or unnecessary to address all of the issues.

393    Paragraph 6A of the further amended statement of claim alleges that the adverse action in Claim 1 consists of:

(1)    failing to address Dr Mortons complaints about Dr Glencross behaviour towards her in a timely manner;

(2)    removing her as a team leader;

(3)    decreasing her allocation to the Huon project; and

(4)    dismissing her from her employment by making her position redundant in circumstances where there was no genuine redundancy.

The allegation that CSIRO failed to address Dr Mortons complaints about Dr Glencross behaviours towards her in a timely manner

394    Dr Morton alleges in paragraph 6A(a) of her further amended statement of claim that CSIRO took adverse action against her by failing to address, or adequately address, Dr Glencross behaviours towards her in a timely manner after her complaint was made.

395    I have already considered and rejected Dr Mortons allegation in Claim 1A that CSIRO failed to address, or adequately address, Dr Glencross alleged sexual harassment and sex discrimination in a timely manner upon becoming aware of his alleged conduct, in the context of s 351(1) of the FW Act. The allegation in Claim 1 seems to largely cover the same territory, except that it relies upon s 340(1) of the FW Act. As s 340(1) and s 351(1) both depend upon there being adverse action, the outcome must be the same. I will not further address the allegations of CSIRO’s failure to address, or adequately address, the allegations of sexual harassment and sex discrimination.

396    Dr Morton also claims that CSIRO failed to address, or adequately address, her complaints about Dr Glencross behaviour not involving allegations of sexual harassment or sex discrimination in a timely manner. Although the allegations pleaded in Claim 1 are quite difficult to understand, no objection was taken by CSIRO. I will set out the pleaded allegations in some detail in an attempt to understand them.

397    Paragraphs 3(c)(f) of the further amended statement of claim plead that Dr Morton told Ms Carroll, Dr Barron, Mr Brewer, and Dr Worby respectively that Dr Glencross was very rude and difficult to work with and was excluding her and her attempts to work as part of the team.

398    Paragraph 4(a) alleges that Dr Morton made verbal complaints to Dr Cook about the behaviour described in paragraph 3. Paragraph 4(b) alleges that Dr Morton received an email dated 10 August 2012 from Dr Cook regarding Dr Glencross’ behaviour towards Mr Irvin, but does not allege that the email was about any complaint about Dr Glencross’ behaviour towards her. Paragraph 4(c) refers to correspondence dated 18 April 2013 and other dates between Dr Morton and Mr Bourne, regarding discussions with Dr Worby about issues with Dr Glencross. Paragraph 4(d), refers to Dr Morton’s emails to Dr Cook on 3 December 2013, about Dr Barron saying that Dr Worby was coaching Dr Glencross about his behaviour. As far as I can tell, only paragraphs 4(a) and (d) may refer to complaints made to Dr Cook about Dr Glencross’ behaviour towards Dr Morton.

399    Paragraphs 5(a) and (b) allege that Dr Morton exercised workplace rights to make complaints and enquiries by, relevantly: making a complaint to Dr Lehnert on 28 October 2014 at the direction of Dr Cook; requesting a formal investigation of Dr Glencross’ behaviour on 28 November 2014; meeting Ms Davis and Ms Sturton on 6 November 2014; meeting with Ms Davis on 5 December 2014; and submitting her formal Grievance Document on 16 January 2015.

400    Paragraph 6 alleges that CSIRO took adverse action against Dr Morton in contravention of s 340(1) of the FW Act because she exercised the workplace rights described in paragraph 5. It alleges that was done by injuring her in her employment, altering her position to her prejudice, and discriminating between her and other employees. Paragraph 6A(a) then particularises the adverse action as, firstly, failing to address, or adequately address, Dr Glencross’ behaviours towards her in a timely manner, after her complaint was made.

401    The pleading seems to allege in paragraph 6A(a), that CSIRO failed to address, or adequately address, Dr Glencross’ behaviours towards Dr Morton in a timely manner after her complaints were made because she had exercised her workplace rights to make the complaints set out in paragraph 5. If paragraph 6A(a) is read generously, it may also cover the complaints set out in paragraphs 3 and 4.

402    Dr Morton’s written submissions are inadequate. They make a bare allegation that it is open to find that Ms Carroll, Dr Barron and Mr Brewer were aware of Dr Morton’s complaints. Dr Morton’s oral submissions seem to frame the allegation as a failure to treat her complaints about Dr Glencross’ behaviour as complaints under the Grievance Procedures of the Enterprise Agreement. In the absence of submissions of any real substance, the case that Dr Morton seeks to make out is uncertain.

403    As best as I can understand it, Dr Morton’s allegations seem to be that she complained to Dr Cook, Dr Worby, Ms Carroll, Dr Barron and Mr Brewer about aspects of Dr Glencross’ conduct not involving allegations of sexual harassment and sex discrimination, but they took adverse action against her by failing to comply with the Grievance Procedures and failing to comply with those procedures in a timely manner. The further allegation seems to be that they failed to so comply because she had made such complaints against Dr Glencross. Although paragraph 4(b) of the further amended statement of claim refers to Mr Bourne, as far as I can tell, no allegation is made against him.

404    Dr Morton gave evidence that she spoke to Ms Carroll from about April or May to December 2012 about Dr Glencross’ behaviour. She would tell Ms Carroll generally about events that were occurring within the group concerning his behaviour. One of the matters that Dr Morton had complained to Ms Carroll about was an email dated 8 August 2012 sent to Mr Irvin by Dr Glencross, which had upset Mr Irvin greatly. Ms Carroll gave evidence that, from time to time, she provided informal feedback to Dr Glencross on his management style.

405    Dr Morton gave evidence that she complained to Dr Barron in 2013 about the working relationship between Dr Glencross and the staff at Bribie Island, and, generally, about the way Dr Glencross operated. She also complained more specifically about how she had been treated by Dr Glencross. Dr Barron was not called to give evidence, as she could not be located. There is in evidence an email from Dr Morton of 3 December 2013 to Dr Cook, saying Dr Barron had told her that Dr Worby was mentoring or coaching Dr Glencross and helping him with his managerial skills, and that Dr Worby was seeking feedback from members of the group as to the problems they felt needed addressing.

406    Dr Morton gave evidence that she made complaints to Mr Brewer in 2012 about Dr Glencross’ behaviour. These were made in the context of Dr Glencross’ treatment of the group as a whole and communication and other issues between Bribie Island site and the ESP site in Brisbane. She said she also complained more specifically about how Dr Glencross treated her and comments he had made.

407    Mr Brewer gave evidence that Dr Morton would discuss with him issues concerning Dr Glencross, including that she was unhappy with Dr Glencross’ treatment of her and the way he interacted with her. Her complaints included that Dr Glencross was not treating her well in relation to science and day-to-day issues, that Dr Glencross was very rude to her and was difficult to work with and many staff did not like his working style. Mr Brewer gave evidence that he had meetings with Dr Glencross with the intention of trying to alter some of his behaviours and the way he treated staff.

408    Dr Morton gave evidence that she made complaints to Dr Worby in 2013 about Dr Glencross’ behaviour. She raised concerns with Dr Worby about the way her group was treated within CSIRO, and about it being more than just Dr Glencross’ group. She said Dr Glencross did not have a good reputation within the CSIRO and she did not want any of the staff in the group to be tarred with the brush of working for Dr Glencross. Dr Morton made complaints about how Dr Glencross treated the group as a whole and things that he specifically did to her, including changing timetables and yelling at staff. She said she felt that Dr Glencross had unreasonable expectations of staff.

409    Dr Worby gave evidence that on 19 April 2013, he had a meeting with Dr Morton and Mr Bourne. Dr Morton said that she felt she had a difficult relationship with Dr Glencross. She said that when they would go to Bribie Island to run experiments, he would often change things around without much regard for the efforts of the people who were already out there. Apart from that meeting, Dr Worby said that he would occasionally meet with Dr Morton, who expressed a level of frustration with Dr Glencross’ style.

410    Dr Worby gave evidence that he had a number of meetings with Dr Glencross in 2012 and 2013. Dr Worby had discussions with Dr Glencross about whether they could improve his management style to the point where he might be able to take over from Dr Preston, as well as improve his interactions with staff. Dr Worby acknowledged that Dr Glencross had a management style that could be difficult, and that was behaviour he spoke to him about a number of times. Dr Worby said he discussed some professional development and coaching with Dr Glencross (by which, taken with Dr Morton’s email of 2 December 2013, I understand him to say he provided some mentoring or coaching to Dr Glencross). Dr Worby thought that some of Dr Glencross’ interactions with other staff could have been better, but that dealing with it informally was the most appropriate vehicle.

411    A part of the difficulty with accepting Dr Morton’s submission that Ms Carroll, Dr Barron, Mr Brewer and Dr Worby failed to comply with their obligations under the Grievance Procedures, is the vagueness of her evidence about the terms of her complaints about Dr Glencross and the outcomes she was seeking. As I have explained, under Step 1 of the Informal Grievance Procedure, the officer should explain to the manager specifically what their complaint is and the preferred outcome or result that they seek. While the manager’s responsibility includes taking steps to swiftly address the officer’s concerns and resolve any issues as they arise, the steps the manager is required to take very much depend on the circumstances, including the specificity of the complaint and the outcome the office is seeking.

412    The lack of particularity in Dr Morton’s evidence about the terms of her complaints to Ms Carroll, Dr Barron, Mr Brewer and Dr Worby, and what she wanted to be done about them, makes it difficult to conclude that they were required to take additional steps to comply with their obligations under the Grievance Procedures. Ms Carroll provided informal feedback to Dr Glencross on his management style. Mr Brewer had meetings with Dr Glencross with the intention of trying to alter some of his behaviours and the way he treated staff. It was not suggested in cross-examination or in submissions what more they ought to have done under the Grievance Policy, or that they ought to have acted more quickly.

413    Dr Barron evidently discussed Dr Morton’s complaints with Dr Worby and reported back to Dr Morton about those discussions, including what Dr Worby was doing and proposed to do. Again, there were no submissions about what more the Grievance Policy required Dr Barron to do, and what she failed to do.

414    It is clear that Dr Worby took steps to deal with Dr Morton’s complaints about Dr Glencross’ behaviour. These steps included meeting with Dr Morton and other staff, having a number of discussions with Dr Glencross in 2012 and 2013 about his behaviour, and providing him with mentoring or coaching. Again, it was not suggested in cross-examination or in submissions what more he ought to have done under the Grievance Policy, or that he ought to have acted more quickly.

415    Further, it may be noted that Dr Morton’s evidence was, in part, concerned with complaints about Dr Glencross’ treatment of other staff. However, Dr Morton’s allegation in paragraph 6A(a) of the further amended statement of claim is that CSIRO failed to take timely action about Dr Glencross’ behaviour towards her, not towards other staff.

416    Dr Morton carries the onus of proving that CSIRO took adverse action against her by failing to address, or adequately address, Dr Glencross’ behaviours towards her in a timely manner after her complaints were made. I am not satisfied that she has demonstrated that Ms Carroll, Dr Barron, Mr Brewer, or Dr Worby failed to do so.

417    Paragraph 4(a) of the further amended statement of claim alleges that Dr Morton made verbal complaints to Dr Cook at about the time that the events in paragraph 3 occurred. The relevant events in paragraph 3 appear to be telling Ms Carroll, Dr Barron, Mr Brewer and Dr Worby that Dr Glencross was very rude and was excluding her and her attempts to work as part of the team. However, this allegation similarly suffers from a lack of particularity about the terms of the complaints made by Dr Morton to Dr Cook and what outcome she wanted. It was not suggested in cross-examination what it was that Dr Cook ought to have done to comply with the Grievance Procedures and what he failed to do. Neither were those issues elucidated in Dr Morton’s submissions. It may be noted that Dr Worby, in particular, was already dealing with these matters. I do not accept that Dr Morton has demonstrated that Dr Cook failed to comply with the Grievance Procedures, the Code of Conduct, the Equal Opportunity Policy or the Conduct and Ethics—Misconduct Policy in respect of any verbal complaints she made about Dr Glencross’ behaviour towards her.

418    Dr Morton’s written submissions concerning the complaints about Dr Glencross’ behaviour other than sexual harassment and sex discrimination, refer to the email from Dr Morton to Dr Cook of 3 December 2013, the text message to Dr Cook on 22 June 2015 and to complaints made at meetings in 2014 and in the formal grievance process.

419    Dr Morton’s email to Dr Cook on 3 December 2013 said that Dr Barron had told her that Dr Worby was mentoring or coaching Dr Glencross and helping him with his managerial skills and saying that Dr Cook may want to have some input into the feedback to Dr Worby. The written submissions do not address the relevance of the email to any allegation of adverse action, and it was not mentioned in oral submissions. I cannot see how Dr Morton’s email can be regarded as a raising a complaint with Dr Cook about Dr Glencross’ behaviour. Even if it could, the issues raised were already being dealt with by Dr Worby. There was nothing else for Dr Cook to do but participate in any feedback process. There is no evidence that he failed to do so. I do not accept that the email demonstrates that Dr Cook failed to comply with his obligations under the Grievance Procedures.

420    The text message from Dr Morton to Dr Cook on 22 June 2015 said that she would not return to Bribie Island as she refused, “to be potentially exposed to my attacker”. It may be that Dr Morton is alleging that this was a complaint that Dr Cook failed to deal with in accordance with the Grievance Procedures. It has not been explained what Dr Cook ought to have done to resolve Dr Morton’s complaint. It may be that she is alleging that he should have taken steps to prevent Dr Glencross from attending the Bribie Island site on days when Dr Morton was there. However, Dr Morton never returned to work after 22 June 2015. She indicated in her text message that she was arranging to see a doctor the next day, and she subsequently received the three-month certificate from Dr Rees on 6 July 2015. Dr Glencross gave evidence that he attended the Bribie Island site about once every three months in his new employment. There was nothing for Dr Cook to do to resolve the situation in these circumstances, because it effectively resolved itself. I do not accept that he failed to comply with the Grievance Procedures in this respect.

421    In February 2014, Dr Morton asked for a “role clarification meeting” with Dr Glencross, because she had been receiving mixed messages and signals about her role. On 6 March 2014, Dr Morton sent a detailed email to Dr Glencross, copied to Dr Cook and Dr Coman, in which she set out her concerns. The role clarification meeting occurred on 7 May 2014, attended by Dr Morton, Dr Glencross, Dr Cook and Dr Coman. Following the role clarification meeting, Dr Morton wrote an email on 10 May 2014 to Dr Glencross, Dr Cook and Dr Coman, setting out the key discussion points from the meeting. Dr Morton told Dr Cook that she did not think that she would ever get any acknowledgement, or be able to get any type of “area” working with Dr Glencross and expressed her frustration that the meeting did not achieve what she had hoped it would. Dr Cook said that Dr Morton and Dr Glencross needed to sever their working relationship, and the final solution was that Dr Morton should not work with Dr Glencross. On 25 May 2014, Dr Morton sent an email to Dr Cook and Dr Coman saying that Dr Preston had suggested that she think about where her career was going and where she wanted it to head. On 22 October 2014, Dr Cook participated in a meeting where Dr Morton flagged her interest in doing an MBA, although Dr Cook and Dr Preston said that CSIRO could not support that proposal.

422    Dr Cook was copied into a series of emails between Dr Morton and Dr Glencross on 27 October 2014 concerning Dr Glencross’ editing of an incorrect version of a manuscript. As a result, Dr Cook organised a meeting with Dr Morton and Dr Glencross for 29 October 2014. At the meeting, Dr Cook said that it was time to sever the relationship. It was Dr Cook’s view that Dr Morton and Dr Glencross could no longer work together in a cordial manner. Dr Cook suggested that it was time to find a new path for both of them. His opinion was that it would be advantageous for Dr Morton to move onto the Huon Project, and away from working with Dr Glencross, to move onto something that she could make her own. On 4 November 2014, Dr Morton sent an email to Dr Preston saying that she had decided to pursue her grievance through HR. The formal grievance process ensued from 28 November 2014, and was dealt with by Dr Manners, not Dr Cook.

423    I do not accept that Dr Morton has demonstrated that Dr Cook failed to address, or adequately address, Dr Glencross’ behaviours towards her in a timely manner after her complaints were made. Dr Cook acknowledged that he told an investigator that, in retrospect, as Dr Morton’s line manager, he should have gone into bat for her more. However, wishing he had done more is a quite different thing to admitting that he did not do enough. It does not mean that he failed to comply with his obligations under the Grievance Policy. To the contrary, Dr Cook took steps to address Dr Morton’s concerns when they were raised with him, and it has not been shown that these were inadequate to comply with his obligations under the Grievance Policy.

424    I reject the allegation that CSIRO, through Ms Carroll, Dr Barron, Mr Brewer, Dr Worby, or Dr Cook, took adverse action against Dr Morton in contravention of s 340(1) of the FW Act, by failing to address, or adequately address, Dr Glencross’ behaviours towards her in a timely manner after her complaints were made.

425    Even if it were accepted that Ms Carroll, Dr Barron, Mr Brewer, Dr Worby or Dr Cook failed to address, or adequately address, Dr Glencross’ behaviours towards Dr Morton in a timely manner after her complaints were made, I would not accept that this occurred because she had exercised her workplace rights to make the complaints. I accept the evidence of Ms Carroll, Dr Barron, Mr Brewer, Dr Worby and Dr Cook and that their actions were not motivated by any complaints that Dr Morton made. Dr Barron could not be located to give evidence, but it is improbable that any such failure on her part was motivated by such complaints.

The allegation that CSIRO removed Dr Morton as a team leader

426    Paragraph 6A(b) of Dr Morton’s further amended statement of claim alleges that CSIRO took adverse action against her by removing her as a team leader on about 15 July 2015, thereby making her employment more vulnerable. She alleges that Dr Cook, or another decision-maker, removed that allocation because she had exercised her workplace right to make complaints about Dr Glencross and Dr Preston.

427    CSIRO had a system of notionally allocating its scientists work hours to particular projects they were working on, and particular leadership roles they occupied. The relevance of allocations was, in part, that scientists who were under-allocated were more vulnerable to redundancy.

428    On 24 November 2014, Dr Morton was appointed as team leader of the Aquaculture Genetics and Biochemistry Team, within Agriculture. Dr Mortons team leader role had 10% allocation attached to it. That meant that 10 % of her work hours was notionally allocated to the duties she performed in that position.

429    On 6 July 2015, Dr Morton obtained a medical certificate saying she was unfit to work for three months.

430    CSIRO has an internal electronic information system, known as SAP. It is used to record and manage the allocations of CSIRO staff and their various leave entitlements.

431    Dr Morton gave evidence that in July 2015, she noticed that on the SAP system, her 10% team leader allocation had been removed. She said she discovered her removal as team leader through the CSIRO People Page, which no longer showed her listed as a team leader. Instead, Dr Wade was listed as the team leader. She thought that this was the beginning of the end for her job, because people who are less than 50% allocated in the CSIRO system are classified as vulnerable to redundancy.

432    There is in evidence a screenshot of the SAP system as at 22 July 2015 which describes Dr Wade as Team Leader, Agriculture. There is also a screenshot showing Dr Morton described as Senior Research Scientist.

433    Under cross-examination, Dr Morton agreed that if someone who normally performs a team leader role is away, there might be a need for someone else to temporarily cover the role.

434    Dr Cook gave evidence that on 8 July 2015, he received an email from Dr Morton saying that a doctor had written her off work for three months. On the same day, he contacted HR and asked if they could appoint an acting or interim leader, so that the team was not disrupted during performance appraisals for staff. Dr Cook said that on 14 July 2015, Dr Wade was appointed as temporary team leader. This evidence is supported by an email he sent on 11 July 2015 to Dr Preston, saying:

With Katherines absence from work until at least October I have spoken to Alysha re the TL role and we have decided to offer an interim role to Nick Wade. This will initially be for three months with review in October.

435    Dr Cooks evidence is also supported by a letter written by Dr Preston to Dr Wade dated 14 July 2015, confirming his appointment as team leader and saying, Your appointment is for a 3 month period from 14 July 2015 until 9 October 2015. It is also supported by an email sent by Dr Cook to a number of CSIRO staff on 14 July 2015, saying that Dr Morton was on extended leave and, In her absence Nick Wade has agreed to take on the interim Team Leader role..

436    Dr Cook gave evidence that Dr Wade did not become the permanent team leader until 1 July 2016. In his view, if Dr Morton had returned to the workplace any time before that, she would have received her 10% allocation back. He said he was not aware that Dr Morton was removed from the SAP system, and had not made any decision that she be so removed. Dr Cook gave evidence that the SAP system is the responsibility of CSIRO Finance and HR. His evidence was that he did not ask for Dr Morton to be removed as team leader, and it was never his intention to remove her as a team leader. I accept that evidence.

437    Ms Walsh, the HR manager for Agriculture, gave evidence that if a person in a leadership role is going to be absent for an extended period of time, CSIRO puts an alternative person into the position so that somebody else can undertake duties and delegations, such as approving leave, undertaking approval of annual performance agreements and tasks of that nature. She said that when somebody temporarily takes over a team leader role, a new position is created in the SAP system for the person who had the role originally. On the SAP system, the absent person is moved into an alternative position, while the acting person is moved into the team leader position. If the temporarily-replaced person looked at the SAP system, it would indicate that the person was not in the team leader position. Ms Walsh said that HR staff manage the changes on the SAP system. I accept Ms Walshs evidence.

438    I am not satisfied that Dr Morton was removed as a team leader. Dr Mortons case conflates the removal of her designation as a team leader from the SAP system with the proposition that she was, in fact, removed as a team leader. Ms Walsh explained that on the SAP system, an acting team leader would be designated as the team leader, while the designation of the person temporarily replaced as the team leader would be removed. Her evidence is consistent with how the SAP system worked in this case, with the exception that it is not clear that a new position was created in the SAP system for Dr Morton. However, the removal of her designation as a team leader from the SAP system does not mean that she was, in fact, removed as a team leader at CSIRO.

439    The evidence is clear that on 14 July 2015, Dr Morton was temporarily replaced as team leader by Dr Wade. That was done for valid operational reasons, including allowing performance reviews of staff to proceed while Dr Morton was absent from work.

