FEDERAL COURT OF AUSTRALIA

Dr Zabortseva v Commonwealth of Australia as represented by the Australian Public Service Commission [2025] FCA 1585

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Respondent’s undertaking that it will not take any steps to progress the Code of Conduct process that has been commenced against the Applicant, including progressing the requirement that the Applicant attend an independent medical examination, be extended until 4pm on 18 December 2025.

3.    The Respondent file and serve submissions of no longer than 5 pages on the question of costs by 16 January 2026.

4.    The Applicant file and serve submissions in reply of no longer than 5 pages on the question of costs by 6 February 2026.

5.    The question of costs to be determined on the papers or by way of hearing on application by either party.

6.    The time for any appeal to be filed be fixed to 4pm on 20 February 2026.

7.    The parties have liberty to apply by email to the Registry.

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

REASONS FOR JUDGMENT

NEEDHAM J:

1    The applicant, Dr Yelena Nikolayevna Zabortseva, is an employee of the respondent, the Commonwealth of Australia, and works in the Australian Public Service Commission (APSC). By Originating Application filed on 18 February 2025 and Amended Statement of Claim (ASOC) filed on 28 April 2025, Dr Zabortseva made a number of allegations of breaches of the general protection provisions of Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act). She alleges that the APSC took a number of adverse actions because she exercised her workplace rights by making complaints and inquiries in relation to her employment. She further claims that the APSC breached cl 270 of the Australian Public Service Commission Enterprise Agreement 2024–2027 in contravention of s 50 of the FW Act.

2    Additionally, the applicant relies on contraventions of s 351 of the FW Act arising out of a denial of bereavement leave, and discrimination on the basis of her concerns about negative comments about “White Colonial Impact” and a failure to recognise positive aspects of White culture in the project on which she was working; and of s 345 of the FW Act on the basis that the respondent provided “false” information to the medical professional who was engaged to conduct an Independent Medical Examination (IME).

3    The adverse action claims by the applicant as pleaded include actions comprised of three performance appraisals by her manager, and a direction to attend the IME pursuant to reg 11(2) of the Public Service Regulations 2023 (Cth) and s 20 of the Public Service Act 1999 (Cth). At the time of the direction to attend the IME, she was placed on miscellaneous leave with pay; the applicant points to this as a further adverse action.

BACKGROUND

4    The APSC is a medium sized policy agency within the portfolio of the Department of Prime Minister and Cabinet. It is tasked, according to the evidence of Kristy-Leigh Anderson, an Assistant Director, with stewarding the Australian Public Service “as custodians of public service integrity, workforce management and capability” and has statutory responsibilities pursuant to the Public Service Act.

5    Dr Zabortseva has been an Assistant Director of the APSC since 13 June 2023 designated at an Executive Level (EL) 1 under the Australian Public Service Commission Enterprise Agreement 2018–2021. Before joining the APSC, she was employed as an adviser (also at EL 1) in the Department of the Prime Minister and Cabinet working on the Culturally and Linguistically Diverse (CALD) Sprint Project.

6    At the APSC, she worked under her manager Dr Mary-Ann McQuestin on the APSC CALD Employment Strategy Taskforce. Dr McQuestin was absent for what Dr Zabortszeva characterises as “1/3 of her time in the Taskforce”. Nobody was appointed to act in Dr McQuestin’s place. Dr Zabortszeva places some of the blame for what she says were challenges during the Taskforce at the feet of a leadership vacuum.

7    Dr McQuestin has now resigned from the APSC, having left her employment on sick leave in August of 2024 and being unable to return to work until she retired in August 2025.

THE CONDUCT OF THE HEARING

8    The hearing took place in Canberra, from 27–30 October 2025, after earlier hearing dates were vacated at the request of Dr Zabortseva. Each side relied on affidavits and documents which were compiled into a chronological bundle in the Court Book and both provided written submissions. A small number of documents were tendered in addition.

9    Originally Dr Zabortseva commenced proceedings naming the APSC as the respondent. As it is a non-corporate Commonwealth entity of the Australian Government, within the meaning of the Public Governance, Performance and Accountability Act 2013 (Cth), the name of the respondent was changed by order on 28 February 2025 to the Commonwealth of Australia as represented by the APSC. Dr Zabortseva objected to this change on constitutional grounds, on the basis that she “did not make my claims to the Respondent on behalf of the Commonwealth, but only as my employer on my employment matter” (emphasis in original), and because no reasoning was provided by the respondent. She said that the APSC “does not constitute the whole Commonwealth in relation to a matter that has not been assessed as matter of national Commonwealth importance”. She served a notice pursuant to s 78B of the Judiciary Act 1903 (Cth) on the respondent on 23 July 2025. On 25 July 2025 the Australian Government Solicitor notified the applicant that the Commonwealth Attorney-General declined to intervene.

10    Accordingly, notices to the State and Territory Attorneys-General were served on 9 September 2025. None sought to intervene. On 1 October 2025 I made orders with a notation as follows:

The Respondent has notified the Attorneys-General of the States and Territories of the section 78B Judiciary Act 1903 (Cth) notice (Notice) that the Applicant filed with the Court. The Respondent filed submissions in respect of the responses to the Notice on 25 September 2025.

11    No further action was necessary, and the style of the respondent in the proceedings is in my view correct.

12    Dr Zabortseva gave evidence by way of her two affidavits, and was sworn before her opening statement so that any factual issues addressed by her were able to be taken into account as her evidence in chief. She was not cross-examined. A four-day hearing is stressful for a litigant in person, particularly one for whom English is not her first language, and I tried to take this into account in assessing her credibility and demeanour. There is no doubt that Dr Zabortseva has a deep belief in her view of matters, but she tended to assign motives to actions which were not necessarily sinister. For example, she accorded a motive of “disrespect” to lateness in service of documentation by the Commonwealth from time to time, and alleged “obstruction to justice” by reason of duplication of emails in the evidence of the respondent’s various witnesses. Prior to the hearing, she sought on a number of occasions to agitate an interlocutory application to discard the evidence of one of the respondent’s witnesses on the pre-emptive ground of it constituting perjury and contempt of court, because Dr Zabortseva disagreed with its contents: in particular, the particular witness’ characterisation of Dr Zabortseva’s absences from work, and other “circumstantial evidence of the potential perjury” such as the “superfluous volume, irrelevant and repeated attachments (over 700 pages)” and “absence of key essential information” regarding the Taskforce.

13    Her ASOC, her oral and written submissions, and her questions to witnesses included other matters which were said to be adverse actions. These included a Code of Conduct investigation in 2025 and being placed on miscellaneous leave without pay after 8 November 2024; however, each of the Originating Application (in paragraphs 1-5) and the ASOC (in paragraph 113) make it clear that the matters identified at [3] above are those upon which she relies for relief.

14    The paper trail in this matter is extensive and each of the respondent’s witnesses sought to put forward their involvement in the decisions which are alleged to be adverse actions, and their reasons for making those decisions. Necessarily that involves reliance by each witness on many of the same documents as other witnesses. The timetabling directions for the hearing were tight, and inevitably there was some slippage (on both sides). However, both parties did their best to be prepared for hearing.

Dr Zabortseva as a litigant in person

15    Adverse actions claims are not easy to plead if one is not a lawyer. Dr Zabortseva was represented prior to the proceedings commencing, but appeared throughout these proceedings in person. Her pleadings reflect the position taken by her legal representatives in correspondence.

16    I reiterated to Dr Zabortseva that she was entitled to appear in person, and outlined her responsibilities to the Court as well as the assistance that the Court could give her. I sought to explain to her the way in which proceedings in the Court were conducted, and the matters, including of onus, with which she would need to deal in relation to adverse action claims. English is not her first language although she has significant fluency (as is demonstrated by her ability in Court, and her PhD from, and teaching career at, the University of Sydney) and she often found it difficult to express herself in the way she would like. Regular short breaks were taken throughout the proceedings to allow her to regroup her thoughts or to regain her composure. Dr Zabortseva was always polite and engaged intelligently with the Court while attempting to do her best, although it was clearly a stressful process for her.

17    That said, Dr Zabortseva’s questions in cross-examination often conflated her view of the facts with broad generalisations or idiosyncratic analysis of the effect of documents. For example, she asked Ms Anne Mornement, Director, People Team, Enabling Service Branch of the APSC:

DR ZABORTSEVA: Then perhaps the last question in relation to the independent medical assessment report, I did highlight that there were a number of false information in relation to the independent medical assessment referral. In particular, on my absences that did not take place. Was Ms Mornement checking my and Maurice Blackburn concerns that independent medical assessment report was based upon false information?

HER HONOUR: Ms Mornement, you’re not being asked to accept that there was false information. You’re being asked whether you checked that the claims of false information were true or not?---No. I did not check.

and Ms Joanne Talbot, First Assistant Commissioner, Workplace Reform and Diversity of the APSC:

… were you involved in decisions in relation to conceptual time, conceptual structure of the CALD taskforce for employment strategy?

18    I set these out, not to be critical of Dr Zabortseva who was doing her best under difficult circumstances, but to highlight the difficulties the witnesses faced in giving answers to her questions in cross-examination.

19    I also explained to Dr Zabortseva that the representatives for the respondent had responsibilities not to take advantage of her position as an unrepresented litigant, and to assist her with procedural matters where possible, while maintaining their position of proper representation for the respondent. To my observation, Mr Minucci and Ms Dewis of counsel, instructed by Holding Redlich, managed to achieve that balance. For example, counsel for the respondent acceded to a number of requests which were not usually made in hearings in this Court, for example, for Dr Zabortseva’s mother to be telephoned during a stressful moment to be present as a support person. Where Dr Zabortseva sought indulgences of time during the hearing to prepare herself for the next witness, that was generally (but not always, as in the evidence of Ms Anderson) granted.

20    While I have no doubt that Dr Zabortseva does believe that the Commonwealth’s legal practitioners and witnesses were not playing fair with her, I saw no evidence of that. The trial was brought on quickly and every effort was made by the respondent to accommodate the trial dates, including briefing new counsel at short notice when the new dates were set down, and by taking responsibility for preparing the Court Book. Counsel for the respondent co-operated with the Court and with Dr Zabortseva in accordance with the Commonwealth’s duty as a model litigant, and I commend them on their approach to what could have been a more difficult hearing had a less accommodating position been taken.

THE SCOPE OF THE HEARING

21    A deal of the hearing was spent seeking to ensure that the applicant stayed within the boundaries of the pleaded claim. The attempts were not always successful, and she was given some leeway in cross-examination and submissions to say what she wanted to say, while being asked to keep to her pleaded case.

The respondent’s pleading point

22    The respondent took the point that the pleadings to which it was called to respond were unfairly pleaded, in that they did not plead out the elements of the case, clearly identifying the nature of the protection arising under the FW Act, the kind of workplace rights exercised, the alleged adverse actions, including who took the action and how, and the reasons for the alleged adverse conduct being the exercise of the workplace rights. The respondent submitted that the pleading should not require the respondent to “answer a ‘broad enquiry’” as to whether the conduct is a contravention of the FW Act or whether it is merely conduct with which the applicant does not agree. The respondent referred to the Full Court’s observations in Sabapathy v Jetstar Airways (2021) 283 FCR 348; [2021] FCAFC 25 at [23]–[29] (Logan, Flick, and Katzmann JJ) that bare assertions of acts and omissions rolled up as “adverse actions” should not be allowed to stand, because the Court and the respondent are unable to identify the alleged prohibited reasons behind those claims.

23    The respondent relied on the statement of the Full Court in Monash Health v Singh (2023) 327 IR 196; [2023] FCAFC 166 at [57] (Katzmann, Snaden and Raper JJ), citing Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306; [2017] FCAFC 222; at [102], in turn citing Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; [2015] FCAFC 25 at [63]–[65]. At [57(4)] of Monash, it was said:

The level of precision required in relation to pleadings in General Protections claims is informed by the reasoning of the Full Court of Hall at [15]-[19]: Two pre-conditions must be met before the presumption under s 361 arises: first, the particular reason or the particular intent for the contravening action must be alleged in the application (s 361(1)(a)); and secondly that “taking that action for that reason or with that intent would constitute a contravention of this Part” (emphasis added) (s 361(1)(b)). As a consequence, in a proceeding of this kind conducted on pleadings an applicant is required to “plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent”: Hall at [19]. A pleading will be deficient where an applicant has failed to precisely and distinctly allege the particular reason or any particular intent: Hall at [40].

24    The reference to Hall is to the decision of the Full Court in Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; (2018) 277 IR 75; [2018] FCAFC 83.

25    The respondent submitted that “[i]f the requisite elements of a general protections claim are not properly pleaded, an applicant’s claim fails to identify a reasonable cause of action and must be dismissed.”

26    For the reasons I have set out below, I do not agree that the entirety of the proceedings should be dismissed, but I have determined to hold the applicant to the relief sought in the Originating Application and specified as the relief sought in the ASOC, and not the pleaded facts which are not relied upon as breaches or adverse actions, or the broad sweep of unpleaded facts raised by the applicant.

27    I will deal in the next section of these reasons with those parts of the pleading which I consider should be dismissed for failing to disclose a reasonable cause of action pursuant to Federal Court Rules 2011 (Cth) r 16.21(e) (FC Rules), or otherwise being an abuse of the processes of the Court.

Matters in the ASOC which are not adequately pleaded

28    There is a disconnect between the relief sought in the Originating Application and the matters pleaded in the ASOC. The ASOC repeats the general protections claims of the Originating Application and adds a number of new narratives and actions which are not referred to in the Originating Application. The Relief section of the ASOC provides:

133.    I, the Applicant, sought main relief in the Original Application (pp. 1-5).

134.    Additionally, I seek corporate and civil remedy and imposition of a pecuniary for misleading information, for the specific amount by consideration of the Federal Court.

135.    Additionally, because of additional pressure and breaches throughout my application to the Federal Court, I seek aggravated and exemplary damages for Q (a), (b) by consideration of the Justice of Federal Court.

29    Throughout the ASOC there are claims such as those in paragraphs 11 and 12, a claim of misrepresentation and discrimination rolled into one paragraph:

11.    I, the Applicant, claim contravention of s. 345 on misrepresentation of the FW Act.

12.    I, the Applicant, claim that the above outlined contraventions of the FW Act and EA included discrimination and degrading of my professional reputation, specifically s. 351 of the FW Act and Racial Discrimination Act 1975 (Cth).

Particulars

Precise legal assessments are outlined in Section N, Assessment of a series of Adverse actions, of this Statement of Claim, and in section N 1. Assessment by Maurice Blackburne, in particular.

(as written, and emphasis in original)

30    Discrimination is not pleaded properly, or at all. In part N2 of her ASOC the applicant cites s 351 of the FW Act and the following actions as discriminatory:

(a)    not providing her full bereavement leave when her stepfather died in Kazakhstan;

(b)    her expression of concerns as to “negative White Colonial impact” (as dealt with below in the Strategy Approach Inquiry); and

(c)    providing “misleading information” to the proposed medical examiner without the applicant’s consent and procedural issues with providing the information to the applicant.

