Federal Court of Australia

RPS AAP Consulting Pty Ltd v Lamb [2023] FCA 1310

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The matter be remitted to the primary judge to deal with the remaining matters relating to penalty and compensation.

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

REASONS FOR JUDGMENT

RAPER J:

Introduction

1    The Fair Work Act 2009 (Cth) prohibits an employer from taking “adverse action” against an employee because the employee has exercised a “workplace right”. In this case, the respondent (Ms Lamb) was successful in the Federal Circuit and Family Court of Australia in claiming that the appellant (RPS), her employer, had constructively dismissed her (by demoting her) for a reason which included the fact that she had made a complaint on 22 January 2020 to her supervisor (Mr Stamatoudis) about his conduct (J).

2    Ms Lamb was employed in RPS’s consultancy business for over two years prior to the circumstances leading to the end of her employment relationship and contract. Ms Lamb held the senior position of National Lead – Strategy and Transformation, in which she demonstrated a significant degree of skill and expertise. Prior to the making of her complaint on 22 January 2020, she had received a three out of four performance rating and had been effective in undertaking her duties.

3    In a very short period (namely, seven days) after Ms Lamb made her complaint directly to her supervisor, Mr Stamatoudis, about his conduct, Mr Stamatoudis formed the view that she should be required to “step back” from her National Lead position and only work within the New South Wales division of RPS.

4    RPS adduced evidence from a number of witnesses in an attempt to prove that its reasons for requiring that Ms Lamb step back from her national duties did not include the prohibited reason but concerned Ms Lamb’s capacity to undertake her studies at Oxford at the same time as holding a position of such seniority and with a high workload. RPS claimed that the decision-makers with respect to the demotion were Ms Sullivan (Executive Director for RPS) and Ms Christensen (People Director for RPS). However, the primary judge determined that Mr Stamatoudis was the primary agent in the collective decision made by all three of them. The primary judge determined that Ms Lamb was demoted and constructively dismissed. The primary judge determined that he could not be satisfied that the complaint was not an operative and substantial part of the adverse action taken.

5    RPS’s appeal concerns whether Ms Lamb was constructively dismissed from her employment, and whether the primary judge erroneously found that Ms Lamb’s employment was terminated for a prohibited reason where there was no challenge to various findings of fact underpinning the primary judge’s conclusion, where the primary judge overlooked the “real reasons” and relied on an artificial nexus and/or a failure to address relevant evidence and a misapplication of the administrative law principle of apprehended bias.

6    The appeal is dismissed for the following reasons.

Background

7    RPS is a consulting firm that assists government in relation to infrastructure and other projects. On 6 November 2017, Ms Lamb commenced full-time employment with RPS in the role of Practice Leader – Project Development, in Sydney: at J[1].

8    In early 2019, RPS acquired the assets of another consulting firm, Corview Group Pty Ltd, which led to an integration process that involved the transfer of senior staff from Corview to RPS (including a Mr Sherman, who worked out of RPS’s Brisbane office and Mr Stamatoudis): at J[2]–[3].

9    On 1 August 2019, Ms Lamb was promoted to the position of National Lead – Strategy and Transformation. She reported to Mr Stamatoudis.

10    In or around mid-August 2019, Ms Lamb entered into “a consensual, intimate relationship” with Mr Sherman. It was Ms Lamb’s contention that, against her wishes, Mr Sherman disclosed their relationship to Mr Stamatoudis: at J[5]. Ms Lamb claimed that Mr Stamatoudis then made repeated unwelcome inquiries as to the state of her relationship with Mr Sherman. Mr Stamatoudis admitted the conduct but sought to justify it on the basis of a purported concern regarding potential conflicts of interest: at J[6].

11    Ms Lamb claimed that she had sought to end her relationship with Mr Sherman from late-December 2019 onwards. The primary judge concluded that Mr Sherman “did not accept this” and continued to pursue Ms Lamb during early 2020: at J[7].

12    On 17 January 2020, Mr Stamatoudis met with Ms Lamb as part of her annual performance review, and also discussed with Ms Lamb issues relating to her relationship with Mr Sherman: at J[8]. Ms Lamb’s performance was rated as a three out of four. Mr Stamatoudis was of the view that there were no performance concerns at this meeting as to her ability to undertake her role.

13    Ms Lamb then flew to the United Kingdom to undertake a course of study at Oxford. While in the United Kingdom, on 22 January 2020, Ms Lamb made a complaint via email to Mr Stamatoudis about his unwelcome intrusion into her personal affairs during, inter alia, the meeting on 17 January 2020: at J[9]. Immediately upon her return, on 6 February 2020, Ms Lamb met with Mr Stamatoudis and Ms Christensen. Performance concerns were raised with her and Mr Stamatoudis told her that he believed she should “step down” from her National role. On 7 February 2020, Mr Stamatoudis advised Ms Lamb via telephone that she was to be removed from her position. Ms Lamb claimed that this forced her to resign from RPS: at J[10]. Ms Lamb also claimed that her notice period was cut short as a result of unfounded claims that she was attempting to “poach” clients from RPS: at J[11].

The case before the primary judge

14    At trial, Ms Lamb pleaded the adverse action with respect to the attempted demotion as follows:

18.    On 7 February 2020, Ms [sic] Stamatoudis notified the Applicant that:

(a)    The Respondent had elected to demote the Applicant; and

(b)     The Applicant would receive a letter from HR confirming the change in her position title and salary.

(c)    The Applicant would not be allowed to meet with Ms Sullivan to further discuss her Executive MBA.

(the Proposed Demotion)

Particulars

Telephone call between Mr Stamatoudis and the Applicant on 7 February 2020.

19.    The Respondent’s attempt to demote the Applicant is conduct that injured the Applicant in her employment and is adverse action for the for [sic] purpose of section 342 of the FW Act.

15    Ms Lamb pleaded the adverse action with respect to the constructive dismissal as follows:

20.    Due to the adverse action taken by the Respondent outlined at paragraph 19 above, on 7 February 2020, the Applicant was forced to resign from her employment (the Constructive Dismissal)

Particulars

Letter from the Applicant to the Respondent dated 7 February 2020.

21.    The Constructive Dismissal was to take effect on 3 April 2020.

Particulars

Letter from the Respondent to the Applicant dated 9 March 2020.

22.    The Respondent’s actions in forcing the Applicant to resign is conduct that injured the Applicant in her employment and is adverse action for the for [sic] purpose of section 342 of the FW Act.