440    In her oral submissions, Dr Morton’s counsel made an alternative submission that the removal of Dr Morton’s designation as team leader on the SAP system was itself adverse action. However, that was not pleaded. The pleaded allegation was that CSIRO took adverse action by, “removing her as Team Leader”. Further, it was not explained how the removal of the designation on the SAP system amounted to adverse action within s 342(1) of the FW Act.

441    Since I do not accept that Dr Morton was removed as a team leader, she has not demonstrated that the action she alleges was taken against her. It follows that I do not accept that there was adverse action taken against her in that respect. Further, even if she were so removed, I would find that it was done for the operational reasons indicated by Dr Cook and Ms Walsh, not because she had made complaints against Dr Glencross and Dr Preston.

The allegation that CSIRO decreased Dr Mortons allocation to the Huon project

442    Paragraph 6A(c) of the further amended statement of claim alleges that on 30 September 2015, CSIRO decreased Dr Morton’s allocation to the Huon project, making her under-allocated and more vulnerable in her employment.

443    Dr Morton gave evidence that in April 2015, she had been given a 60% allocation on a project known as the Huon Project, led by Dr Cook (although she later accepted that she had, in fact, been given a 50% allocation). Her evidence was that in July 2015, her allocation to the Huon project had been decreased on the SAP system to 50%. By September 2015, her allocation to the Huon project had been reduced on the SAP system to 20%. She was not given any reason for this. Dr Morton said she was shocked and confused because there had been no communication about replanning the Huon project.

444    There is in evidence an email dated 22 January 2015 for the Huon Project that appeared on the SAP system. The email was based on a project plan prepared by Dr Cook. It recorded a 50% allocation for Dr Morton on that project. A further email was sent on 30 September 2015 indicating that Dr Mortons allocation was 20%.

445    There was evidence that it is important for CSIROs scientists to attract external funding for projects, since their work is not fully funded by government. Dr Morton had been unsuccessful in obtaining any external funding. Dr Cook gave evidence that on 22 October 2014, he and Dr Preston discussed with Dr Morton how she might increase her allocations to externally funded projects. Dr Cook suggested that he had a project with Huon Aquaculture that she could work on. His evidence was that he told Dr Morton that it would involve Level 4 bench work in the initial phase, but that over time, she could move into more of a leadership role as he pulled back.

446    The first phase of the Huon project was a testing phase, which started in about November 2014. Dr Cook was the project leader. His evidence was that it was intended that Dr Morton would do the bench work for the testing phase and, over time, she would take over the relationship with Huon Aquaculture. She was initially given a 50% allocation.

447    Dr Cooks evidence was that the pilot phase finished in early June 2015, and moved to the larger phase commencing on 1 July 2015. Dr Cook said that the project had expanded in scale to not just test, but formulate and do animal trials, requiring different staff to be moved in. He said that Dr Mortons anticipated role going forward was to lead the project, which meant bringing together a multi-disciplinary team, having contact with the client and generally overseeing the science that was done. He said that it was not unusual for a scientist to move away from the bench to more of a leadership role on a project. At that time, Dr Morton’s allocation was changed from 50% to 20%.

448    Dr Cook gave evidence that he prepared a replanning document dated 30 September 2015, reducing Dr Mortons allocation in the SAP system to 20%. That document also showed that allocations had been added for four additional staff.

449    Under cross-examination, Dr Cook accepted that he did not send Dr Morton an email advising of the change and did not speak to her about it. He denied that the reason he reduced her role was because she had made complaints to CSIRO, and was becoming difficult to handle.

450    In Claim 6, Dr Morton also alleges that CSIRO took adverse action against her by transferring her allocation on the Huon project to another staff member. It is convenient to address that allegation at this stage.

451    Dr Cooks evidence was that after Dr Morton ceased work on 6 July 2015, he decided to take over her duties on the Huon project. In October 2015, Dr Cook was appointed as acting research director for Aquaculture and had to step away from his science work. He arranged for Ms Botwright, who was under-allocated, to take over both his and Dr Mortons roles on the Huon project, although he maintained an administrative role.

452    Dr Cook prepared a replanning document for the Huon project. The start date was noted as 1 November 2015, reflecting the time when Ms Botwright was brought onto the project. Her allocation was given at 35%. Dr Cook said that Dr Morton was not listed as having an allocation in that document because she was not in the workplace, so the work had to be allocated to other people to make sure that the project was delivered. He said he made the decision about allocations. On 30 September 2015, Dr Morton had been certified as unfit to work until 30 March 2016. Under cross-examination, Dr Cook said that if Dr Morton had returned to the workplace, her allocations would have been reinstated.

453    Ms Walsh gave evidence that if someone was on long-term sick leave, they would not be listed in a planning document on the SAP system. That is because where there is an externally funded project, the salaries of people allocated to the project are paid from the project funding. If they were working, their time would be charged to the project; but if they were not working, then their time would not be charged to the project.

454    Dr Morton submits that Dr Cooks evidence that her allocation was reduced from 50% to 20% because she was to be removed to a leadership role is unsupported by any documents. She submits that if that was the real reason, it is unlikely that there would be no paper trail, such as emails to those in charge of the SAP, or a letter of appointment such as that provided to Dr Wade when he was appointed as temporary team leader. However, I do not accept that moving into a leadership role within a particular project is attended with the same formality as being appointed a temporary leader of a team, which confers formal responsibilities and delegations. Dr Cook had told Dr Morton on 22 October 2014 what his plan was, and it is unsurprising that there was no formality involved with the implementation of what had been discussed. The fact of decreasing Dr Mortons allocation in the SAP system is consistent with the plan of moving her to a leadership position. It is consistent with allocations being given to four additional staff in the replanning document.

455    Dr Morton relied upon evidence of the “fireside chat” concerning possible redundancies on 11 February 2016, where her position was discussed. Dr Manners decided that it would not be appropriate to make her redundant when she was off work on workers’ compensation. A note was made saying, “Leave Katherine but we don’t have any work/$ if she returns to work”. Dr Morton submits that this is inconsistent with Dr Cook’s evidence that if she returned to the workplace, her allocations would have been reinstated.

456    It is apparent that work on the Huon project was continuing without Dr Morton. However, the fact that no specific work or funding was available for her does not mean that, had she been able to return to work, she would not have been reinstated to the Huon project in place of Ms Botwright, or that she would not have resumed her role as team leader. I do not accept that Dr Morton was more vulnerable to redundancy because her allocation had been removed from the Huon project. Dr Manners was specifically decided on 11 February 2016 that her position would not be made redundant while she was off work on workers’ compensation.

457    I accept the evidence of Dr Cook and Ms Walsh. I do not accept that the reduction of Dr Mortons allocation to the Huon project from 50% to 20% in July 2015 was adverse action within the meaning of ss 340(1) and 342(1) of the FW Act. That is because it was done in order to allow Dr Morton to move away from less skilled bench work into a leadership role for the project. It was part of a deliberate strategy for Dr Mortons benefit, developed at the meeting on 22 October 2014. The reduction in allocation did not discriminate between Dr Morton and other employees because it did not involve less favourable treatment of herit was a part of the favourable treatment involved in moving her into a leadership role in an externally funded project that would be beneficial for her career. There was no injurious or adverse impact on advantages she enjoyed. The aim was to assist Dr Morton by giving her leadership over an externally funded project.

458    I do not accept that the removal of the allocation altogether injured Dr Morton in her employment, or altered her position, to her prejudice, by making her more vulnerable to redundancy. The removal of the allocation had no effect on her while she was off work. I accept Dr Cook’s evidence that if Dr Morton had returned to the workplace, her allocations would have been reinstated.

459    Dr Mortons further amended statement of claim alleges that CSIRO took adverse action against her because she had exercised, or proposed to exercise workplace rights to make complaints against Dr Glencross and Dr Preston, or enquiries in relation to the terms and conditions of her employment. Having regard to the evidence of Dr Cook and Ms Walsh, I find that Dr Mortons allocation to the Huon project was not reduced or removed because she had exercised, or proposed to exercise, the workplace rights, as she alleges. Rather, there were valid operational reasons for the reduction of Dr Mortons allocation on the Huon project, namely, that other staff were to be brought in for the testing work and Dr Morton was to be moved to a leadership role. There were also valid operational reasons for the later removal of Dr Mortons allocation from the Huon project, namely that the work had to go on in her absence, so her allocation was moved to Ms Botwright. Further, Dr Morton was, by that time, on long-term sick leave, so it was not appropriate to allocate her time to an externally funded project that she was not participating in.

460    I do not accept that the reduction or removal of Dr Morton’s allocation to the Huon project was adverse action within the meaning of ss 340(1) and 342(1) of the FW Act. Further, even if it was adverse action, I would find that it was done for the operational reasons indicated by Dr Cook and Ms Walsh, not because Dr Morton had made complaints against Dr Glencross and Dr Preston or made enquiries as to the terms and conditions of her employment.

The allegation that CSIRO dismissed Dr Morton from her employment by making her position redundant in circumstances where there was no genuine redundancy

461    Paragraph 6A(d) of the further amended statement of claim alleges that Dr Morton was dismissed her from her employment by making her position redundant in circumstances where there was no genuine redundancy.

462    It is difficult to understand precisely what is alleged. Dr Mortons written outline of submissions states:

Dr Morton also claims that she was made redundant in circumstances where there was no genuine redundancy. Principally, the argument in this case is that Dr Morton, having been told that she reluctant volunteer for a VRS. In her emails and testimony she said she had no choice.

Evidence of Ms Walsh suggested that she knew about the difficulties Dr Morton was having returning to work, however apart from the advice of Ms Somerville, this was not raised again with Dr Morton.

In this sense, the applicant contends that the employers conduct intended, or have the probable effect or result of, bringing the employment of the relevant employee to an end.

(Errors in original.)

463    In her oral closing address, Dr Mortons counsel submitted that CSIRO had not acted in accordance with the Enterprise Bargaining Agreement. She submitted that there was no documentary support for the assertion that anyone within CSIRO did anything to look for redeployment opportunities for Dr Morton. She submitted that the fact that Dr Morton had asked for a VRS did not negate the organisations responsibilities to offer her redeployment. That argument was consistent with a submission in her written outline that CSIRO had not complied with cl 7 of the Enterprise Bargaining Agreement.

464    Clause 7 of the Enterprise Bargaining Agreement stated:

7.    Redeployment

(a)    CSIRO will carry out an organisation-wide survey of existing and foreseeable vacancies which are at, or one level below, the officers substantive CSOF level and in the same functional area. The minimum period over which this survey will be conducted will be 2 months or a shorter period that may be agreed between CSIRO and the officer.

(b)    A position will be considered to be a suitable opportunity if that officer meets all the essential selection criteria for the position either immediately, or could reasonably be expected to do so after a reasonable period of training (up to six months in the case of vacancies with indefinite tenure).

465    A further part of Dr Mortons case concerning redundancy seems to be that she should have been offered redeployment to a position that became available in Hobart in September 2016.

466    The case that was put by Dr Mortons counsel to Dr Cook, Dr Manners and Ms Walsh in cross-examination was to the effect that the redundancy of Dr Morton was engineered between them because she had made complaints and had lodged a Comcare claim. That was also mentioned in counsel’s closing address. The allegation that CSIRO wanted to get rid of Dr Morton because she had lodged a Comcare claim is not pleaded in relation to Claim 1. However, I will consider it, since no objection was taken to the line of cross-examination.

467    Ms Walsh, Dr Manners, and Dr Cook each gave evidence that, at a fireside chat on 11 February 2016, the possibility of Dr Mortons position being made redundant was discussed, but that Dr Manners decided that it was not appropriate to make her position redundant while she was off work on workers’ compensation.

468    On 26 April 2016, Dr Manners sent an email to CSIRO staff notifying them of their entitlement to register for a VRS. A VRS is a mechanism by which an employee who wants a redundancy can volunteer to take the place of an employee whose position is being made redundant, but who does not want a redundancy. On 17 May 2016, Dr Morton sent an email to Ms Walsh saying:

With great disappointment in CSIRO and the appalling handling of my grievance and injury, I am asking that you place me on the Voluntary Redundancy Substitution list.

469    Dr Mortons evidence was that she had asked to be placed on the VRS list because she was very upset about the way her grievance and the enquiry, had been handled, and a redundancy was the only way forward for her health.

470    The effect of Dr Mortons request that she be placed on the VRS list was that she would receive a redundancy if a suitable employee, whose position was being made redundant, wanted to stay.

471    On 23 May 2016, Ms Walsh sent an email to Dr Morton advising that her name had been added to the VRS register, and that her request would receive careful consideration. Ms Walsh gave evidence that she did a search to see if there was a swap available for Dr Morton, but was unable to find any suitable swap. She then contacted Dr Cook and asked him if there was any potential case that could be made for redundancy of Dr Mortons position. She said she did this to ensure that Dr Morton VRS request thorough consideration, not just had been given through the mechanism of a swap, but also by examining whether it could be accommodated through redundancy of her position.

472    On 10 June 2006, Ms Walsh forwarded a draft redundancy case for Dr Cook to work on. There was then a chain of emails concerning the first part of the redundancy case, described as Cas1. The process required the reasons why a particular position could be made redundant to be outlined.

473    On 24 June 2016, Ms Walsh wrote an email to Dr Morton saying:

I can confirm that CSIRO is able to accommodate your request for a Voluntary Redundancy Substitution (VRS). While we were unable to find a suitable swap via VRS, we made the case that as you had been on extended leave and your position had not been replaced, that reducing the staffing in the science area (Aquaculture nutrition) was appropriate. This case has now been approved.

474    Ms Walsh confirmed in her evidence that the rationale for the redundancy case was that Dr Mortons position had not been replaced while she was absent from work and, therefore, there was no longer a reason to maintain the position. She said that a redundancy case would not have been organised for Dr Morton if she had not requested a VRS.

475    On 30 June 2016, Dr Morton sent an email to Ms Walsh, thanking her for the detailed information she had provided and saying that she would wait to hear about the next steps. She made no protest about her position being made redundant, even though it was clear from Ms Walsh’s email that her redundancy would not be proceeding through a VRS.

476    On 15 July 2016, Ms Walsh wrote to Dr Morton saying that her name would be added to the redeployment register and requesting a copy of her CV to use in the event that any redeployment opportunities were identified. Dr Morton was also asked to confirm the locations she wished CSIRO to consider for relocation and whether she would be prepared to consider any positions at a lower level.

477    On 19 July 2016, Dr Morton responded saying:

There are no locations within the organisation that would be suitable for me to be relocated to. Also, I would not consider a position at a lower level given my education and professional experience…

478    Dr Morton did not provide her CV. She did not apply for any positions during the redeployment period. She was not redeployed.

479    After the redeployment period, a further case (Case 2) for redundancy of Dr Mortons position had to be prepared. The Case 2 approval had to be provided by the Business Unit Leader, the head of HR and a senior member of CSIRO. The redundancy was approved by Dr Manners, Mr Heldt and Mr Roy.

480    A position became available in Hobart in September 2016 for a specialist in aquatic animal health. Dr Morton did not apply for that position. Ms Walsh said she did not look at whether she should ask Dr Morton to apply for that position because Dr Morton had indicated that she was not prepared to take up positions at any other locations.

481    Ms Walsh sent Dr Morton an email on 28 October 2016 setting out her options. The letter indicated, inter alia, that if she did not contest her redundancy, she would get an extra eight weeks pay, and would leave CSIRO on 11 November 2016. On 6 November 2016, Dr Morton responded by email opting for the fast track option.

482    Dr Manners gave evidence that, at the fire-side chat on 11 February 2016, he was not prepared to entertain a forced redundancy for Dr Morton because he did not think that was appropriate while Dr Morton was on sick/stress leave. He later approved the redundancy case for Dr Morton because she had made a request for a VRS, and CSIRO could satisfy that request by making her position redundant. He considered that if a staff member requests a VRS, they are indicating quite clearly that they are happy to leave and free up resources for keeping another staff member. He said that if Dr Morton had not asked for a VRS, he would not have supported a redundancy case while she was still in rehabilitation.

483    Dr Cook gave evidence that in May 2016, it came to his attention that Dr Morton had applied for a VRS. Ms Walsh told him that it appeared that Dr Morton wanted to leave the organisation, and that they could possibly put in a case for a further redundancy of her position. After Ms Walsh prepared a preliminary case for redundancy, Dr Cook prepared the redundancy case.

484    Dr Cook gave evidence that Dr Mortons skill set was not suitable for the position that became available in Hobart in September 2016, since it required a specialist in aquatic animal health who had both a PhD and demonstrated experience in that area. Dr Wade gave similar evidence. In Dr Cook’s opinion, Dr Morton could not acquire the necessary skills for that position within six months.

485    Dr Mortons redundancy was initiated by her request for a VRS. It is apparent that by lodging that request, she was indicating that she no longer wished to continue her employment at CSIRO, and that she wanted to leave with a redundancy payout. I accept Ms Walshs evidence that she searched for, but was unable to find, a suitable swap. I accept her evidence that she sought to accommodate Dr Mortons desire not to continue her employment with CSIRO by examining whether a redundancy case for her position could be made. I accept Dr Cooks evidence that a genuine case of redundancy of Dr Mortons positon was able to be made. I accept Dr Manners evidence that he sought to accommodate Dr Mortons request for a redundancy. I accept the evidence of Dr Manners, Dr Cook, and Ms Walsh that Dr Mortons position would not have been made redundant had she not requested a VRS. consider that they sought to accommodate Dr Mortons wish to leave her employment at CSIRO with a redundancy payout.

486    Other evidence makes it clear that Dr Morton was happy to have her position made redundant.

487    In her Facebook post of 25 June 2016, Dr Morton said:

Nothing like multiple coffees to aid in recovery after celebrating until 3 am. Note to self: possibly getting a little old for that.

Then again, it is not every week you finish the 11th MBA subject (of 12), receive a redundancy & have a four month break until subject number 12! So, another coffee it is :D

In that post, Dr Morton clearly indicated that she had been celebrating her redundancy, amongst other things.

488    In her Facebook post of 10 October 2016, Dr Morton said:

Second week of Nov equals MBA finished + US election + being made redundant + my birthday.

And they say good things come in threes!

I reject Dr Mortons evidence that this was a sarcastic remark. She was saying that four good things were happening, including being made redundant.

489    In her email to Ms Walsh of 30 June 2016, Dr Morton made no suggestion that she was unhappy about her position being made redundant.

490    It is clear that Dr Morton was happy about being made redundant from CSIRO and leaving with a redundancy payment.

491    Dr Morton submits that the fact that she applied for a VRS and had said that she did not want to be considered for any jobs at any locations did not obviate the need for CSIRO to comply with cl 7 of the Enterprise Bargaining Agreement. She submits that an inference should be drawn that redeployment options were not searched for because the respondent wanted to terminate her employment. She submits that this was adverse action because it placed her at a disadvantage compared to others, as she was not provided with any redeployment options at all.

492    Dr Morton submits that in the redundancy Case 2 document, under the heading Details or all avenues explored to forestall redundancy action, there was no reference to any specific redeployment efforts. However, the notation under that heading indicates that CSIRO had been, looking to provide opportunities to existing staff. That is consistent with CSIRO looking for redeployment opportunities. That details of particular redeployment searches were not included does not mean they were not made.

493    Dr Morton submits that there are no emails, memos or file notes to indicate that any redeployment survey was conducted. However, looking to see if any suitable jobs were available for Dr Morton does not seem the type of activity that would necessarily be recorded in writing. As Dr Morton had indicated that there were no suitable locations for her to be relocated to, the searches were likely to be brief.

494    Ms Walshs evidence was that CSIRO staff looked for redeployment opportunities for Dr Morton, but were unable to identify any suitable positions. Ms Davis gave evidence that she was responsible for looking for redeployment options for Dr Morton, and kept an eye out to see if there were any appropriate redeployment options. She did not identify any. I accept their evidence. The requirement in cl 7 of the Enterprise Bargaining Agreement to conduct a survey of existing and foreseeable vacancies does not require that the survey be conducted with any particular level of formality.

495    I reject Dr Mortons submission that CSIRO did not comply with cl 7 of the Enterprise Bargaining Agreement. Accordingly, Dr Morton has failed to demonstrate that CSIRO took adverse action against her in that respect.

496    Dr Morton appears to contend that Dr Manners, Dr Cook and Ms Walsh manufactured the redundancy of her position because she exercised her rights to make complaints or enquiries and to receive workers compensation benefits. She also alleges that Mr Roy and Mr Heldt were aware of the fact that she had a Comcare claim when they signed off on her redundancy. Dr Mortons submission seems to be that this is an indication that a reason for her redundancy was that she had a Comcare claim.

497    When Dr Mortons position was made redundant, her employment was terminated by CSIRO. This falls within the description of dismisses the employee within the definition of adverse action in s 342(1) of the FW Act. While in Maritime Union Authority v Geraldton Port Authority it was held that a voluntary redundancy is not a dismissal, this was not a voluntary redundancy. Dr Morton’s request for a VRS was rejected and her position was made redundant. This was adverse action.

498    However, for there to be a contravention of s 340(1), the adverse action must be taken because the employee, relevantly, exercised a workplace right. In this case, Dr Morton alleges that the workplace rights she exercised were to make complaints or enquiries and receive workers compensation benefits.

499    I find that the reason why Dr Cook and Ms Walsh made a case for the redundancy of Dr Mortons position was that she had requested a VRS, and they sought to accommodate her desire to leave CSIRO with a redundancy payment. I find that the reason why Dr Manners, Mr Heldt and Mr Roy approved the redundancy was because they were satisfied of the merits of the redundancy case that had been made, and, in Dr Manner’s case, he sought to accommodate Dr Morton’s request for a redundancy. I find that Dr Mortons complaints, and the fact that she applied for and received workers compensation benefits, played no part in her redundancy. CSIRO has discharged its onus of demonstrating that Dr Morton was not dismissed from her employment because she exercised workplace rights.

500    Further, since CSIRO merely assisted Dr Morton to achieve the outcome she set out to achieve, namely leaving CSIRO with a redundancy payment, she was not injured in her employment, her position was not altered to her prejudice, and there was no discrimination between her and other employees. She was happy with the outcome. In these respects, there was no adverse action within s 342(1) of the FW Act.