31    Nowhere does the applicant link these three matters with any pleaded acts of discrimination. The ASOC cites the Racial Discrimination Act 1975 (Cth) as well as s 351 of the FW Act. No claim alleging discrimination under the Racial Discrimination Act has been commenced with the Australian Human Rights Commission. Apart from a reference to the applicant being born in Kazakhstan, there is no pleading of the racial basis of any actions taken by the respondent. These are not mere pleading quibbles, but substantive requirements for a properly commenced and pleaded racial discrimination action. Again, while these claims are raised in the ASOC, they are not linked with any relief sought in that document or in the Originating Application. I do not consider that the discrimination parts of the claim are adequately pleaded so as to allow the respondent to deal with them, and I will not further deal with these claims.

32    The Applicant says in paragraph 132 of the ASOC that she has suffered loss and damage “[b]y reason of the contraventions pleaded” and specified her damages as being:

(a)    Reputational damage/Defamation.

(b)    Breach of privacy.

(c)    Financial damages (legal and court fees, as well as loss of earning throughout work on my complaint to the Federal Court).

Further particulars of loss and damage will be provided before trial should it proceed to that stage.

No further particulars were provided.

33    While she seeks damages for defamation and reputational damage, and relies on the decision in Roohizadegan v TechnologyOne (No 2) (2020) 301 IR 1; [2020] FCA 1407, the elements of a defamation claim are not pleaded properly or at all. The only other reference to “defamation” apart from the above particulars of damage seems to regard defamation as a future remedy on her return to work (see paragraph 142(c) of the ASOC). She does not plead a basis, factual or legal, for any damages for breach of privacy. I do not regard the reputational damage, defamation, or breach of privacy claims as being pleaded so that the respondent is able to respond adequately or at all.

34    A section of her claim at paragraph 107 is headed “Breach of the Duty of courtesy and intimidation by the Respondent”. It sets out complaints about the way in which the respondent dealt with the applicant throughout the proceedings (including asking for an online hearing without consulting her first, and not using her full name). These complaints do not have a proper basis in law and are, in any event, not consistent with my observations of how the matter was conducted by the respondent and its representatives.

35    The respondent submitted that the applicant should not be permitted to extend her complaint to include an adverse action arising out of the commencement of the Code of Conduct process, as it was not properly articulated so as to engage the FW Act. No specific prohibited reason is pleaded for the commencement of that action, merely that the Code of Conduct process was “unlawfully” commenced. This claim is not one which has been pleaded or put forward in a way which properly engages the general protection provisions of the FW Act, and so it should not be further considered. It did form part of the overall evidence, and Dr Zabortseva made submissions as to Dr Bacon’s reasons for making that determination, and so it is dealt with to some extent in the Factual Background section below. I do not however regard it as a fairly pleaded claim of adverse action.

36    The applicant has sought from time to time to agitate claims that the respondent was breaching an “order” or “decision” of the Court to the effect that it not take any steps to progress the Code of Conduct investigation process, including the requirement that she attend an IME, both in the ASOC and by way of interlocutory application. That order reflected an undertaking by the respondent not to do so (see order 8 of Order of 28 February 2025). The matters raised allegedly in breach of this undertaking in the ASOC were not allowing her to “return to work” and discontinuing her leave with pay. Neither of these actions was a part of the Code of Conduct process commenced against the applicant suspended by the respondent in February, or a breach of the undertaking by the respondent.

37    The applicant also contended in submissions that placing her on leave without pay, after February 2025, was an adverse action. While it was an action which altered her position to her prejudice, it is not adequately or properly pleaded in the ASOC and in fact the words “my leave was pay … was seized” in paragraph 106 of the ASOC needs to be construed as “my leave with pay” for there to be any reference to that issue in the ASOC at all. Again, no relevant or related workplace right is pleaded, and no prohibited reason for the alleged adverse action is given, and so this aspect, too, should not be considered. In any event, Dr Bacon’s reasons for the applicant being moved to miscellaneous leave without pay are set out in her affidavit, and the respondent has at various times indicated that the applicant could make an application for miscellaneous leave with pay, according to cl 233 of the APSC’s Enterprise Agreement, and pursuant to its Leave Policy. The applicant has also been offered leave on half pay, but has not taken up either of those avenues.

38    I do not regard the Code of Conduct complaint, or the leave without pay issue, as being sufficiently pleaded to allow the respondent to deal with them. They will not form part of my determination.

39    I should note that in oral submissions the applicant sought to raise what she referred to as a breach, which was the failure of the Commonwealth to enact legislation similar to that in Queensland which dealt with timeframes for medical assessments and the ability to appeal (a reference to a directive setting out the process and requirements for making decisions about medical examinations in accordance with Ch 3, Pt 8, Div 5 (Mental or physical incapacity) of the Public Sector Act 2022 (Qld)). When I queried whether the Commonwealth should be criticised for not complying with a directive under State legislation which did not apply to her employment, the applicant replied, “The absence of specific legislation was the breach”. This was not pleaded and is not a tenable cause of action in any event.

40    The applicant also relied on ss 10 and 13(11)(a) of the Public Service Act, which sections set out the APS Values and the APS Code of Conduct. Dr Zabortseva relies on the value of being impartial in s 10(5), which reads “The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.”

41    Section 13(11)(a) provides:

(11)    An APS employee must at all times behave in a way that upholds:

 (a)    the APS Values and APS Employment Principles …

42    Section 15 of the Public Service Act sets out sanctions that may be imposed for an APS employee who is found, under specified procedures, to have breached the Code of Conduct. The Agency Head has the power to impose sanctions. Section 20 provides Agency Heads, on behalf of the Commonwealth, “all the rights, duties and powers of an employer” in respect of APS employees in the Agency.

43    The Regulations to the Public Service Act (as at the time of the proceedings commenced) provide that “Employees’ concerns are intended to be dealt with quickly, impartially, and fairly” (reg 17(3)). Dr Zabortseva seeks a review of the respondent’s actions under s 33 of the Public Service Act and Pt 4 of the Regulations. Regulation 18 provides that “certain promotion decisions and engagement decisions to be made to the Merit Protection Commissioner for review by a Promotion Review Committee” (in the current Regulation, applications for review are to be made to the Merit Protection Commissioner). Regulation 19(a) provides that “applications for primary review of other APS actions to be made to the relevant Agency Head or, in certain circumstances, to the Merit Protection Commissioner”. The Federal Court is not an appropriate forum to engage in a review of internal public service employment decisions absent engagement of, in this case, the general protections provisions of the FW Act, and any such rights which may arise in relation to Dr Zabortseva’s employment should be dealt with as provided for by the regulations; see Forster v Jododex Australia Pty Limited (1972) 127 CLR 421; [1972] HCA 61 at 427 (Walsh J).

44    Neither the Public Service Act nor the Regulations provides any remedies for breach in relation to the alleged infringements of the APS Values or Employment Principles, and in any event the only relief sought in the ASOC is pursuant to the FW Act or as set out above. Accordingly, these claims are not dealt with further.

45    After judgment was reserved, on 5 December 2025, Dr Zabortseva emailed the Registry seeking to provide further evidence. The email was headed “New evidence” and attached a document titled “New evidence on APSC’s assessments of the Applicant’s fitness for work”. The document attached a letter from Mr Tom Georgilas to Dr Zabortseva dated 26 November 2025 which said, in part:

While you remain on miscellaneous leave without pay, the Commission wishes to advise it remains open to you to seek and undertake outside employment during this period, subject to the Commission’s Outside Work Policy (attached) and the Commission’s prior approval (request form attached).

46    Dr Zabortseva characterised this part of the letter as:

Document from the Respondent (APSC), confirming their assessment that the Commission does consider me fit for work, and also further confirming their character/conduct in relation to me and my application.

47    The respondent objected to the admission of the new evidence, on the basis that the pleaded adverse actions all took place in 2024 and so the new evidence was not relevant. Additionally, the respondent relied on paragraphs [178] to [181] in Matson v Attorney-General (Cth) [2021] FCA 161. At [178]–[179] White J said:

… The overriding principle is the interests of the administration of justice having regard to the circumstances of the case: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24], [26]; Brown v Petranker (1991) 22 NSWLR 717 at 729; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478; Harrington Smith (on behalf of the Wongatha People) v Western Australia (No 8) [2004] FCA 338, (2004) 207 ALR 483 [121]; and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456, (2014) 243 IR 468 at [48].

In Bradshaw, Kenny J identified at [24] four overlapping classes of cases in which a court may grant leave to reopen: fresh evidence; inadvertent error; mistaken apprehension of the facts; and mistaken apprehension of the law.

48    The applicant’s new evidence can only fall within the first category, being “fresh evidence” or evidence which came to light after reservation of judgment.

49    The applicant raises a number of grounds in reply, including that she contends that the views expressed in the letter demonstrate the lack of need for the IME and as such it is relevant to the claimed adverse action arising out of that direction.

50    I agree with the respondent that the proposed new evidence is not relevant to the applicant’s pleaded claims (even, as she submits, to her “fitness for duty”) and I decline to admit the evidence at that late stage, by reason of fairness to the respondent and in the interests of the administration of justice. There can be no good reason to admit correspondence which so significantly post-dates the pleaded adverse actions.

Matters in the ASOC which can be considered

51    The adverse actions are expressed as being the five matters set out in paragraph 113 of the ASOC. While Dr Zabortseva uses the word “including” when listing those actions, she refers back to the matters raised by Maurice Blackburn in their letter of 13 November 2024 and defines “the Adverse Action” as the matters listed in paragraph 113. The use of the word “including” in paragraph 113 of the ASOC does not expand the list of the five adverse actions to the matters narrated elsewhere in the ASOC.

52    The respondent was able to discern from the ASOC the five relevant adverse actions pleaded, and dealt with those issues fully in its evidence. It sought otherwise to contain the applicant to her pleaded case. In particular, what was referred to as the “bereavement leave issue”, the “Code of Conduct issue”, and the “miscellaneous leave without pay issue” did not, it submitted, fall within the boundaries of the pleading, and no relief was sought in relation to those actions in the Originating Application or the ASOC. The respondent restricted its submissions to the five pleaded adverse actions (referred to as the first, second, and third performance appraisals, the direction to attend the IME, and placing the applicant on miscellaneous leave with pay) on the basis that it should not be required to meet a case which has not been properly pleaded. I agree, and while the applicant’s pleading in relation to the five pleaded adverse actions is not as specific as one would have liked, it does not appear that any prejudice to the respondent arises, particularly given that the dismissal point in relation to those was not argued as a separate, standalone strikeout point.

53    In addition to the discrimination complaint dealt with above, the applicant also links the failure to provide full bereavement leave with s 50 of the FW Act as a breach of the Enterprise Agreement. This matter was dealt with in the evidence and I will consider it.

54    Accordingly, I will have regard only to the applicant’s five pleaded adverse actions in determining this matter, and the s 50 claim. In relation to those adverse actions, and the pleaded breaches of s 50 of the FW Act, the applicant seeks remedies such as a civil penalty for the s 50 breach, withdrawal of the IME, a return to work, deletion of performance assessment comments, and consideration of her complaints by the Commission.

OBSERVATIONS ON THE EVIDENCE

55    As noted above, the applicant was not cross-examined. The respondent submitted that there should be no Browne v Dunn (1893) 6 R 67 inferences arising out of the forensic choice not to cross-examine the applicant; that is, that the respondent should be required to put any matters which are in contest to Dr Zabortseva. Mr Minucci referred to Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 where Hunt J referred to the rule in Browne v Dunn on p 16 as being:

… necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial …

56    That question of “fair play” referred to by Hunt J can be managed without cross-examination where notice has been given of the respondent’s case and the applicant is on notice of the nature of the opposition case (see Allied Pastoral at pp 16 and 26). The respondent submitted that:

… the respondent cannot be criticised in any formal way for its decision not to cross-examine the applicant.

There has been no contravention of the rule in Browne v Dunn in light of the exchange of affidavits prior to trial and the fact that those affidavits squarely put the applicant on notice of the issues in the case about which are in dispute.

57    Here, the witnesses gave evidence on affidavit and evidence in chief was limited to identification of the parts of the affidavits which the witness relied on as to the reasons for her, or his, decision. Those affidavits were all filed in May 2025. Additionally, during case management, the parties were asked to confer and agree upon a matrix which set out the date and a summary of alleged events or facts, the apparent legal basis underlying those facts, and a reference to any witness or documentary evidence. The respondent’s version of this document was completed on 29 August 2025 and it sets out all of the evidence upon which it relied in relation to each fact. The applicant’s version did not engage with the format of the respondent’s table, and instead included an “algorithmic scheme of ACD 11/2025” and included additional and unpleaded adverse actions (such as a “Secondment Appraisal Adverse Action”). While the matrix exercise was not fruitful in having the parties engage with each other’s case, the respondent’s version did, in real terms, set out the basis of its defence of the pleaded adverse actions and the evidence relating to each of those allegations.

58    The applicant was able to cross-examine each of the respondent’s witnesses, and was given the opportunity to make wide-ranging submissions both in opening and in closing arguments, which included not only submissions on the law but assertions of fact.

59    I consider that, in the above circumstances, I should have regard to the applicant as being fairly on notice of the matters which were put against her. While Dr Zabortseva did not make any specific submission in terms of Browne v Dunn, the respondent fairly raised the point, and I consider that the position taken by the respondent has not resulted in any substantive unfairness.

60    More generally, I intend to have regard to the evidence in this case in accordance with the observations of Kunc J in Goulston v Bogasi Pty Ltd [2025] NSWSC 989 at [334] ff, where his Honour sets out the way in which proof is facilitated by oral evidence, citing Watson v Foxman (1995) 49 NSWLR 315 at 318–319, and the need for “actual persuasion” of the elements of a case, taking into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding, and the gravity of the matters alleged (see also Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Manager appointed) (In liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 (Emmett J) at [48]), which elements are reflected in s 140(2) of the Evidence Act 1995 (Cth).

61    In Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 at [467], Kunc J said that “evidence is to be preferred which is inherently probable in the circumstances”. I have been provided with a significant amount of documentary evidence which was created over time and upon which the respondent relies as the reasons for the various decisions taken. In general, the applicant did not take issue with the reasons given, but sought to undermine evidence given by the respondent’s witnesses by putting to them propositions such as that they had not dealt directly with her, or that they had not taken into account other material which the applicant regarded as relevant to the decisions made by each witness.

62    Dr McQuestin, one of the decision makers and the applicant’s manager, was not called (and did not give an affidavit) and I deal with the position relating to her below.

The applicant’s evidence

63    The applicant relied on two affidavits, filed on 19 February 2025 and 17 March 2025, although both are dated 19 February 2025, the latter it appears erroneously. Each of those affidavits substantively relied on letters to the respondent from the applicant’s then lawyers, Josh Bornstein and Rae Braganza of Maurice Blackburn (13 November 2024, 4 December 2024, and 28 January 2025). The admission of the letters were subject to a limitation pursuant to s 136 of the Evidence Act as follows:

Limit the use to be made of [the evidence] pursuant to s 136 of the Evidence Act 1995 (Cth). Specifically, that the evidence is received:

a.    as a submission;

b.    as evidence that correspondence occurred and not the truth of the representations contained in the correspondence; and

c.    subject to the bounds of the Applicant’s pleaded case as set out in the Originating Application dated 3 February 2025 and Amended Statement of Claim dated 28 April 2025.