16    In her submissions before the primary judge, Ms Lamb submitted that injuring an employee in their employment (referring to Item 1, para (b) of the table at s 342 of the Act) covered “injury of any compensable kind”, quoting Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 3; 195 CLR 1 at [4]. Altering an employee’s position to their prejudice (referring to Item 1, para (c) of the table at s 342 of the Act) was “a broad additional category which covers not only legal inquiry but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”: Patrick at [4]. Ms Lamb submitted at trial that RPS took adverse action that injured her in her employment.

17    Item 1 of the table at s 342 of the Act is as follows:

The primary judgment

18    The primary judge held (at J[192]) that Ms Lamb made a complaint in her email to Mr Stamatoudis dated 22 January 2020, in which she wrote:

I do also have concerns I would like to discuss with you regarding the continual raising and enquiring into personal matters that bear no relevance to my work in every single meeting we have … I am more than happy to share my personal effects [sic], should I volunteer to do so, but not in the context of work meetings, or a performance review.

I expect that if gossip like behaviours surface on our office floor that these are not condoned.

(at J[185])

19    The primary judge also found that this complaint related to a workplace right in that it was in furtherance of rights arising out of responsibilities contained in RPS’s Code of Conduct guideline relating to discriminatory treatment and sexual and other unlawful harassment and the prohibition on bullying and harassment contained in RPS’s Anti-Discrimination, Bullying and Harassment Policy: at J[198]–[199], [202].

20    The primary judge held that RPS took adverse action against Ms Lamb, in the sense of a prejudicial alteration of her position, when it proposed that Ms Lamb no longer be the National Service Lead and instead perform a role with responsibility for New South Wales only. His Honour was satisfied that Ms Lamb and other employees would view this as a diminution of her role and status within RPS: at J[211]. This conclusion was supported, in his Honour’s view, by the absence of evidence (a) of an offer to continue in her existing role on a part-time basis while she completed her studies was made to Ms Lamb (at J[212]); and (b) that RPS communicated to Ms Lamb that the new role would only be a temporary solution while she completed her studies, after which point she could revert to her previous role (at J[213]).

21    The primary judge also found that the adverse action forced Ms Lamb’s resignation and constituted constructive dismissal within the meaning of s 386(1)(b) of the Act. This was because Ms Lamb was forcibly removed from her role as National Service Lead, which would have limited her ability to participate in and bid for work nationally and would have substantially decreased her profile within RPS: at J[220]. The fact that Ms Lamb returned to work to serve her notice period did not undermine her claim that she had been constructively dismissed. She was contractually bound to do so (at J[221]), it permitted RPS and Ms Lamb to uphold a professional image with clients by allowing for a smooth handover of Ms Lamb’s clients and projects (at J[222]) and, as soon as it was perceived that this was not occurring, RPS terminated Ms Lamb’s employment (at J[223]). The primary judge held that this constituted adverse action: at J[223].

22    The primary judge considered whether Ms Lamb’s complaint was a “substantial and operative reason” for the adverse action taken by RPS. The relevant decision-makers were Mr Stamatoudis, Ms Sullivan and Ms Christensen: at J[225]. The complaint related to Mr Stamatoudis and his conduct, which (given that the complaint concerned his conduct) gave rise to a conflict of interest and a reasonable apprehension of bias on his part: at J[227]–[228]. There was no evidence that the complaint had been investigated, in contravention of RPS’s own policy: at J[229]. RPS moved quickly after Ms Lamb made her complaint to remove her from her position: at J[230]. Given these facts, the primary judge was not satisfied that the complaint was not an operative and substantial part of the decision to take the adverse action (at J[231]), noting the reverse onus imposed by s 361(1) of the Act in respect of this question (at J[224]).

23    Given these findings of fact, the primary judge held that RPS had taken adverse action against Ms Lamb and, in doing so, breached s 340(1) of the Act: at J[233].

The grounds of appeal

24    By way of notice of appeal filed on 9 May 2022, RPS advanced seven grounds of appeal. However, at hearing, it did not press the sixth and seventh grounds.

25    The parties agreed at hearing that the following questions arise for determination:

Ground one

(1)    Did the primary judge err in relying on the subjective views of Ms Lamb and speculation as to whether she was the subject of the adverse action, being the demotion?

(2)    Did the primary judge err by failing to give adequate reasons (namely, by failing to address evidence going to the issue of demotion)?

Ground two

(3)    Did the primary judge err in finding that Ms Lamb was “forcibly removed” from her role by failing to give adequate reasons for this finding (namely, failing to address relevant evidence that proves the contrary)?

(4)    Did the primary judge err by relying on an erroneous finding, namely that it was not made clear that the reduction in role was for a limited period?

Ground three

(5)    Did the primary judge err in finding that the decision-makers’ real reasons for the impugned decision included a prohibited reason, namely the making of a complaint by failing to address or give adequate reasons with respect to relevant evidence in respect of the decision-makers’ reasons for adverse action found to have been taken?

Ground four

(6)    Did the primary judge err by applying a test of reasonable apprehension of bias regarding Mr Stamatoudis’s involvement as part of its reasoning with respect to whether RPS had discharged its onus?

Ground five

(7)    Did the primary judge err in law by creating and relying on a nexus between Ms Lamb’s complaint and RPS’s response to the proposed study commitments?

26    With respect to disposition, RPS submitted that the Court should set aside the primary judge’s orders and dismiss the application on the basis that this Court is well-placed to correct findings of fact and to draw relevant inferences from documentary evidence or evidence that was undisturbed by cross-examination, without the need to form an impression of witnesses’ demeanour.

27    Alternatively, in the event that this Court finds it appropriate to remit the proceeding to the Federal Circuit and Family Court of Australia, RPS submitted that it should be remitted to an alternative judge to the primary judge.

Ground one

28    By this ground, RPS contends that the primary judge erred in (1) relying on the subjective views of Ms Lamb and speculation about how the proposal might be viewed and therefore failed to establish as an objective fact that the proposal was an adverse action; (2) finding that the proposal constituted a demotion as this was at odds with evidence that was before the Court but not addressed in the primary judgment; and (3) finding that RPS provided no clear evidence in respect of key issues.

29    The ground is not made out for the following reasons.

30    Fundamentally, this ground is predicated on whether or not a demotion “at law” occurred, which RPS says must have been an objective fact, for which it deployed the following authorities: Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46 at [119] per Jessup J; Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; 186 FCR 22 at [10] per Collier J; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; 193 FCR 526 at [329]–[331] per Barker J.