501    Further, even if Dr Morton’s redundancy involved adverse action, I would find that it was done to accommodate her desire to leave CSIRO with redundancy payout, rather than because she had exercised her workplace rights to make complaints against Dr Glencross and Dr Preston.

502    I find that CSIRO did not contravene s 340(1) of the FW Act as alleged in Claim 1 of the further amended statement of claim.

CONSIDERATION OF CLAIM 2

503    Claim 2 is described in paragraphs 7 to 10A of the further amended statement of claim. Dr Morton’s counsel did not address Claim 2 in written or oral submissions. However, as that claim was not expressly abandoned, it is necessary to consider it.

504    Paragraph 10A alleges that CSIRO took adverse action against Dr Morton by permitting Dr Manners to manipulate the terms of reference for the investigation into Dr Preston’s conduct to reduce the time frame for review to between 9 September and 22 October 2014, rather than commencing from the start of the alleged conduct in 2012.

505    Paragraph 10A also alleges that Dr Manners was permitted to manipulate the terms of reference to omit investigation of allegations that Dr Preston had made inappropriate and inaccurate comments about Dr Morton to the effect that: she did not have the science to be a leader; that she had a lack of original ideas; that she was vulnerable to redundancy; that Dr Morton needed to assure Dr Preston that her health was up to it; and that pursuing an MBA would be a distraction.

506    Paragraph 10A further alleges that CSIRO took adverse action against Dr Morton by removing her as a team leader and decreasing her allocation to the Huon project. I have already rejected Dr Mortons allegations that CSIRO took adverse action against her by removing her as a team leader and decreasing her allocation to the Huon project. It is unnecessary to consider those allegations further in the context of Claim 2.

507    On 10 March 2015, Dr Manners wrote to Dr Morton saying that due to Dr Glencross recent cessation at CSIRO, he was required by the misconduct policy to discontinue the inquiry into Dr Glencross conduct. Dr Manners also said that Dr Morton’s allegations against Dr Preston were the subject of a continuing inquiry.

508    Under a letter dated 24 March 2015, Dr Manners engaged Mr Van Dam to investigate allegations against Dr Preston. The terms of the letter and the attached Investigation Referral Form were said to constitute the terms of reference for the inquiry. The attached form described the terms of reference as follows:

4.    Terms of Reference

You are briefed to make findings of fact in relation to the alleged misconduct including:

1.    Between the 9 September 2014 and 22 October 2014 Dr Preston failed to comply with the Terms and Conditions of Service 19B.(d) (Improper conduct) engages in improper conduct as an officer, by making discriminatory remarks about Dr Morton's health.

2.    Between the 9 September 2014 and 22 October 2014 Dr Preston failed to comply with the Terms and Conditions of Service 19B.(f) (Contravention of Act or T&C) contravenes or fails to comply with a provision of the FW Act, these Terms and Conditions; or the CSIRO Code of Conduct by making statements to the effect that Dr Morton was vulnerable to redundancy

3.    Subsequent to Dr Morton's email of the 25 October 2014 Dr Preston failed to comply with the Terms and Conditions of Service 19B.(f) (Contravention of Act or T&C) contravenes or fails to comply with a provision of the FW Act, these Terms and Conditions; or the CSIRO Code of Conduct; by failing to act on information provided to him containing allegations of inappropriate behaviour.

509    In Dr Mortons Grievance Document of 16 January 2015, she complained about Dr Prestons comments made at two meetings. The dates of the meetings were 9 September and 22 October 2014. She made no complaint concerning Dr Prestons conduct before 9 September 2014. That was the obvious reason for Dr Manners specifying that date in the terms of reference. It may also be noted that the date range given in the third item was not confined to 9 September to 22 October 2014, but extended beyond 25 October 2014.

510    Although Dr Mortons Grievance Document had made allegations concerning Dr Glencross conduct since 2012, Dr Glencross conduct was not the subject of the inquiry. What Dr Manner’s did, or failed to do in respect of the complaint against Dr Glencross is not the subject of Claim 2.

511    Dr Morton alleges that CSIRO took adverse action against her by permitting Dr Manners to manipulate the terms of reference to reduce the time frame for the review to 9 September to 22 October 2014, rather than from the start of the alleged conduct in 2012. However, it can be seen that she made no allegations against Dr Preston dating back to 2012. There was no such manipulation of the terms of reference by Dr Manners.

512    Dr Morton further alleges that the terms of reference omitted five of her complaints about Dr Preston. Two of these complaints were that Dr Preston said that she was vulnerable to redundancy and that she needed to assure him that her health was up to it. However, the terms of reference specifically state that the suspected misconduct included Dr Preston making discriminatory statements regarding Dr Mortons health and making statements to the effect that she was vulnerable to redundancy.

513    It is true that the terms of reference did not expressly include allegations that Dr Preston stated that Dr Morton did not have the science to be a leader, that she had a lack of original ideas, and that pursuing an MBA would be a distraction. However, it cannot be accepted that the absence of reference to these statements in the terms of reference was the result of a manipulation by Dr Manners. In the Grievance Document, Dr Mortons focus was on Dr Prestons comments about her health and vulnerability to redundancy, these matters being mentioned at the beginning and end of the document. In between, Dr Morton quoted from her email to Dr Preston of 25 October 2014, which referred to those comments, as well as the comments about lacking the science to be a leader, lack of original ideas, and an MBA being a distraction. However, the Grievance Document is ambiguous and leaves it uncertain as to whether she was raising the latter three comments as part of her formal grievance. It is unsurprising that they were omitted.

514    In circumstances where Dr Manners did direct that an investigation be conducted into the complaints concerning Dr Prestons comments about Dr Mortons health and vulnerability to redundancy, it is improbable that he would have deliberately left out other complaints, if he had understood them to have been made.

515    Dr Morton has the onus of proving that CSIRO took the adverse action she alleges. It was not put to Dr Manners in cross-examination that these omissions were the result of any manipulation. It was not put to Dr Manners that he had deliberately left these statements out of the terms of reference. I do not accept that Dr Manners engaged in any manipulation of the terms of reference.

516    It follows that Dr Morton has not shown that CSIRO took adverse action against her by permitting Dr Manners to manipulate the terms of reference to omit investigation of allegations she had made against Dr Preston.

517    Even assuming that the reduction in the time-frame, or the omission of allegations, was adverse action taken by Dr Manners, I would not accept that it occurred because she exercised her workplace rights to make complaints against Dr Glencross and Dr Preston. In circumstances where Dr Manners did direct an investigation be conducted into the allegations against Dr Preston, it is most improbable that he would have deliberately left out some of the allegations made by Dr Morton from the terms of reference because she had made complaints about Dr Glencross and Dr Preston.

518    Dr Mortons pleading also refers to her notifying CSIRO that she wished to lodge a claim for workers compensation with Comcare in March 2015, although that is not pleaded as a relevant workplace right in respect of Claim 2. However, in case I am wrong in my understanding, I will indicate that I do not accept that Dr Manners reduced the time frame, or left out three of the allegations made by Dr Morton from the terms of reference, because Dr Morton proposed to make a Comcare claim. Again, it seems most improbable that he would have done that deliberately, when he had in fact directed an investigation into other aspects of Dr Prestons conduct.

519    I therefore reject Claim 2.

CONSIDERATION OF CLAIM 3

The pleaded allegations

520    Claim 3 is pleaded in paragraphs 11 to 13A of the further amended statement of claim. Paragraph 12 alleges that CSIRO contravened s 343 of the FW Act by engaging in certain conduct with the intent to coerce Dr Morton not to exercise certain workplace rights. Paragraph 13 alleges that the same conduct was adverse action taken against her because she exercised such workplace rights in contravention of s 340(1) of the FW Act.

521    Paragraph 12 alleges that the relevant workplace rights were: Dr Mortons right to make complaints or enquiries; her entitlement to seek Comcare benefits; and her entitlement to initiate or participate in a proceeding under the SRC Act.

522    Paragraph 13A(a) alleges that, upon notifying CSIRO of her intention to lodge a workers compensation claim, Dr Morton was met with intimidating and coercive behaviour from Mr Drury, an injury management coordinator. The pleading alleges that on 8 July 2015:

(1)    Mr Drury telephoned her and said, Three months off would not do your career any good;

(2)    Mr Drury claimed that he was qualified to advise her of this as he was, a clinician; and

(3)    despite medical advice provided by her treating medical practitioner, Mr Drury said he was going to begin to plan her return to work within the next couple of weeks.

523    Dr Mortons pleading goes on to allege in paragraph 13A(b), that Mr Drury first made contact with her in early March 2015, but that she was not notified of the appointment of an investigator into her grievance until 27 March 2017, and that she found this behaviour to be intimidating.

524    Dr Mortons pleading also alleges in paragraph 13A(c) that Mr Drury, after being informed by Dr Morton that the grievance had yet to be investigated, told her that if she did not file a claim with Comcare, he would ensure that CSIRO would cover the treatment she needed, and that she found that behaviour to be coercive.

525    Paragraphs 13A(d), (e) and (f) respectively allege that CSIRO removed Dr Morton as a team leader, that it decreased her allocation to the Huon project and dismissed her from her employment.

Dr Mortons evidence

526    Dr Morton gave evidence that in late March 2015, she applied for Comcare benefits with the assistance of Mr Casson, a claims manager at CSIRO. In April 2015, she received a telephone call from Mr Drury, saying that he was going to take over as her claims manager. Dr Mortons evidence was that Mr Drury asked if she really needed to file the workers compensation claim. She alleged that he said that there were some very senior people within Agriculture that he could speak with and ensure that she would get all of the help that she needed, provided that she did not file the Comcare claim. She said that Mr Drury said that the only reason she was filing a claim with Comcare was because she was unhappy with the way the independent investigation had happened, to which she responded that that could not possibly be the case because she had not even been interviewed yet.

527    Mr Croft said that when Dr Morton got off the phone, she told him that Mr Drury said that if she did not file a Comcare claim, CSIRO would cover her costs.

528    Dr Mortons workers compensation claim was accepted by Comcare on 5 June 2015. Dr Morton consulted Dr Rees on 6 July 2015, and he provided her with a medical certificate stating that she was unfit for work until 6 October 2015. Dr Morton gave evidence that Mr Drury telephoned her on 8 July 2015, having received her email attaching the medical certificate. Dr Mortons evidence was that Mr Drury proceeded to tell her that “Three months off would not do her career any good, and that she needed to make herself available for return to work plans within the next week or two. Dr Morton said she explained to him that she did not understand why, because her treating psychiatrist had written her off for three months. Mr Drury kept telling her that she had obligations under the SRC Act, and that the time off would not do her any good. Dr Morton said she interpreted this to mean that if she took three months off, then she would not have a career at CSIRO. She asked Mr Drury about that, and asked why he was insisting that she breach the medical direction not to attend the site. She alleges that Mr Drury then said that he was a clinician, that she had obligations under the SRC Act, that she had to make herself available and that the time off would do her no good. She understood a clinician to be someone who is a medically trained doctor.

529    Mr Drury sent an email to Dr Morton on 8 July 2015, referring to employees’ obligations under the SRC Act, and saying that the aim was to provide a combined approach between her doctors, rehabilitation providers, Comcare and CSIRO (through him) to return her to work as quickly as practically possible, based on medical evidence. He said he would be organising an assessment by an independent doctor and a case conference in the following weeks.

530    Mr Drury sent Dr Morton a further email on 23 July 2015, asking if she was available to discuss return to work obligations on 4 or 5 August 2015. Dr Morton responded on the same day, amongst other things, requesting that he no longer telephone her and that he only deal with her in writing. On 24 July 2015, Mr Drury sent Dr Morton an email indicating that he had booked an appointment for her with a psychiatrist for 7 August 2018, and saying he would wait for the report before pursuing any further return to work activities.

531    On 29 July 2015, Dr Morton made a complaint about Mr Drury addressed to Ms Pickering, saying:

Gavin’s first contact with me regarding this claim was to accuse me of only putting in a ComCare claim because I hadn’t obtained a good outcome from the grievance I lodged. It was obvious that Gavin does not believe that I am genuinely injured and I found his remark highly offensive. Reducing sexual assault and harassment, with longer term bullying and harassment by the same perpetrator, to an upset over a grievance outcome couldn’t have been a worse thing for Gavin to have stated to me. It was also factually inaccurate as the grievance procedure had only just started so no outcome had been reached. In fact, I still have not received any advice on the outcome of that grievance. I have no faith that he has any idea for what is best for my recovery and rehabilitation.

As an HSE officer, Gavin’s position comes with responsibilities which he can not meet for me or the organisation unless he recognises what caused my injury, how that has injured me, and ultimately for him to take steps to ensure it can’t happen again to me or to another staff member. I was injured by sexual assault and harassment in conjunction with other bullying and harassment by another (now former) CSIRO employee, all of the information surrounding that was lodged with CSIRO in my grievance. The person who perpetrated those actions upon me may no longer be an employee of CSIRO but as I have pointed out to CSIRO he is still currently present onsite at CSIRO. When is Gavin going to recognise the obvious HSE issues that surround that situation and look into doing something to rectify that situation? I don't think that it is unreasonable that something HSE should action that prior to attempting to get me back on a CSIRO site?

I am not satisfied that Gavin is able to deal with psychological injury effectively, I have voiced that concern elsewhere and requested that he be replaced on my claim with someone that is. But that request seems to have disappeared into a black hole, so it would appear that I have to continue to deal with Gavin. I have yet to receive a reply to the email I sent on Friday. Nor have I received a reply to many of the questions that I have asked Gavin directly, I have attached the email history with the questions that he is avoiding. Can you advise when Gavin will be updating the form for Dr Timmins with the correct information (as identified in Friday’s email)? Can you also please direct Gavin to meet his obligations under the CSIRO Code of Conduct and reply to the questions that I have asked of him? And if he continues to be unwilling to explain his actions and claims regarding my injury, then I would ask that you refer him to the Misconduct procedure for breaching the CSIRO code of conduct.

Lastly, there can not be any doubt that this upcoming assessment with Dr Timmins will force me to have to relive the trauma of the experiences again. I will need to be accompanied by my partner to the assessment with Dr Timmins. My partner will be available to accompany me for an appointment on Tuesday, 11th August. Please have Gavin reschedule the assessment with Dr Timmins for that date or later.

Mr Drurys evidence

532    Mr Drury gave evidence that in March 2015, he received documents concerning Dr Mortons Comcare claim. He telephoned Dr Morton and discussed the Comcare procedures for lodging a claim, and the early intervention process for employees who were ill or injured. Mr Drury said he told her that there were a range of options, and that early intervention could be applied when a Comcare claim was being submitted and would continue up to the point that Comcare made a decision regarding the claim. He said that, depending on what the illness was, allied health professionals could be engaged. In Dr Mortons case, a psychologist could be appointed, a discussion could occur with a GP, or referral to a specialist could be implemented to assist with her recovery and return to work. Mr Drury denied Dr Mortons allegation that he accused her of only filing a Comcare claim because she was unhappy with the grievance investigation outcome.

533    Mr Drury said he was aware that Dr Rees had written Dr Morton off from work for three months. He said he told Dr Morton he was concerned that a large amount of time off work would reduce her chances of returning to the workforce successfully. He wanted to ask whether the certificate could be revised, such that they could implement an effective return to work plan. Mr Drury denied that he told Dr Morton, Three months off would not do your career any good.

534    Mr Drury said that, in his experience, the longer an employee takes off work, the less successful the outcome of returning to work in a meaningful manner. He was concerned that a lengthy certificate would impede CSIROs ability to facilitate a return to work. Mr Drury said that his motive for discussing with Dr Morton the possibility of options to come back to work earlier was to facilitate her good return to work.

535    Under cross-examination, Mr Drury was asked whether, as a case manager, one criterion for assessing how well he was doing was the extent of the reduction of claims. He responded that it was more about facilitating a return to work, and getting people to return to work would reduce CSIROs premiums. He denied that he had a vested interest in getting people back to work, saying that his interest was to try and facilitate a wholesome return to work.

536    Mr Drury agreed that he had mentioned to Dr Morton that he was a clinician. He said that he is a clinically trained exercise scientist.

537    Mr Drury denied that he told Dr Morton that he was going to bring her back to work in the next couple of weeks. He denied that he wanted to get Dr Morton back to the workplace as quickly as possible, regardless of the medical certificate she had provided. He denied that he said to Dr Morton, If you dont make a claim, CSIRO will pay for all the expenses. He also denied that he told Dr Morton that her job would be in jeopardy if she made a workers compensation claim, and denied that he talked to her in a way that would give her that impression.

538    Mr Drury rejected the suggestion that his motive in dealing with Dr Morton was simply to reduce CSIROs workers’ compensation premiums. He said that he tried to look after the injured parties, and any reduction of the premiums would be a by-product of the good work that he did to facilitate a return to work.

Consideration of the evidence

539    The evidence indicates that, once Dr Morton had the medical certificate from Dr Rees for three months off work on 6 July 2015, she was resistant to any attempt to be independently examined or to consider any measures that might assist her to return to work. That can be seen, for example, in her reluctance to attend the appointment arranged for her by Mr Drury with an independent psychiatrist, Dr Timmins. It can be seen in her resistance to Mr Drury’s suggestion that she might discuss or consider proposals to facilitate her early return to work. Under cross-examination, Dr Morton accepted that when she got the three months certificate from Dr Rees, her view was that he was writing her off for three months. Her reluctance to take measures that might assist her to return to work was consistent with her resistance to take Dr Shaws later advice that she enrol in a rehabilitation programme. I consider that the terms of Dr Mortons emails to Mr Drury, and the terms of her complaint about him are consistent with her reluctance to consider any possibility other than remaining off work on Comcare benefits.

540    Mr Drury made it clear in his email of 8 July 2015 that his objective, as an injury management coordinator, was for Dr Morton to return to work as quickly as practically possible, based on medical evidence. That was consistent with his oral evidence. He considered that facilitation of an early return to work would be beneficial for both for Dr Morton and CSIRO.

541    Mr Drurys aim of facilitating Dr Mortons return to work was directly opposed to her resistance to a return to work. It was in that context that Dr Morton wrote emails to Mr Drury and Ms Pickering criticising his approach and complaining about his conduct. It is through that lens that Dr Mortons evidence concerning Mr Drurys conduct must be viewed. I prefer Mr Drurys evidence concerning the content of his discussions with Dr Morton. In reaching this conclusion, I also take into account my earlier findings concerning the general lack of reliability of Dr Mortons evidence.

Consideration of coercion allegations

The requirements of s 343(1) of the FW Act

542    Section 343(1) of the FW Act provides, relevantly, that a person must not take or threaten to take any action against another person with intent to coerce the other person to not exercise a workplace right.

543    As I have discussed earlier, coercion under s 343(1) of the FW Act involves two elements, namely an intention to negate choice and the use of unlawful, illegitimate, or unconscionable means in relation to the exercise, non-exercise or proposed exercise of a workplace right. What is required is intent to negate choice, and not merely intent to influence, persuade, or induce.

544    Conduct is illegitimate if it strikes the reasonable observer as seriously contrary to generally held notions of morality. If there is an unconscientious taking advantage of some disabling condition or circumstance that seriously affects the persons ability to make a rational judgment as to their best interests, there will be unconscionable conduct.

545    In Australian Building and Construction Commissioner v Hall, the Full Court held at [40] that if there is a failure to plead the material facts necessary to establish either the first or second element of coercion in s 343, the presumption under s 361 will not operate with respect to the alleged contraventions. The burden will then remain on the applicant to prove that the action was taken with the requisite intent. The Full Court concluded at [41] that the expression intent to coerce in the pleading in that case, without more, was so ambiguous that it did not convey the necessary particular intent required for the presumption to operate.

546    Paragraph 12 of the further amended statement of claim alleges that CSIRO contravened s 343 of the FW Act, by engaging in the conduct alleged in the paragraphs below…with the intent to coerce the Applicant to not exercise the following workplace rights…. In paragraph 13A, the conduct complained of is alleged to be intimidating or coercive. Having regard to Hall at [41], the pleading is inadequate to engage s 361 of the FW Act. The onus remains upon Dr Morton to prove that the actions she alleges were taken with intent to negate her choice to exercise the relevant workplace rights.

547    I will add that even if s 361 of the FW Act were engaged, the outcome would not be different. That is because I accept Mr Drurys evidence concerning his intentions in his dealings with Dr Morton.

The allegation that Mr Drury said, Three months off would not do your career any good

548    The first allegation of coercive action made against Mr Drury is that on 8 July 2015, he told Dr Morton, Three months off would not do your career any good. I do not accept Dr Mortons evidence that Mr Drury said those words, or words to that effect, but that Dr Morton misinterpreted what was said. I accept that Mr Drury expressed concern, based upon his experience as an injury management coordinator, that a long period of time off work would reduce her chances of successfully returning to the workforce. I accept that his motivation in doing so was to persuade Dr Morton of the benefits of an early return to work. I do not accept that Mr Drury said anything with the intention of negating Dr Mortons choice to exercise her rights to make complaints or enquiries, seek Comcare benefits, or initiate or participate in a proceeding under the SRC Act. It may also be observed that Dr Morton had, in any event, already made a Comcare claim by 8 July 2015.

549    Further, I do not accept that Mr Drurys conduct involved the use of any unlawful, illegitimate or unconscionable means in relation to the exercise, non-exercise or proposed exercise of the pleaded workplace rights. It might be suggested that Mr Drury engaged in unconscionable conduct on the basis that Dr Morton had a psychiatric condition. While she may have had some psychiatric symptoms at that time, I consider that she considerably exaggerated them in her reporting to Dr Rees. I do not accept that Dr Morton had any disabling psychiatric condition that seriously affected her ability to make a rational judgment as to her best interests.

The allegation that Mr Drury represented that he was a clinician

550    The next allegation of coercive action is that Mr Drury represented to Dr Morton that he was a clinician. I accept that Mr Drury said he was a clinician, in the context of the advice he was providing, about the benefits of an early return to work. His purpose was to demonstrate that he was qualified to provide Dr Morton with the advice. I accept that it is true that he was a clinician, in the sense that he was a clinically trained exercise scientist. Contrary to Dr Mortons suggestion, he did not make any representation that he was a medically trained doctor. I do not accept that Mr Drury said he was a clinician with the intention of negating Dr Mortons choice to exercise her relevant workplace rights, nor that his conduct was unlawful, illegitimate or unconscionable.