64    Dr Zabortseva was reminded before the hearing that her apparent use of the Maurice Blackburn correspondence as primary evidence was not appropriate. She repeatedly referred to it as an “assessment” or a “legal assessment”. During a case management hearing on 17 October 2025, during a discussion as to whether the applicant could issue subpoenas to various employees of the respondent to give evidence, the following exchange occurred:

HER HONOUR: All right. Can you point to the part of the Statement of Claim that deals with Ms Vrkic’s actions?

DR ZABORTSEVA: Yes, first, first complaint on the graduate.

HER HONOUR: Right. What paragraph is that?

DR ZABORTSEVA: It should be in appendix A here, a letter by Maurice Blackburn. First complaint. I will open it.

…

DR ZABORTSEVA: But it’s also referenced to the appendix. Maurice Blackburn were acting on my behalf and were legally representing me, and actions by APC were taken in response to the legal statements by Maurice Blackburn.

HER HONOUR: Yes, and can I just stop you there? One thing I should remind you of is that Maurice Blackburn were your lawyers, and their view that there were adverse actions taken is not binding on me. You’ve raised that a number of times.

DR ZABORTSEVA: Yes, yes.

HER HONOUR: I understand that you rely on that, and that is fine, but I’m not bound by what they think. I have to make my own decisions.

(edited slightly for accuracy and conciseness)

65    A number of the primary documents attached to the affidavits of the applicant were edited versions of the originals. The edits were made, not, it seems, for misleading purposes, but in a misguided attempt by the applicant to include only what the applicant saw as relevant, or to protect what she saw as sensitive information (including as to the health issues she identified as affecting the graduate). Where full versions appear from the respondent’s attachment, I have had regard to those versions.

The respondent’s evidence

66    The respondent relied on a number of affidavits, and the deponents were cross-examined by Dr Zabortseva. They were:

(a)    Ms Anne Mornement, who is the Director, People Team, Enabling Service Branch of the APSC. Ms Mornement reports to Mr Georgilas. She was acting in that role, and was then appointed to it in around June 2024. Accordingly she was the Director of the People Team for the relevant period. The People Team is responsible for all HR matters across the APSC. Ms Mornement provided advice to Dr McQuestin in relation to the performance appraisal of the applicant in February 2024, and also discussed her performance with Ms Anderson. Ms Mornement was a witness who considered her answers and appeared to try to answer the questions put to her as well as she could. Dr Zabortseva contested whether she had acted honestly and fairly in the decisions she made, particularly whether the direction to refer Dr Zabortseva to her IME was “lawful and reasonable”, but I consider that Ms Mornement was acting properly in her dealings with the applicant and discharging her duties in her role.

(b)    Dr Rachel Bacon, Deputy Commissioner, Integrity, Reform and Enabling Services. Dr Bacon was involved in review of the applicant’s employment matters, including consideration of her fitness for duty, from 28 January 2025. She was also involved in the considering of whether a Code of Conduct process should be initiated in relation to the applicant’s failure to attend the IME. Dr Bacon was not otherwise directly involved in Dr Zabortseva’s employment, and to my observation tried to give her best evidence in cross-examination.

(c)    Ms Joanne Talbot, First Assistant Commissioner in Workplace Reform and Diversity. Ms Talbot approved the 9 April 2025 decision to place the applicant on leave without pay. Ms Talbot did not engage particularly openly with the cross-examination (noting however the difficulties in doing so) and I did not gain a lot from her evidence. I do however accept her evidence as it was consistent with the documentary record.

(d)    Mr Tom Georgilas, Executive Director, Enterprise Capability, of the APSC. He was involved in the assessment of the applicant’s security concerns and her report as to a potential security breach. Mr Georgilas was considered and did his best to answer questions. His credit was not put in issue; and

(e)    Ms Kristy-Leigh Anderson, Assistant Director in the People Team. Ms Anderson reports to Ms Mornement. Ms Mornement and Ms Anderson provide co-ordination for APS Code of Conduct matters. Dr Zabortseva took significant issue with Ms Anderson’s credit, particularly as to the timing of when Ms Anderson noted that Dr McQuestin entered Dr Zabortseva’s performance assessment. Dr Zabortseva sought to challenge Ms Anderson’s credit on a number of grounds, including the fact that Ms Anderson had not included certain matters in the chronology that was provided to the proposed independent medical examiner, and that it did not include her January 2024 complaint. I deal with these matters further below.

The absence of Dr McQuestin

67    Dr McQuestin was the decision-maker for the first three pleaded adverse actions, which relate to “performance appraisals” of the applicant. She was the subject of a subpoena to give evidence, issued by the respondent. On the first day of hearing, 27 October 2025, she filed an interlocutory application to have the subpoena set aside. Her solicitor, Nigel Gabbedy, appeared before me on 28 October 2025. He relied on his affidavit given on information and belief and attached a letter from Dr Hannah Burn, Dr McQuestin’s mental health professional which noted that it would be “prejudicial to [her] psychological health to engage with this process” (ie, the hearing before this Court). Dr McQuestin’s application was stood down to 29 October 2025 to allow for a further medical opinion, which was provided by Dr Burn, who opined that due to various mental health reasons she should not be required to give evidence in Court. Neither of the alternative proposals in Dr Burn’s letter were appropriate to the circumstances (for example, written questions and answers, or a video link, in the absence of explanation as to why video link would not be equally harmful to Dr McQuestin’s health), and each of the applicant and the respondent accepted that the subpoena to Dr McQuestin’s should be set aside, which occurred on 29 October 2025.

68    The respondent acknowledged that the absence of Dr McQuestin posed difficulties for its case. I was taken by the respondent to the statements of French CJ and Crennan J in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [44]–[45], where their Honours said:

The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”

… 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.

69    The respondent, in submissions, relied on the written record to establish Dr McQuestin’s reasons for her decisions. It was submitted that no “Jones v Dunkel inference could be drawn against the respondent as a consequence of her absence … First, she is no longer an employee of the respondent and couldn’t be deemed in the classical sense to be in the respondent’s camp.” The second reason relied upon was that she was “not co-operative with the respondent in terms of the giving of evidence” and was discharged from compliance with the subpoena.

70    The applicant asked me to infer that Dr McQuestin had “avoid[ed] giving evidence as she was providing false information about [her] performance assessment” and “that’s why she maybe developed her psychological anxiety, that she was afraid to confront responsibility”. There is no basis for me to make such sweeping and specific inferences about motives for Dr McQuestin’s absence when there is documentary evidence of her thought processes in making particular decisions, and the rule in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 320 does not extend to filling gaps in the evidence or converting the applicant’s conjecture into an evidentiary fact: “[t]he failure [to call a witness] cannot fill gaps in the evidence, as distinct from enabling an available inference to be drawn more comfortably”: Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 at [49] (Bathurst CJ, Bell P and White JA); Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [64] (Heydon, Crennan and Bell JJ).

71    Dr McQuestin’s absence is satisfactorily explained by her treating medical professional’s evidence. She is no longer an employee of the respondent. While that leaves a gap in the evidence, I do not consider that it should be filled by positive inferences as to her motive for the decisions she made. The way I can deal with the evidence is to rely on the written records as to her reasons for decision-making, in order to take account “of all the facts and circumstances of the case and available inferences” (see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41 at [7], per French CJ and Kiefel J) and in particular to have regard to her absence should any of the objective evidence contradict the stated reasons.

72    Where the evidence in question is oral conversations recalled by Dr Zabortseva with Dr McQuestin, I will need to give some weight to the fact that only one of the parties to that conversation has given evidence, and to assess it in the context of the written record and the inherent probability of its occurrence. I have to bear in mind the onus on each party in relation to particular parts of the case, and note that Dr Zabortseva bears the onus to show that an adverse action occurred. Even in the absence of Dr McQuestin, her evidence needs to be weighed against her interest in adducing the particular evidence.

CLAIMS UNDER THE FAIR WORK ACT

73    The applicant must show that the respondent took adverse action against her, because she exercised various workplace rights, and that the adverse actions were each taken because of a prohibited reason. The onus is on the applicant to demonstrate the exercise of the workplace rights, and that the adverse actions alleged were taken against her. After that, the onus shifts to the respondent (see s 361 of the FW Act) to prove that any adverse action was not taken for a prohibited reason.

74    I will briefly deal with the legislative framework.

Legislative framework

The Fair Work Act

75    Section 340 of the FW Act provides:

 (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.

76    The meaning of “workplace right” is defined in s 341 of the FW Act. That section relevantly provides:

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

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(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.

77    The applicant contends that the respondent breached cl 270 of the Enterprise Agreement in breach of s 50 of the FW Act (which is found in Part 2-1, Division 2). Section 50 provides:

50 Contravening an enterprise agreement

A person must not contravene a term of an enterprise agreement.

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

Note 2:    A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).

The Enterprise Agreement

78    Clause 270 of the Enterprise Agreement reads:

Bereavement leave

270.    Employees will be eligible for 3 days paid bereavement leave on each occasion when:

270.1    a member of their family (including a member of their household) or someone they had a close personal relationship with dies; or

270.2    a child is stillborn, where the child was a member of their family (including a member of their household).

271.    An employee may be asked to provide evidence to support their absences on bereavement leave.

272.    Bereavement leave for an occasion may be taken as 3 consecutive days or in separate periods totalling 3 days. This can include part days.

What is a complaint or inquiry?

79    A “complaint” is “a communication that states a grievance or that otherwise asserts the existence of a state of affairs that its maker alleges is unsatisfactory, undesirable or unacceptable”: PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225; [2020] FCAFC 15 at [137] (Snaden J). A complaint or inquiry qualifies as the exercise of a workplace right if it was “made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise”: Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 at [150] (Snaden J).

80    In Alam v National Australia Bank Ltd (2021) 288 FCR 301; [2021] FCAFC 178 (White, O’Callaghan and Colvin JJ), the Full Court said (at [59]):

In the context of s 341(1)(c), the term “complaint” connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy at [579]-[581] per Dodds-Streeton J (cited with approval in Cummins South Pacific at [13]). Her Honour continued, at [626]-[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.

81    See also PIA at [137] citing Dodds-Streeton J’s observations in Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; [2014] FCA 271 at [29] in relation to the meaning of “complaint”:

… in the context of s 341(1)(c)(ii) of the [FW] Act:

(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; [and]

(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) …

82    An inquiry “involves an investigation or an examination made for the purposes of acquiring knowledge or information” and “includes a request for information or the posing of a question by an employee in relation to his or employment”: Pigozzo v Mineral Resources Ltd [2022] FCA 1166 at [43] (Feutrill J).

83    The characterisation of a communication should not be overly artificial or technical; s 341(1)(c)(ii) is given, in the cases cited above, a reasonably (but not unlimited) broad interpretation.

84    The complaint or inquiry relied upon is subject to a subject matter requirement; that it be “in relation to” the person’s employment. In Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 (CFMEU), Katzmann J said at [61] that:

A relationship connotes a connection or association between two things. Phrases like “related to”, “relating to” or “in relation to” are prima facie, at least, extremely wide.

85    The words “is able to” in s 341(1)(c)(ii) have been construed to mean that the right to make a complaint or inquiry is not at large, but must be underpinned by a legal right or entitlement, the source of which entitlement may include a contract of employment, award or legislation: Shea at [625]; Messenger at [149]; Construction, Forestry, Maritime, Mining and Energy Union v Quirk (2023) 300 FCR 170; [2023] FCAFC 163 at [324]–[330] (Katzmann J).

86    I need to consider whether each complaint or inquiry made by the applicant relates to a workplace right: Alam at [27]. The respondent accepts that a number of the matters relied on by the applicant are exercises of workplace rights by the applicant, and these are identified below.

What is an adverse action?

87    Under s 342(1) of the FW Act, an employer is taken to have taken adverse action 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 employee’s prejudice …

88    An employee is “injured” in their employment if they suffer “injury of any compensable kind”: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 at [4] (Brennan CJ, McHugh, Gummow, Kirby, Hayne JJ).

89    An action which alters the employee’s position to their detriment covers not only legal injury but “any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”: Patrick Stevedores at [4]. Accordingly prejudicial alteration “may occur even though the employee suffers no loss or infringement of a legal right”, but the alteration must be “real and substantial rather than merely possible or hypothetical”: Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244; [2012] FCAFC 63 at [32] (Gray, North and Besanko JJ). The “employee, individually speaking, must be in a worse situation after the relevant conduct than before it and the deterioration must have been caused by the employer’s conduct”: Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178; [2012] FCA 1402 at [86] (Gordon J).

90    In Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93; [2001] FCA 267 the Court explained the reach of the concept of prejudicial alteration at [17]–[18] as follows (in reference to the equivalent provision under the now repealed Workplace Relations Act 1996 (Cth)):

The question is whether, by sending the e-mail to its recipients, Telstra had altered the position of any of its employees to the employee’s prejudice within the meaning of s 298K(1)(c). In Patrick Stevedores at 18 the majority of the High Court held that the subsection covers “not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. The majority also observed (at 20) that the reorganisation of companies within the Patrick Group resulted in the security of the employer companies’ businesses being “extremely tenuous” with the “security of the employees’ employment [being] consequentially altered to their prejudice”. The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure. Although this issue was not in dispute, the majority appears to have had no difficulty in accepting reduced security of future employment as falling within s 298K(1)(c) because it brought about an adverse affection of, or a deterioration in, the advantages enjoyed by the employees before the reorganisation.

Where the alteration of position is alleged to be indirect or consequential, as in Patrick Stevedores and in the present case, a difficult question may arise as to whether a prejudicial alteration of position has in fact occurred. Answering that question may involve questions of degree. It is sufficient for present purposes to say that if the prejudicial alteration is real and substantial, rather than merely possible or hypothetical, it will answer the description in s 298K(1)(c).

91    The principles of s 361 are settled and set out in Alam at [14], which was cited with approval by the Full Court in Serco Citizen Services Pty Limited v Parsons (2025) 310 FCR 436; [2025] FCAFC 83 (Collier ACJ, Needham and Wheatley JJ) at [57]. I need not repeat those principles here; suffice to say, as contended by the respondent, in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria (2015) 249 IR 217; [2015] FCAFC 55 (Dowsett, Bromberg and Murphy JJ) at [55].

The applicant’s alleged adverse actions

92    It is helpful to deal first with whether there are any pleaded actions which would constitute “adverse actions” against the applicant.

93    The onus is on the applicant to show that the pleaded adverse actions resulted in her position being altered to her prejudice – s 342(1) item 1(c) of the FW Act. The way to show this is by comparing the employee’s position before, and after, the action is taken: see Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329; [2007] FCAFC 18 at [127], Qantas [2012] at [30] citing Telstra. The prejudicial alteration must be real and not hypothetical.

94    The applicant bears the onus in relation to both whether a workplace right was exercised, and whether her position was prejudicially altered. If the applicant is unable to establish that any adverse actions were taken against her, then her complaint can proceed no further, because the Court need not proceed to examine whether any adverse actions were taken because of a prohibited reason, namely, that the applicant exercised a workplace right.