31    The focus on a “demotion” is a red herring. The relevant question for the primary judge, and what in fact the primary judge determined, was whether the conduct claimed by Ms Lamb to comprise adverse action constituted an “injury” within the meaning of s 342, Item 1(b) of the Act. Whether it constitutes something which comprises an “injury” is of broad import: Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650 at [33], [34] per Perry J; Sabapathy v Jetstar Airways [2021] FCAFC 25; 283 FCR 348 at [70] per Logan and Katzmann JJ; Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63; 202 FCR 244 at 250 [32] per Gray, North and Besanko JJ; Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; 93 FCR 34 at [225]–[233] per Nicholson J.

32    It is apparent from the primary judge’s reasons that it was open for him to find that the significant reduction in the duties of Ms Lamb comprised demotion on an objective basis but, more particularly and relevantly, an “injury” encapsulated by s 342: The primary judge found that Ms Lamb would no longer be responsible for the National Service Lead and would be restricted instead to New South Wales duties only, a finding unchallenged on appeal.

33    To suggest that this could not constitute a demotion or a “stepping back” is unpersuasive. This is particularly so when one considers that Mr Stamatoudis himself accepted that the effect of what occurred did constitute a demotion and was adverse action, as adverted to at J[112]. Furthermore, when one looks at the combined findings in the judgment at J[211] and J[218]–[220], it was entirely open for the primary judge to find that there was a diminution in status and role to satisfy even the test propounded by RPS. These findings are extracted as follows:

211    The Court is unable to determine which version of the conversations outlined above occurred. Certainly, in the management email correspondence preceding the phone call, the term “step back” and “steps out of” was used rather than the term “demotion”. It is clear that the applicant regarded the action as being a demotion. The applicant would no longer be responsible for the National Service Lead, and would be restricted instead to New South Wales duties only. In a highly competitive environment, such as that which appears to have existed in the respondent company, the Court is satisfied that both the applicant and other employees would view it as being a diminution of the applicant’s role and status within the respondent company. The use of the term “stepping back” speaks more closely to that of a demotion, irrespective of whether or not it involved a loss of salary. The Court is satisfied that it was a detriment to the advantages employed by the applicant before the conduct in question.

…

218    The proposed action involved the applicant ceasing to perform a National Service Lead role in relation to her business line and instead, to use the words of Mr Stamatoudis in his email of 1 February 2020, “stepping back into a director role in the NSW team”. This implies a significant reduction in duties. Ms Christensen used the term “demotion” in her email of 1 February 2020. This implies a significant reduction in the applicant’s duties.

219    As noted in Spencer v Dowling (1997) 2 VR 127 at 160 per Hayne JA (as he was then), the real question is ‘whether the conduct of the employer is such as to repudiate the contract giving rise to a right in the employee to accept the repudiation as bringing the contract to and end’.

220    On balance, the Court is satisfied that the action of the respondent amounted to a constructive dismissal within the meaning of s 386(1)(b) of the Act. The applicant was being forcibly removed from her National Service Lead role. The applicant’s duties were to be restricted to a [sic] NSW only. It was not made clear that this restriction was for a limited period. This restriction would have limited the applicant’s ability to participate and bid for work nationally and would have substantially decreased her profile within the respondent company.

34    For these reasons ground one is not made out.

Ground two

35    By ground two, RPS contends that, in finding that Ms Lamb had been “forcibly removed” from her role (at J[220]), the primary judge failed to address (a) the relevant employment contract, which conferred on RPS a right to vary Ms Lamb’s duties; and (b) that the proposal was temporary, and involved no pay reduction and only a minor variation in duties, which RPS was entitled to do under contract. RPS contends that it made it clear to Ms Lamb that the variation to duties was temporary. RPS therefore submits that the primary judge’s findings with respect to forcible removal (upon which the constructive dismissal conclusion was based) were made in error because they did not deal with all of the evidence to the contrary. In addition, RPS submits that the primary judge had failed to address evidence providing that Ms Lamb had a choice at the relevant time, and was therefore not “forced” to resign. This choice consisted of Ms Lamb’s ability to postpone her studies or accept the varied duties while she studied.

36    RPS contended that determining whether there was constructive dismissal requires a close consideration of the contract of employment and the respective rights and obligations of the parties, which the primary judge did not do. RPS accepted that it did not assist the primary judge in this respect but, nonetheless, being a finding at law, RPS contended that it could raise this on appeal.

37    According to RPS, a close reading of cll 1.2, 1.3, 5.2 and 5.3 of Ms Lamb’s employment contract revealed that it was open (and indeed was contemplated) for RPS within its contractual terms, in a temporary way, to vary Ms Lamb’s duties in the way that it did. The relevant clauses provided:

1.2    RPS agrees to employ the Employee and the Employee agrees to serve RPS in the position National Lead, Strategy and Transformation (Position) on the terms set out in this contract (the Employment) from 1 August 2019 (the Commencement Date).

1.3    RPS may alter the position title or redeploy the Employee to a position of equivalent status and salary following consultation with the Employee.

…

5.2    The duties required in respect of the Position may be varied during the course of the Employment by mutual consent.

5.3    RPS is entitled to require the Employee to perform such other duties as are within the Employee’s skill, competence or training and are reasonably requested in order to meet the requirements of the Position or any other position to which the Employee is redeployed which is of at least equivalent status and salary to the Position.

(Emphasis in original.)

38    And, accordingly, RPS contended that, on the basis of what Ms Lamb was told (that the change in her duties was for the period of her MBA course), it was ultimately acting within the parameters of its contractual rights, and there was no proper basis for a finding of constructive dismissal. RPS contended that, by the primary judge taking into account the subjective view of Ms Lamb, at J[211], as to the reduction in her responsibilities being a diminution of her role and status, his Honour erred at law because the determination of whether there is constructive dismissal is an objective assessment, taking into account the matters already identified.

39    This contention is not made out for the following reasons.

40    The primary judge found, at J[211], for which there is no challenge on appeal, that Ms Lamb would no longer be responsible for the National Service Lead and would be restricted to New South Wales duties only. On any view, this is a significant change in her duties, evident from the terms of the contract itself, her title and what her duties comprised.

41    The term “constructive dismissal” relates to an employee’s acceptance of an employer’s repudiation: Cook v CFP Management Pty Ltd [2006] QCA 215; 152 IR 358 at [17]; Lennon v South Australia [2010] SASC 272 at [360]–[366]. Use of the label “can distract attention from the true legal character of the acts that it describes – most importantly, from the need to find a contractual obligation that the employer has repudiated”: Neil I, Chin D, Parkin C, The Modern Contract of Employment (3rd ed, Thomson Reuters, 2023) p 296. As the parties submitted, the focus should therefore be on whether RPS’s conduct was permitted by the contract.