The allegation that, despite medical advice, Mr Drury said he was going to begin to plan her return to work within the next couple of weeks

551    The next allegation of coercive action is that, despite medical advice, Mr Drury said he was going to begin to plan Dr Morton’s return to work within the next couple of weeks. The allegation is ambiguous. It may be an allegation that Mr Drury said that, within the next couple of weeks, he was going to begin to plan her return to work. Alternatively, it may be an allegation that Mr Drury said he was going to begin to plan for her to actually return to work within the next couple of weeks.

552    It is probable that Mr Drury did say words to the effect that, within the next couple of weeks, he was going to begin to plan for Dr Mortons return to work. That would be consistent with his email of 8 July 2015, saying that he would be organising an assessment by an independent doctor and a case conference in the following week. Further, it would be consistent with his email of 23 July 2015, asking if Dr Morton was available to discuss return to work obligations on 4 or 5 August 2015.

553    I consider that by telling Dr Morton that, within the next couple of weeks, he was going to begin to plan her return to work, Mr Drury was saying that, over the next couple of weeks, he was going to develop a strategy to attempt to facilitate her return to work, having regard to his concerns about the effect of a long-term absence from work. Such planning was part of his role as an injury management coordinator with CSIRO. I consider that his intention was merely to facilitate her return to work.

554    I do not accept that Mr Drury told Dr Morton that he was going to begin to plan for her return to work within the next couple of weeks with the intention of negating her choice to exercise, or not exercise, her relevant workplace rights, nor that his conduct was unlawful, illegitimate, or unconscionable.

555    The alternative is that Dr Morton is alleging that Mr Drury told her words to the effect that he was going to bring her back to work in the next couple of weeks, in the sense of performing work, or engaging in a rehabilitation program, within a couple of weeks. Mr Drury denied that he said he was going to bring her back to work within a couple of weeks. It is quite improbable that Mr Drury would make any demand that she return to work or participate in a rehabilitation program when she had a psychiatrists certificate saying that she was unfit to work. That is especially so when he was organising an independent examination, at which such matters are likely to have been considered. I accept that Mr Drury made no representation that he would require Dr Morton to do anything that conflicted with medical advice. If this is the allegation that Dr Morton is making, I do not accept that Mr Drury told her that he was going to bring her back to work in the next couple of weeks.

The allegation that Mr Drury contacted Dr Morton in early March 2015 before an investigator had been appointed

556    Another pleaded allegation of coercive action is that Mr Drury first contacted Dr Morton in early March 2015, and that she found this to be intimidating because she was not notified of the appointment of an investigator into her grievance until several weeks later, on 27 March 2015. However, Dr Morton did not give evidence that Mr Drury first contacted her in early March 2015. Her evidence was that she received a telephone call from Mr Drury in April 2015 saying that he was going to take over as her claims manager. Therefore, the conduct alleged has not been proven.

The allegation that Mr Drury told Dr Morton that if she did not file a Comcare claim, he would ensure that CSIRO would cover the treatment she needed

557    A further allegation of coercive action is that Mr Drury told Dr Morton that if she did not file a claim with Comcare, he would ensure that CSIRO would cover the treatment she needed. I accept Mr Drurys evidence that he told Dr Morton that there was an early intervention process for employees who were ill or injured, which could continue until Comcare made a decision regarding the claim. I accept that he said that allied health professionals could be engaged to assist with her recovery and return to work. I do not accept that Mr Drury told Dr Morton that if she did not file a claim with Comcare, he would ensure that CSIRO would cover the treatment she needed.

558    Even if I accepted that Mr Drury had said the words attributed to him, I would not accept that he had done so with the intention of negating Dr Mortons choice to exercise her relevant workplace rights. That would be a mere inducement, rather than an action that would negate choice. Further, Dr Morton has not explained why such conduct would be unlawful, illegitimate or unconscionable.

The allegations that CSIRO engaged in coercive conduct by removing Dr Morton as team leader, decreasing her allocation to the Huon project, and dismissing her from her employment by making her position redundant

559    Dr Mortons pleading further alleges that Mr Drurys coercive conduct included removing her as team leader, decreasing her allocation to the Huon project, and dismissing her from her employment by making her position redundant in circumstances where there was no genuine redundancy. I have already found that Dr Morton was not removed as a team leader, that there were genuine operational reasons for decreasing her allocation to the Huon project, and have considered the circumstances in which her redundancy came about. Mr Drury’s conduct had no connection with these events.

560    I find that CSIRO did not contravene s 343(1) of the FW Act as alleged in Claim 3.

Consideration of adverse action allegations

The allegation that Mr Drury said Three months off would not do your career any good

561    I have found that Mr Drury did not tell Dr Morton that, Three months off would not do your career any good. I have accepted that Mr Drury was concerned that a lengthy period of time off work would reduce Dr Morton’s chances of returning to the workforce successfully, and that he told her of his concerns. There was a benefit for both Dr Morton and CSIRO in her recovery and return to work. In these circumstances, Mr Drury was giving Dr Morton genuine advice, based upon his experience as an injury management coordinator, and that was to her benefit. It did not injure Dr Morton in her employment, alter her position to her prejudice or discriminate between her and other employees. Accordingly, Mr Drurys comments were not adverse action within the meaning of s 342(1) of the FW Act.

The allegation that Mr Drury represented that he was a clinician

562    I have found that Mr Drurys purpose in representing to Dr Morton that he was a clinician was to demonstrate that he was qualified to provide her with the advice he was providing. His representation was true. Making the representation could not injure her in her employment, alter her position to her prejudice, or discriminate between her and other employees. It did not amount to adverse action within the meaning of s 342(1) of the FW Act.

The allegation that, despite medical advice, Mr Drury said he was going to begin to plan her return to work within the next couple of weeks

563    I have explained the context in which I have accepted that Mr Drury said he was going to begin to plan Dr Mortons return to work within the next couple of weeks. Mr Drurys planning did not require Dr Morton to do anything. In particular, it did not require her to do anything contrary to medical advice. I accept that he did not say anything indicating that he was going to plan for her return to work in a couple of weeks.

564    Mr Drury saying that he was going to start, within a couple of weeks, to plan her return to work, did not injure Dr Morton in her employment, did not alter her position to her prejudice, and did not discriminate between her and other employees. It was not adverse action within the meaning of s 342(1) of the FW Act.

The allegation that Mr Drury contacted Dr Morton in early March 2015 before an investigator had been appointed

565    I have already found that this allegation has not been proven.

The allegation that Mr Drury told Dr Morton that if she did not file a Comcare claim, he would ensure that CSIRO would cover the treatment she needed

566    I have rejected the allegation that Mr Drury told Dr Morton that if she did not file a claim with Comcare, he would ensure that CSIRO would cover the treatment she needed. The advice he gave about the availability of an early intervention process was for her benefit. Mr Drurys comments did not constitute adverse action within the meaning of s 342(1) of the FW Act.

The allegations that CSIRO engaged in adverse action by removing Dr Morton as team leader, decreasing her allocation to the Huon project and dismissing her from her employment by making her position redundant

567    Mr Drurys conduct had nothing to do with removing Dr Morton as team leader, decreasing her allocation to the Huon project, and her redundancy. There was no adverse action taken against her in these respects.

568    I find that CSIRO did not contravene s 340(1) of the FW Act as alleged in Claim 3.

CONSIDERATION OF CLAIM 4

The pleaded allegations

569    Claim 4 is contained within paragraphs 14 to 15A of the further amended statement of claim. These paragraphs allege that CSIRO took adverse action against Dr Morton in contravention of s 340(1) of the FW Act.

570    Paragraph 15A alleges, inter alia, that Ms Campbell, CSIRO’s General Manager for Health, Safety and Environment, chose not to apply correct policy and procedure to Dr Morton’s complaint against Mr Drury and had no authority to dismiss the complaint.

571    In Dr Morton’s written submissions, she summarises her allegations against Ms Campbell as follows:

Failing to initiate a grievance process as required by the CSIRO Enterprise Agreement 2011–2014 but instead taking action to dismiss Dr Mortons concerns without following proper procedure thereby altering Dr Mortons position to her prejudice whereby the conduct complained of would not be investigated leading to an adverse effect or deterioration in the advantages enjoyed by Dr Morton in her ongoing employment.

The evidence

572    I have already described the series of emails between Mr Drury and Dr Morton, including emails dated 8, 23 and 24 July 2015, and have set out the contents of Dr Morton’s email of 29 July 2015, in which she complained to Ms Pickering about Mr Drury. Ms Pickering responded by email on 29 July 2015, saying that she was no longer supervising Mr Drury and would forward the email to his current supervisor.

573    Mr Drury, Ms Pickering, or both, forwarded Dr Mortons email to Ms Campbell. Ms Campbell responded to Dr Mortons email on 3 August 2015 as follows:

Thank you for recent email correspondence and the concerns that you have raised regarding the way your rehabilitation case is being managed by Mr Gavin Drury. I have spoken to Gavin and read the email exchange that has occurred over the past few days. I can clarify the following points.

    Gavin has been appointed as CSIROs complex injury management advisor and is the most appropriate CSIRO person to correspond with regarding your Comcare case.

    Gavin was genuine in his concerns for your wellbeing and has been trying to organise a medical assessment to establish your ability to be engaged in a rehabilitation program. He has provided a link to the rehabilitation obligations in an earlier email.

    All staff members are bound by the CSIRO Code of Conduct. Gavin has been working in a professional manner for 18 months as part of the Injury Management Team and his communication with you has been appropriate and informative.

    Gavin regularly communicates with Comcare in relation to your claim and was advised to organise a medical assessment commonly called a S36 Assessment. The notes on file are consistent with the advice Comcare has given.

    Your SAP leave Sick Leave will be reinstated between 30-60 days after CFTOW forms have been signed.

    Although your doctor has given advice that you are not fit to return to work for several months, secondary assessments are normal practice for accepted compensation claims, therefore the correct procedure is being followed by arranging a S36 Assessment.

    The diagnosis from your GP certificate was cut and pasted into the Section 36 referral, this meets Comcares requirements and has been clarified with Comcare and does not need to be changed.

    Unfortunately CSIRO does not have control over the times and appointments given out by Medical Providers.

574    Dr Morton did not respond to Ms Campbells email. Ms Campbell gave evidence that she investigated Dr Mortons allegations and concluded that Mr Drury had acted appropriately in his role. She believed she had applied the correct policy and procedure concerning Dr Mortons complaint. She said she did not document her investigation.

575    In cross-examination, Ms Campbell was taken to the email chain between Dr Morton and Mr Drury. Ms Campbell said that those emails had not come to her attention, and she had not asked to see the correspondence between Dr Morton and Mr Drury. She said she had a general understanding of the case, but not the specifics. Ms Campbell said that in investigating the complaint, she asked Ms Lyons and Mr Beaumont, the internal legal support and workers’ compensation people respectively, about how Mr Drury had managed the case, but did not ask any specific questions related to Dr Morton. She did not give evidence that she spoke to Mr Drury about the complaint against him.

576    Mr Drury prepared a draft response to Dr Mortons email for Ms Campbell. On 31 July 2015, he sent an email to Ms Campbell saying, If you can scan down my draft can be cut and pasted into the relevant format that you believe is most appropriate. Under cross-examination, Ms Campbell acknowledged that Mr Drury, prepared some draft points for me. Ms Campbell cut and pasted almost the whole of Mr Drurys draft into the email she sent to Dr Morton on 3 August 2015. There was no part of the email to Dr Morton that Ms Campbell composed herself.

577    Dr Morton had attached her email exchanges with Mr Drury to her email of 29 July 2015 to demonstrate, the questions he is avoiding. In Ms Campbells email of 3 August 2015, drafted by Mr Drury, she said, I have spoken to Gavin and read the email exchange that has occurred over the past few days. Ms Campbells representation that she had read the emails was false, in light of her admission under cross-examination that she had not read the emails between Dr Morton and Mr Drury.

578    In addition, I am not satisfied that Ms Campbell spoke to Mr Drury. Ms Campbell was obviously in the best position to give evidence about what she did to investigate Dr Morton’s complaint. Neither Ms Campbell nor Mr Drury gave evidence that they spoke about Dr Mortons complaint. There are no emails in evidence suggesting that they spoke. I infer that they did not speak about Dr Morton’s complaint.

579    Further, I do not accept that Ms Campbell specifically sought advice about Dr Mortons complaint. Her evidence was merely that she sought advice from Ms Lyons and Mr Beaumont about how Mr Drury had managed the case, but that she did not ask any specific questions related to Dr Morton. She did not give evidence about how or what Ms Lyons and Mr Beaumont knew about Mr Drury’s conduct of the case, or how their advice was relevant to Dr Mortons complaint. Ms Campbell did not give evidence that she took any other steps to investigate or address Dr Mortons complaint. In addition, if Ms Campbell had conducted any more than the most cursory investigation of Dr Mortons complaints, it is likely that there would have been some documentary trail.

580    I find that the only action Ms Campbell took to investigate or address the complaints Dr Morton made in her email of 29 July 2015 was to have a discussion with Ms Lyons and Mr Beaumont and copy, paste and send Mr Drurys draft email to Dr Morton. The issue that arises is whether Ms Campbell was required to do anything more.

Whether Ms Campbell complied with the Grievance Procedures

581    I have already described the Grievance Procedures under the Enterprise Agreement.

582    Dr Mortons email of 29 July 2015 can be characterised as raising concerns about decisions or actions connected with her employment. They were not merely concerns about workers compensation, but extended more broadly to Mr Drurys conduct in the context of CSIROS management of her rehabilitation and return to work. Accordingly, the concerns raised in Dr Mortons email were covered by the Grievance Procedures in Sch 4.

583    Step 1 of the Informal Resolution process requires the officer to discuss the matter with their manager in an effort to reach a resolution and to explain, inter alia, the action or decision that is the cause of the complaint, and the preferred outcome or result they are seeking. Although the complaint was not made to her manager, Dr Cook, Dr Morton made the complaint to the person she thought was Mr Drurys manager. Ms Campbell gave evidence that she investigated the allegations and concluded that Mr Drury had genuine concerns and acted appropriately.

584    Dr Mortons complaint must be regarded as engaging Stage 1 of the Informal Resolution process (the terms of the complaint do not suggest that the Formal Resolution process was engaged). CSIRO has not submitted that the Grievance Procedures were not engaged.

585    Dr Mortons email raised complaints that: Mr Drury had accused her of only putting in a Comcare claim because she had not obtained a good outcome from the grievance she lodged; that he did not believe that she was genuinely injured; that she had no faith that he had any idea what was best for her recovery and rehabilitation; that he was not able to deal with her psychological injury effectively; and that he had not responded to questions she had asked.

586    Step 1 of the Informal Resolution process does not expressly impose an obligation on the manager to do any particular thing. However, when read with the Managers Responsibilities, it is apparent that managers are required to take steps to address the concerns raised by staff and attempt to resolve any issues. Logically, to be able to address and resolve the concerns and issues, managers must at least ascertain what they are. When complying with the requirements of Step 1, managers are required to comply with the CSIRO Code of Conduct and Values.

587    Ms Campbell spoke to Ms Lyons and Mr Beaumont about Mr Drury’s handling of the case. However, she did not ask any specific questions about Dr Morton. There is no evidence about terms of the discussions, and what, if anything, Ms Lyons and Mr Beaumont knew about Mr Drury’s handling of the case. The only other step Ms Campbell took was to cut and paste Mr Drurys draft and email it to Dr Morton.

588    Ms Campbell did not speak to Mr Drury, or read the emails between Dr Morton and Mr Drury. That contrasts with her statement in her email to Dr Morton that, I have spoken to Gavin and read the email exchange that has occurred over the past few days. Ms Campbell did not give any explanation for why she had not read or request the emails, even though they were specifically mentioned in Dr Morton’s complaint. She simply accepted Mr Drury’s response to the complaint against him without questioning him about its accuracy.

589    It is consistent with Ms Campbell failing to properly investigate Dr Morton’s complaint, that she failed to address all the issues raised in Dr Morton’s email. The issues not addressed were the accusation allegedly made by Mr Drury and his failure to respond in a timely way to Dr Morton’s questions. Further, it may be noted that Ms Campbell gave no indication that the email had been drafted by Mr Drury and that she had merely cut and pasted it.

590    In these circumstances, Ms Campbell failed to comply with her obligations under the Grievance Procedures to take steps to address Dr Mortons concerns and attempt resolve those concerns in accordance with the requirements of the CSIRO Code of Conduct, which required her to act ethically and in good faith, and perform her duties competently with professionalism, honesty and integrity. She was required to do more than merely speak to Ms Lyons and Mr Beaumont, and more than merely cut and paste Mr Drury’s draft and send it to Dr Morton. Compliance with her obligations would have required Ms Campbell to at least read the email exchange to ascertain exactly what Dr Morton’s complaint was. It would have required that she not merely cut and paste Mr Drury’s response to the complaint made against him. Further, her obligations required that she not mislead Dr Morton by saying that she had read the emails and spoken with Mr Drury about the complaints when she had not done so. I am satisfied that Ms Campbell dismissed Dr Morton’s complaint without complying with at least her obligation under the Grievance Procedures of the Enterprise Agreement to perform her duties with professionalism.

Whether there was a contravention of s 340(1) of the FW Act

591    Dr Morton had an entitlement under the Enterprise Agreement to have her complaints dealt with in accordance with the Grievance Procedures. Ms Campbell’s actions deprived Dr Morton of that entitlement, and accordingly altered her position to her prejudice.

592    Dr Morton exercised her entitlement to make a complaint about Mr Drurys conduct under the Grievance Procedures in the Enterprise Agreement. Despite Dr Morton’s reluctance to engage in any consideration of measures to facilitate an early return to work, I am satisfied that her complaint was genuine and made for a proper purpose. I consider that she misinterpreted much of what Mr Drury said and failed to understand that it was ultimately in her own interests to achieve a return to work, but that she genuinely believed that Mr Drury was acting unprofessionally and contrary to her interests. She made the complaint for a proper purpose, namely having the allegedly improper behaviour addressed. Dr Morton was “able to make a complaint” in relation to her employment pursuant to the Enterprise Agreement. That was a “workplace right” under s 341(1)(c) of the FW Act.

593    Pursuant to s 360(1) of the FW Act, the onus is upon CSIRO to prove that the adverse action was not taken because Dr Morton exercised her workplace right. In her evidence, Ms Campbell maintained that she had applied the correct policy and procedure concerning Dr Mortons complaint. In response to a broad question from CSIRO’s counsel asking whether she made any decision relating to Dr Morton because she made complaints about CSIRO staff, Ms Campbell said, Your Honour, I did not make any decisions based on that.. Having regard to the obvious inconsistency between the statement in Ms Campbells email that she had read the emails between Dr Morton and Mr Drury, and her admission under cross-examination that she had not done so, I am not prepared to accept evidence of such generality. Ms Campbell gave no evidence specifically addressing the allegation that she dismissed the complaint without complying with her obligations under the Grievance Procedures because Dr Morton had exercised her workplace right to make a complaint about Mr Drury. I am not satisfied that CSIRO has discharged its onus of proof.

Vicarious liability

594    Section 793(1) of the FW Act provides, relevantly, that any conduct engaged in on behalf of a body corporate by an employee of the body within the scope of his or her actual or apparent authority is taken, for the purposes of the FW Act, to have been engaged in by the body.

595    Ms Campbell gave evidence that she had authority to deal with Dr Morton’s complaint against Mr Drury under the Grievance Procedures. She investigated the complaint on behalf of CSIRO.

596    I find that CSIRO is taken to have engaged in the conduct engaged in by Ms Campbell. Accordingly, the effect of s 793(1) is CSIRO took adverse action against Dr Morton in contravention of s 340(1) of the FW Act.

Other matters

597    Dr Morton also alleges in Claim 4 that CSIRO took adverse action against her by Mr Drury ignoring her request to provide her with the name of his supervisor so that she could exercise a workplace right to make a complaint about his behaviours. Mr Drury’s evidence was he did not provide Dr Morton with the name of his supervisor because he did not have a supervisor at that time, but he did forward her concerns to Ms Campbell. I accept Mr Drury’s evidence. Mr Drury did not ignore Dr Morton’s request. Therefore, Dr Morton has not demonstrated that the adverse action she pleads was taken against her. Further, even if there was adverse action, I would not accept that Mr Drury took it because Dr Morton proposed to exercise a workplace right to make a complaint against him. That is because he did forward the email to Ms Campbell.

598    Dr Morton alleges that Dr Cook also took adverse action against her by failing to respond to the request that she made to Mr Drury for the name of his supervisor, despite being copied into the email. This may be an allegation that Dr Cook failed to comply with the Grievance Procedures in the Enterprise Agreement. However, merely asking Mr Drury for the name of his supervisor so that Dr Morton could make a complaint to that supervisor was not a complaint made to Dr Cook. There was nothing that Dr Cook was required to do under the Grievance Procedures, as they had no application to Dr Morton’s request. There was no adverse action in that respect.

599    Dr Morton pleads as part of Claim 4 that Ms Pickering responded to her complaint of 29 July 2015 by saying that she was no longer Mr Drury’s line manager, and copying Ms Campbell into the response. It has not been demonstrated that Ms Pickering’s response was false. It is impossible to see how her response could be adverse action.

CONSIDERATION OF CLAIM 5

600    Claim 5 is found within paragraphs 16 to 18A of the further amended statement of claim. Paragraph 17 alleges that CSIRO contravened s 343 of the FW Act by engaging in conduct with intent to coerce Dr Morton to not exercise her workplace rights to entitlement to benefits under the SRC Act and not to initiate or participate in proceedings under the SRC Act.

601    The coercive actions relied upon are Mr Drury telling the applicant, Three months off would not do your career any good, claiming he was a clinician, and a third allegation that:

Mr Drury went on to stress the obligations the Applicant had under the SRC Act to begin to plan her return to work, within the next couple of weeks.