95    It is not in dispute, and the respondent accepts, that some of the applicant’s complaints or inquiries were an exercise of workplace rights. In its written submissions it identifies the following as exercises of a workplace right by the applicant:

The Respondent accepts that the Applicant’s complaints about the lack of Acting Manager while her manager was on leave, the conduct of her performance assessment and her bereavement leave complaint each relate to her employment as set out in her Enterprise Agreement, the Public Service Act 1999 (Cth) and the Respondent’s Attendance and Leave Policy, and therefore constitute the exercise of a workplace right within the meaning of s 341(1)(c)(ii).

(internal references removed)

96    I set out below the facts as I have found them, based on the documentary evidence and the evidence of the applicant and of the respondent’s witnesses. The defined terms in (bold) in the next section reflect the characterisation by the applicant of the matters set out, as used in the ASOC.

Factual Determination

97    As noted, Dr Zabortseva commenced work with the APSC in June 2023. She had previously been working on a CALD Sprint project with the Department of the Prime Minister and Cabinet which she says was well-received. She was working at APS5 level. Her appointment to APSC as an EL 1 was by way of a letter headed “Offer of External Promotion” signed by Ms Mornement.

98    At the APSC, she says she made a number of complaints; in very broad terms, they related to security concerns, to her supervision of a graduate employee who was neurodiverse and described by Dr Zabortseva as having “psychological issues”; “ideological controversies” relating to the CALD strategy being developed within the APSC, and the fact that Dr McQuestin was taking “prolonged leaves” without any manager acting in her role. The graduate employee was referred to during the hearing, in order to preserve their privacy, as “the graduate” or “the graduate with psychological difficulties”.

99    Dr Zabortseva also raised issues with her performance appraisals, in particular with comments made by Dr McQuestin. Ms Anderson gave an outline of the performance appraisal process within the APSC, which takes place twice a year; in February, and in June. There are two ratings, “effective” and “needs development” (apart from “not rated”, for specific circumstances such as being newly employed or recently promoted). Dr Zabortseva was rated “effective” in February 2024 and given notice that she would be rated as “needs development” in June 2024. Ms Anderson said that the APSC response to a “needs development” assessment may entail “Back on Track” process, but that the APSC did not progress to this as Dr Zabortseva did not agree with her end-of-cycle assessment in June 2024.

100    The differences of opinion relating to strategy and ideological issues between Dr Zabortseva and other staff at the APSC, escalating to Dr McQuestin, began in November 2023. On 7 November 2023 a media release was sent out by Strategic Communications and Media with which, it seems, Dr Zabortseva disagreed. She objected to the direction of the media release and felt (according to a note by Dr McQuestin) that “the MR focused on the wrong aspect, the problem of racism and that there was a significant risk of people reacting defensively and not positively”. She said (as recorded by Dr McQuestin) that

she wanted to discuss it more with the team because she did not feel they were understanding her view. I told her that no one could be in any doubt of her view as it was clear from the chat.

101    While it is not clearly set out in her ASOC, including a silence as to the date, it appears that this is the first alleged workplace right being exercised, the Strategy Approach Inquiry. She pleads that she sought to discuss this with Dr Subho Banerjee and Dr Steven Munns, Assistant Commissioner, Diversity & Inclusion Branch (senior level executives in the APSC) separately to discuss her concerns regarding the ideological approach of the Strategy, which in her view had “shifted from ‘promoting multiculturalism’ to ‘combatting negative White culture’”. While this is pleaded in the ASOC as the Grant Application Inquiry, there is no documentary evidence that such meetings were sought or that they were not responded to.

102    There are a series of notes in evidence from Dr McQuestin setting out her sessions with Dr Zabortseva to discuss her approach to messaging and communications, the first being a file note on 9 November 2023 that “I also explained the clearance processes in the APS and that these were different to academia and that she was entitled to disagree with the end product but our role was to provide the words and others to decide”. On 20 November 2023, Dr McQuestin documented a discussion on racism and recorded Dr Zabortseva as being:

… upset and [saying] she didn’t see why she had to hear about white prejudice but could not point such things out as the BLM actions. She said she did not feel she could talk freely and did not feel safe to have such conversations.

103    A further comment on Dr Zabortseva’s views was made on 30 November 2023, with Dr McQuestin noting that:

I realised that after the conversation YZ is focused on not offending the white majority but lacking the same sensitivity for minorities in expressing her views.

She has also taken sick leave subsequent to many of these conversations.

104    On 5 December 2023, Dr McQuestin discussed an issue where there were “errors and omissions” and Dr Zabortseva had not done a QA on a list. Dr Zabortseva sought to delegate the work to a secondee as it was APS6 work and she could only use the graduate employee for so much. Dr McQuestin told her that secretariat and administrative work was core work and “we all need to be able to do it”.

105    In January 2024 Dr Zabortseva raised issues with Dr McQuestin regarding the proposed supervision of the graduate with psychological difficulties which was emailed to her by Ms Vrikic (the First Graduate Supervision Complaint). Dr Zabortseva took the view that the graduate’s Reasonable Adjustment Plan was not compatible with the CALD Taskforce’s program of interviews which often, she said, covered difficult and confronting ground. She reported concerns about the graduate’s work ethic, along with issues relating to communication difficulties with a different colleague, in an email to Dr McQuestin of 8 February 2024. That email read:

First week [the colleague] was emailing me on MSTeams that [they struggle] with [the graduate] and that it is difficult for [them] to focus because of [the graduate], and about [the graduate’s] unjustified plans for study and in career, and that [they were] a bit aggressive. I have tried to help; but then it was too much on me, and asked not to have those MSTeams discussions. I was also not understanding why could not we just talk.

First thing on Monday morning [the colleague] started with question to the team “How do we divide Strategy?” without any greeting at all, without questions how was the team-even though we agreed on team discussions before. And that was how [they were] starting days with me before often as well. It all made me doubt what this bid and even Strategy will lead to-what culture it will create and how respectful will it be actually. I understand overall thinking and what I saw in action is not the same; but still.

As we had no chance to talk, I had no option but to engage in conversations on MSTeams, even though I was telling this is not efficient and counter-productive as a waste of time.

I have convinced [the colleague] to make some elements of Strategy to be more encompassing for all; but it was not easy.

[The colleague] spoke to Shannon that [they do] not think we need any team meetings. Shannon recommended we do have these meetings still as Salauddin and [the graduate] were also interested in them. At least we found out [the colleague] was still working on the bid, as we understood [they] submitted all on Friday. Then [the colleague] sent two similar to mine responses from the CALD strategy email box, even though we agreed to exempt [them] from all other work. It was done by mistake [they] said.

[The graduate] was often not at [their] desk. [They] said [they were] busy with comms plan for you and work for [the colleague], when I was mentioning possible assignments. [They] spent almost half an hour with [their] friend near [their] desk this afternoon, telling him we don't have much on happening at the moment. [They] also said it was the 1st time [they] saw our draft Strategy, despite contributing to the discussions before. [They] could not recall that.

(the First Email Complaint to Dr McQuestin).

106    Dr McQuestin responded in relation to the communication difficulties that:

It sounds like there have been some misunderstandings but also some very different working styles which we can talk through.

107    At around the same time, that colleague, an Assistant Director, raised with Dr McQuestin the fact that communication between them and Dr Zabortseva had “broken down” and said they did not feel safe in the workplace. Part of their feeling unsafe was accorded to Dr Zabortseva’s communication style, and an MS Teams chat, also referred to as unsatisfactory by Dr Zabortseva in her 8 February email, was provided to Dr McQuestin as evidence of this.

108    It was clear there was a disagreement between Dr Zabortseva and her colleague, both as to working responsibilities and as to strategy direction, most significantly involving Dr Zabortseva’s views on not presenting a negative view of White culture, but it is of course difficult to appreciate the subtleties of online chats when they are interspersed with in-person and other communications as well. The colleague told Dr McQuestin that they could not deal with what they referred to as Dr Zabortseva’s “volatility” and “fragility”. The colleague set up a discussion with Dr McQuestin and suggested that if a transfer were available, that they be considered. Ms Anderson became aware of Dr McQuestin’s issues with Dr Zabortseva’s behaviour (although she was not aware of her identity at that stage) on 13 February 2024.

109    In January and February 2024, Dr Zabortseva had become concerned, as pleaded in her ASOC at paragraph 59, that

… some interviews needed to be classified at a higher security classification than they currently were, and the Taskforce therefore needed to report to Senior Executive Service (SES) or APSC Security in respect of that.

110    She took the view because of matters disclosed in the interviews for the CALD project, there were security issues, and she also linked the security concerns with the graduate’s health difficulties, as she said they were impacted by the security matters revealed. She sent an email on 17 January 2024 to Ms Michelle Vrkic and Ms Brianna Cayirylys from HR, and Dr McQuestin, raising those concerns (the Second Graduate Supervision Complaint).

111    Dr Zabortseva pleads that on 2 February 2024, she contacted APSC Security and requested a meeting to discuss her security concerns. She says that she met with Mr Adam O’Brian of APSC Security, but he (or Security more generally) did not address those concerns. This was referred to as the Grant Application Complaint. Mr Georgilas gave evidence on affidavit, upon which he was not cross-examined, that he searched the Security Mailbox for the APSC and found no emails from the applicant complaining about information security. There is nothing in the Court Book apart from the applicant’s pleading and her own assertions that this meeting was requested or took place. For example, there is a reference in an email from Dr Zabortseva to Ms Anderson and Ms Mornement on 8 July 2024 where Dr Zabortseva says that:

I consulted with the APSC Security in February, when Mary-Ann was on leave and no one was acting, while Steve and Subho were not responding on my requests for a meeting. My last discussions of security issues were brought during the launch of the CALD Living Experience CRF bid; in response I was asked not to share with anyone else my concerns, and reminded that my final performance assessment would depend upon my manager. Mary-Ann has also stated that there are generally differing positions in the team, and highlighted those. In 2 weeks, I was seconded to another division.

112     I am unable to find on the evidence that Dr Zabortseva did indeed approach Mr O’Brien or APSC security in the terms she pleads in paragraphs 61-63 of the ASOC. It is unlikely that such an event occurred without some contemporaneous electronic or documentary trace of it. Critically, Dr McQuestin does not mention it or her alleged response in the written record of her discussions with the applicant around that time, which is relevant to the next pleaded event.

113    That next pleaded event is that the applicant contends that on 9 February 2024, Dr McQuestin criticised her for “raising matters beyond the Taskforce team by approaching SES and Security”. During this conversation, Dr Zabortseva said Dr McQuestin told her that she should “remember” that she would conducting her performance assessment. This is pleaded as the First Performance Appraisal Adverse Action.

114    It should be recalled that Dr McQuestin was not called and so there is no version countering Dr Zabortseva’s. The applicant does not set out the conversation directly, instead relying on the instructions she gave Maurice Blackburn. The respondent submitted that there was no evidence to establish that this conversation occurred.

115    It does not seem consistent with my finding as to the Security approaches, or with the documentary record, that this conversation would have taken place. Nor is it consistent with Dr McQuestin’s conduct thereafter. It should be recalled that in Dr Zabortseva’s performance appraisal in February 2024, she was rated as “effective”. Dr McQuestin’s email of 1 March 2024 to Dr Zabortseva, dealt with below, does not contain any criticism of her for making those complaints or approaches, and indeed indicates that they could “work together as a team”. That approach is reflected in Dr McQuestin’s email to Ms Vrkic of the same date, in which Dr McQuestin did not mention any concerns around Dr Zaborstseva being in the wrong for approaching Security.

116    In around February 2024 Dr McQuestin sent an email to the People Team mailbox, seeking advice on managing her concerns with Dr Zaborseva’s behaviour. It was at this point that the People Team (or HR) became involved.

117    While the People Team mailbox was at that point available to Ms Mornement, she only became more involved in Dr Zabortseva’s employment matters around May 2024 when she had a meeting with Ms Anderson, Dr Munns, and Dr McQuestin, in order to guide them on managing the Applicant’s return to her substantive position after her time at the People Insights Branch. Ms Anderson was the primary contact and case manager for the applicant’s employment matters until 15 November 2024.

118    On 17 February 2024 Dr McQuestin sent some of the above communications to Ms Vrkic, “for background information”, and on 19 February 2024 Ms Vrkic contacted Ms Anderson and Ms Mornement to assist Dr McQuestin in managing the situation. Ms Vrkic provided information on the Inappropriate Behaviours Policy, relevant legislation, and the Respectful Workplaces e-learning module. Ms Vrkic advised Dr McQuestin on how to manage a meeting with Dr Zabortseva to “call out her behaviour”, and a meeting with the colleague to ensure that they felt supported. Ms Vrkic outlined the support available to each of them, including a referral to the Employee Support Service for Dr Zabortseva and one-on-one coaching if necessary.

119    Dr Zabortseva pleads that at the end of February 2024, she emailed Dr Munns, requesting a meeting to discuss the possibility of a transfer (the Strategy Complaint and First Transfer Inquiry). She pleads that she did not receive a response. The respondent admits that the applicant sent correspondence to Dr Munns seeking a transfer within the APSC. There is, in the Court book, no such correspondence, but there is an email dated 11 March 2014 from Dr Munns to Ms Talbot noting that “Yelena has requested a transfer out of the team, which is a positive”. He went on to say that “I would like to move [her] to another team that is away from CALD work which possibly aligns with her skill set – data/economics”.

120    Dr McQuestin had meetings with Dr Zabortseva on 27 and 29 February 2024. Dr McQuestin set out the conversation in a lengthy email to Ms Vrkic on 1 March 2024. That email included the following:

… [Dr Zabortseva] firmly believed she was in the right and simply exercising her right to express her view. I reiterated several times that once a view has been stated and heard, repeating it is unnecessary and inappropriate and to the extent she was doing it, it was harassing.

…

I also reiterated that it was critically important that even if she did not agree with how her behaviour was seen and felt, that she did not repeat this behaviour because the consequences could be serious. She seemed to understand this but said several times she would resign and then asked for support for a transfer. I encouraged her to reflect as resignation was a drastic step and unnecessary, but if she did decide to transfer I would support her. I told her that I thought we could work as a team, albeit with clear separation.

121    Dr Zabortseva pleads that Dr McQuestin added additional comments to the February performance review (the Second Performance Appraisal Adverse Action). She pleads that this was done “without prior discussion with [her]” despite the two conversations within the previous three days, and were negative, in that they read:

We have spoken about her experience in academia where strong views are regularly exchanged and contested and the APS being a very different environment where debate occurs and then a collective position and view are adopted.

122    Dr McQuestin wrote to Dr Zabortseva on 1 March 2024. I set the email out in full.

Thank you for your time on Tuesday and then on Thursday.

As discussed, some of your recent communications to the team have had a negative impact on team members because of the views you are conveying, the commentary about how the team should work together and the persistence with which you do this. This is also not an appropriate use of MS Teams. I am referring specifically to communications which occurred in early February and I have attached the relevant excerpts.

I have assumed that you do not realise the impact of this style of communication and how it feels to others to be harassing and haranguing and unpleasant.

I understand you do not intend harm, however as explained this behaviour is inconsistent with the APS Values and Code of Conduct and falls within the APSC Inappropriate Behaviours policy.