42    I do not accept RPS’s claim that the demotion was permitted by the contract by the deployment of clauses 1.2, 1.3, 5.2, 5.3 and 25. The contract only allowed for an alteration of Ms Lamb’s position where the new position remained a position of equivalent status and for a change in duties by mutual consent or where those duties were reasonably requested to meet the requirements of her position or any other position of equivalent status to which she was deployed. Any alteration in position title or redeployment to a position of equivalent status could only occur following consultation with the employee.

43    RPS submitted that the temporary position was intended for the duration of Ms Lamb’s studies, involved a role in New South Wales of purportedly equivalent status, entailed no reduction in salary and followed a discussion with Ms Lamb on 6 February 2020 where the proposal was raised. This final fact, in RPS’s submission, satisfied the consultation requirement under the contract, and RPS submitted that it is well-established that consultation does not require agreement.

44    I do not accept that the position was of an “equivalent status”, given the primary judge’s unchallenged finding: Ms Lamb would no longer be responsible for the National Service Lead. His Honour’s finding was consistent with the evidence given by Mr Stamatoudis to which RPS took me at hearing regarding the difference between the positions in his affidavit, which was before the primary judge:

I can explain the difference between a National Service Line lead role and a Director’s role as follows. The position of National Service Line lead has additional duties above what is expected of a Director. For example, a person in this role must develop their service line strategy, focus on market engagement, identify a pipeline of opportunities and growth [sic] the business based on the market in question. A National Service Line lead does this at a national level. This means that they need to engage in markets and identify opportunities not just in their home city, but nationally. There is therefore a significant time commitment to regular travel and client engagement. The role also has a key duty of contributing to the business unit’s leadership team and broader matters like whole of business unit strategic matters. If Ms Lamb temporarily stepped out of her National Lead into a Director role for NSW, she would have been freed up from regular national travel and leadership team requirements and have more time to focus on her studies and home city client commitments that she had with the Justice department. State based directors undertake similar duties, but on a state basis, rather than a national level.

45    Furthermore, cl 5.2 was not engaged because there was no consent on the part of Ms Lamb. Again, cl 5.3 might be said to be relevant, but was not engaged because the demotion was not to at least equivalent status to the position identified in cl 1.2. Furthermore, cl 25 (the capacity for variation by agreement) was also not engaged because there was no writing of the requisite kind. I accept the gravamen of Ms Lamb’s submission as to the centrality of the national component of her contractual position. The same is emphasised in the position description, which is of contractual significance, describing it as follows: “[t]he National Lead – Strategy and Transformation focuses on growing and marketing our strategy and transformation service nationally”. And, furthermore, as identified at hearing, there was a difference between the national quality of the contractual position and the state-based focus of the position that Ms Lamb was offered under the proposal. Accordingly, the demotion fell outside the contract. If a party unilaterally insists on or implements a change that is not authorised by a contract, that comprises conduct which is repudiatory: Rigby v Ferodo Ltd [1988] ICR 29 at 33.

46    It is clear from the primary judge’s reasons that he instructed himself correctly as to the concept of constructive dismissal involving repudiation and acceptance and, while he does not identify those provisions in the contract that are said to have been repudiated or those contractual obligations said to have been repudiated (which is understandable because no submissions were made by RPS regarding the contractual provisions), there are two answers. First, the second sentence of J[220], “[t]he applicant was being forcibly removed from her National Service Lead role”, fairly read, is an indication that his Honour was of the view that those provisions of the contract that gave Ms Lamb the right to hold the national position were the provisions of the contract that were repudiated, and the insistence on removing her was repudiatory conduct, which is enough. Secondly, in the alternative, even if there was a failure on the part of the Court to so identify the provisions in the contract, no miscarriage of justice arises as a consequence of that failure because it is clear, for the reasons I have identified above, that there was a repudiation and the contractual provisions provide no assistance to RPS: Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; 248 FCR 18 at [415] per Rangiah J.

47    In addition, RPS contended that the primary judge erred in his conclusion (as to its conduct amounting to a constructive dismissal) by reason of the error contained in J[220] (namely, that it was not clear to Ms Lamb that this restriction – being removed from her National Service Lead role – was temporary). Ms Lamb did not seek to defend this finding but submitted that his Honour’s finding on this issue did not matter. RPS contended that the error was fundamental and infects the key ruling of the Court in relation to there being constructive dismissal because without it there could be no adverse action. I do not accept this submission.

48    In determining whether an employer has repudiated an employment contract, and then whether the employee has elected to accept that repudiation, the Court’s focus is largely on the objective facts surrounding the repudiation and election and not the state of mind of the person who accepts the repudiation. The elector need only be aware of the facts giving rise to the right to terminate, and need not be aware of the right itself: Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 658 (in the context of affirmation, rather than termination, following repudiation). Here, Ms Lamb was aware of the breach, being RPS’s proposal to (temporarily) alter her position while she completed her studies, and elected to terminate. Assuming that it was repudiatory to alter her position even temporarily, her awareness of the temporariness of the proposal is not material.

49    The clauses upon which RPS relied in support of its argument that the demotion was authorised by the contract did not make any distinction between temporary or permanent changes in an employee’s status. Given this fact, I am not persuaded that there is any material consequence to the primary judge’s error in finding that the temporary nature of the role was not communicated to Ms Lamb, as far as his finding of constructive dismissal is concerned. This fact can have had no bearing on whether RPS repudiated the contract. The proposed change in duties to a role that was not of at least equivalent status was enough. Whether the permanence of this change was communicated to Ms Lamb is immaterial and so, therefore, is the primary judge’s error about this fact.

50    Additionally, for the same reasons, I do not accept RPS’s argument that there is a fundamental error by reason of the primary judge weighing this error within the balance of his Honour’s reasoning.

51    For these reasons ground two is not made out.

Ground three

52    By this ground, RPS contends that the primary judge erred when finding that Ms Lamb’s complaint was an operative and substantial factor in the minds of those who took the decision to take the alleged adverse action because the finding was not reasonably open on the evidence and where the primary judge failed to address a large body of undisturbed evidence as to the decision-makers’ real reasons for the impugned decisions. It is trite to observe that an inadequacy of reasons challenge is a difficult one, given what was identified in Lopez v Gold Titan [2022] FCAFC 117 at [26] per Rares J and [90] per Stewart and Goodman JJ, quoting from DL v The Queen [2018] HCA 26; 266 CLR 1 at [32]:

In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”

53    Equally so, the joint judgment of Stewart and Goodman JJ in Lopez referred to AK v Western Australia [2008] HCA 8; 232 CLR 438 at [85] per Heydon J:

Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.