602    The only discernible difference between Dr Morton’s pleading of contravention of s 343 of the FW Act in Claim 3 and in Claim 5 is that in the former, the third allegation was that:

Despite the medical advice, Mr Drury was going to begin to plan her return to work, within the next couple of weeks.

603    Dr Morton gave evidence that Mr Drury told her she had obligations under the SRC Act and she needed to make [herself] available for return to work plans within the next week or two. I accept that something to that effect may have been said. That would be consistent with Mr Drury saying that he was going to organise an assessment by an independent doctor and a case conference in his email of 8 July 2015, and consistent with his email of 23 July 2015, asking if Dr Morton was available to discuss return to work obligations on 4 or 5 August 2015. An independent examination, a case conference, and a discussion can be considered a part of return to work plans. However, Dr Morton gave no evidence that Mr Drury told her that she had, “obligations…under the SRC Act to begin to plan her return to work within the next couple of weeks.

604    In any event, I would not accept that telling Dr Morton that she had obligations under the SRC Act make herself available for return to work plans within the next week or two is indicative of an intention to negate her choice to exercise her workplace rights to benefits under the SRC Act, or initiate or participate in proceedings under the SRC Act. That statement does not indicate that Mr Drury sought to compel her to return to work or to act contrary to the medical advice. I consider that Mr Drury’s intention was to facilitate Dr Morton’s return to work for her own benefit and the benefit of CSIRO. Further, there was nothing about his conduct that was such unlawful, illegitimate, or unconscionable.

605    I have otherwise dealt with the allegations in Claim 5 in my consideration of Claim 3. I find that CSIRO did not contravene s 343(1) of the FW Act as alleged in Claim 5.

CONSIDERATION OF CLAIM 6

606    Claim 6 is contained in paragraphs 19 to 20A of the further amended statement of claim. Paragraph 20A alleges that CSIRO took adverse action against Dr Morton in contravention of s 340(1) of the FW Act by: placing her on SWO2 (Sick Without Pay Type 2) leave instead of SWO1 (Sick Without Pay Type 1) leave; logging Dr Morton’s unpaid sick leave beyond the date of her medical certificates; decreasing her allocation to the Huon project; transferring her allocation on the Huon project to another staff member; and dismissing her from her employment by making her position redundant in circumstances where there was no genuine redundancy.

607    Claim 6 has not been addressed in Dr Morton’s written or oral submissions. However, as the claim has not been expressly abandoned, it remains necessary to consider it.

608    I will deal first with the allegation that CSIRO took adverse action against Dr Morton by placing her on SWO2 leave instead of SWO1 leave.

609    Mr Miller is CSIRO’s payroll manager. He gave evidence that he generally does not make entries concerning employee’s leave into the CSIRO system. That task is usually done by Ms Gaal or Ms Gaspari. Following a decision by Comcare to revoke its decision to accept Dr Morton’s claim, Mr Miller received an email from Mr Frank O’Donnell on 15 October 2015, asking him to, revert Katherine to sick leave without pay from your cut-off next week.. Mr Miller decided to action the request in the email himself, because neither Ms Gaal nor Ms Gaspari were at work at the time. His evidence was that, I processed it to ensure we didn’t have an overpayment. Mr Miller gave evidence that, when processing the request, he entered the wrong leave type. He chose SW02, when it should have been SW01. Mr Miller said he became confused because he does not put these entries in very often.

610    The error was adverse action within s 342(1) of the FW Act. The error had no permanent effect. It was rectified by Mr Gaspari on 21 July 2016 with retrospective effect. However, until it was rectified, Dr Morton did not accrue recreational leave and superannuation. Even though the effect was temporary, it altered Dr Morton’s position to her prejudice until it was rectified. The definition of adverse action in s 342(1) is not limited to permanent injury, alteration of employment or discrimination.

611    However, I do not accept that Mr Miller took the adverse action because Dr Morton had or exercised any workplace right to make a complaint or inquiry. I accept Mr Miller’s evidence. It was an innocent mistake.

612    Dr Morton alleges that CSIRO took adverse action against her by logging her unpaid sick leave beyond the date of her medical certificates. Ms Gaspari gave evidence about the allegation about that issue. She said that the circumstance related to Dr Morton being on sick leave without pay after Comcare had revoked its decision to accept her claim. Dr Morton had sought review of Comcare’s decision. Ms Gaspari understood that the application for review could take some time to resolve. In the meantime, the Salary and Entitlements team would have to enquire each fortnight whether the situation had changed. To avoid this, it was decided to log Dr Morton as being on sick leave without pay for six months, on the basis that Ms Gaspari would inform the Salary and Entitlements Team as soon as there was a determination.

613    Therefore, logging Dr Morton on sick leave for six months, even though that period extended beyond the length of her medical certificate, was simply a matter of administrative convenience. It did not have the sinister connotation that Dr Morton seems to allege.

614    The administrative recording of Dr Morton as being on sick leave without pay for six months had no adverse effect upon Dr Morton or her entitlements. It did not injure her in her employment, alter her position to her prejudice, or discriminate between her and other employees. It was not adverse action within s 342(1) of the FW Act.

615    Even if it was adverse action, I would not accept that it was taken because Dr Morton had or exercised any workplace right to make a complaint or inquiry. I accept Mr Gaspari’s evidence that it was done as a matter of administrative convenience.

616    In considering Claim 1, I have already dealt with the reasons for decreasing Dr Morton’s allocation to the Huon project, transferring her allocation to that project to another staff member and making her position redundant. That had no connection with Dr Morton being recorded as being on sick leave without pay for six months, or having or exercising any workplace right to make a complaint or inquiry.

617    I find that CSIRO did not contravene s 340(1) of the FW Act as alleged in Claim 6.

CONSIDERATION OF CLAIM 7

618    Claim 7 has been expressly abandoned.

CONSIDERATION OF CLAIM 8

619    Claim 8 is contained within paragraphs 27 to 28A of the further amended statement of claim. Those paragraphs allege that CSIRO took adverse action against Dr Morton in contravention of s 340(1) of the FW Act.

620    Paragraph 28A alleges that the adverse action includes not making Dr Morton aware of, or offering her, the position in Hobart as a Senior Research Scientist advertised on 22 September 2016, and failing to undertake the mandatory redeployment process. The paragraph also alleges that the adverse action includes Ms Walsh advising Dr Morton that she had been made redundant under the policy for voluntary redundancy, telling her that Mr Roy had given approval for the redundancy to proceed but that further approval was required from Dr Manners and writing to her saying that she had become redundant.

621    Dr Morton’s written and oral submissions have not expressly addressed Claim 8. However, it is necessary to deal with it, as it has not been expressly abandoned.

622    I have already held that there was no failure by CSIRO to comply with the redeployment process under the Enterprise Bargaining Agreement. Dr Morton had indicated in writing that there were no locations within CSIRO that were suitable for her. Further, the evidence of Dr Cook and Dr Wade, which I accept, is that Dr Morton was not qualified for the Senior Research Scientist position. Further, Dr Cook considered that Dr Morton could not acquire the level of expertise necessary for that position within a period of six months. In these circumstances, CSIRO was not required to notify Dr Morton of, or appoint her to the position as part of redeployment process.

623    It may also be noted that Dr Morton was aware of the vacancy, but did not apply for it. She failed to provide her CV to Ms Walsh as requested. Dr Morton clearly did not want the positionshe wanted a redundancy. I cannot see how the failure to notify her of the vacant position, or appoint her to the position, could cause her injury in her employment, or alter her position to her prejudice in these circumstances. There is no suggestion that, in this respect, CSIRO discriminated between Dr Morton and other employees. There was no adverse action.

624    I do not accept that Ms Walsh’s emails to Dr Morton concerning her redundancy amounted to adverse action. Even if it did, I would not accept that it was adverse action taken against Dr Morton because she had or exercised the workplace rights she pleads. I have already considered the circumstances in which her position came to be made redundant.

625    I reject the allegation in Claim 8 that CSIRO contravened s 340(1) of the FW Act.

CONSIDERATION OF CLAIM 9

626    Claim 9 is described in paragraphs 29 to 30A of the further amended statement of claim. Those paragraphs allege that CSIRO took adverse action against Dr Morton in contravention of s 340(1) of the FW Act.

627    Paragraph 29 pleads that Dr Morton had a workplace right to make a complaint or inquiry in relation to her employment, and exercised that right by emailing Ms Gaal on 20 September 2016 regarding being logged on SWO2 unpaid leave until 8 February 2017 despite Comcare having accepted liability for her injury more than a month prior.

628    Paragraph 30 pleads that CSIRO took adverse action against Dr Morton because she exercised that workplace right. The adverse action is said to consist of injuring Dr Morton in her employment (particularised as psychiatric injury, including Major Depressive Disorder), altering her position to her prejudice, and discriminating between her and other employees. Paragraph 30A(a) alleges that the adverse action involved manually reducing Dr Morton’s recreational leave balance downwards by 73.5 hours in response to an email on 23 September 2016.

629    Unfortunately, Claim 9 has not been referred to in Dr Morton’s written or oral submissions, so the difficulty of understanding her pleaded allegations has not been alleviated.

630    Dr Morton’s application for workers’ compensation benefits had initially been accepted by Comcare on 5 June 2015, but was revoked on 19 August 2015 after CSIRO sought review of the decision.

631    Dr Morton gave evidence that when the decision to accept her workers’ compensation claim was revoked, CSIRO placed her on sick leave, and when the sick leave ran out, she was placed on recreational leave. She had some recreational leave that had been booked for 3 November to 20 November 2015, but CSIRO changed that leave to a period in October 2015. Dr Morton did not authorise that change. Then the recreational leave was stopped and she was placed on unpaid leave on 7 October 2015. After Dr Morton was placed on unpaid leave, she had no income. It took until 6 October 2016 for CSIRO to sort out her entitlements. She said she has not received all of her entitlements even now, and considered that she was entitled to some 75 hours of recreational leave.

632    Ms Gaal dealt with issues concerning Dr Morton’s leave. She was aware that on 19 August 2015, Dr Morton’s workers’ compensation claim had been denied. On 20 August 2015. She ceased the compensation leave and returned it to sick leave in the system and, at some point, she changed it to recreational leave. She did that because Dr Morton’s paid sick leave was exhausted, and recreational leave was the next form of leave to be used.

633    Dr Manners wrote an email to Dr Morton dated 28 August 2015 requesting clarification as to whether she wanted to access recreational leave following the deletion of personal leave, or whether she wanted to access leave without pay. Ms Gaspari said that enquiry was necessary because when an employee exhausts their available sick leave, their status normally defaults to sick leave without pay. To prevent financial hardship, CSIRO offers the ability to use available paid entitlements such as recreational leave. Dr Morton did not respond to Dr Manners’ email.

634    Ms Davis wrote to Dr Morton on 1 September 2015 saying that, in the absence of a response to Dr Manners’ email, it had been decided that recreational leave would be entered instead of unpaid leave, so as not to have an impact upon her next pay. The email said that if this was not Dr Morton’s wish, she should let Ms Davis know immediately so she could correct it. Sick leave had been entered on her behalf from 27 August to 3 September and recreational leave from 4 September to 2 October. Ms Davis noted that Dr Morton had entered recreational leave from 3 to 20 November and asked whether she wanted to withdraw that entry and make use of that leave following 2 October 2015. Dr Morton did not respond to that email.

635    On 1 September 2015, Ms Davis sent an email to the HR Service Centre saying, “Katherine’s claims been denied, we need to order a new leave type before payroll cut off”. Ms Davis gave evidence that she did this because otherwise Dr Morton would not receive any income, given that her Comcare claim had been denied. Ms Davis said she made the change to the leave type so that Dr Morton would not be disadvantaged by a lack of pay.

636    Ms Gaspari referred to an email exchange with Dr Morton ending on 21 September 2015. Ms Gaspari explained that there was future recreational leave recorded for Dr Morton in the system, and as they knew she was about to be on leave without pay, the question was asked whether she wanted the leave to be utilised earlier so that she would continue to be paid. She said that they tried to avoid financial impact if possible.

637    Mr Croft sent an email to Ms Davis using Dr Morton’s CSIRO email address on 25 September 2015, complaining about CSIRO logging Dr Morton’s leave as it saw fit. The email also said that Dr Morton was requesting that the recreational leave be reinstated.

638    Ms Davis forwarded Mr Croft’s email to Ms van Schieveen on 28 September 2015. Ms van Schieveen replied to Ms Davis on 14 October 2015 stating that there should be an entry of sick leave without pay.

639    On 20 September 2016, Dr Morton wrote to Lynne Gaal, a service advisor in HR Services, enquiring about replacement of her leave with compensation leave. She complained, amongst other things, about CSIRO having ceased contributing to her superannuation fund, and the length of time it was taking for her entitlements to be sorted out, despite Comcare having accepted her claim again over four weeks earlier.

640    On 23 September 2016, Ms Gaal responded to the issues raised by Dr Morton on 20 September 2016, and set out the arrangements that had been, or would be, put in place.

641    On 25 September 2016, Dr Morton wrote to Ms Gaal pointing out a discrepancy between Comcare’s and CSIRO’s end date for the first 45 weeks of compensation and asking how that would affect her superannuation. On 29 September 2016, Ms Gaal responded clarifying the end date and the position in respect of superannuation contributions.

642    Dr Morton received back pay from CSIRO in about October 2016. She was paid $105,091.58.

643    In her evidence, Ms Gaspari referred to Dr Morton’s final payslip. It indicated the hours and values of leave paid to her on her cessation. Ms Gaspari gave evidence that she checked whether Dr Morton was paid the correct amount for her accrued annual leave. She confirmed that the amount was accurate.

644    I am satisfied that the relevant CSIRO employees, Ms Davis and Ms Gaal, arranged for Dr Morton’s recreational leave entitlements to be brought forward and used when her workers’ compensation benefits were cut-off. They did this because otherwise Dr Morton’s income would have been suddenly cut off and they did not want her to be disadvantaged by this. When Dr Morton, through Mr Croft, indicated that she wanted the entries reversed, that was done. I am satisfied that she received the whole of her recreational leave entitlements, and that, contrary to her assertion, there is no missing 73.5 hours of leave entitlements she was not paid.

645    I cannot see that any of the events described above amounted to adverse action taken against Dr Morton. There was no injury, alteration of her position to her prejudice, or discrimination against her, by having her recreational leave entitlements brought forward so that she would not be left without income. She has not demonstrated that she suffered any loss or disadvantage.

646    Further, I am not satisfied that there was any reduction of Dr Morton’s recreational leave balance by 73.5 hours in response to the email to Dr Morton on 23 September 2016, as is pleaded in paragraph 30A(a) of the further amended statement of claim.

647    Even if there was adverse action, I would not be satisfied that it was taken because Dr Morton exercised the workplace right alleged. Rather, the CSIRO staff acted genuinely in what they thought was Dr Morton’s best interests. I would not accept that they took any adverse action because she exercised her right to make a complaint or inquiry by her email of 20 September 2016.

648    Paragraph 30A(b) alleges that CSIRO failed to properly consider, investigate, or act on, the complaints as alleged in Dr Morton’s pleading. That appears to refer to the allegation pleaded in paragraph 29, that on 20 September 2016, Dr Morton emailed Ms Gaal regarding being logged on SWO2 unpaid sick leave. However, Ms Gaal provided a detailed response on 23 September 2016 indicating what had been done, and what would be done to regularise the position. When Dr Morton then raised further queries on 25 September 2016, Ms Gaal investigated and responded on 29 September 2016. I am satisfied that Ms Gaal properly considered, investigated and acted upon Dr Morton’s complaints.

649    The allegation in paragraph 30(b) may alternatively be understood a sweeping allegation that CSIRO failed to properly consider, investigate, or act on, any of the complaints referred to in the pleading. If so, it simply seems to repeat allegations made under Claims 1A, 1 and 5. I have already dealt with those allegations.

650    I reject Claim 9.

CONSIDERATION OF COMPENSATION

651    In respect of Claim 4, I have found that CSIRO contravened s 340(1) of the FW Act by taking adverse action against Dr Morton because she exercised her workplace right to make a complaint about Mr Drury. The adverse action consisted of Ms Campbell failing to comply with the Grievance Procedures under the Enterprise Agreement when dismissing Dr Morton’s complaint. Ms Campbell’s actions deprived Dr Morton of an entitlement CSIRO had agreed to provide her with under the Enterprise Agreement. This, was an alteration of Dr Morton’s position to her prejudice.

652    Paragraph 30B of the further amended statement of claim alleges that as a result of CSIRO’s contraventions of the FW Act, Dr Morton has suffered, and continues to suffer, hurt, humiliation, and loss. The loss is alleged to be a psychiatric injury, including Major Depressive Disorder which prevents her from participating in any form of employment.

653    Section 545 of the FW Act provides, relevantly:

Federal Court and Federal Circuit Court

(1)    The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

(2)    Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:

(b)    an order awarding compensation for loss that a person has suffered because of the contravention;

654    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 350 ALR 190; [2018] HCA 3 at 103, the plurality held at 103:

[T]he first and most immediate point of significance is the breadth of the terms in which s 545(1) empowers the court to make any order the court considers appropriate. What is "appropriate" for the purpose of s 545(1) falls to be determined in light of the purpose of the section and is not to be artificially limited. As the ABCC submitted, such broad terms of empowerment are constrained only by limitations that are strictly required by the language and purpose of the section.

(Citations omitted.)

655    In Australian Licensed Aircraft Engineers Association v International Aviation Services Pty Ltd (2011) 193 FCR 526, Barker J held at [447] that the Court has the power under s 545(2) to order compensation in respect of non-economic loss for distress, hurt, or humiliation: see also Transport Workers Union of Australia v No Fuss Liquid Waste Pty Ltd (2011) FCA 982; Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285; [2017] FCA 1534 at [303]; Dafallah v Fair Work Commission (2014) 225 FCR 559 at 179.

656    In Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120, the Full Court held at [28] that it is necessary for there to be a causal connection between the contravention and the loss claimed: see also Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Hutchinson Ports Appeal) [2019] FCAFC 69 at [132].

657    I have concluded that Dr Morton substantially exaggerated her psychiatric symptoms to Dr Rees and Dr Mathew. While I cannot exclude the possibility that Dr Morton has, or has had, some form of psychiatric condition, I am satisfied that it is not Major Depressive Disorder or Agoraphobia. Further, I am not satisfied that any psychiatric condition that Dr Morton has, or has had, is causally related to any of the claims made in her further amended statement of claim. In addition, I am not satisfied that she is unable to participate in any form of employment. To the contrary, my observation of her in the witness box is that she is a very capable and mentally sharp person who could find employment if she chose to do so. Further, Dr Morton’s ability to complete a MBA with exceptional grades, together with her ability to undertake the variety of activities referenced in her Facebook posts, indicates that she has substantial capacity for employment.

658    In relation to Claim 4, I do not accept that the adverse action taken by CSIRO caused, contributed to, or exacerbated, any psychiatric condition that Dr Morton has or had. The adverse action took place between 29 July and 3 August 2015. That was after Dr Morton had ceased work on 6 July 2016, with a certificate from Dr Rees stating that she had a psychiatric condition that made her unable to work. Dr Morton has not given or provided any evidence that any psychiatric symptoms she was experiencing were exacerbated by Ms Campbell’s failure to properly deal with her complaint against Mr Drury.

659    Dr Morton gave evidence that Ms Campbell’s email of 3 August 2015 had stated rather generically that Mr Drury was acting in her best interests. Dr Morton said she did not believe that Ms Campbell engaged with anything she had alleged in her emails. She said she felt like her complaint had been swept aside.

660    If Dr Morton’s complaint had been dealt with by Ms Campbell in compliance with the Grievance Procedures, I am satisfied that the outcome would not have been materially different.

661    I accept that, in circumstances where Dr Morton was deprived of her right to have her complaint properly dealt with under the Enterprise Agreement, she felt disappointed and dissatisfied. Although Dr Morton’s disappointment does not rise as high as hurt, humiliation or distress, I consider that it is a form of compensable non-economic loss. I find that $1,000 is an appropriate amount of compensation.

662    I will make a declaration reflecting my findings in relation to Claim 4.

CONCLUSION

663    I have rejected Claims 1A3 and Claims 59 as pleaded in the further amended statement of claim.

664    However, I have upheld Claim 4, which alleges that CSIRO contravened s 340(1) of the FW Act by reason of Ms Campbell dealing with Dr Morton’s complaint against Mr Drury contrary to the requirements of the Grievance Procedures under the Enterprise Agreement.

665    On 19 April 2018, I ordered that the questions of whether the respondent contravened the FW Act, and any compensation arising from any such contraventions be heard separately from, and prior to, the questions of any penalties and other relief.

666    Accordingly, it will be necessary to hear the parties as to penalty and any other relief in respect of Claim 4. I will also hear the parties as to costs.

I certify that the preceding six hundred and sixty-six (666) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

Associate:    

Dated:    29 October 2019

APPENDIX TO REASONS FOR JUDGMENT

TABLE OF CONTENTS TO APPENDIX

Evidence of Dr Morton

[1]

Evidence-in-chief

[1]

Cross-examination

[133]

Re-examination

[440]

Evidence of Mr William Croft

[450]

Evidence in chief

[450]

Cross-examination

[473]

Evidence of Dr Geoffrey Rees

[504]

Evidence of Dr Joseph Mathew

[530]

Evidence of Dr Brett Glencross

[559]

Cross-examination

[593]

Evidence of Dr Timothy Shaw

[625]

Evidence of Ms Lauren Trenkner

[642]

Evidence of Ms Natalie Habilay

[653]

Evidence of Mr Dallas Donovan

[656]

Evidence of Mr David Blyth

[660]

Evidence of Dr Nicholas Wade

[667]

Evidence of Ms Caroline Cook

[677]

Evidence of Dr Mathew Cook

[679]

Cross-examination

[756]

Evidence of Dr Preston

[792]

Cross-examination

[815]

Evidence of Ms Dominica Walsh

[832]

Cross-examination

[856]

Evidence of Ms Julie Carroll

[866]

Evidence of Ms Amanda Somerville

[872]

Evidence of Mr Simon Irvin

[882]

Evidence of Ms Sally Sturton

[888]

Evidence of Mr David Brewer

[896]

Evidence of Ms Heather Campbell

[905]

Evidence of Ms Alysha Davis

[918]

Evidence of Ms Louise Gaspari

[936]

Evidence of Mr Derek Miller

[955]

Evidence of Ms Lisa van Schieveen

[964]

Evidence of Mr Craig Roy

[970]

Evidence of Dr John Manners

[982]

Evidence of Ms Rayleen Gaal

[1007]

Evidence of Mr Trevor Heldt

[1012]

Evidence of Mr Marty Phillips

[1018]

Evidence of Mr Trevor Van Dam

[1023]

Evidence of Dr Anthony Worby

[1025]

Evidence of Mr Gavin Drury

[1036]

Evidence of Dr Morton

Evidence-in-chief

1    Dr Morton commenced employment at CSIRO on 12 March 2012 as a Level 6 scientist. After a few months, Dr Cook was appointed as the team leader for Dr Morton’s group and he became her line manager.