To assist you in understanding how this style of communication is inappropriate and why it has a negative impact, I have asked you (and all members of the team) to read the Inappropriate Behaviours policy, undertake the Respectful Workplaces training module and to reflect on your communication style and how you can modify it. Further instances of this type of communication could lead to a formal complaint which could have serious consequences. I certainly would not like to see this happen.

As I said, you are a valuable and valued member of the team who makes insightful and considered contributions and supports the work of the team and the members. I believe we can continue to work together as a team.

I appreciate that you have considered this feedback since we spoke and that on reflection you can see the impact persistent repetition can have.

I am happy to discuss this further should you wish to discuss or clarify anything. Please let me know if you disagree with anything in this email. If I do not hear back from you on this, I do not see any reason for this matter to go any further.

I will however discuss with Steve [Munns] the possibility of you transferring as you reiterated today.

I have reviewed the chat that you sent me between yourself and [your colleague] and I do not see it as being of the nature you described – as bombarding however, if that is how you perceived it, then you absolutely have the right to abstain from responding or to advise you do not wish to continue it. I note you did the latter, although it would have been more appropriate to do this in the bilateral chat rather than the team chat.

I will as you requested, forward that chat to HR for their consideration and advice.

Should you wish to seek support the Employee Assistance Support service is available to you and Michelle Vrkic in HR is happy to hear from you on a confidential basis.

123    Dr Zabortseva replied on 4 March 2024, asking for clarification on the way in which her communications were having a negative impact on her colleague. She expressed gratitude to Dr McQuestin and said that she had “learned from you a lot of valuable insights on APS corporate knowledge and nuances on navigating it”. It was a long email which covered a lot of ground, mixing concerns about the colleague not greeting her on Teams, and ascribing to the colleague feelings (which do not seem to be recorded elsewhere in the documentation) that “[the] Aussie ‘how are you’ is a redundant white colonial element, rather than caring approach that any human and constructive person could be guided by?” (the Second Email Complaint to Dr McQuestin and Second Transfer Inquiry).

124    On 1 March 2024, Dr McQuestin emailed Ms Vrkic setting out a meeting she had had with Dr Zabortseva where she “firmly believed she was in the right and simply exercising her right to express her view”. On 5 March 2024 Ms Vrkic replied, noting that she was hopeful that the meeting would result in greater insight on Dr Zabortseva’s part, but Dr McQuestin was less sure, noting that the response to the meeting was “more defensive than reflective”. Later that day, Dr McQuestin raised her concerns with Ms Vrkic as to the colleague’s mental health, noting that they were “really struggling”, and looked to facilitate moving Dr Zabortseva in the interests of the colleague’s mental health.

125    On 6 March 2024, Dr McQuestin replied to the applicant’s emails on 4 March 2024, saying:

I note your views, comments and concerns, which we have discussed previously on a number of occasions. I do not intend to address them again here, although I note your views are the same as originally expressed several months ago and do not appear to have taken on board what was said in those discussions.

I understand you feel strongly but please accept that while many of your views are uncontested, others do not share some of your views and your continued prosecution has impacted negatively on team members. I cannot emphasise enough how important it is for you to reflect, as we all need to do, on the impact on others when you share some of these views or when you continually put them forward.

126    Dr Zabortseva replied later that day:

If there is no counter-arguments on my uncontested views, then something is seriously wrong with the anti-white cultural views of [her colleague].

127    At around this time Dr McQuestin was actively seeking to find a transfer for Dr Zabortseva in order to assist the colleague’s mental health. She wrote to Dr Munns on 8 March 2024 noting her concerns with Dr Zabortseva’s behaviour, characterising it as passive aggressive and gaslighting, and noting “confused thinking in her commentary”. She noted that she wished to transfer her out of the CALD Taskforce which would remove her “problem behaviour” which I infer is Dr Zabortseva’s insistence on changing focus of the CALD strategy away from what she saw as “negative White culture”. Dr Munns was approving of the idea of transferring Dr Zabortseva out of the APSC CALD Taskforce, on the basis that it was a better alignment with her skill set of data/economics, as referred to above at [119].

128    From March until June 2024 Dr Zabortseva was seconded to the People Insights team and, as Dr Munns noted, had “good feedback” in this role. Dr Zabortseva does not characterise her secondment to the People Insights team as an adverse action in her pleading, but does, in her affidavit of 17 March 2023, characterise the transfer as a “reprisal”. The letter from Maurice Blackburn to the APSC of 13 November 2024 does not characterise it as such, noting that:

Dr Zabortseva understood that this transfer was because she had previously expressed an interest in joining the Analytical Branch and the team had previously mentioned they liked her approach during the CALD Employment Strategy.

129    Dr McQuestin wrote to Dr Zabortseva on 17 June 2024, noting that she may have found a permanent placement for her, which would mean she “would not go to Meredith’s team … As this is still being settled with relevant people, I suggest not saying anything to anyone, including Meredith, until we have an outcome”. Dr Zabortseva characterises this as being “contradictory information on transfer”.

130    In June 2024, Dr McQuestin had a discussion with Dr Zabortseva for her June performance appraisal. Ms Anderson had suggested the following approach for Dr McQuestin:

Key points to discuss during meeting:

•    Seek Yelena’s expectations/intentions following the end of the temp transfer - I.e. is she currently actively looking for another role.

•    Advise that you are looking at alternative options and discussing with relevant AC’s etc., ask for updated copy of resume to assist with canvasing other possible placements.

•    End of cycle coming up - there will be a requirement to have performance appraisal discussions most likely with Mary-Ann.

131    Dr Zabortseva wrote to Dr Munns (copying Dr McQuestin) on 20 June 2024 at 9.38pm in which she raised issues with Dr McQuestin’s management of her and referred to her low iron levels (the First Email Complaint to Dr Munns), and on the same day to Dr Gordon de Brouwer, the APS Commissioner, in which she requested a transfer (the Complaint to the APS Secretary). She noted her health had been damaged. She forwarded the email to Dr Munns to Ms Anderson on 23 June 2024. The email concluded, “I am requesting a leave before [any transfer decision] would be taken to avoid further damage to my health”.

132    Dr Zabortseva pleads a telephone conversation with Ms Anderson on 24 June 2024 which ranged over a number of topics (the first complaint to HR). Ms Anderson said she rang because she was concerned about her welfare following Dr Zabortseva’s email of 23 June 2024. Ms Anderson said that the call ranged over various topics, including Dr Zabortseva’s concerns regarding the mismanagement of the CALD Taskforce, the ideological approach, and the management of the graduate with psychological difficulties, her moving to another role, possibly with DFAT, and that she could make a formal complaint to HR if she so wished. Dr Zabortseva’s recollection (as pleaded) does not vary significantly, although she pleaded that Ms Anderson said she would have to accept Dr McQuestin’s performance rating as “requiring developments” instead of “effective”. Ms Anderson does not mention this, and was not cross-examined about the topic. After the telephone call, Dr Zabortseva sent a photo of a medical certificate to Ms Anderson stating that she would be unfit for work from 25 to 27 June 2024 inclusive.

133    The applicant made a formal complaint on 28 June 2024 to Ms Anderson, via email (the Second Complaint to HR). In that email, Dr Zabortseva made complaints to HR in relation to her return to the CALD Taskforce under Dr McQuestin. The complaints included the security concerns, lack of management during Dr McQuestin’s absences, the applicant’s concerns about supervising the graduate and the “conflicting” strategy of the CALD Taskforce which was “confusing and was making team unsettled.” In that email she included a request that Dr McQuestin not conduct her performance assessment:

Final performance assessment to be conducted by another person, with knowledge of my work, former branch manager Ashley, or by Nathan Borgelt, who was my EL2 supervisor last 3 months, but also collaborated with CALD Strategy from its very beginning.

(edited slightly for clarity and spelling)

134    On 1 July 2024, Dr Zabortsevba followed up with Ms Anderson about her security concerns and her request that someone other than Dr McQuestin conduct her performance assessment. She accepted an offer of a meeting between herself, Dr McQuestin, Dr Munns, and Ms Anderson, but queried why it had to be a confidential meeting. On 2 July 2024, following the meeting, the applicant wrote to Ms Anderson thanking her for arranging the meeting, and set out a number of concerns, including her concerns with Dr McQuestin’s management, and asking why Dr McQuestin had entered comments in her mid-cycle review after assessing her as being “effective”.

135    On 8 July 2024, Dr Zabortseva sent an email to Ms Anderson and Ms Mornement headed “Report on potential security breaches. To the APSC Chief Security Officer”, and asked that it be so forwarded. The email described the report as raising issues that Dr McQuestin had:

instructed the team to save all interviews as “official”, while several of them are highly likely needed (and need) to be saved as “protected”. (Among other potential security breaches).

(emphasis in original)

136    In July 2024, Dr Zabortseva’s stepfather died. This was a very sad event for her given his important role in her life and she sought 1.5 days of bereavement leave, which was granted. Subsequently, she sought a further 1.5 days of bereavement leave, which was not granted by Ms Meredith Turner, then Acting Director, Inclusion Policy, Diversity and Inclusion Branch. Dr Zabortseva pleads that Ms Turner, in informing her that she had not been granted leave, said that “some people had previously lied in order to get access to bereavement leave”. Dr Zabortseva responded that she would be able to provide her stepfather’s death certificate, although Ms Turner did not request her to. Accompanying the death certificate was a photograph of her stepfather’s dead body at his viewing.

137    Ms Turner set out her recollections in relation to the photograph in an email to Ms Mornement on 25 November 2024, saying that she had been advised by the People team by telephone that bereavement leave could not be taken when it is broken up or not on consecutive days. She said she advised Dr Zabortseva of this and the time was taken as personal leave. Later, Dr Zabortseva sent her the APS guidelines on bereavement leave which said it could be taken “as 3 consecutive days or in separate periods totalling 3 days. This can include part days”. Ms Turner noted that “I thought that maybe it could be an interpretation issue”. Ms Turner was not called to give evidence, and Ms Mornement said in her evidence that this statement was requested to provide to the respondent’s legal advisors to respond to Maurice Blackburn.

138    Dr Zabortseva wrote again on 25 July 2024 noting that she found it impossible to work with Dr McQuestin and that she felt she was being victimised by raising security concerns. For that reason, she “had to request for protection and recusal of Mrs (sic) McQuestin’s role to conduct my final performance assessment” (the Third Complaint to HR). In this email, she let Ms Anderson know that her stepfather had died.

139    Mr Georgilas wrote to Ms Anderson on 29 July 2024 noting that he was responding as the APSC’s Information Security Advisor, and noted that, on the information available to him, he did not believe there were any potential security breaches.

140    Ms Anderson replied to Dr Zabortseva on 30 July 2025, providing information about next steps, including how to raise a formal complaint and providing Mr Georgilas’ determination of the security issues. She also asked if Dr Zabortseva wished for Dr Munns to provide her performance assessment instead of Dr McQuestin, although noted that Dr Munns would need to rely on Dr McQuestin and her supervisors at the People Insights team.

141    On 31 July 2024 Dr Zabortseva wrote another email of complaint to Ms Anderson, covering similar ground as previous complaints, and attaching the death certificate and photograph (the Fourth complaint to HR).

142    Between 7 August and 13 September 2024 Dr Zabortseva took leave, and travelled to Kazakhstan where her family lived. On her return, she pleads that “Dr McQuestin had entered negative comments for her final performance appraisal, despite HR’s assurances that this would [not] be done until [her] return”. The comments included a reference to the secondment to the People Insights team as “Yelena moved out of the Branch because her behaviours had impacted adversely on the other team members” (the Third Performance Appraisal Adverse Action). Dr Zabortseva complained to Ms Anderson by email on 18 September 2024 about this, alleging that her request for her performance appraisal to be conducted by someone other than Dr McQuestin had been ignored, and “[t]he comments had been entered in breach of the APS regulations, which required a discussion with [her] prior to Dr McQuestin entering any comments in relation to her performance” (the Performance Appraisal Complaint). On 11 October (the Fifth Complaint to HR) and 17 October (the Performance Appraisal Inquiry), she followed up on previous complaints in relation to her security complaint, her other complaints, and the performance appraisal comments. She characterised the performance appraisal comments as “unfair and not truthful”.

143    Ms Anderson sent an email to Dr Zabortseva directing her to attend an IME. The email was sent on 14 October and the date for the IME was 17 October 2024. That letter provided (after noting that an Internal Review of Action would be conducted on her complaints about “decisions that have been made in your work unit”), as follows:

2. Independent Medical Evaluation

We have concerns for your emotional and physical wellbeing in the workplace and the seriousness of the claims that you cannot work in the Diversity and Inclusion Branch. To support you working in a psychosocial safe environment, we need additional information to make an informed decision.

As such, we have arranged an independent medical evaluation with our Nominated Medical Practitioner. This is booked for Thursday, 17 October 2024 from 9am to 12noon. Further details will be sent separately in a direction to attend letter later today.

The purpose of a referral of this type would be to obtain an assessment of your fitness to undertake inherent tasks and responsibilities of your position, at the relevant classification, in a safe and productive manner. Our goal is to ensure that you receive the necessary support to be a productive member in the workplace.

In this regard, to support the wellbeing of all, we will seek expert guidance from the Nominated Medical Practitioner regarding your fitness for duty, including capacity to participate in discussions or processes about performance or conduct, and/or any reasonable adjustments to the work environment particularly in the Diversity and Inclusion space that needs to be considered.

Miscellaneous Leave - until such time as we are able to seek further medical advice you will be placed on a period of miscellaneous leave with pay and we will advise you once we have received the report on what action will be taken in the workplace.

This leave will commence from tomorrow, Tuesday, 15 October 2024.

144    The Nominated Medical Practitioner was Dr Timothy Doyle, a psychologist. The letter went on to provide details of the Employee Assistance Program.

145    When the details were provided to her, seeking that she fill out a consent form, Dr Zabortseva indicated that she did not consent to attend, and “[n]o explanation was given as to why [I] have to attend this examination either”. She took issue with the short period of notice, and sought a postponement for her to seek a lawyer, and as a result the IME was postponed to 31 October 2024. Dr Zabortseva asked for access to the information that had been sent to the doctor and noted that she had not received any response in relation to an appeal from the decision on her security complaint (the Medical Assessment Complaint).

146    Ms Anderson replied by indicating they would “seek guidance on this from our legal team and security advisors” and would revert to her. That same email noted that her miscellaneous leave with pay would continue “at this stage” from the next day, 15 October 2024, to Friday 8 November 2024 inclusive (the Miscellaneous Leave Adverse Action). The applicant claims that she was provided the documentation that was provided to the medical examiner when it was sent to Dr Doyle, on 28 October 2024.

147    The referral letter to Dr Doyle included a chronology of events. The chronology set out in a fairly structured way the concerns that the respondent had with Dr Zabortseva’s conduct from around February 2024. Ms Anderson said in her evidence that the chronology commenced in February 2024 because she herself commenced work with the APSC in late January 2024. It commences with “inappropriate behaviour and use of resources” (a reference, it seems, to the various Teams discussions with the colleague which it is noted was occurring “from Dec 23 and Jan 24”). It was noted that Dr Zabortseva did not agree with the assessment of her behaviours, and had requested a transfer. Prior to her return, the chronology notes, “Director 1” (presumably Dr McQuestin) “re-iterated to [Dr] Zabortseva that in returning to the team she must display appropriate behaviours and be accepting of other people’s views and working styles within the team”. It notes that Dr Zabortseva again did not agree with that assessment, and sent the series of late June and July emails. It noted the sending of the photos of her deceased stepfather in an open coffin, and noted that “HR did not request this type of material and was not provided any warning” (emphasis in original).