54    These principles were identified in Lopez to apply equally to civil proceedings as they were applied in criminal proceedings: Lopez at [92].

55    However, challenges on the basis of adequacy of reasons remain open where significant bodies of evidence are not referred to and where, as RPS submitted, they either were not taken into account or, if they were taken into account, they were taken into account in a way which is flawed. Where a judge fails to refer to evidence that is critical to an issue in the case, this may constitute an error of law that is reviewable on appeal: Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75 at [20]; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 73 ALJR 306 at [64], [94], [139] and [155]; Mifsud v Campbell (1991) 21 NSWLR 725 at 728; DL at [33]. The same is true for a failure to explain why evidence relied on by a party is rejected: Police Federation of Australia v Nixon [2011] FCAFC 161; 198 FCR 267 at [67]. Where a significant issue is resolved through an assessment of the credibility of witnesses, the judgment should refer to and analyse the parties’ arguments regarding credibility: Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34]; Cooloola Milk at [21]–[22] per Rangiah and Downes JJ. Significant evidence should not be ignored or peremptorily shunted aside: Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; 6 VR 1 at [157], considered in Cooloola Milk at [20].

56    This ground is not made out for the following reasons.

57    RPS identifies the impugned finding to be that Ms Lamb’s complaint was an operative and substantial factor in the minds of those who took the decision to take the alleged adverse action. This ground is founded on an incorrect premise. There was no need for the primary judge to be satisfied on the evidence that each of those who were said to be decision-makers or relevant persons who made up the corporate mind of RPS (with respect to one allegation of adverse action) was actuated by the prohibited reason. The reasoning of the Full Court in Wong v National Australia Bank Ltd [2022] FCAFC 155; 318 IR 148 supports this view. In that case Ms MacLeod had the authority to remove Ms Wong from her role and to terminate her employment: at [14]. Ms MacLeod was not aware of any of the many complaints or inquiries made by Ms Wong that predated the removal decision: at [15]. The Full Court (at [24]) cited with approval Roberts v General Motors-Holden’s Employees’ Canteen Society Inc (1975) 25 FLR 415; 172 CAR 1073, which acknowledged that not all the considerations operating on the mind of every member (of the committee or group involved in the decision) would necessarily be known by the others, with the Full Court in Wong ultimately concluding that (at [26]):

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

(Emphasis added.)

58    The impugned finding is said to not have been reasonably open on the basis that: (a) the decision-makers gave credible sworn evidence to the contrary; (b) the relevant and probative evidence of the three decision-makers about what their real reasons were for the impugned conduct was not contradicted; and (c) the finding that Mr Stamatoudis had an alleged conflict of interest by reason of him being the subject of Ms Lamb’s complaint was irrelevant.

59    I do not accept that the mere fact that the decision-makers gave sworn evidence to the contrary and/or were not contradicted necessarily results in the impugned finding not being open. The Court must attend to the task of answering the question of why the adverse action was taken. As French CJ and Crennan J observed in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 at [45]:

This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, 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. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.

(Footnotes omitted.)

60    Accordingly, just like the primary judge’s task was to not only consider the objective facts, the obverse is true: The primary judge’s task was to not only consider (and accept) the evidence of the decision-makers. The primary judge’s reasons identify why he found the decision-makers’ positive evidence was not reliable because of contradictory evidence.

61    The primary judge approached the question of whether the complaint formed a substantial and operative reason for the decision to demote Ms Lamb correctly. The primary judge understood that this required him to identify the decision-maker(s) and consider what was in their mind(s) at the time of the decision. His Honour also correctly observed that Ms Lamb would succeed unless he could be positively satisfied that the complaint was not a substantial and operative reason for the decision.

62    The correctness of the primary judge’s approach (and the adequacy of the reasons) is evident from the structure and detail of his reasons. The primary judge did summarise the crucial arguments of the parties. There is no dispute in this respect. Further, his Honour resolved any issues of law and fact that arose with respect to the identification of the adverse action, the identification of the complaint and whether it fell within the meaning of “complaint”. Further, the primary judge then set out the competing arguments of the parties. His Honour then considered in some detail the evidence of Ms Lamb and then the evidence of each of RPS’s witnesses and, particularly, the evidence of each of the three decision-makers and his credit observations with respect to them. His Honour’s logical, sequential identification of the relevant questions and the way he answered them demonstrated that he had turned his mind to the relevant matters which needed to be taken into account: Did Ms Lamb make a complaint (considered at J[185]–[193])? Was the complaint a workplace right (considered at J[194]–[203])? Did RPS take adverse action (considered at J[204]–[213])? Did the adverse action constitute dismissal (considered at J[214]–[223])? Was the complaint a substantial and operative reason for the adverse action (considered at J[224]–[232])?

63    The primary judge considered each of the three decision-makers’ asserted reasons for why the impugned decision was not made for the prohibited reason. This can be seen from the primary judge’s specific consideration of Mr Stamatoudis’s purported reasons: at J[99], [101], [107] and [111]. The same can be said with respect to Ms Sullivan and her purported concern for welfare at J[126]. Lastly, Ms Christensen’s express denial was referred to at J[131], though, I accept with Ms Christensen, no reference is made to her specific evidence about her purported reasons for Ms Lamb’s termination. However, it is clear that the Court understood the express denials of each of the decision-makers and, in particular, in the critical portion of its reasons dealing with whether the complaint was a substantial and operative reason for the action RPS took, identifies at J[226], again, that all three decision-makers state that the complaint was not a substantial and operative part of the decision-making process and then goes on to explain why the Court had “considerable concerns” with the position taken by each of them in this regard.

64    Further, and critically, the comparative attention given in the judgment to the evidence of Mr Stamatoudis over that of Ms Sullivan and Ms Christensen is unsurprising and logically explainable: Whilst the primary judge found that each of them were decision-makers, his Honour found, in effect, that Mr Stamatoudis was the instigator of, author of and proponent for the adverse action, and made specific adverse credit findings against him: at J[225]. Accordingly, it is unsurprising that greater attention was given to his evidence. Ms Sullivan’s and Ms Christensen’s involvement in the decisional process fell into a different category by comparison. As observed by Smithers, Woodward and Evatt JJ in Roberts (at 1079) (cited in Wong at [24]):

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

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

65    The primary judge found that their evidence should not be accepted on a number of bases. The first was that Ms Lamb’s complaint was with respect to Mr Stamatoudis’s own conduct, and therefore there was an obvious conflict of interest: Mr Stamatoudis was the instigator of and party to the decision-making process leading to her demotion in a short period after the complaint was made.