2    Dr Preston was the “theme” leader, overseeing three “streams”. Dr Morton was a member of one of the streams, namely, Aquaculture. Dr Glencross was the leader of that stream and was her direct supervisor.

3    About six weeks after Dr Morton commenced at CSIRO, she was invited by Dr Glencross on a work trip to Cairns and Townsville. Her evidence is that, at the James Cook University campus in Townsville, Dr Glencross noticed a young female Asian student, and commented that he was not attracted to Asians, but that he found Eurasians particularly sexually attractive. Dr Glencross then asked Dr Morton what her sexual preference was. She did not respond to his question. She said it made her feel extremely uncomfortable and shocked. At the time she did not have a specific line manager, but she may have mentioned the incident at a later date to Dr Cook.

4    Dr Morton attended the Aquaculture Australia Conference in Melbourne, which commenced on 2 May 2012. One evening Dr Glencross, Mr Marty Phillips and Dr Morton were having a conversation about barramundi and the aquaculture industry. Dr Morton said that, when she smiled at something Mr Phillips had said, Dr Glencross remarked, “You know you have crows-feet when you smile”. Dr Morton tried to ignore the comment and continued with the conversation. She felt stunned, and shocked and then quite humiliated and confused.

5    Dr Morton gave evidence that, on the first day of the Aquaculture Australia Conference, she commented to Dr Glencross that people in Melbourne were better dressed than people in Brisbane, and she should probably have worn some smarter clothes, rather than jeans, to the opening drinks and reception. She said that she had a nice Prada cocktail dress which would probably have been more suitable, to which Dr Glencross responded, “What, were you a prostitute?” Dr Morton replied, “No, I bought it with my own money in Dubai”. She told Dr Glencross that the dress cost around $5,000, or $6,000. Dr Morton said she felt humiliated, shocked, and upset. She did not hear Dr Glencross speaking to any males at the conference in the same way.

6    Dr Morton gave evidence that, when she returned to Brisbane, she told Dr Cook about the incidents at the conference at a meeting over coffee. Dr Cook brushed off these events and made statements like, “That’s the sort of thing Brett does”. Dr Morton said she used to tell Dr Cook that this was not a reasonable way to behave in the workplace. They had a lot of discussions about Dr Glencross’ behaviour, and it largely seemed to be swept aside.

7    On 13 August 2012, CSIRO staff received a newsletter containing a photograph of Dr Morton. Dr Cook sent an email to Dr Morton saying, “Is that crows-feet!” Dr Morton said she felt upset and disappointed, as she had complained to Dr Cook about the way Dr Glencross had behaved, but he had brushed it aside and merely made a joke of it.

8    On 21 August 2012, Dr Morton sent an email to Dr Cook discussing a colleague whom Dr Cook had said looked ten years old. Dr Morton’s response included the comment, “Maybe I need to give him my crows-feet?” She said she felt that if things that she had complained about were going to be made fun of, she would start making some sarcastic and pointed references, as she did not know what else to do.

9    On the evening of 15 October 2012, Dr Morton had dinner at the Norman Hotel in Woolloongabba with Dr Glencross, Dr Paul Wade and Ms Lauren Trenkner, a PhD student. Dr Morton assumed that the purpose of the dinner would be to discuss organisational issues regarding an experiment for a sample collection the following day. Dr Morton’s evidence was that Dr Glencross brought up the subject of “dominatrixes”, and how they had sexual relations with their clients. Dr Morton corrected Dr Glencross about a comment he made concerning that subject.

10    The next day, on 16 October 2012, Dr Morton travelled to the Bribie Island aquaculture facility for a sample collection. She arrived at the site at about 7.30 am, or 8 am. There were about five or six people present when she arrived. Her task was to set up the sample collection rooms so that they could start the collection. Fish would be collected in one room, euthanized for dissection, and then transported to the sample collection room. The staff were very busy setting up. It was a very large experiment, which had double the usual number of samples, compared to their usual experiments.

11    Dr Morton’s evidence was that, when she was setting up the blood collection station, she was slapped on the buttocks with a riding crop. She was in the sample room alone with Dr Glencross at the time. It was Dr Glencross who slapped her with the riding crop. He struck her on the right buttock cheek, hard enough for her to have felt it through the trousers that she was wearing. Dr Glencross did not say anything when he hit her.

12    Dr Morton said she was very shocked and quite humiliated. She just stood there for a second or two trying to compose herself. She then continued arranging the tubes for the blood sample collection.

13    Dr Morton said that at a later date, when she had time to think about it, she linked the incident to the previous night’s conversation about dominatrixes. Dr Morton said she did not tell anyone about the riding crop incident on the day it occurred, but told Dr Cook about it the next day, 17 October 2012.

14    On the night of 17 October 2012, there was a dinner involving a number of members of the Brisbane stream and the corresponding stream from Hobart at the Norman Hotel. Dr Morton stated that she was seated across from Dr Glencross when he made a comment about women only wearing pendants to draw attention to their cleavage, and followed this with a statement that, “I don’t know why you bother, Katherine, you don’t have any”. Dr Morton was the only person in her vicinity wearing a pendant. She felt quite horrified, embarrassed and humiliated.

15    After the dinner, Dr Cook and Dr Morton were walking towards her apartment. Dr Cook had explained that he had never worked closely with Dr Glencross and wanted to gain some insight as to what it was like to deal with him as a person. Dr Morton said she explained the event at Bribie Island, as well as events that had occurred at the dinner earlier that night. Dr Cook did not seem overly shocked, and seemed more focussed on a meeting he had scheduled with Dr Glencross. She expected Dr Cook to follow up these incidents with Dr Glencross and Dr Glencross’ manager. However, that never happened.

16    Dr Morton attended an Aquaculture Conference in May 2012. At a dinner, Dr Morton was approached by Dr Preston. Dr She said that Dr Preston made the comment to her, “You are just a hussy”. She said that Mr Dallas Donovan was present when the comment was made. Dr Preston’s tone of voice was fairly light hearted and dismissive. The comment made her feel upset, as she had been invited to drinks with what she understood to be a major client of CSIRO. She did not feel that it was appropriate to be referred to in such a way.

17    On 30 October 2012, Dr Cook sent an email to Dr Morton with the subject, “Katherine the Catfish Lady!” The email said:

Pres nominated you to run WAR Catfish. I quickly chimed in with “She doesn’t know shit about fish!”.

Pres was a reference to Dr Preston.

18    Dr Morton replied:

Nice work…Keeping science away from my office! Ta…

But I do know Rob, and he has milking buffalo and I am all over sexing their sperm…Plus I like Mozzarella.

Oh, and the Pres said Ian is a gazzillionairre right before he called me a hussy.

19    Rob and Ian were clients from WA Resources. Dr Morton gave evidence that during the dinner, Dr Preston had whispered to Dr her that Ian was a “gazillionaire” right before he called her a hussy. She believed that Dr Preston was suggesting that she be overtly friendly towards clients in an attempt to secure research funding.

20    In December 2014, Dr Morton and Dr Cook flew to Hobart. Dr Morton discussed advances that had been made in amoeba culture with the chief vet for the client (Huon Aquaculture). The chief vet seemed impressed and offered to increase the cash component of the research funding. Dr Morton’s evidence was that after the meeting, Dr Cook said, “Take a blonde to Tasmania, dress her up and double your money”. Dr Morton felt quite disgusted and humiliated. She had been making complaints for quite some time about that type of behaviour and had recently filed a formal grievance about behaviours from senior managers of that type, and it was still continuing.

21    Dr Morton gave evidence that on 26 July 2012, there was an exchange of emails between Dr Morton and Dr Cook about working from home and an employee who had a CSIRO iPad. Dr Cook sent an email saying:

Nah, fixed. I think you gave me a dodgy charger!

Time to surf porn under my desk!

22    Dr Morton replied:

Ha ha ha ha ha.

I thought the iPad wasn’t wi-fi enabled?

23    Dr Morton said the reference in Dr Cook’s email came out of the blue. Dr She said she responded as she did because she did not know how else to respond. She was trying to ignore the comment.

24    On 10 September 2012, Dr Cook sent an email to Dr Morton, two other males and one female. The subject was, “Love it”. The email attached a document entitled, “How people in science see each other”. The document contained a number of photographs in a grid pattern demonstrating (in a humorous way) how various people in science perceive one another. One photograph shows how an undergraduate is perceived by a “PL/Professor”. That photograph is of an attractive woman bending over what may be the bonnet of a car.

25    One of the recipients of Dr Cook’s email responded, “Can I meet your undergraduate please Professor Cook?”. Dr Cook replied, “Nah, she is all mine!”.

26    On 12 September 2012, Dr Cook sent an email to Dr Morton with the subject, “Is this what they mean by learing (sic)?”. The email contained a photograph of a woman with a short skirt sitting with her legs crossed. The focus of the photograph is on her legs and thighs.

27    On 16 October 2012 (the evening of the riding crop incident), Dr Cook sent an email to Dr Morton saying, “Imagine Nick and Brett in Mankini’s singing!”. The email attached a document called “Bunny Lovin…x”. Dr Glencross had been given the nickname “Bunny”, apparently because his capacity for work was like that of the Energiser Bunny. The attachment was a parody of the song “Summer Nights” from the musical, Grease, and was entitled “Bunny Lovin”. The parody made fun of Dr Glencross and Dr Wade (another scientist in the Aquaculture area), and included the following lines:

He got friendly fumbling my prawn

Well, he got friendly and we fawn(icated)

He was sweet, ready for Level 5

Well, I bent over and let him Drive

Summer heat, leader and brown nose meet

But, uh ooh those summer nights

28    Dr Morton was with Dr Glencross and others at the Bribie Island Surf Club when she received that email. She said she thought the content of the email was quite cleverly put together, but was also inappropriate, and not what she was expecting to receive from Dr Cook. Dr Morton responded saying, “I owe you a coffee for that one”. She said she responded in that way because she admired Dr Cook’s skill.

29    There was an exchange of emails between Dr Morton and Dr Cook on 7 November 2012. An email from Dr Cook had the subject, “Guess who is here…”. It attached photographs of a muscular man with no shirt on and a woman whose shirt barely concealed her breasts. Dr Cook’s email said, “Here are the top two candidates, I have my preference”.

30    Dr Morton replied:

Hmmm…well clearly both need CSIRO merchandise…

If I have correctly assumed your preference, then you could be on-to something—we could use her to distract the powers that be whilst we run up crazy ass expenses on work trips to say Hawaii do science.

PS

Where is my CSIRO shirt? Natalie has one! The giving of a CSIRO shirt to one employee and not all could be considered bullying! :)

31    Dr Cook responded:

I like the shirt being worn in the picture. Again, probably biased. Sorry, better get back to science (no sign of Natalie, Julie or anyone for that matter)!

32    Dr Morton responded:

That is because they are all at the surf club having a meeting with their new theme leader and her PA! Geez…you really are out of the loop!

Hmmm…as long as it was CSIRO branded it would be okay. Not suitable for those with no cleavage, so the CSIRO needs to fund my boob job…

I should get back to science, but I have about 500 pages of lipid metabolism in fish to read :(

33    Dr Morton said that the emails were exchanged in the context of a previous discussion between Dr Cook and Dr Morton about a replacement for Dr Preston. One potential candidate was named “Natalie”. The discussion was about the fact that Natalie, as part of her employment conditions, had received CSIRO merchandise that staff members did not receive, leaving Dr Morton and Dr Cook to feel that they were left out. Dr Morton said her reference to a “boob job” was a sarcastic reference to comments that had been made about her lack of cleavage.

34    There was an exchange of emails between Dr Morton and Dr Cook on 8 November 2012. Dr Cook nominated Dr Morton as his “base contact” for his up-coming visit to Europe. Dr Morton responded saying, “plus ill (sic) only do it if you buy me presents & send photos of your food :)”. Dr Cook responded saying, “Not sure if you want pics of Richard and I eating out (mainly titty bars I think!).”

35    The exchange occurred in the context of a safety procedure at CSIRO requiring that, when staff members travelled overseas, they had to have a “base contact” to check-in with every day. It was a running joke that proof of life was a photograph of the staff member eating their dinner. Dr Morton said she regarded the reference to eating out in “titty bars” as inappropriate.

36    On 11 February 2013, Dr Cook sent Dr Morton an email complaining in crude terms about a paper written by a colleague. It contained the line “Well bend me over and slap me with a cold barramundi!”. Dr Morton said she understood Dr Cook to be referencing the riding crop incident.

37    There was an exchange of emails between Dr Morton, Dr Cook and Dr Richard Taylor on 19 March 2014. They comprised the selection panel for a post-doctoral position. One of Dr Cook’s emails said:

Richard cant move past [name deleted].

I believe he has pinned her picture up in his office!

That was a reference to a candidate who had applied for the position and had included a photograph with her application.

38    Dr Morton replied:

So were appointing three applicants to look cute, plainly [sic, planning] experiments, manage hamsters & brewing…

Can I amend the duties to include making my coffee…

39    Dr Morton said her comment was sarcastic, as it was well known around the office that she drank quite a lot of coffee.

40    Dr Morton gave evidence that, when she spoke to Dr Cook about the riding crop and pendant incidents, she told him that the events were inappropriate and felt that, as a woman, she should not be subject to such behaviour. She said that Dr Glencross was not doing it to male members of staff and conveyed that she was upset. She did not explain the full extent of how emotionally upset she was because she was ashamed at how much the events bothered her and felt that she should have been stronger and able to withstand more. It was not an easy thing to admit how things bothered her, on a personal level, in the professional sphere.

41    Dr Morton said she spoke to Ms Carroll throughout 2012 about Dr Glencross’ behaviour. She would tell Ms Carroll generally about events that were occurring within the group concerning Dr Glencross’ behaviour. She would have started her discussions with Ms Carroll in about April/May 2012 and continued through to December 2012.

42    Dr Morton complained to Dr Wendy Barron about Dr Glencross in 2013. She complained about the working relationship between Dr Glencross and the staff at Bribie Island, and, in general, about the way he operated. She also complained more specifically about how she had been treated by Dr Glencross. She said she told Dr Barron about the cleavage comment and some of the comments that Dr Glencross had made throughout her employment. She does not recall whether she told Dr Barron about the riding crop incident.

43    Dr Morton made complaints to Mr David Brewer in 2012 about Dr Glencross’ behaviour. These were made in the context of Dr Glencross’ treatment of the group as a whole and communication and other issues between Bribie Island and the Brisbane (ESP) site. She also complained more specifically about how Dr Glencross treated her and the comments he had made towards her. Dr Morton says she told Mr Brewer about the cleavage comment and the incident in Townsville.

44    Dr Morton made complaints to Shane Casson in 2013 generally regarding the Bribie Island site, safety concerns, and more generally, about Dr Glencross’ behaviour with staff . She also complained specifically about Dr Glencross’ behaviour with her. Mr Casson was a health, safety and environment officer at CSIRO and was in charge of the Bribie Island and ESP sites. Mr Casson assisted Dr Morton with the filing of her workers’ compensation claim.

45    Dr Morton made complaints to Dr Tony Worby in 2013 about Dr Glencross’ behaviour. She wanted to raise concerns with Dr Worby about the way her group was treated within CSIRO, saying her group was more than just Dr Glencross’ group. She said Dr Glencross did not have a good reputation within CSIRO, and she did not want any of the staff in the group going for promotions, applying for “Capex funding”, or pursuing other sorts of internal promotion and development opportunities, to be tarred with the brush of working for him. Dr Morton made complaints about how Dr Glencross treated the group as a whole, which included things that he specifically did to her, such as changing timetables, yelling at staff, having unrealistic expectations and that sort of thing.

46    One of the matters that Dr Morton had complained to Ms Carroll about was an email that Dr Glencross had sent to Simon Irvin, which had upset him greatly. The email was dated 8 August 2012. In that email, Dr Glencross accused Mr Irvin of going behind his back to initiate trials in his project without consulting him beforehand. The email can be described as a lengthy, aggressive diatribe.

47    Dr Morton gave evidence concerning David Bligh, an aquarist and a food technologist based at Bribie Island. Dr She denied that there was any sexual banter between herself and Mr Bligh, saying that they had a close working relationship, but no other relationship.

48    In February 2014, Dr Morton asked for a “role clarification meeting” with Dr Glencross. She asked for the meeting because she had been receiving mixed messages and signals about her role from Dr Glencross. It had gotten to a stage where she felt she could not continue to move forward and build her career. She was frustrated at being told to progress certain things, getting half-way through them, and then being instructed to stop.

49    On 6 March 2014, Dr Morton sent an email to Dr Glencross, copied to Dr Cook and Dr Greg Coman. She stated that her core role had never been clearly communicated to her, and that the purpose of her email was to clarify what her core role was. She said that, from her discussions during her application and interview process, she believed that she was hired for her strengths, particularly for her considerable project and experiment management skills, and that was where she had focussed her attention. She gave an example of her “experimental management” of experiments described as BAR-12-4; BAR-12-6; BAR-12-8; BAR-13-7; and BAR-14-7.

50    Dr Morton’s email also listed a number of other aspects of experimental design, data analysis, reporting and management preparation and other tasks she had done. She said that she presumed that these were some of the key aspects of her role, and that if there was a disparity between her presumptions, and their expectations of her role, she would like to have that clarified.

51    Dr Morton’s email continued:

I also get quite confused when I receive directions that conflict with CSIROs CSOF 6 role l description. I have been told; I am the second most expensive person to employ yet I bring in no externals; before being directed to spend more time in the lab; and then networking is one of the jobs I was employed to do. Any of these roles are time consuming and not all of these roles can be my priority. If I am focusing on attracting external income through networking and preparing project proposals, then it is difficult to focus my time in the laboratory.

There is the further issue of project allocation percentages not reflecting actual workload required, including considerable time spent initiating and working up projects and undertaking business development with industry. In conjunction with this, it is worrisome that comments have been made that undermine my position and value within the group, and my personal work ethic. These comments include me; having the luxury of working on few projects and delivering on none; and the lightest workload of the group.

(Footnote omitted.)

52    Dr Morton’s email went onto say that she considered Dr Glencross’ comments inappropriate, particularly as they did not reflect the effort and work that she had put in during her time at CSIRO. She was concerned about the volume of work she had and the time limits involved. She concluded by saying that she would like to set a time to discuss her concerns with him in more detail.

53    Dr Morton explained that the three experiments she referred to involved investigating the potential effects and interactions between temperature, photoperiod, and salinity, to understand slower growth in barramundi approaching 1.8 kg to 2 kg. She explained that her role in experimental design involved doing background research, formulating a hypothesis, designing the experiment, drafting the protocols and stating the plans for the experiments in terms of their practicalities. She denied that Dr Glencross designed those experiments. More specifically, she denied that Dr Glencross prepared the design, or wrote the protocol, for the three experiments. One of the big issues that led to her request for the role clarification meeting was that initially, Dr Glencross approved the draft for BAR-12-8 that Dr Morton had sent him, but, after she had spent several months implementing the protocol, Dr Glencross decided that it completely missed the point, and needed a major overhaul.

54    The role clarification meeting occurred on 7 May 2014. It was attended by Dr Morton, Dr Glencross, Dr Coman and Dr Cook. Dr Glencross took out his laptop and started to read the position description for the role she had applied for. Dr Morton did not think that this was particularly productive. Dr Cook tried to explain to Dr Glencross that the roles varied frequently from those advertised, to what they evolved into. Dr Morton tried to engage Dr Glencross in a discussion, but that was not productive.

55    Following this role clarification meeting, Dr Morton wrote an email on 10 May 2014 to Dr Glencross, Dr Cook and Dr Coman setting out the key discussion points from the meeting as she saw them, as follows:

    Working more closely with Nicholas B and Sue C to improve the timeframe for the processing of the analytical samples, specifically:

    Developing methods with Nicholas and Sue to prioritise the processing of samples based on project deadlines

    Ensuring that information regarding sample processing flows to Sue to ensure that her work output is more efficient with meeting deadlines rather than having to await instructions

    Agreement regarding a strategic project/area for me to run

    I have a few ideas for this so I will sit down and have a think about them

    Continue with new project development (Poultry CRC project)

    Where my work fits in the group/future direction area

    Again I have a few potential directions but I will sit down and think about these

56    The Poultry CRC project involved using poultry products as a feed ingredient for barramundi. Dr Morton left a project proposal with Dr Glencross to approve. Eventually, Dr Glencross approved the proposal being sent out externally. But, by that time, the proponent had lost interest.

57    After the role clarification meeting, Dr Morton told Dr Cook that she did not think that she would ever get any acknowledgement or be able to get any type of “area” working with Dr Glencross. She expressed her frustration that the meeting did not achieve what she had hoped it would. Dr Cook said that she and Dr Glencross needed to sever their working relationship. Dr Morton said that she wanted to complete the ACR projects.

58    After the role clarification meeting, Dr Preston came to see Dr Morton. He made a comment about understanding how difficult it was working in a group of middle-aged men.