148    Dr Zabortseva took significant issue during the hearing and in her supplementary written closing remarks with the chronology provided to Dr Doyle. The truth or otherwise of the matters in that chronology, along with the failure to include positive performance assessments of her work, formed a significant part of her focus in cross examination of Ms Anderson. This falls within the unpleaded s 345 misrepresentation allegations, and is not being considered as part of the applicant’s claim. However, the chronology is useful as it demonstrates the concerns that the respondent had with the applicant’s conduct in the workforce, the repeated instances of that conduct, and the impact that the conduct was having on her colleagues.

149    Dr Zabortseva cross-examined Ms Anderson as to what she saw as inaccuracies in the chronology; she asked why the fact that Dr McQuestin had been on extended absences during the timeframe of the chronology was not included, why “these behavioural issues were not confirmed” by way of an investigation, and that it was suggested that “some of my complaint elements couldn’t be validated”.

150    On 29 October, the applicant’s lawyers Mr Bornstein and Ms Braganza wrote to Ms Mornement noting that they were taking instructions and sought a further postponement of the IME. On 30 October, the APSC Legal branch replied setting out reasons for the IME (therein referred to as a Fitness for Duty or FFD Assessment), and described it as a “lawful and reasonable direction, a breach of which may constitute a breach of the Australian Public Service Code of Conduct under subsection 13(5) of the Public Service Act 1999.” In the letter the APSC Legal branch responded it would not be amenable to a further postponement, citing their primary duty under the Work Health and Safety Act 2011 (Cth) (WHS Act), and directed Dr Zabortseva to attend the 31 October 2024 appointment. Maurice Blackburn responded requesting a further postponement. It is not clear if there was a response to that letter before the time fixed for the medical appointment.

151    Dr Zabortseva did not attend the medical appointment.

152    On 5 November 2024, Ms Anderson sent “Legal” an outline of the “procedures for determining a breach of the code of conduct”.

153    In early November, Mr Georgilas approved an extension of miscellaneous leave with pay to 15 November 2024. Dr Zabortseva was notified of this via an email from Ms Sue Mahony, Acting General Counsel of the APSC, on 8 November 2024, in response to an email from Ms Braganza notifying the APSC that Dr Zabortseva intended to return to work on 11 November and to work from home.

154    Maurice Blackburn sent a substantive response, setting out a number of complaints, to Ms Mahony on 13 November 2024. That letter substantially reflects the complaints in the Originating Application and the ASOC. There was an ongoing exchange of correspondence between Maurice Blackburn and the APSC Legal Branch which is summarised briefly below.

155    On 15 November 2024, Dr Zabortseva’s miscellaneous leave with pay was extended to 29 November 2024. On 29 November 2024, Dr Zabortseva’s miscellaneous leave with pay was extended to 13 December. In early December, the direction to attend the IME was withdrawn and after a “without prejudice” meeting between the lawyers, a compromise agreement was reached, which was for a medical assessment to be undertaken by the applicant’s GP, with a rehabilitation counsellor in attendance. Her miscellaneous leave with pay was extended to 17 January 2025. The letter to the GP is in evidence and seeks an opinion on:

•    an assessment of Dr Zabortseva’s mental health, wellbeing and potential impact on workplace interactions and behaviours;

•    whether there any restrictions on specific tasks or activities that the Commission needs to consider for a Dr Zabortseva return to work plan;

•    what are safe and reasonable work duties and hours for Dr Zabortseva (for example, 5 hours per day);

•    whether there are any other factors affecting Dr Zabortseva’s recovery or capacity that we need to be aware of as her return to work coordinators (i.e. side effects of medications);

•    recommendations for any reasonable adjustments or support that may be required within the workplace to help Dr Zabortseva manage her psychological health effectively;

•    in your opinion Dr Zabortseva’s current capacity to perform her role on a full-time basis;

•    whether Dr Zabortseva is able to participate in conversations around performance, where required or undergo formal performance improvement processes. If not, we request an outline of when and how these types of discussions should be structured (noting that feedback in the course of employment is normal and reasonable action);

•    whether working in the Diversity and Inclusion Branch/Environment is suitable for Dr Zabortseva;

•    suitable tasks, with consideration to Dr Zabortseva’s position description and her concerns around working under direction of the Senior Executive, Diversity and Inclusion Branch; and

•    a list of the documents you have reviewed and considered as part of your assessment.

156    In early January 2025, the applicant declined the compromise outcome of the GP assessment, and a further settlement was discussed. On 17 January 2025, a further IME direction was given to Maurice Blackburn for Dr Zabortseva and her miscellaneous leave with pay extended to 24 January 2025. That direction referred to the two medical certificates Dr Zabortseva had provided, the first being from her GP dated 23 December 2024 indicating that that she was fit to return to work but that the APSC did not regard that as addressing their concerns as set out above. In the IME direction, it was noted that:

The medical certificate provided states your views but does not provide Dr Clarke’s medical opinion. It does not demonstrate that Dr Clarke has considered your position description or your role, nor does it provide Dr Clarke’s medical opinion as to why the identified injury does not impact your ability to perform your role.

157    The second GP medical certificate provided was dated 20 January 2025, and indicated an unspecified physical injury which resulted in surgery to her hand. Dr Clarke noted that “The injury that she sustained is a physical injury and this has had no impact on her mental health which is stable”. No indication of any testing or screening that Dr Clarke undertook to reach the conclusion as to Dr Zabortseva’s mental health was given.

158    In January 2025, a number of senior and executive staff of the APSC consulted about the steps to take in relation to Dr Zabortseva and her refusal to attend the IME. Dr Bacon became involved in January 2025 when Ms Mornement briefed her and requested that she make a decision in relation to the applicant’s employment.

159    Dr Bacon, a Deputy Commissioner, and the decision-maker in relation to the commencement of the Code of Conduct process, gave evidence as to the process by which she reached her decision. Dr Bacon denied taking action for any prohibited reason.

160    Dr Bacon referred to the “Procedures for Determining Breaches of the Australian Public Service Code of Conduct and the Imposition of Sanctions” document, and set out in her affidavit an account of a number of meetings where concerns as to Dr Zabortseva’s fitness for duty were raised. She said that she was concerned to understand whether Dr Zabortseva’s “personal circumstances” and cultural background had been taken into account in considering her employment issues. Dr Zabortseva took issue with this as Dr Bacon referred to her background in the context of “circumstances occurring in the former Union of Soviet Socialist Republics”, to which Dr Zabortseva referred as being discriminatory. She said in opening:

It was upsetting that not a reference to my country of birth, Kazakhstan, was there, but an assessment of its political historical background was there, rather, ex-Soviet country, and an implication that this ex-Soviet heritage could somehow influence my values and me – my guidelines as being Australian. Actually, I often think that all the negative aspects from authoritarian states that I’ve experienced have drawn me to be more embracing Australian democratic values, rather than shape my views. It was despite my ex-Soviet country background, and Kazakhstan has been independent for 30 years. That’s part of discrimination that I felt was associated with it.

161    In cross-examination, Dr Zabortseva asked Dr Bacon:

DR ZABORTSEVA: Dr Bacon, you did mention that you wanted to understand my personal circumstances, yet I’m still struggling to understand why USSR in particular. What, specifically, in the USSR was making you – heritage was making you alarmed?---It was not a question of heritage at all. It was a question about my generalised understanding of the approach that governments in some former USSR countries could take with regards to citizens, and the requests of citizens and the treatment of citizens.

162    On 5 February 2025, Mr Georgilas and Ms Montenegro recommended that the APSC commence a Code of Conduct process. Dr Zabortseva’s miscellaneous leave with pay was extended to 14 February 2025. Dr Bacon said that she made more inquiries around why the applicant had refused to attend the IME. She received a number of briefs in early February, which included the direction, a draft letter, a timeline of interactions between the applicant and the People Team from February 2024 to February 2025, and a zip folder which contained the APSC correspondence with Maurice Blackburn.

163    In relation to the Code of Conduct process, the timeline stated (for September 2024):

It was agreed that an independent medical assessment would be arranged due to concerns around Yelena’s mental health and wellbeing.

Our goal is to ensure that she receives the necessary support to manage her mental health effectively. An independent assessment can be beneficial when there are concerns that the state of an employee’s health may be affecting the employee’s work performance and or behaviours.

164    The timeline referred to some of the matters pleaded by the applicant as FW Act “complaints and inquiries” (for example, the emails to Dr Munns and Dr De Brouwer in June 2024, “elements of the [CALD] project” (presumably a reference to Dr Zabortseva’s expressed concerns with the expression of negative views around White culture), the security complaint, her concerns with Dr McQuestin, and her issues around integrity and duty of care. It further noted that “Concerningly Yelena included photos of death certificate and a photo of her deceased [step]father which was quite a shock and confronting for HR to receive this type of material without any request or warning of what the photo contained”.

165    I have already dealt with whether the discrimination and the Code of Conduct complaint can proceed, and have decided against that. Even if I had not regarded them as improperly pleaded, I do not consider that Dr Bacon made the decision to commence a Code of Conduct process for any prohibited reason. The strong thread throughout the correspondence is concern with Dr Zabortseva’s conduct which was causing difficulties in the workplace, including her communication, perseveration, inability to accept feedback, and somewhat erratic behaviour such as the provision of the photograph and her subsequent apology noting that “it was a moment of despair”.

166    Dr Zabortseva lodged her Originating Application which was accepted for filing on 18 February 2025.

Alleged adverse actions - performance appraisals by Dr McQuestin

167    I will deal with the three performance appraisal allegations together, as they arise in the context of Dr McQuestin providing feedback to Dr Zabortseva in relation to her performance, both in the context of her formal reviews and outside of it.

First Performance Appraisal (paragraph 64 of ASOC)

168    As noted above, I do not accept that the conversation with Dr McQuestin which forms the basis of the First Performance Appraisal Adverse Action occurred. However, even if it did, I am satisfied that there was no adverse effect or deterioration in the advantages enjoyed by the applicant in her employment. The rating of “effective” in which context the alleged comments were made did not result in any performance management or Code of Conduct process. The “complaint or inquiry” to which Dr Zabortseva seeks to link the First Performance Appraisal adverse action – the Grant Application Complaint – is not supported by any contemporaneous documentation to show that it occurred. Mr Minucci submitted that Dr Zabortseva made no suggestion at all:

of exposure to any detriment, there’s no suggestion of any exposure to performance management or even the potential for performance management, and there is no evidence that that action, if established, would have (had) any effect on the applicant at all.

169    Even if one accepts that the conversation with Dr McQuestin occurred, the onus lies on the applicant to demonstrate that it altered her position to her prejudice. I do not consider that there is any evidence that it did so. Dr McQuestin’s email of 1 March 2024 indicates that while she was supportive of Dr Zaborsteva moving out of the CALD project, she regarded her as a valuable team member, with whom she believed she could continue to work.

170    I am unable to find that, even if the conversation occurred, it was an adverse action in that it did not alter Dr Zabortseva’s employment position to her detriment.

Second Performance Appraisal (paragraphs 68 to 70 of ASOC)

171    The applicant says that her mid-cycle performance appraisal was completed in early February, she was rated as “effective” and no further comments were provided. However, Dr McQuestin added “additional comments” to her mid-cycle performance appraisal on 29 February 2024. In her opening, Dr Zabortseva noted that:

In two days after my email, Dr McQuestin added first negative comment on my performance assessment. Now, once performance assessment is done, it’s usually set. However, in two days after I’ve asked to transfer there were some additional comments added to my effective performance assessment. In a few weeks after that, Dr McQuestin sent a counter email to human resources complaining on me [and then followed a reference to the “uncontested views” email].

172    The comments objected to by the applicant reflect the content of the email from Dr McQuestin to Ms Vrkic of 1 March 2024 which sets out a discussion with Dr Zabortseva (although it does not refer to her “experience in academia”). The feedback also reflects the terms of the email Dr McQuestin sent to Dr Zabortseva on the same date. The email reads as a manager seeking to deal with two employees who were finding it hard to work together, and trying to work through Dr Zabortseva’s somewhat idiosyncratic communication style. For instance, Dr Zabortseva had complained that her colleague did not greet her when commencing a conversation on Teams; Dr McQuestin commented on this in her summary to Ms Vrkic that “construing a lack of greeting as exclusive or potentially leading to open conflict was extreme”.

173    The response of the Legal branch to Maurice Blackburn of 29 November 2024 noted that the comments from Dr McQuestin were only visible by Dr McQuestin (as her manager at the time) and by Dr Zabortseva.

174    The respondent submitted that the Second Performance Appraisal did not alter Dr Zabortseva’s position to her prejudice, or pose any practical detriment or harm to her employment. It was submitted that she was not injured by the feedback.

175    In the applicant’s written reply submissions, she submitted:

Instead of addressing my complaint, a month after my official complaint, Ms Vrkic and Dr McQuestin entered defamatory comments in my file. This was done without notifying me and without any investigations. Ms Vrkic did not sign conflict of interest form. I was transferred to another section with prejudiced and negative comments to another section, while no investigation was conducted.

176    I agree with the respondent’s analysis of the lack of any prejudicial alteration of Dr Zabortseva’s position. The feedback was just that; not performance management, or any kind of discipline. It reflected the conversations that Dr McQuestin had been having with Dr Zabortseva in late February 2024 and did not amount to an adverse action for the purposes of her pleaded FW Act claims.

Third Performance Appraisal (paragraph 90 of the ASOC)

177    Dr Zabortseva set out in her ASOC that upon her return from annual leave on 13 September 2024, Dr McQuestin had entered the following “negative comments” in her end of cycle performance assessment in her absence: “Yelena moved out of the Branch because her behaviours had impacted adversely on the other team members”. That comment was only part of the notes left in her performance assessment.

178    Dr McQuestin included in her comments that “I also spoke to Yelena about the expectation that she be willing and able to supervise staff, noting her refusal to supervise [the graduate] due to [their] anxiety.” She further noted the various discussions she had had with Dr Zabortseva:

… about her behaviour … and noted in the assessment that her communication style was different to that in the APS. However this approach did not lead to a change in behaviour [and then follows the comment about the movement out of the Branch]”.

179    Dr Zabortseva also raised in relation to this performance assessment an email chain in which Ms Vrkic apparently asked Dr Nicole Steele (Dr Zabortseva’s manager at the People Insights team) as to whether there were any behavioural issues during her transfer. Dr Steele indicated that “there has definitely been no behavioural issues relating to Yelena since she started working on our area”. Dr Zabortseva characterised this question to Dr Steele as being “negative feedback … that assumes the concerns about my behaviour”. Both the positive and less positive (“needing more supervision than EL1”) comments from the People Insights branch were included in Dr McQuestin’s comments.

180    Dr Zabortseva submitted that while there were positive aspects to the comments (“[her] willingness, positivity and willingness to participate and contribute [in the Insights Branch] were obvious”) the negative comments, including comments on her written communication and work performance formed part of the adverse action.