66    RPS challenged this portion of the reasoning on the basis that Ms Lamb’s complaint was “low level” and of no significant moment because Ms Lamb suggested she and Mr Stamatoudis could talk about it. I do not accept this characterisation. Ms Lamb expressed her written complaint in a clear and unequivocal way, deploying a sophisticated command of language. Hers was a direct challenge to his managerial style and process. Ms Lamb called him out on his conduct. Ms Lamb expressed her belief that he was not in fact engaging with her about the matters that he should be as her supervisor, but was rather harassing her about details of a relationship she had with another member of the organisation who was a close friend of his, and who had come over with him from a predecessor company. The incontrovertible evidence was that Mr Stamatoudis was concerned about the complaint: He conceded the same multiple times under cross-examination.

67    RPS’s second attack is with respect to the primary judge’s identification of an apparent conflict of interest on the basis of relevance. Mr Stamatoudis instigated and propounded the demotion in the immediate wake of a complaint being made about him. I do not accept that the primary judge’s consideration of this conflict was “irrelevant” by reason of the purported uncontradicted justification by Mr Stamatoudis that the “decision to adjust the applicant’s role to accommodate her absence for study in England was within Mr Stamatoudis’ role as the applicant’s direct supervisor” (ground 3(c)(i)). It was open for the primary judge to have “considerable concerns” (at J[226]) about the clear conflict where “Mr Stamatoudis was a supervisor, who had a serious allegation raised against him in relation to harassment, taking an active part in a process that led to the applicant being demoted”: at J[228]. Further, I do not accept the underlying premise of this attack – including Mr Stamatoudis’s purported “uncontradicted claims” as to his reasons. Mr Stamatoudis’s evidence was challenged at length under cross-examination. The primary judge concluded that he was “a defensive and evasive witness” and that “[m]any of his answers were in conflict to the positions articulated by Ms Sullivan and Ms Christensen”: at J[116]. The question of whether adverse action was taken for a prohibited reason is a factual one, answered by a consideration of all of the facts and circumstances in the proceedings. As observed by the Full Court in Alam v National Australia Bank [2021] FCAFC 178; 288 FCR 301 at [14(h)], even if the reasons advanced by the respondent as to the actual reasons for the decision were accepted, the absence of evidence that there were no proscribed reasons may nonetheless result in a failure to rebut the presumption. The primary judge did not accept that RPS had discharged its burden arising from the statutory presumption.

68    Furthermore, RPS contended that such a finding of there being a “conflict” was not open where there was the “involvement of the other two decision-makers, namely Ms Sullivan and Ms Christensen, who occupied more senior roles relative to Mr Stamatoudis” who “nullified any practical effect of any alleged conflict” (ground 3(c)(ii)). Whilst the involvement of other purportedly neutral actors in a decision may nullify the effect of any conflict, it was for the primary judge to determine the respective and relative involvement of each of those in the decision. The primary judge determined that Mr Stamatoudis was the instigator and primary agent. This was evident from the incontrovertible evidence: It was Mr Stamatoudis’s idea that Ms Lamb “step out” of her role: at J[225]. It was Mr Stamatoudis who provided to Ms Christensen and Ms Sullivan the purported “performance issues” he had regarding Ms Lamb, first, on 29 January 2020 and then on 7 February 2020: at J[63], [112], [207] and [225]. It was Mr Stamatoudis who led the discussion on 6 February 2020 with Ms Lamb regarding her stepping down. As recorded in Ms Christensen’s affidavit, Ms Christensen deferred to Mr Stamatoudis during the meeting with respect to whether the decision regarding Ms Lamb “stepping down” was “final” in the following exchange:

Ms Lamb asked if a decision about her stepping down from her National Lead role while completing her study had already been made. I felt that the discussion was at an impasse. In an attempt to bring the matter to an end, I said to Mr Stamatoudis: “Is the decision final?”. Mr Stamatoudis said: “Siobhan if you keep on insisting on meeting with Meegan then we can do that, but as I’ve said, she is aware and in agreement with what I’ve said.”

(Emphasis in original.)

69    Ms Christensen maintained the same under cross-examination. Ms Christensen then left this critical discussion before it concluded, leaving Ms Lamb with Mr Stamatoudis on her own and thereafter left Mr Stamatoudis to reiterate the decision that she “step down” the following day.

70    The primary judge was obviously perplexed by RPS’s unorthodox approach to the circumstances – the apparent failure on the part of RPS to deal with Ms Lamb’s complaint and to allow Mr Stamatoudis to drive Ms Lamb’s demotion and to not follow its own processes regarding performance management. It may be accepted that a claim under Pt 3-1 of the Act is not “a broad inquiry” as to whether the employee has been treated in a procedurally fair manner or in accordance with the employer’s policies or procedures: Ermel v DuluxGroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48] per Bromberg J. However, procedural anomalies might warrant the rejection of the respondent’s evidence as to why it did what it did and a finding that the respondent failed to rebut the statutory presumption, as occurred here.

71    In this context, the primary judge noted the first procedural anomaly, the absence of any evidence that Ms Lamb’s complaint about Mr Stamatoudis was ever the subject of investigation where Ms Christensen had conceded that RPS had not followed its own policy in this regard: at J[229]. The primary judge had earlier referred to Ms Sullivan’s concession under cross-examination that the appropriate procedures in dealing with a grievance had not been followed: at J[125].

72    The primary judge then turned to the second anomaly, the open disjunction between Ms Lamb being given a “generally satisfactory” performance report, with a three out of four rating overall and then, “immediately after the lodgement of the complaint performance issues arose”, and the purported performance issues “were so serious as to justify the removal of the applicant from her position”: at J[230]. On the one hand, Mr Stamatoudis conceded, under cross-examination, that he had no issues with Ms Lamb being able to do her role as at 22 January 2020. But then, a week after Ms Lamb made the complaint, on 29 January 2020, he proffers a list of performance issues to Ms Sullivan and Ms Christensen, as providing part of his “conclusion” to “recommend” that Ms Lamb “steps out of [the] NSL role due to time management challenges both from a leave and demonstrated performance perspective” (my emphasis).