59    On 25 May 2014, Dr Morton sent an email to Dr Cook and Dr Coman. In the email, she said that Dr Preston had suggested that she think about where her career was going and where she wanted it to head. She continued:

In consideration of past and recent events, I have come to the conclusion that I am unable to progress the scientific side of my career within the aquaculture nutrition sphere. Brett contributed to this conclusion when he stated in our meeting that he designed the ACIAR experiments. The work and outcomes from those experiments are a step above the work that had been occurring in previous experiments, particularly when the scope and size of these experiments are considered. The three ACAIR experiment I have been in charge of go way beyond the scope of the usual experiments the group conducts and I have had a leading role in the design and the implementation of these. These experiments are a multi-factorial cross-over design aimed to investigate the effects of several environmental variables on the growth, health and gene expression of large fish, all of which can be tracked at an individual fish level (rather than the standard tank level). However, as it stands, Brett unequivocally states that he designed the experiments, as you witnessed during the role clarification meeting.

I do not see that going forward I will ever receive acknowledgement of my scientific contributions in any area related to Brett’s expertise. To solidify this conclusion further, all of the Industry/external contacts recognise that Brett is the ‘go to person’ for nutrition work (a point we also discussed during the role clarification meeting). Nutrition is Brett’s area of expertise and any scientific work that I perform within that sphere is unlikely to be seen to be my work. The real result of these circumstances is that I can not establish a ‘point of difference’ between the work that Brett does and my work, and it leaves me entirely unable to establish myself as a scientist in the aquaculture nutrition sphere.

I can think of only two options that would enable the current circumstances to change to allow me to progress my career:

1.    Brett ‘carves off an area for me to work in and make ‘mine’, or;

2.    Focusing more on developing my management skills (whilst still delivering on Brett’s/my projects)

In relation to option 1, Brett’s unwillingness to delegate an area within his field will result in essentially the same issues of the last couple of years and the situation will not improve. As I have tried in the past and it has only resulted in stress and frustration, I no longer feel it is advantageous to pursue this option any further.

For the second option, I feel that my management of experiments is one of the few areas I do receive some credit for, and I also enjoy this aspect of my work. This option is my preference, and I believe developing the management skills I already have would be more advantageous for the group and our productivity. The group dynamics, including the split between Bribie and ESP, requires different management skills to many other groups and I believe that continuing to improve my management skills would greatly assist in improving group function and scientific output.

I will have look through the learning and development courses offered by CSIRO and draw up a list which we can discuss for my 2014-15 APA.

60    Dr Morton spoke to Dr Cook after sending the email. She said that she did not think that it was possible to continue working with Dr Glencross. She reiterated that she could not establish a point of difference between the work they did, and she was not going to be able to establish herself as a scientist within that sphere. She raised the questions of, if she did move spheres, where she would go, and how she would start again.

61    In September 2014, Dr Morton had meeting with Dr Preston. He explained that there was another project available. He did not go into specifics about the project, but said that they needed a Level 3 Lab Tech, that most of the lab work was to be done at Bribie Island, and she needed to assure him that her health was up to it. Dr Morton said that Dr Preston did not particularly care that she was a Level 6 scientist.

62    On 25 October 2014, Dr Morton wrote to Dr Preston and Dr Cook referring to a meeting they had on 22 October 2014. The email was lengthy. It asserted that Dr Preston had made statements such as:

You don’t have the science to be taken seriously as a leader;

Lack of original ideas;

Lack of publications;

You are vulnerable to redundancy;

You need to assure us that your health is up to it;

Pursuing an MBA would be distraction.

63    In her email, Dr Morton went on to address each of these statements. Under the heading, “You don’t have the science to be taken seriously as a leader”, Dr Morton asserted that, when she arrived at CSIRO, she brought with her a wealth of scientific world firsts, numerous published and highly cited articles, and experience in leadership and management. She said that she had been left with the impression that CSIRO had damaged her reputation and that, behind her back, there was a negative perception of her within her group that she felt was unjustified. She said she could only conclude that this had resulted from working under Dr Glencross. She said that when they spoke in September, Dr Preston had dismissed these issues as, “an unhappy marriage”. She said that this was a gross underestimation of the effects that the issues had had on her progression at CSIRO.

64    The email claimed Dr Preston had recently said that, being a woman, Dr Morton was vulnerable when working in a group of egotistical middle-aged men. She said she believed that he understood the gravity of her working situation and that he would support her, but was now left feeling that he did not understand her working experience within CSIRO and that she had to justify her position to him.

65    Dr Morton went on to address the allegation that she had a lack of original ideas, saying that someone else must be obtaining credit for the ideas that she had at CSIRO. She talked about several ideas that she had, and referred to a “travel ban” that Dr Glencross had placed her under in September 2013, meaning that she had been unable to leave the office to attend conferences or engage with potential clients.

66    In relation to the allegation that she had a lack of publications, she maintained that her work within the group had resulted in one first author paper, and two first author conference abstracts, as well as co-authorship on a book chapter and a client report. She also said that she was producing three first-author manuscripts which would be submitted for publication in late December or early January.

67    The email went on to say:

In my time at CSIRO I have also been subjected to behaviours which are unacceptable, such as being slapped on the bottom with a riding crop, and the focus of comments such as “Women only wear pendants to draw attention to their cleavage, I don’t know why you bother Katherine, you don’t have any”. While these behaviours are clearly unacceptable I chose not to pursue them any further at that time. I made this decision as I was new to the organisation (circa six months) and concerned about the impression of me that it might create. However, despite how personally upsetting and humiliating those situations were, trying to ignore these behaviours by focussing on my scientific work was clearly in-effective.

In summary, in relation to the questions about my science, my ideas and my publications, the meeting on Wednesday has left me with the impression that I am not receiving credit for the work that I am carrying out, but the fact remains that despite the significant hurdles that I have faced in performing my work at CSIRO, I have carried out good work as is identified in my APAs.

68    Dr Morton’s email went on to say that Wednesday was the second time that Dr Preston said she was vulnerable to redundancy in relation to her project allocation, and had suggested that, if she did not turn things around, she would be looking at a redundancy within 18 months. That statement had left her even more confused about where she stood within the program and her allocations. She said that Dr Cook had identified that her allocation to his Huon salmon project would occupy 60% of her time for five years. She noted that Dr Preston had provided her with a verbal assurance that she would be given a team leader role associated with 10% allocation. She asked Dr Preston to explain what had happened to have changed those allocations in the past few weeks.

69    Dr Morton wrote that Wednesday was the second time that Dr Preston had asked her to “assure us that your health is up to it”. She said that she was taking this opportunity to point out that this request was, in and of itself, wholly discriminatory, particularly in combination with the second mention of being, “vulnerable to redundancy”. She sought formal assurance that her health, and any issues in relation to her health, would not be broached again, nor factored into any decisions regarding her allocations for work.

70    The email addressed Dr Preston’s comment at the meeting that pursuing an MBA would be a distraction and that no assistance in that regard would be forthcoming. She referred to the role clarification meeting and said that two major areas identified for her to focus on for a career progression within the CSIRO were developing her management skills and developing a strategic project/area for her to run. Dr Morton said that she had put considerable effort into developing a plan to develop her management skills, and, on that basis, approached Dr Preston for assistance to pursue an MBA. She was left with the impression that, even with her background in science and leadership, CSIRO would not support any aspirations that she may have in the management area.

71    Dr Morton exchanged emails with Dr Glencross on 27 October 2014. She had asked him to edit a manuscript for experiment BAR-12-8, and he had mistakenly edited an early version. She pointed out that Dr Glencross had edited the wrong version. He responded telling her to make the changes and that it was important to put the manuscript to bed and move on. Dr Glencross said that, “We are missing an opportunity here to do a good job”. Dr Morton responded by again pointing out that Dr Glencross had edited the wrong version of the manuscript. She said that:

When you are not across the current version of the manuscript and its contents, it is an insult to the work that I have put in to suggest that we are now missing and “opportunity to do a good job”.

72    Dr Morton said that insulting the work she had done was not helpful, warranted or motivating. The email went onto say, amongst other things that:

I can no longer accommodate any changes that you may think of to incorporate, without jeopardising my future employment.

She also said:

Please ensure all your future comments are constructive, and by that I mean related to the most current version of the manuscript and the already agreed upon contents.

73    Dr Glencross’ response started with:

Gee K—drop the attitude, especially on emails…

His reply email went onto say, “Sorry if that was the wrong version but that was what I had…”. He explained why he thought that they were missing an opportunity to do a good job. Dr Glencross defended the level of support and the opportunities he had provided to Dr Morton, and offered to discuss the manuscript with her.

74    Dr Morton responded by email, saying:

Your opening on that email is highly offensive. Do you believe it is an appropriate way in which to address me after I have brought to you my concerns about my employment? This is not some idea that I have in my head, I have been told straight out that I am vulnerable to redundancy. You changing the data inclusion requirements, expands upon the work and time that I need to carry out my work in relation to these manuscripts. Why you have chosen to be dismissive, when all I have done is ask you to be inclusive of the workload I have to manage that increases when you change requirements? Your reference to my attitude and dismissive comments about my concerns are exceptionally disrespectful…

75    On 28 October 2014, Dr Morton sent a text message to Dr Lehnert saying that Dr Cook had suggested that she contact her, as she was outside the group and familiar with the people involved. She said that the issues she wanted to discuss pertained to discrimination, harassment and bullying behaviours. She had a discussion with Dr Lehnert and told her that Dr Glencross had made inappropriate comments about her cleavage and that she had concerns about Dr his behaviour towards the group. She also told Dr Lehnert about the comments Dr Preston had made about her health and vulnerabilities surrounding redundancy.

76    On 4 November 2014, Dr Morton sent an email to Dr Preston saying:

Dear Nigel,

I appreciate that you would like to meet and discuss the issues I raised in my previous email. However, the general work issues that have never been dealt with adequately continued in your absence as Brett:

1.    mistakenly edited a very incomplete document that was out of date by more than 1 month, instead of the correct first draft manuscript he was provided with (via email and hard copy)

2.    proceeded to negatively criticise the contents (still in reference to the incomplete document), after I pointed out he had edited the incomplete document

3.    became openly hostile and escalated the issues to my next line manager, after I pointed out his comments were still against the incomplete document

4.    dismissed my concerns about my employment, after I had pointed out he was changing the data inclusion requirements at such a late stage and I needed to be able to finalise this work and move on with future work

5.    criticised my workload again, referring again to having only performed 3 experiments (when the experiments were of such a magnitude that they would easily compare to 3 standard experiments per experiment with substantially more management and setup involved)

6.    completely ignored my concern about his inappropriate behaviour, offensive remarks and insults when we had a meeting prompted by this discourse

There was nothing appropriate about the way in which Brett reacted to the situation, having made the mistake in the first place. I am not always the bravest person, and I do find it difficult to stand up for myself at times. However, I am entitled to feel safe when I go to work, and to have a safe working environment provided for me-free from discrimination or bullying and harassment behaviours.

I have decided to pursue a grievance through HR relating to all of the issues as I wish to formally identify this for what my situation actually is: my employment at CSIRO and the highly inappropriate treatment I have received is affecting my health.

I believe it is in my best interest and health going forward that everything is: placed on record so that issues can be owned by the people creating them; dealt with and adjudicated appropriately by HR, where everyone can have a fair and equal say; and resolved with clear outcomes managed into the future, so that I can feel safe again at work.

I’m meeting with Alysha later this week to discuss the issues.

77    Dr Preston responded by email on the same day, saying that he respected Dr Morton’s decision to pursue a grievance, but would still like to have a discussion about some matters that she had raised in her email.

78    On 6 November 2014, Dr Morton had a meeting with Alysha Davis (Johansen) and Sally Sturton, who were HR staff. She discussed various complaints, and said that she would put them in writing.

79    On 28 November 2014, Dr Morton sent an email to Ms Davis and Ms Sturton as follows:

Additionally, you have requested that I put forward the outcomes and resolutions that I wish to achieve by raising these matters as a grievance.

In attempting to determine what outcomes are available to me, I have reviewed the CSIRO Grievance Procedure. There appears to be a discrepancy in the way in which this situation is being dealt with because the matters that I have brought to your attention are discrimination, bullying and harassment. The CSIRO Grievance Procedure states that matters of this nature are required to also be dealt with under the Misconduct Procedure, not just the CSIRO Grievance Procedure. Therefore, I am respectfully requesting that these matters are recognised as misconduct by Dr Preston and Dr Glencross, and as such, investigated under the Misconduct Procedure.

Dr Preston’s discriminatory statements in relation to my health and redundancy were not a once off. Both statements were repeated several times at meetings held several weeks apart (the latter meeting witnessed by Dr Cook). I do not believe that there is room for this to be a mere misunderstanding of the statement in regards to what he said, nor in it being a case of ‘having a bad day’ and Dr Preston misspeaking. In that, I believe that his tone and the specific phrases that he uttered were true in the meaning that they conveyed and in doing so he has committed discrimination and misconduct against me. In partial rectification of this, his behaviour needs to be acknowledged and an unqualified apology presented to me, including an assurance that my entitlements to leave (particularly regarding my health) will not be questioned again. Full rectification can only come once he has been counselled through the appropriate channels that his actions were inappropriate and discriminatory, and must never be repeated again.

Dr Glencross’ most recent behaviour was identified directly to him by myself as highly offensive, inappropriate and disrespectful. He has made no efforts to rectify or apologise for those behaviours. These behaviours are also not a once off. During my time at CSI RO, I have been the subject of a number of inappropriate behaviours by Dr Glencross, some of the more disturbing examples I have outlined in discussions and my email to Dr Preston dated 25th October, 2014.

As I have also stated these issues have affected my health and prolonged my recovery from my operation in June. I have required the use of the EAP service in dealing with these issues. I am now under the care of my GP and a psychologist in an attempt to manage the depression and stress related anxiety these issues have caused. I will lodge an incident report with HSE for this injury in order to pursue the care that I require for this.

Due to the prolonged nature of the issues, and that Dr Glencross’ conduct has been known to CSIRO management for some time, and that I feel my reputation and career at CSIRO has been damaged, and that these issues have caused me injury, I am now requesting that these matters are acknowledged as something more than informal and dealt with as a formal grievance, in addition to having them dealt with under the Misconduct Procedure.

80    Dr Morton said that she made the formal complaint because of her concern for her career. She considered making complaints in 2012, but was relatively new to the organisation and on probation for six months. At that stage, she was primarily concerned about the damage a complaint would do to her career. The reason she chose to make a complaint in 2014 was that her two meetings with Dr Preston made her concerned that he was saying words that he could only have got from Dr Glencross.

81    On 12 November 2014, Dr Morton sent an email to Ms Sturton about catching up. Dr She said:

I have been trying to sit down and make lists for various things so I don’t forget them—my memory is terrible at the moment but going okay…

82    Dr Morton said that she was feeling anxious and stressed and had been having a lot of trouble with her memory, which persisted.

83    In December 2014, Dr Morton met with Ms Davis, with Mr Croft, present. Dr Morton said she spoke quite candidly about her issues with Dr Glencross, including her trip to Cairns and Townsville, the comments made at the Aquaculture Australia Conference, the riding crop incident and the cleavage comments. She also went into detail about some of his other behaviours over the years, including changing goals and his behaviour towards other staff. Dr Morton expressed her concerns, not only about the way Dr Glencross had behaved towards her, but also towards other staff within the group. She raised her concerns about Dr Preston’s comments about her health, and her vulnerability to a redundancy.

84    On 16 January 2015, Dr Morton submitted a formal grievance against Dr Glencross and Dr Preston. The Grievance Document being 26 pages long is too lengthy to set out in full. Some of the relevant parts read as follows:

Grievance: Dr Brett Glencross

The following is a short list of the bullying and harassment behaviours by Dr Glencross that were directed at me that I wish to identify:

    Unwarranted criticism via inappropriate and inaccurate feedback of my work product. Undermining work ethic and scientific reputation (as sole work output manager).

    Sexual harassment: slapping me on the buttocks with a riding crop, and comments made to me about having no cleavage.

    Deliberately withholding information and resources necessary for my core role.

    Use of language designed to humiliate, belittle or degrade.

    Setting timelines that are difficult to achieve and constantly changing deadlines.

    Changing of work direction without communication or communicating in a timely fashion. Lack of acknowledgement or recognition of my work or contributions to work performed.

In attempting to prove those behaviours identified above, on the following pages, I will detail a number of the relevant experiences: BAR-12-8 Experimental Design, Barramundi Health Project (also known as Feed x Health Project), Riding Crop, Cleavage comment, MLA-Meat Meal Replacement Project, Poultry Rendered Product Project, CAPEX Electronic Fish Weighing System, Travel Ban, BAR-12-8 Manuscript, and Role Clarification Meeting.

After detailing the experiences listed above, I list the Effects That These Experiences And Behaviours Have Had Upon Me to explain why I am pursuing this grievance, and then relate the Previous Attempts I Have Made To Rectify Dr Glencross Behaviours to demonstrate that I have tried to have these issues rectified informally in the past without any success.

(Emphasis in original.)

85    The Grievance Document then sets out complaints about Dr Glencross having initially approved the BAR-12-8 experimental design, and later changing his mind after Dr Morton had done a substantial amount of work. She complained about Dr Glencross suggesting that a project proposal be submitted as a Tactical Research Fund proposal, but later changing his mind. Dr Glencross had directed her not to contact “Skretting” to enquire about funding. She felt hamstrung in being unable to progress this project without Dr Glencross’ action. She followed it up on a number of occasions, but received no further direction. Later, he said, in the role clarification meeting, that the project “never did get up, did it?”. She complained that Dr Glencross’ feedback did nothing to acknowledge the time, effort, and work that was put into pursuing the project proposal, and instead blamed and denigrated her.

86    The Grievance Document went on to discuss the riding crop incident. Dr Morton said:

Ms Trenkner is a keen equestrienne and carries such equipment in her vehicle. During the unloading of the CSIRO supplies from Ms Trenkner’s vehicle one of her riding crops had made its way into the sample collection room During the unpacking and setting up of the sample collection equipment the riding crop was noticed, and several staff made jokes about its use speeding up the sample collections.

While I was unpacking and setting up equipment, Dr Glencross slapped me on the buttocks with the riding crop. This day represented the end of a very important experiment for an externally funded project and I felt it would reflect badly upon me if I caused any issues to delay it. Although I was quite shocked and humiliated by this behaviour, as I was still quite new to the organisation I felt enormous pressure that I had to ignore what had happened.

I feel that Dr Glencross behaviour in this instance was sexual harassment and entirely inappropriate within the workplace.

87    Dr Morton then went onto discuss the cleavage comment. She said:

At one point during the dinner conversation I heard Dr Glencross state “women only wear pendants to draw attention to their cleavage”. I thought it an odd comment and then I looked over at Dr Glencross he continued with “I don’t know why you bother Katherine, you don’t have any” Again I was quite shocked and humiliated by this behaviour, but being in a situation where I was new to the organisation and surrounded by senior members of the organisation, that did not react to Dr Glencross’ comment, I felt enormous pressure that I had to ignore what had happened and remain on task instead.

As with the Riding Crop incident, I feel that Dr Glencross’ behaviour in this instance was sexual harassment and entirely inappropriate in the context it was delivered.

(Emphasis in original.)

88    The Grievance Document went onto discuss Dr Morton’s attempts to develop a project described as the “RLA-Meat Meal Replacement Project”. Dr Glencross had suggested that “Ridley’s” had said that they could put in a little bit of cash. Dr Glencross was to obtain a written agreement, but Dr Morton heard nothing further from him, despite reminding him on several occasions. Dr Morton’s complaint was that, at the role clarification meeting, Dr Glencross informed her that her project had been moved under the Ridley’s umbrella agreement for “political reasons”. This was the most promising of the projects she had conceived and she had been left with nothing for her time and effort.

89    The Grievance Document also complained about Dr Preston’s conduct:

Grievance: Dr Nigel Preston

In meeting on two separate occasions (9th September & 22nd October), Dr Preston made discriminatory statements regarding my health. During both meetings, the latter meeting attended by Dr Mat Cook (my line manager), Dr Preston requested that I “assure them that my health was up to it”. In the meeting of the 22nd October this discrimination as to the state of my health was repeated, and though he received an affirmative answer from me, Dr Preston questioned me further about my health asking me more specific health questions. I found these questions to be very intrusive and on both occasions this request of my health was made in the context of being allocated to a project and the wider context of being “vulnerable to redundancy” (A topic covered by Dr Preston in both meetings).

I felt incredibly uncomfortable the first time Dr Preston mentioned my health in September. This produced fear and anxiety relating to my job security going in to the meeting on the 22nd October. During this hour-long meeting I felt incredibly uncomfortable and very insecure about my job security based on the experience in the meeting on 9th September. Dr Preston only amplified these feelings in the meeting on the 22nd October.

By the time I returned home to my partner on 22nd October I was quite distraught about these encounters with Dr Preston. I was so upset by the statements made by Dr Preston in these meetings that I did not want to go in to work for the remainder of the week. However, I had no choice given the powerlessness that his statements had instilled in me, and that I felt any absence from the office would further reflect badly upon me.

On the 25th October, I emailed Dr Preston (and cc’d in Mat Cook), as I wanted to redress the statements that he made during those meetings.

As I outlined in my email to Alysha Johansen and Sally Sturton {both HR in the Agriculture Flagship) dated 28th November Dr Prestons discriminatory statements in relation to my health and redundancy were not a once off. Both statements were repeated several times at meetings held several weeks apart (the lotter meeting witnessed by Dr Cook). I do not believe that there is room for this to be a mere misunderstanding of the statement in regards to what he said, nor in it being a case of ‘having a bad day’ and Dr Preston misspeaking”.

I continued to explain that “I believe that his tone and the specific phrases that he uttered were true in the meaning that they conveyed and in doing so he has committed discrimination and misconduct against me.”

Alysha Johansen recorded further details surrounding the specifics of the grievance against Dr Preston in a meeting with me on the 5th December. It is my wish that those details are appended to this section.

90    On 10 March 2015, Dr Manners wrote to Dr Morton in relation to her complaint. The letter said:

Your allegations against Dr Glencross relate to behaviours which, if found to be true would represent unreasonable behaviour. You have described more than one instance of such behaviour and should the repeated aspects of this be found to be true, the conduct involved is potentially bullying and/or harassment. In accordance with CSIRO Procedures I have actioned your complaint under the Misconduct Procedure. However, due to Dr Glencross’ recent cessation I am required by the Misconduct Procedure to discontinue this course of Inquiry. CSIRO can take no further action towards Dr Glencross in regards to your complaint.