181    There was a dispute about when the comments were uploaded. Dr Zabortseva sought to characterise the date issue as having relevance because Dr McQuestin was on leave and was, it can be inferred, suffering from psychological difficulties. In opening, Dr Zabortseva characterised this as “while [Dr McQuestin] was writing that she was unable to function for a month, she was called from her medical leave to do … my performance assessment.” She laid a great deal of emphasis on her contention that the performance assessment was uploaded while Dr McQuestion was on medical leave. Dr Zabortseva, as noted above, asked me to assume that the timing indicated that Dr McQuestin had reservations about the performance appraisal, and that she uploaded it while affected by psychological issues. I cannot make those inferences or assumptions from a mere contention about the dates. There is nothing in the evidence which leads me to conclude there is a nefarious reason, or one based on incapacity, for the timing of the appraisal.

182    The respondent submitted that the negative comments were entered as part of the applicant’s performance appraisal, by way of feedback and as part of the managerial supervision of Dr McQuestin. They indicated “areas where the applicant could benefit from some additional support” and noted the difficult personal circumstances of Dr Zabortseva including the death in the family.

183    The comments were formulated in around July 2024 (as is evidenced by their being provided by Dr McQuestin to Ms Anderson and Dr Munns for feedback on Tuesday 23 July). There is no evidence to establish the actual date on which comments were uploaded, apart from a screenshot apparently taken from the “APSC HUB” admitted as Exhibit 3, which is an image of an online file titled “YZ end of cycle” with a date of “12/09/2024”. The applicant relies on this evidence to prove that her end of cycle performance assessment was entered during Dr McQuestin’s period of leave absence. There is however, even if it were important, no evidence as to whether Dr McQuestin undertook the uploading personally.

184    Again, the respondent submitted that there was no negative outcome or performance management which arose out of the comments and that apart from the persons who were asked for feedback, the only persons who could see those comments were Dr Zabortseva and her manager at the time; ie, Dr McQuestin.

185    The respondent submitted that the applicant’s position was not affected to her detriment by reason of these comments. It pointed to the fact that no processes were commenced after the “needs development” rating, and no performance management would, in any event, be undertaken until any “Back on Track” support process had been undertaken, as set out above.

186    This performance feedback is comparable to the Second Performance Appraisal Adverse Action. I find that it did not injure the applicant in her employment, or place her in a worse position than she had been previously. Accordingly, it is not an adverse action for the purposes of the FW Act complaints in the ASOC.

Alleged adverse action – the applicant is directed to attend an independent medical examination (paragraph 94 of the ASOC)

187    On 14 October 2025, Dr Zabortseva received correspondence from Ms Anderson directing her to attend an IME with the APSC’s nominated medical practitioner on 17 October 2025. This examination was rescheduled to 31 October 2024.

188    Ms Anderson set out in her affidavit the process by which an employee is directed to attend an IME. She had the delegation to do this but normally a SES Band 1 or higher would be briefed and make the decision. Ms Talbot, the First Assistant Commissioner (SES Band 2) made the decision in this case. Mr Georgilas and Ms Mornement had consulted with Ms Anderson on the direction. Ms Anderson said at paragraphs 58-59 of her affidavit:

A direction to attend an IME is made pursuant to regulation 11 of the Regulations. Regulation 11 applies where an Agency Head believe that the state of health of an APS employee in the Agency:

(a)    may be affecting the employee’s work performance; or

(b)    has caused, or may cause, the employee to have an extended absence from work; or

(c)    may be a danger to the employee; or

(d)    has caused, or may cause, the employee to be a danger to other employees or members of the public; or

(e)    may be affecting the employee’s standard of conduct.

Regulation 11 also applies where an APS employee is to be assigned new duties and the Agency Head believes the employee’s state of health may affect their ability to undertake the duties, or where an APS employee is to travel overseas as part of their employment.

189    Ms Anderson gave evidence that the APSC was guided by the WHS Act and the Disability Discrimination Act 1992 (Cth), each of which imposes positive obligations on the employer to be guided by medical advice and to make reasonable adjustments for employees.

190    Dr Zabortseva cross-examined Ms Anderson on her evidence that “[w]e will not automatically jump to an IME as the first step to gather the information required”. She also cross-examined her on the timing of the IME, the documentation provided, and Ms Anderson’s statement that “we provide only factual information, restricted to the position and the requirements”. The cross-examination did not establish that Ms Anderson’s reasons for the IME direction were because of any specific complaints or inquiries, although the pleaded complaints and inquiries did form part of the concerns as to the applicant’s health.

191    The respondent submitted, on the basis of Ms Anderson’s evidence, that a direction to attend an IME is facilitative, and not punitive. It was submitted that the direction to attend an IME is a “lawful and reasonable direction” under s 13(5) of the Public Service Act, and that Dr Zabortseva was required to comply with it. The respondent as noted above did reschedule the appointment to 31 October 2024 but declined to postpone it further.

192    Mr Minucci submitted that mere direction to attend an IME has no material impact on employment, and is consistent with the respondent’s obligation under workplace health and safety, and anti-discrimination legislation. There were, he submitted, layers of protection to an employee “before it could be said that there is any adverse or detrimental outcome in respect of their employment”. He submitted that a medical examination:

… has no material effect on their employment whatsoever. And that’s particularly so in circumstances where the respondent has a number of other obligations that it must comply with in relation to the return to work of particular employees, including things like the anti-discrimination legislation, workers compensation regimes, the Work Health and Safety Act. All of those particular things add layers of protection to employees before it could be said that there is any adverse or detrimental outcome in respect of their employment.

193    The applicant’s pleading is that it was the direction to attend the medical appointment itself which constituted the adverse action (paragraph 94 of the ASOC). Her cross-examination, particularly of Ms Anderson, focused on a number of other matters; the period of time from the first concerns set out in the chronology (February 2024) until the direction in October 2024; the “false” information given to Dr Doyle including as to the length of any absences; and the short timeframe between the direction and the first appointment. She contends that the alleged behavioural issues were not investigated, and therefore they were not “confirmed”, and should not have been included in the information provided to the doctor.

194    As Dr Zabortseva said in her closing submissions, “So I was supposed to undergo independent medical assessment when – based upon alleged actions that were not verified by the respondent and that were not confirmed by the respondent.” However, the documentation makes it clear that there was significant concern about her behaviour, and concern about the impact that the Taskforce work was having on her. An independent verification or an investigation is not the only way to establish the need for an independent medical examination.

195    Ms Anderson gave evidence about the decision to direct an employee to attend an IME as being based on reg 11 of the Regulations. She said at paragraph 58 of her affidavit that:

A direction to attend an IME is made pursuant to regulation 11 of the Regulations. Regulation 11 applies where an Agency Head believe that the state of health of an APS employee in the Agency:

(a)    may be affecting the employee's work performance; or

(b)    has caused, or may cause, the employee to have an extended absence from work; or

(c)    may be a danger to the employee; or

(d)    has caused, or may cause, the employee to be a danger to other employees or members of the public; or

(e)    may be affecting the employee's standard of conduct.

196    Regulation 11 provides:

11    Direction to attend medical examination

(1)    This section applies if:

(a)    an Agency Head believes that the state of health of an APS employee in the Agency:

(i)    may be affecting the employee’s work performance; or

(ii)    has caused, or may cause, the employee to have an extended absence from work; or

(iii)    may be a danger to the employee; or

(iv)    has caused, or may cause, the employee to be a danger to other employees or members of the public; or

(v)    may be affecting the employee’s standard of conduct; or

(b)    an APS employee is to be assigned new duties and the Agency Head believes the employee’s state of health may affect the employee’s ability to undertake the duties; or

(c)    an APS employee is to travel overseas as part of the APS employee’s employment.

Note:    Examples of extended absences are:

(a)    an absence from work of at least 4 continuous weeks; and

(b)    a combined total of absences from work, within a 13-week period, whether based on a single or separate illness or injury, of at least 4 weeks.

(2)    For the purposes of subsection 20(2) of the Act, the Agency Head may:

(a)    by written notice, direct the APS employee to undergo an examination, within the period specified in the notice, by a medical practitioner nominated by the Agency Head to assess the employee’s fitness for duty; and

(b)    if the employee is given a direction under paragraph (a)—by written notice, direct the APS employee to give the Agency Head a report of the examination within the period specified in the notice.

(3)    A direction may be given under paragraph (2)(b) in the same notice as a direction given under paragraph (2)(a) or in a later notice.

(4)    To avoid doubt, subsection (2) does not limit the authority of an Agency Head to give any other lawful and reasonable direction.

(5)    The nominated medical practitioner may give the Agency Head a report of the examination.

Note:    The Privacy Act 1988 has rules about keeping records of personal information.

197    In Dr Zabortseva’s case, there was clearly concern about her behaviour at work and her communication style, as well as her discordant views on the Taskforce strategy, and these had an impact on other employees. Her sending of the photograph of her stepfather’s body clearly caused a number of people to have regard to her mental health, and Dr McQuestin’s documentation of her concerns about Dr Zabortseva’s inability to accept constructive feedback has, as an undercurrent, concerns as to whether she was coping with her role. Certainly there were impacts on the mental health of the colleague.

198    It seems to me that the direction itself to attend a medical appointment, where Dr Zabortseva’s conduct had been erratic and affecting other employees, cannot be an adverse action, particularly where the respondent has statutory duties to ensure the health and safety of its employees. Dr Zabortesva pointed more to her concerns with the process and the underlying decision to make the direction, and not the direction itself, which is the pleaded adverse action.

199    I find that the direction in October 2024 for Dr Zabortseva to attend an IME was not an adverse action on the part of the respondent, but a lawful and reasonable direction under reg 11(1)(a)(i), (iv), and (v).

Alleged adverse action - The applicant is placed on miscellaneous leave with pay (ASOC paragraph 97)

200    On 14 October 2024, Ms Anderson advised Dr Zabortseva that the APSC would process miscellaneous leave with pay from 15 October 2024 – 8 November 2024. Mr Georgilas made a further decision on 8 November 2024 to continue the miscellaneous leave with pay.

201    Ms Anderson, in her evidence, noted that miscellaneous leave with pay was an entitlement over and above annual leave, and did not affect the leave balance.

202    Dr Zabortseva characterised the placement of her on miscellaneous leave with pay as an adverse action because it deprived her of the ability to attend work. The respondent accepted that there is a “potential detriment” in not being able to attend work, but where, as here, the absence was intended to be temporary and pending the outcome of the IME, it was a short term interruption with her employment and not an adverse action in the sense required by the Act, as she was not “injured” in her employment or suffered a deterioration in her employment per se.

203    In relation to the applicant’s submission that putting her on leave with pay because she was not able to work, the respondent distinguished cases such as Quinn v Overland (2010) 199 IR 40; [2010] FCA 799 (Bromberg J) because the observations as to the enjoyment of the benefit of work was made in an interlocutory, and not a final, context; that case and those like it sought to injunct a suspension, dismissal or to reinstate employment pending the outcome of an interlocutory application or a trial. In this case it was submitted that Dr Zabortseva was not being deprived of work on an extended basis (although, in the course of events and in the context of Dr Zabortseva commencing these proceedings, that has in fact been the outcome). Mr Minucci submitted that where the absence was designed to be temporary and for a supportive or constructive purpose such as a medical appointment, it cannot be laid at the foot of the employer that the applicant refused to attend the appointment and in effect “frustrated the process and has continued to frustrate the process such that [the miscellaneous leave with pay] has not yet concluded so as to allow the respondent to safely facilitate the applicant’s return to work”.

204    The respondent submitted that a direction to an employee not to attend work pursuant to a lawful and reasonable direction was not an adverse action. Mr Minucci relied on Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633 (Rothman J) where his Honour said (at [414]):

 I conclude that it is a concomitant of one or other of the aforesaid implied duties that an employer has the right to direct not to perform work for a closed period during the course of an investigation into allegations of misconduct. Assuming that the duty is exercised in good faith, such a direction not to perform work is not a breach of a contract of employment. It is unnecessary and unwise to express a view as to other circumstances in which such a direction may be appropriate.

205    While Dr Zabortseva was not being investigated for misconduct, the direction to attend the IME was exercised in good faith and was lawful and reasonable. The placing of Dr Zabortseva on miscellaneous leave with pay while negotiations about her attending the IME likewise is a reasonable response by the respondent. It should be recalled that Dr Zabortseva sought legal advice once the IME was directed, and the IME was postponed at her request to allow her to seek that legal advice. She did not attend and her miscellaneous leave with pay was extended on a number of occasions.

206    I am of the view that while this is a matter which altered her employment conditions, it was in response to her refusal to attend a lawfully directed IME. Miscellaneous leave with pay did not affect her other entitlement to leave, nor her superannuation entitlements. I accept Mr Georgilas’ evidence that the miscellaneous leave with pay decisions were made with the intention to have her return to work in an environment that was safe to herself and her colleagues. I find that it was not an adverse action, in part because the alteration to her working conditions, in the context of the negotiations about her attending the IME and her eventual return to work, was not “real and substantial” (see Qantas at [32]). In any event, she has not pleaded that the miscellaneous leave decision was made in response to any particular complaint or inquiry. I deal with this aspect in the next section.

Determination on adverse actions

207    I have determined that none of the adverse actions pleaded were indeed adverse to the applicant in that none of them affects her in the ways required in s 342(1)(b) (injury) or (c) (prejudicial alteration of her position).

Did Dr Zabortseva exercise a workplace right?

208    Dr Zabortseva alleges a total of 18 complaints and inquiries made in relation to her employment. The respondent accepts that the applicant’s complaints about the lack of Acting Manager while her manager was on leave, the conduct of her performance assessment, and her bereavement leave complaint each relate to her employment as set out in her Enterprise Agreement, the Public Service Act and the Respondent’s Attendance and Leave Policy, and therefore constitute the exercise of a workplace right within the meaning of s 341(1)(c)(ii).

209    However, the respondent contends that the applicant has failed to identify precisely which rights were exercised and when, and has been unable articulate the connection of each workplace right to the relevant adverse action. The actions accepted as workplace rights were not sufficient to engage the reverse onus in s 361, in that there needs to be a temporal connection or a causal connection between the exercise of those rights and the relevant adverse action.

210    As I have found that none of the five actions relied upon are in fact adverse actions within the meaning of the FW Act, I do not need to go further than this in analysing whether various communications or actions were indeed an exercise of a workplace right. However, I will deal with each of them in very brief compass, noting that the factual basis for each is commented on above in some detail.

The Strategy Approach Inquiry

211    Dr Zabortseva claims that she had queried the approach taken by the Taskforce toward the CALD Employment Strategy to “oppose negative White cultural impacts in the APS”. She claims that there was “mixed messaging” about the communication to non-CALD stakeholders and CALD stakeholders. Dr Zabortseva took issue with the fact that only CALD employees were being interviewed, which she pleaded was causing “a biased perception around White culture” (ASOC paragraph 44). She also noted that this was made more difficult by Dr McQuestin being absent, and not taking responsibility for the team. The team was quite small and there was, Dr Zabortseva said, too much work.