73    Relevantly, the primary judge had noted earlier in his reasons Ms Christensen’s numerous concerns as to this course in her email on 1 February 2020 (five days before the demotion course was adopted) (at J[212]): Another National Service Lead role was being performed part-time (and therefore a purported justification for requiring that Ms Lamb “step out” because of a concern she could not fully commit to the pressures of the role because of study commitments might appear inconsistent); if Ms Lamb’s performance “was so bad” (as to justify her being required to “step out”) then they would (ordinarily) require her to go on a performance improvement plan; and she queried whether Ms Lamb would go back to the National Lead role after completion of her studies. His Honour observed that “no clear evidence [was] … provided by the respondents in answer to these particular issues”: at J[212].

74    Despite these concerns, Ms Christensen accepted under cross-examination that even though the meeting of 6 February was planned a week before, Ms Lamb was given no warning before the meeting that performance issues would be raised and nor did Ms Christensen speak to her independently about these purported concerns. There was lengthy cross-examination of Ms Christensen about this issue.

75    In these circumstances, it is apparent from the reasoning in J[227]–[232] that there was an intertwining of the consideration of Mr Stamatoudis as the author and instigator of the plan to demote Ms Lamb and, at the same time, the lack of any explanation regarding the failure to follow company policy: Ms Sullivan and Ms Christensen did not follow RPS’s grievance processes regarding Ms Lamb’s complaint and at the same time allowed Ms Lamb to be demoted where there were no performance issues of any substance immediately before the complaint and no performance improvement process was put in place and completed before the demotion.

76    RPS’s challenge concerns the primary judge’s findings as to the states of mind of these three decision-makers. An appellate court ought to interfere with such findings only in “exceptional circumstances”: Wong [109] citing Nocton v Lord Ashburton [1914] AC 932 at 945, 949 and 957; Clark Boyce v Mouat [1994] 1 AC 428 at 436–7; Barclay at [141] per Heydon J. I am not satisfied that the circumstances are exceptional.

77    RPS sought to challenge his Honour’s reasoning by claiming that, to the extent that he, in his reasoning at J[232], referred to Ms Lamb’s performance issues as only occurring in late January and early February 2020, his Honour had mistakenly understood that the performance concerns had arisen only at that time, when in fact they had arisen on and off since 2018. I do not accept this reading of his Honour’s reasons. The impugned finding, at J[232] – Mr Stamatoudis “had issues in relation to some aspects of the applicant’s performance in late January and early February 2020” – describes her performance at that particular time and says nothing about whether there had been performance issues in the past or not. His Honour’s evaluation of the relevant events involved a keen focus on the critical period immediately before and after Ms Lamb making the complaint. The fact that there had been general performance issues on and off since 2018 was not to the point. As at 22 January 2020, Ms Lamb had just received a three out of four performance rating and Mr Stamatoudis conceded under cross-examination that he had no concern as to Ms Lamb’s ability to perform her role. The issue was as to the second anomaly: Why the sudden “performance issues” (a week after the complaint) and, if these concerns existed, why did they not result in a performance improvement plan being instituted?

78    In essence, the primary judge’s decision can be understood in this way. First, he must find in Ms Lamb’s favour unless he is positively persuaded that a complaint did not form a substantial and operative part of the decision to take the action against her. Secondly, he noted and had regard to the fact of each of the three decision-makers disavowing or disclaiming having acted for the prohibited reason. Thirdly, notwithstanding their evidence, he was not positively persuaded (given his concerns of the kind identified at J[227]–[232]): Barclay at [44]–[45] per French CJ and Crennan J. I find no error in this approach.

79    Consistent with what French CJ and Crennan J say in Barclay is required, in an entirely orthodox way, the primary judge compared the decision-makers’ denial and their evidence of what they asserted to be their real reasons against the objective circumstances and was not persuaded that the statutory presumption had been discharged.

80    The effect of this position is that it is possible for Ms Sullivan and Ms Christensen’s reasoning to have been infected by information or advice provided Mr Stamatoudis such that, even if their personal contribution to the decision was not actuated by a prohibited reason, the reasons for the adverse action include that prohibited reason.

81    For these reasons ground three is not made out.

Ground four

82    RPS submitted that the primary judge had placed substantial weight on his finding that there was a reasonable apprehension of bias concerning Mr Stamatoudis’s role in the decision. The doctrine of apprehended bias, in RPS’s submission, is an administrative law one which is applicable only to the decisions of public bodies and not to private companies. RPS therefore contended that the primary judge had erred in applying the test of whether there was a reasonable apprehension of bias, when instead the correct test was what was the “real reason” for the impugned decision.

83    This ground is not made out for the following reasons.

84    RPS misapprehends the primary judge’s reasons. RPS submitted that this impugned aspect of the primary judge’s reasoning went further than merely observing that there was a conflict involving Mr Stamatoudis. It made a finding that the conflict gave rise to a reasonable apprehension of bias. RPS contended that the primary judge had erred in relying on this, as an administrative law concept, and having not accepted the decision-makers’ evidence as to reasons without making findings as to the credibility of Ms Sullivan and Ms Christensen.

85    A fair reading of the primary judge’s reasons reveals that the administrative law concept of apprehended bias was not imported into and applied in the reasoning. Rather, it was an observation in the context of the primary judge identifying an apparent clear conflict of interest in Mr Stamatoudis’s role when Mr Stamatoudis was the author, proponent and primary actor in the adverse action, where neither Ms Sullivan nor Ms Christensen took steps to reverse or slow down the process, nor to apply the grievance procedures in the way one would ordinarily expect them to, or to allow for Ms Lamb to undertake a performance improvement plan before any consideration was given to a demotion.

86    As described in greater detail above, in this portion of his reasons, the primary judge was explaining why he was not persuaded of the relevant facts, including by reason of the fact that Mr Stamatoudis was conflicted, having been the subject of Ms Lamb’s complaint. This observation was unobjectionable.

87    RPS submitted that, while there might have been a conflict if Mr Stamatoudis had been involved in handling the issues arising out of Ms Lamb’s 22 January 2020 email, he was involved in a different process, namely the process of finding a workable solution under which Ms Lamb could manage the combined demands of working at RPS and studying overseas. I do not accept this submission. There was an apparent conflict by reason of Mr Stamatoudis being the subject of a complaint and then driving this different process. Further, for the reasons outlined above, I reject RPS’s contention that Mr Stamatoudis dealt with this conflict by involving Ms Sullivan and Ms Christensen.