Your allegations against Dr Preston are the subject of an ongoing inquiry, the results of which, where appropriate, will be made known to you in due course. I will ensure the appropriate action and preventative measures are utilised in relation to any admissions or findings of inappropriate behaviour or conduct.

91    An investigator, Mr Trevor Van Dam, was appointed to investigate Dr Morton’s complaint against Dr Preston. She was interviewed by Mr Van Dam, but had received no further communication from him by June 2015. Dr Morton requested the opportunity to put further evidence before the independent investigator based upon concerns that Dr Cook may not have been truthful, but was told that it was not usual for that to happen. She was not told of the outcome of the investigation.

92    Dr Morton said that between February and July 2015, she took sick leave because of surgery and her psychiatric state. She also took holidays. In March 2015, Dr Morton applied to Comcare for workers’ compensation benefits.

93    In April 2015, Dr Morton received a telephone call from Mr Gavin Drury. He told her that he was going to take over as her claims manager at CSIRO. Mr Drury asked if she really needed to file the workers’ compensation claim. He said that there were some very senior people within the Agriculture flagship that he could speak with to ensure that she would get all of the help that she needed, provided that she did not file the claim with Comcare. Mr Drury went onto say that the only reason she was filing a claim with Comcare was because she was unhappy with the way the independent investigation had happened. She said that could not possibly be the case, because she had not even been interviewed yet.

94    Dr Morton consulted Dr Geoffrey Rees, a psychiatrist, on 6 July 2015. Dr Rees provided her with a medical certificate stating that she was unfit for work from 6 July to 6 October 2015, due to for a condition sustained on 15 October 2012. She did not return to work after 6 July 2015.

95    On 7 or 8 July 2015, Mr Drury called Dr Morton. He had received Dr Morton’s email attaching her medical certificate. Dr Morton’s evidence is that Mr Drury proceeded to tell her that three months off would not do her career any good, and that she needed to make herself available for return to work plans within the next week or two. Dr Morton explained that she did not understand why, when her treating psychiatrist had written her off for three months, she should be planning her return to work within this time. Mr Drury kept expressing that she had obligations under the SRC Act and kept telling her that the time off would not do her any good. Dr Morton interpreted this to mean that, if she took three months off, then she would not have a career at CSIRO. She asked Mr Drury about that and why he was insisting that she breach her doctor’s medical direction not to attend the site. Mr Drury said that he was a clinician, that she had obligations under the SRC Act, that she had to make herself available and that the time off would do her no good. She understood a “clinician” could be someone who is a medically trained doctor. She said she felt terrified. She said she was already feeling vulnerable and to have someone openly state that taking time off would not be in her interests was terrifying. She did not know where to turn, as this was the person who was supposed to be managing her Comcare claim and her return to work in three months.

96    Dr Morton later sent an email to Mr Drury in which she requested that he no longer telephone her, and that he instead just deal with her in writing. After that, she asked Mr Drury to identify his line manager, because she was not satisfied with his response. He did not do so. She then found an indication on the CSIRO intranet that his line manager was Ms Pickering. Dr She sent an email to Ms Pickering complaining of Mr Drury’s tone and attitude and stressing of obligations without any explanation as to how the return to work process was to occur. Ms Pickering responded that she was no longer Mr Drury’s line manager and forwarded a copy of the email to Ms Heather Campell, who was then his line manager.

97    Ms Campbell replied by email, stating that Mr Drury was acting in her best interests. Dr Morton felt that the email was rather generic and that her complaints had been swept aside.

98    In April 2014, Dr Morton had been given a 60% allocation on the Huon project, led by Dr Cook. Dr Morton also had a 10% team leader allocation, as leader of the Aquaculture Genetics and Biochemistry Team. By July 2015, her allocation on the Huon project had been decreased to 50% and her 10% team leader allocation had also been removed. She was not given any reason for this.

99    By September 2015, Dr Morton’s allocation to the Huon project had been reduced to 20%. She was not given any reason. Dr Morton was shocked and confused, because there had been no communication about replanning the Huon project, or about her team leader position. She discovered she had been removed as the team leader through the CSIRO People page. She thought that this was the beginning of the end for her job, because people who are less than 50% allocated in the CSIRO system are classified as “vulnerable to redundancy”.

100    On 20 September 2015, Dr Rees certified Dr Morton unfit for work from 30 September 2015 to 30 March 2016.

101    On 2 February 2016, Ms Amanda Somerville, an injury management advisor for CSIRO, wrote asking Dr Morton for additional medical information concerning her progress. She attached a letter addressed to Dr Rees with questions that CSIRO sought answers to. Dr Morton took the letter to Dr Rees, and he wrote to Ms Somerville.

102    On 11 February 2016, Dr Rees certified Dr Morton unfit for work from 11 February 2016 to 11 February 2017.

103    On 25 February 2016, Ms Somerville sent Dr Morton a letter seeking further information from Dr Rees. She also said:

After considering the report from Dr Rees, CSIRO are confident that we can provide a safe work environment for you to return to and look forward to working with yourself and Dr Rees to facilitate this in the near future. To clarify, the two individuals named in your complaint no longer work at CSIRO and no longer reside in Australia.

104    Dr Morton was confused by Ms Somerville’s assertion that the two individuals named in her complaint, Dr Glencross and Dr Preston no longer worked at CSIRO and no longer resided in Australia. Dr Morton’s understanding, based on an email sent by another CSIRO staff member, was that this was not the case. She was also concerned that the case manager who was supposed to be managing her case and would be the person overseeing her return to work, did not understand, or care to gather, the relevant information.

105    Dr Morton referred to the CSIRO Enterprise Agreement 2011–2014. Her understanding of a VRS was that, when a staff member was identified as being potentially redundant, if he or she could find another staff member with a similar skill set who would prefer to be redundant, they could swap.

106    On 17 May 2016, Dr Morton sent an email to Ms Dominica Walsh, a HR manager with CSIRO, saying:

After much consultation with my medical practitioners, my psychiatrist, Dr Geoffrey Rees, remains persistent in his belief that I cannot return to work at CSIRO now or in the foreseeable future. Furthermore, Dr Rees has discussed with me a belief that severance from the organisation would be more beneficial in the shorter term for my recovery than not.

I can no longer see any path back to a career at CSIRO, nor a safe working environment within the organisation.

With great disappointment in CSIRO and the appalling handling of my grievance and injury, I am asking that you place me on the Voluntary Redundancy Substitution list.

107    Ms Walsh replied on 23 May 2016, saying:

I have arranged for your name to be added to the Voluntary Redundancy Substitution register. As we are currently having discussion with a number of impacted staff in CSIRO, I will ensure that your request is given careful consideration.

108    Dr Morton states that she felt CSIRO could not provide a safe working environment. She had been told there was nothing CSIRO could do about Dr Glencross’ presence on the Bribie Island site. She explained that it was not her responsibility to avoid Dr Glencross and the onus was on CSIRO to provide a safe working environment, not on her to create one for herself. She was told that she did not have to go to Bribie Island, but she explained that was the location of the fish that were experimented upon. That was met with no reply. Dr Morton felt that whenever she raised these issues, nobody was willing, or able, to engage with them. They would just ignore them, and she could not return to CSIRO in that type of environment. Dr Morton had asked to be placed on the VRS list because she was very upset about the way her grievance and the inquiry had been handled. A redundancy was the only way that she could see forward for her health.

109    Dr Morton received a letter from Dr Manners dated 14 July 2016, saying:

This letter is to confirm that CSIRO no longer requires the job that you are doing to be performed due to our changed operational requirements.

The reasons for your potential redundancy are as follows:

You requested voluntary redundancy substitution and we made an assessment to determine whether we could do a swap with any impacted staff in the Livestock Program. When we determined that a swap would not possible, we then considered whether we could accommodate your request through making your position redundant. We assessed the skills requirement of the current and future projects and found that there are currently no projects that require these skills and none planned. It was decided that as your skills in nutrition physiology have not been replaced while you have been on leave we could reduce the staffing in this capability area through a redundancy.

110    Dr Manners’ letter went on to say that CSIRO would seek redeployment opportunities for Dr Morton, and that she should provide her updated CV to Ms Walsh, who would monitor and review any opportunities for her. It said that she should indicate any locations, other than her current location, that she would consider, and whether she would be prepared to consider positions at a lower classification level. Dr Manners went on to attach written estimates of financial termination benefits which would apply in the event that the redundancy was confirmed.

111    Dr Morton’s application for workers’ compensation benefits had initially been accepted by Comcare on 5 June 2015. CSIRO sought review of that decision. On 19 August 2015, Comcare revoked its decision to accept Dr Morton’s claim. Dr Morton then applied to the Administrative Appeals Tribunal for review. That application was eventually settled, with Comcare accepting liability for the claim from 31 March 2013.

112    When the Comcare claim was revoked, Dr Morton was placed on sick leave. When her sick leave ran out, she was placed on recreational leave. She had some recreational leave that had been booked for 3 November to 20 November 2015, but CSIRO changed that leave to a period in October 2015. Dr Morton did not authorise the changing of her recreational leave. Then, the recreational leave was stopped and she was placed on unpaid leave. She did not ever take the recreational leave.

113    There is, in evidence, a screenshot from the CSIRO SAP system dated 12 January 2015. It shows two periods of SWO2 leave. The first entry is from 8 October to 31 December 2015. The second is from 1 January to 29 June 2016. The screenshot also shows that her recreational leave from 4 September to 7 October 2015 was cancelled and that she was placed on unpaid leave.

114    As at 7 October 2015, Dr Morton still had a balance of paid recreational leave, which was, she believes, 20 or 30 days. She had been blocked from accessing those days. Dr Morton had been locked out of the SAP system, and the buttons were “greyed out”. She was unable to make any type of entry into the SAP system.

115    SWO1 leave is long-term sick leave available when a staff member runs out of paid sick leave. It was to be logged for the first 26 weeks of leave. It counted for service, in terms of long service leave, recreational leave and other service benefits. On the other hand, SWO2 leave did not count for service. Dr Morton did not know why she was placed on SWO2 leave.

116    Dr Morton said she believed that CSIRO did not have any intention of allowing her to return to work. That is because she had been logged onto leave until 29 June 2016. This extended far beyond the length of her medical certificate, which expired in March 2016.

117    After Dr Morton was placed on unpaid leave on 7 October 2015, she had no income. It took until 6 October 2016 for CSIRO to sort out her entitlements. She said she had not received all of her entitlements, even as at the hearing, and considered that she remains entitled to some 75 hours of recreational leave.

118    In September 2016, Dr Morton wrote to Lynne Gaal, a service advisor in HR Services, enquiring about sorting out the “mess” with her 2015 leave entitlements. She complained, amongst other things, about CSIRO having ceased contributing to her superannuation fund, and the length of time it was taking for her entitlements to be sorted out.

119    On 29 September 2016, Ms Gaal responded, acknowledging that superannuation contributions should have been made and indicating that they would now be paid. She also invited Dr Morton to contact Comcare to sort out a discrepancy that she had alleged in respect of her Comcare records.

120    Dr Morton eventually received back pay from CSIRO in about October 2016. She was paid $105,091.58.

121    In 2016, an article was published in a journal called “Aquaculture”. Dr Glencross was noted as the lead author. There were six co-authors listed, but Dr Morton was not listed amongst them. The article concerned an experiment known as BAR-12-06. Dr Morton said she had worked on BAR-12-06, beginning shortly after she joined CSIRO. She had commented upon a draft protocol, having been involved in managing the day to day aspects of the experiment while Dr Glencross was overseas this included coordinating the collection plan, organising the equipment, labelling tubes, , attending the sample collection day, coordinating the sending of blood samples and other things to external laboratories, coordinating blood sample collation and statistical analysis, sending the analysis to Dr Glencross, processing samples, and commenting upon the draft manuscript that had largely been drafted by him. On 6 March 2017, Dr Glencross sent the draft manuscript to five of the persons named as authors of the article, as well as Dr Morton. The email asked them to peruse the manuscript and comment. On 10 October 2012, Dr Morton sent an email to various persons setting out a plan for the collection of samples for BAR-12-6. Dr Glencross responded saying, “Good Stuff! I like ya work!”. There is, in evidence, a table of the haematology and plasma chemistry perimeters for the samples from the BAR-12-6 experiment that Dr Morton had collated and tabulated. This was provided to Dr Glencross.

122    After Dr Morton found out that her name was not listed in the article as an author, she made a complaint to CSIRO. Eventually a corrigendum was added, including her name. Dr Morton said it was published in a later volume of the journal, and was, “largely a footnote in a journal and is glossed over”. It was not a due acknowledgement of her real contributions.

123    A report entitled “Improving Feed Sustainability for Marine Aquaculture in Vietnam and Australia” was published on an unstated date. That report stated that it was prepared by Dr Glencross, and listed six persons as co-authors/contributors/collaborators. Dr Morton was not listed amongst them. However, she was referred to under the heading “Acknowledgements” as one of a number of persons who made a contribution to the project. The paper listed seven objectives. The seventh objective contained a table listing activities numbered 7.1, 7.2, 7.5 and 7.6. The list of activities did not include 7.3 and 7.4. Dr Morton was in charge of the experiments relevant to 7.2, 7.3, and 7.4. All three experiments were run and completed and the growth and physiological data for all three experiments were completed. The manuscript pertaining to 7.2 was in its draft stage and those for the other two experiments were being drafted. Dr Morton did not know why 7.3 and 7.4 were not listed.

124    Exhibit 2 in the proceeding is a list of out of pocket expenses incurred by Dr Morton. She verified all the expenses and the accuracy of the dates and receipts.

125    There were a number of other projects that Dr Morton worked on with Dr Glencross. She had been acknowledged in papers published in respect of those projects.

126    Dr Morton attended an appointment with Dr Kipling Walker, a consultant psychiatrist, at the request of CSIRO. Mr Croft attended the consultation as Dr Morton’s support person. He recorded the conversation on a mobile telephone. Dr Morton said she had the interview recorded for “accountability”. She had been warned that sometimes wording can be misconstrued.

127    In 2017, Dr Morton and Mr Croft bought an investment property in Launceston.

128    Mr Croft is a director of, and Dr Morton is the secretary of, a company. In 2017, the company bought some pregnant sheep, which had 30 to 40 lambs in August 2017. Dr Morton said these were too much work for them. They advertised 25 wether lambs for sale at $110 each and two ram lambs at $220 each, in “Tassie Rural and Livestock Classifieds” and “Dorset Tasmania Buy.Sell.Swap”.

129    Dr Morton said she first started to experience a lot of symptoms relating to stress in about mid-2012. Her symptoms relating to anxiety and what was later diagnosed as depression started in late 2012. In October 2012, she started to experience some gastrointestinal symptoms. Many of the symptoms were not present prior to her employment, but, as her employment progressed, they presented, and worsened. She was largely able to manage her stress during 2012. In 2013, she spoke with a general practitioner about seeing a psychologist for stress, anxiety, and other symptoms and he gave her a referral to a psychologist, Angela Pavlov.

130    Dr Morton was quite stressed, very anxious and was not coping particularly well. She was not coping as well as she used to. She had always considered herself to be coping with managing her job and her career well. She had always had a busy, fairly full workload in any of her jobs and he had always been able to manage that. Now, for the first, time she felt that she could not do so.

131    Dr Morton’s gastrointestinal issues resulted in her gaining weight. This triggered a lot of anxiety around regaining weight that she had previously lost. She had no logical explanation for the sudden weight gain that she could explain to herself and that was quite distressing. There was some stress and friction associated with that in her relationship with Mr Croft.

132    Dr Morton started seeing Mr Croft about five or six months before she consulted Ms Pavlov. Mr Croft could not understand her mindset in relation to the terror and anxiety that her weight gain triggered in her. He would try to reassure her that it was temporary and told her not to worry about it. That caused some friction between them.

Cross-examination

133    Under cross-examination, Dr Morton was taken to an exchange of text messages she had with Dr Cook on 22 June 2015. Dr Cook said, “Hi. Have a car booked for tomorrow. Leaving ESP at 8 am”. Dr Morton’s response was:

Hi Matt,

I am not going to Bribie again until CSIRO resolve the fact that they are allowing someone who sexually assaulted me on that site. I refuse to be potentially exposed to my attacker, particularly at the site where I was attacked.

Additionally, I won’t be at work tomorrow as I have an appointment with the Dr over the continuing psychologically damaging situation at work where I feel I am getting no real support.

134    Dr Morton’s evidence was that when she referred to her “attacker”, she was referring to Dr Glencross. She denied that she had never previously used the expression “sexually assaulted”, but accepted that she might not have used the phrase “attacker” prior to that text message.

135    It was put to Dr Morton that it was not her idea to use the expression “sexually assaulted” in the text, and that it was not her idea to call Dr Glencross her “attacker”. Her answer to both questions was “Yes. It was.” It was suggested to Dr Morton that her partner, Mr Croft, had suggested that she use the language of “sexually assaulted” and “attacker”. She denied that.

136    Dr Morton accepted that initially, her relationship with Dr Cook was very good, but denied that it remained good up until she sent that text message. She was taken to a text message exchange on 18 June 2015. Dr Cook had sent Dr Morton a photograph from “Jack Greene”, a restaurant or pub in Hobart, with the message “Guess where I am?”. Dr Morton accepted they had had several “work dinners” there in the past. Dr Morton responded saying, “Ha. Down the road. We’re in St Helens, where I have sheep’s milk, blue cheese and Shiraz”.

137    Dr Morton accepted she knew that Dr Glencross had left CSIRO. She said that Dr Cook had suggested that one of the issues was that he would turn up unannounced at the Bribie Island site and not sign the visitor’s book.

138    Dr Morton said that Dr Glencross had damaged her career at CSIRO and she blamed him for not securing any external funding for one of her projects. She agreed that she had published one article, a book chapter and some abstracts presented at scientific conferences in her time at CSIRO.

139    Dr Morton said that she first used the expression “sexually assaulted” in a discussion she had with Mr Casson in March 2015.

140    Dr Morton was taken to a series of text messages between her and Mr Croft. The messages were as follows:

Dr Morton

Thank you xxx

Mat sent me a text saying the car to Bribie leaves at 8 am. Do i just say ill be at the Dr as I dont feel well?

Will Croft

I’d say that you refusing to go to Bribie until CSIRO resolves the fact that they are allowing someone who sexually assaulted you on the site, AND that you have an appointment with the Dr tomorrow morning.

Will Croft

I understand you don’t want to be blunt, but until you stop skirting the issue, they’ll keep ignoring it. Because they are spineless cowards.

Dr Morton

Checked in & through security .. Still have to text Mat :(

Will Croft

Yeah, well, I’m sorry, but unless you shove it in their face they aren’t going to take you seriously. Have a talk to Shane when you can and tell him that you want HSE to Intervene in the stupidity of the current situation--that it is entirely unreasonable of CSIRO that you be subjected to any potential contact with your attacker.

Dr Morton

I know .. Ill text Mat & tell him I don! feel confortable going to Br,b1e & I have adrs appt tomorrow ..

Will Croft

You know how uncomfortable you feel when I say sexual assault?

If you don’t make them feel that discomfort they will maintain their cowardly comfortable status quo.

I’m sorry that it is upsetting, but “don’t feel comfortable” is a let off for them.

Until you stop padding the comfort zone for them they won’t do a damn thing and it won’t stop being your discomfort and nothing will change. Slap them in the face with what they are doing to you. Take your power over the situation back.

Dr Morton

So how do I word it? xxx

Will Croft

Im sorry about this, but I am not going to let you keep conceding your power. You are too Important for that. Ill send you a message you can copy and paste.

Will Croft

Hi Mat. I’m not going to go back to Bribie again until CSIRO resolves the fact that they are allowing someone who sexually assaulted me on that site. I refuse to be potentially exposed to my attacker particularly at the site where I was attacked.

Additionally, I won’t be at work tomorrow as I have an appointment with the Dr over the continuing psychologically damaging situation at work where I feel I am getting no real support.

Dr Morton

Thank you for the message- I still dont feel comfortable but i do know what you are saying xxx

Will Croft

I know you don’t and it tears me apart to be firm with you about this, but the sooner the better. It is important for you to tell the people who should be shouldering this that they have to take their burden and that you are going to accept having it dumped on you again.

You can’t carry this burden, CSIRO has to own it and act appropriately.

Dr Morton

I know ... Just c&p it before I board :)

(Errors in the original.)

141    Dr Morton accepted that Mr Croft drafted the text message she sent to Dr Cook. She agreed that she copied and pasted the message drafted by Mr Croft, but said that the allegation remained true.

142    Dr Morton was asked if she had seen the riding crop before she was slapped with it. She said that she had noticed it momentarily in the room while she was setting up tubes. She agreed that she had not mentioned that in her evidence-in-chief. She said that she never saw the riding crop again after the incident.

143    Dr Morton agreed that the sampling day on 16 October 2012 was extremely busy, with double the usual number of tanks. She accepted that there were probably about eight people on deck to do the work.

144    It was suggested that it was virtually impossible that she and Dr Glencross could have been alone in the room. She said that they were alone. It was suggested that people would have been coming and going the whole morning and setting up. She agreed that people were coming and going and setting up, but said that she and Dr Glencross were alone for maybe only a minute or two.

145    Dr Morton said she did not see riding equipment in the back of Lauren Trenkner’s car. She denied that she asked to have a look at Ms Trenkner’s equipment. She denied that Ms Trenkner showed her the riding equipment.

146    Dr Morton denied that she brought the riding crop from the car into the sampling room. She denied that she started waving the riding crop around like she was riding a horse. She denied that Ms Trenkner started waving the riding crop around in the sampling room, pretending she was riding a horse. She did not recall any type of joking around in relation to the riding crop.

147    It was suggested that Dr Morton took hold of the riding crop and started going around the sampling room hitting people on the buttocks and thigh, with it. She denied this. She denied that she hit Ms Trenkner, Mr Blyth, and a number of other people in the sampling room.

148    Dr Morton maintained that the sample collection day was extremely busy, and a serious day, and there was no light-hearted joking around. It was suggested that Dr Glencross took the riding crop from her and gave her a bit of a slap. She denied that. I