88    In addition, I do not accept that the reference to conflict of interest issues at J[231] is a reference back to apprehended bias, but rather it is a reference to what was obvious and entirely appropriate, namely that, where Mr Stamatoudis was conflicted in relation to the process, he should not have been an author of the decision to demote, nor an active participant in that process.

89    Furthermore, RPS submitted that the process of developing the proposal (to demote or step down) was not a quick one, contrary to the primary judge’s findings on this issue. It is difficult to decipher how this issue arises under this ground. In any event, the issue, according to the primary judge, was the swiftness of the decision-making regarding demotion and RPS not undertaking its performance management processes. This was something the Court was entitled to take into account. Proximity between the exercise of a workplace right (in this case, a complaint) and the adverse action (in this case, the demotion) is a factor which may be material, and which it was open to the Court to take into account. I do not accept the submission of RPS that, at J[232], the primary judge went on a frolic of his own. As earlier observed, on 17 January 2020, Ms Lamb achieved a three out of four performance rating and Mr Stamatoudis conceded under cross-examination that he had no issue as to Ms Lamb’s ability to perform her role as at 22 January 2020, when the complaint was received. To then immediately thereafter be of the view that the performance issues (such as they were), combined with the fact of her university commitments, justified a demotion led to the primary judge finding, amongst other matters, that RPS was not able to discharge its onus. This was because, first, it was clear at the time of the complaint that, to the extent there were performance concerns, there was nothing of the magnitude that would give rise to taking her away from her duties. Secondly, the primary judge was materially concerned about Mr Stamatoudis being conflicted in the process, and it was open for his Honour to be, for the reasons I have already given. Thirdly, the fact that a decision was made swiftly, without consultation, communicated to her by phone, by the person about whom she complained, was of a magnitude of concern, as articulated by the primary judge, such that he could not accept the evidence as to the reasoning of all three decision-makers. This arose in a context where, as the primary judge identifies at J[229], it was conceded by Ms Christensen (the HR representative) and Ms Sullivan that RPS did not follow its own policy in relation to the handling of complaints and grievances, which is consistent with the findings that were made by his Honour at J[125] and [133].

90    For these reasons ground four is not made out.

Ground five

91    RPS submitted that the Court misdirected itself by overlooking evidence as to the “real reasons” and instead created and relied on a nexus between Ms Lamb’s complaint and RPS’s response to the proposed study commitments. According to RPS, these two matters were separate and distinct on the evidence, and no nexus existed.

92    At the hearing, RPS outlined three reasons that the primary judge had relied on in finding that the reverse onus had not been discharged (and, therefore, in finding the existence of a nexus between Ms Lamb’s complaint and RPS’s response). Those reasons were that: (a) Mr Stamatoudis was affected by a conflict of interest between his position as the subject of Ms Lamb’s complaint, and his role as a decision-maker with respect to the proposal; (b) there had not been an investigation into Ms Lamb’s complaint; and (c) Ms Lamb’s removal occurred quickly after she made her complaint.

93    There is substantial overlap between this ground and grounds 3 and 4. I rely on my reasons above as to why there was no error in the primary judge’s reliance on each of these bases and additionally for the following reasons as to why this ground is not made out.

94    I do not accept that the primary judge overlooked the purported “real reasons” for Ms Lamb’s demotion – that RPS sought to find a solution to manage Ms Lamb’s workload, in response to Ms Lamb’s overseas study commitments, which was purported to be separate and distinct from the issues raised by Ms Lamb in her 22 January 2020 email. The primary judge specifically referred to Mr Stamatoudis’s evidence as to the purported purpose for his meeting with Ms Lamb on 6 February 2020 to “discuss options for managing the applicant’s study and work commitments” (at J[101]) and to his stated reason as part of the discussion with Ms Lamb on 7 February 2020 for her “temporarily step[ping] out” being to “give [her] time to do [her] studies”: at J[102]. Reference was again made to Mr Stamatoudis’s purported reason at J[107]. In addition, his Honour referred to the evidence of Ms Sullivan as to her concerns regarding Ms Lamb’s ability to both study and deliver in relation her projects: at J[118]. In the context of considering whether the respondent took adverse action, his Honour extracted the portion of Mr Stamatoudis’s email dated 29 January 2020 in which he concludes and recommends Ms Lamb step back “due to time management challenges both from a leave and demonstrated performance perspective”: at J[207].

95    Rather than overlook RPS’s purported “real reasons”, the primary judge was not satisfied that RPS’s reasons did not include that Ms Lamb’s complaint was not an operative and substantial part of the adverse action taken: at J[231].

96    I accept the submission of Ms Lamb that this ground challenges an alleged finding of fact that there was a nexus between the complaint and the demotion. I do not accept that his Honour made such a finding, but, rather, he found that he could not be satisfied that there was not a nexus. It was unnecessary for the primary judge to make any positive finding of a connection between the complaint and the proposal. Given the effect of s 361 of the Act, it was enough for his Honour to be unpersuaded by Mr Stamatoudis’s denials of any connection. Further, the primary judge did not (nor was required to) find that RPS’s reasons for the demotion did not include its concerns as to Ms Lamb’s capacity to perform her role when undertaking further study.

97    This challenge concerns a finding of fact based on a combination of impressions about the credibility or reliability of witnesses and other inferences from primary facts, meaning that it was a finding that is only liable to be reversed if shown to be glaringly improbable to the extent that the trial judge has “clearly proceeded upon a wrong principle”: Dearman v Dearman (1908) 7 CLR 549 at 553. RPS has not established this, having done no more than assert that the complaint and proposal were “separate and distinct”.

98    Ultimately, the primary judge attended his mind to the central question of why the adverse action was taken, which was a question to be answered in light of all the facts established in the proceedings. The primary judge determined by reason of his consideration of all the circumstances that RPS had failed to rebut the presumption because its witnesses’ evidence was not accepted on this point.

99    For these reasons ground five is not made out.

Disposition

100    Given that RPS has been unsuccessful in their appeal, the appropriate course of action is to remit the matter to the primary judge to deal with the remaining matters pertaining to penalty and compensation.

101    The Court acknowledges and is grateful for the assistance received from Mr Ian Neil SC and Ms Renae Kumar, who appeared pro bono at the hearing, and Mr Oshie Fagir who prepared Ms Lamb’s submissions, on a pro bono basis, in advance of the hearing.

Associate:

Dated:    31 October 2023