212    In my view a complaint about the direction of the Taskforce or the Strategy is not a complaint or inquiry in relation to her employment, although the part of the complaint as to the lack of a supervisor is accepted to be so. The Strategy relates to the Taskforce’s policy rather than to the applicant’s employment, despite the width of the term as expressed by Katzmann J in CFMEU.

The First Graduate Supervision Complaint

213    On 12 January 2024, Ms Vrkic emailed Dr Zabortseva with a draft Reasonable Adjustment Plan for a graduate whom Dr Zabortseva was asked to supervise. Dr Zabortseva purportedly had a discussion with Dr McQuestin expressing her concerns regarding the graduate’s adjustment plan and stated that she would not be able to accommodate the plan. Dr Zaborteva pleads that Dr McQuestin was upset by the discussion. For reasons similar to the findings in relation to Dr McQuestin’s response to the First Performance Appraisal Adverse Action, I do not accept that she had this reaction.

214    I regard Dr Zabortseva’s querying of her ability to supervise the graduate to Dr McQuestin as a matter that could encompass a complaint or inquiry as to her employment.

The Second Graduate Supervision Complaint

215    On 17 January 2024, Dr Zabortseva replied to Ms Vrkic’s email declining to be the graduate’s supervisor on the basis that in doing so, the Taskforce would need to exclude “controversial and sensitive … stories … so as not to affect” the graduate, which “could diminish the Taskforce’s goal to develop a balanced, thoughtful and nuanced Strategy”.

216    For the same reason as the First Graduate Supervision Complaint, I take the view that this could be a complaint or inquiry as to her employment.

The Grant Application Inquiry

217    As noted above, Dr Zabortseva contends she contacted Dr Munns and Dr Banerjee separately to discuss her concerns regarding the ideological approach of the Strategy, which in her view had “shifted from ‘promoting multiculturalism’ to ‘combatting negative White culture’”. I do not regard it as a workplace right which has been exercised by Dr Zabortseva because it is, again, a policy complaint rather than in relation to her employment.

The Grant Application Complaint

218    Dr Zabortseva says that she made a complaint to Mr O’Brian of APSC Security regarding the Strategy approach. As noted above, there is no evidence that this occurred, and so I do not regard it as a workplace right which has been exercised by Dr Zabortseva.

The Strategy Complaint and First Transfer Inquiry

219    Dr Zabortseva requested a meeting with Dr Munns to discuss the possibility of transferring to another team, and complaining about strategy. She said she did not hear back. Her request to investigate a transfer could be an inquiry, but the strategy complaint is a policy position.

The First Email Complaint to Dr McQuestin

220    This email is set out in full above at [105]. It is definitely a complaint but it is about other colleagues and their communication, courtesy, and working styles. It is not a complaint “in relation to” Dr Zabortseva’s employment, in the sense summarised at [85] above.

The Second Email Complaint to Dr McQuestin & Second Transfer Inquiry

221    The 1 March 2024 email from Dr McQuestin to Dr Zabortseva which is set out in full above at [123], and Dr Zabortseva’s reply of 4 March 2024, make up this ground.

222    Dr Zabortseva submitted that she requested a transfer because she realised that she would not be able to continue working with Dr McQuestin. This is not borne out on the evidence. I have found above that in February and early March 2024 the applicant had no difficulties working with Dr McQuestin, and her issues arose more with the colleague and the graduate instead. Her concerns about Dr McQuestin arose a few days later, after the transfer requests, when it became clear that Dr McQuestin was also supporting the colleague in their issues with Dr Zabortseva.

223    There are however elements of this email which could be seen as a complaint or inquiry in relation to her employment.

First Email Complaint to Dr Munns

224    On 20 June 2024, Dr Zabortseva emailed Dr Munns to complain about the uncertainty of her transfer back to CALD following her secondment to the Analytical Branch. This too could be a complaint or inquiry about her employment.

First Complaint to HR

225    On 24 June 2024, Dr Zabortseva spoke with Ms Anderson over a call and conveyed a range of concerns with the Taskforce as canvassed above at [132]. As noted, the respondent accepts that the complaint about Dr McQuestin’s absences were the exercise of a workplace right. As I have determined in relation to other issues, the concern about supervision of the graduate may be a complaint or inquiry about her employment, but the strategy of the Taskforce is not.

Complaint to the APS Secretary

226    This term is referred to in the ASOC at paragraph 111, but no particulars are provided. However I have found above at [131] that this is in reference to the email to Dr de Brouwer, the APSC Commissioner, on 20 June 2024. It is in the same terms as the First Email Complaint to Dr Munns, and falls within the same category.

Second Complaint to HR

227    On 28 June 2024, Dr Zabortseva emailed Ms Anderson with complaints regarding security concerns, lack of management during Dr McQuestin’s absences, the applicant’s concerns about supervising the graduate and the “conflicting” strategy of the Taskforce which was “confusing and was making team unsettled” and requesting that Dr McQuestin not conduct her performance assessment.

228    I take the view that parts of this complaint could be an exercise of workplace rights, particularly the complaint about Dr McQuestin conducing her performance assessment.

Third Complaint to HR

229    On 25 July 2024, Dr Zabortseva sent another email to Ms Anderson, as detailed above at [138]. The complaint ranged over Dr McQuestin’s management, her concern that the security complaint had not been determined, and duty of care. For the reasons set out above, I take the view that this may be a complaint in relation to her employment.

Fourth Complaint to HR

230    On 31 July 2024, Dr Zabortseva sent an email to Ms Anderson which covered similar grounds as the email sent on 25 July 2024, addressing issues regarding Dr McQuestin’s mismanagement, her final performance review and security issues, and that she intended to submit a formal complaint for investigation. Again, this may be a complaint in relation to her employment.

The Performance Appraisal Complaint

231    On 18 September 2024, Dr Zabortseva emailed Ms Anderson stating that her request for her performance assessment to be completed by someone other than Dr McQuestin had been ignored, the comments were entered in breach of APS Regulations and that Ms Anderson had acted contrary to her assurances that the performance appraisal would not be completed while she was on leave.

232    This was accepted by the respondent to be an exercise of a workplace right.

Fifth Complaint to HR

233    On 11 October 2024, Dr Zabortseva sent an email to Ms Anderson and Ms Mornement following up on her appeal of the final performance assessment and the APSC’s findings regarding her complaints on potential security breaches, and the length of time to respond to her complaints.

234    This is a complaint or inquiry about her employment.

The Performance Appraisal Inquiry

235    On 17 October 2024, Dr Zabortseva emailed Ms Anderson requesting that her responses to Dr McQuestin’s performance assessment comments also be included in the performance appraisal. In this email, Dr Zabortseva characterised the performance assessment by Dr McQuestin as “unfair and not truthful”.

236    This was accepted by the respondent to be an exercise of a workplace right.

The Medical Assessment Complaint

237    On 14 October 2024, Dr Zabortseva responded to the respondent’s direction to attend the IME, stating she did not consent to such an examination.

238    Dr Zabortseva made a complaint in this response as to the brevity of the time to attend the IME, and sought a postponement to allow herself to find a lawyer. She made other complaints about the documentation sent to the doctor and noted that she had not received any response in relation to an appeal from the decision on her security complaint. In her submissions, and in her cross-examination, Dr Zabortseva raised the fact that Ms Talbot had thought she was on “extended medical leave”, and Dr Bacon had concerns about her cultural background. She also raised concerns that Ms Anderson was aware of her complaints about extended absences of Dr McQuestin, but did not include that matter in the brief on the IME. These issues do not go to whether her response to the direction to the IME was a “complaint or inquiry in relation to” her employment.

239    It seems to me that her complaints about the direction – in effect, querying its lawfulness and reasonableness – would be the exercise of a workplace right.

Contravention of Enterprise Agreement

Dr Zabortseva’s request for bereavement leave

240    In July 2024, Dr Zabortseva was refused her request for an additional 1.5 days of bereavement leave after the passing of her stepfather. The applicant claims this was in breach of cl 270 of the Enterprise Agreement. That clause is set out above at [78]. A person can only be said to have obligations under an enterprise agreement, and be said to contravene an enterprise agreement, when that agreement “applies to the person”: s 51 of the FW Act. An enterprise agreement only applies to a person when the agreement is “in operation”, which requires that the agreement be approved by the Fair Work Commission: s 54. It is not contended by the respondent that the Enterprise Agreement does not apply to Dr Zabortseva, nor was it said that it was not in operation.

241    The respondent dealt with the bereavement leave issue only in relation to s 351 (discrimination). However, the first prayer in the Originating Application makes it clear that the applicant relied on a breach of s 50 and a remedy of “civil actions”. The applicant concentrated mainly on the effect on her of the failure to grant 1.5 days of her bereavement leave, and did not make submissions as to the kind of remedy sought. The cases she cites in her Originating Application deal not with breaches of enterprise agreements, but with adverse actions. In her opening submissions, she said:

I’ve highlighted this fact not because I care about one and a half days, so much, but because of the mistrust in such difficult circumstances, and also that Ms Anderson specifically advised Ms Turner, the same person who was dealing with my complaint, that I shouldn’t take this one day and a half of the relevant leave, and that is a further set of adverse actions against me.

and in her closing submissions:

If I would be given bereavement leave, this short period of grievance, I would not send that photo. We – [all] people throughout their life experience loss of loved ones, and it’s a sure time that we all go through. Since I was refused bereavement leave and since I was questioned, I felt I needed to prove, and if I would be telling that to the independent medical assessor while there are no proofs, he might also question whether this fact took place or not.

(edited slightly for clarity)

242    It is clear that Dr Zabortseva did not receive the full three days of bereavement leave, as explained by Ms Turner in her email summarised at [137] above. That email notes that she requested bereavement leave on 23 July 2025, and Ms Turner was unsure about how the leave could be taken under the Enterprise Agreement. On inquiry to the People team, Ms Turner was told that bereavement leave could not be used “when it is broken up over more than a week or two and is not taken on consecutive days.”

243    That advice was clearly incorrect when one looks at the clause of the Enterprise Agreement; there is no timeframe imposed (except, possibly, an implied timeframe of reasonable proximity to the relevant death or bereavement incident which can be inferred from cl 271, “An employee may be asked to provide evidence to support their absences on bereavement leave”). It is common ground that Dr Zabortseva provided such evidence, but was not asked to do so. Instead, she inferred from a conversation with Ms Turner that she may be disbelieved as other people may have been.

244    Section 50 of the FW Act is a civil remedy provision, and a contravention of a civil remedy provision is not an offence (s 549 of the FW Act). The incorrect advice to Dr Zabortseva does not qualify as a “serious contravention” of a civil remedy provision, because s 557A(1) requires knowing, or reckless, contravention. There is no evidence of either. Ms Turner made an inquiry and passed the results of that inquiry on to Dr Zabortseva.

Should a pecuniary penalty be imposed?

245    Section 546 of the FW Act gives this Court power to order a pecuniary penalty. As this is not a “serious contravention” as defined in s 557A, the penalty would be 60 penalty units for any contravention. Maurice Blackburn did not suggest the quantum of any civil penalty in its letter of 13 November 2024, the first time that bereavement leave as an issue was raised by or on behalf of Dr Zabortseva.

246    However, a civil penalty is not a strict liability provision. The Court needs to be sufficiently persuaded of the appropriateness of the remedy in the context of the breaches and consequences of the breach (see Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 at [58] per French CJ, Kiefel, Bell, Nettle and Gordon JJ). Dr Zabortseva was granted personal leave in lieu of bereavement leave, so the entirety of her loss would be 1.5 days of leave. On the other hand, the explanation of the respondent via Ms Turner’s email is that the failure to grant a particular type of leave was inadvertent, and there is nothing to point to any wrongful intent or conscious disregard of the terms of the Enterprise Agreement. It seems that someone merely got it wrong.

247    There is an element of public interest in ordering a pecuniary penalty for a breach of a civil remedy provision. In Construction, Forestry, Mining and Energy Union v State of Victoria (No 2) [2013] FCA 1034 (CFMEU v Victoria) at [51]–[66] Bromberg J reviewed the various factors relating to the imposition of a pecuniary penalty and in particular the element of deterrence. (CFMEU v Victoria was overturned in State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160 on a different point). While not completely embracing the concept of a “list” of factors, he adopted Tracey J’s formulation in Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61; [2008] FCA 1426 at [40].

248    At [65] of CFMEU v Victoria, Bromberg J said:

That list, as Tracey J acknowledged at [39] and [40] of Stuart-Mahoney was derived from a number of judgments dealing with the Trade Practices Act and from the judgment of Branson J in Coal and Allied Operations. The non-exhaustive relevant factors identified by Tracey J are:

•    The nature and extent of the conduct which led to the breaches.

•    The circumstances in which that relevant conduct took place.

•    The nature and extent of any loss or damage sustained as a result of the breaches.

•    Whether there had been similar previous conduct by the respondent.

•    Whether the breaches were properly distinct or arose out of the one course of conduct.

•    The size of the business enterprise involved.

•    Whether or not the breaches were deliberate.

•    Whether senior management was involved in the breaches.

•    Whether the party committing the breach had exhibited contrition.

•    Whether the party committing the breach had taken corrective action.

•    Whether the party committing the breach had cooperated with the enforcement authorities.

•    The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements.

•    The need for specific and general deterrence.

249    In favour of Dr Zabortseva’s claim, there has been no contrition or corrective action, and she has sustained, as noted above, a loss, albeit not a large one. However, against it, there is no indication that this was a course of conduct by the respondent, that senior management were involved (although the bearer of the news was Ms Turner, then an Acting Director). The mistake was made by the People Team, rather than a direction from on high.

250    There is no need for specific or general deterrence, in my view, given that this was a once-off error by the respondent’s HR team – “an interpretation issue” as Ms Turner phrased it. In the absence of any evidence that this was anything more than an error, I do not consider it appropriate to impose a civil penalty.

Were any of the pleaded adverse actions taken “because” Dr Zabortseva exercised a workplace right?

251    I note that I do not need to decide this issue, because of my determinations as to the pleaded adverse actions and the dismissal of the balance of the ASOC, but will deal with it briefly.

252    I am not satisfied that any of the pleaded adverse actions were taken for a prohibited reason, even having regard to the reverse onus which would arise given that I have found that Dr Zabortseva did exercise workplace rights (as set out above). I have had regard to Mr Minucci’s careful submissions tracking the decision-making process undertaken by Dr McQuestin, the decision maker in the first three pleaded adverse actions. Dr McQuestin’s absence, discussed above, meant that I was not able to have the benefit of her own recollections, but the correspondence I have referred to and set out above in the Factual Determination section indicate that the “substantial and operative” reasons for making the performance appraisal decisions was her concern for her employees and Dr Zabortseva’s negative impact on her colleagues. These factors included her difficult communication style, the breakdown of communication and trust with her colleague, and her inability to take on constructive feedback about her concerns with the direction of the Taskforce. Dr McQuestin sought assistance from the People Team and sought that Dr Zabortseva, along with the rest of the team, acquaint themselves with the Inappropriate Behaviours policy. This indicates that Dr McQuestin’s concerns were not that Dr Zabortseva was making complaints or inquiries, but that her team was dysfunctional and that neither the colleague nor Dr Zabortseva were dealing with that dysfunction very well. On 28 May 2024, Dr McQuestin sought assistance from HR to deal with Dr Zabortseva’s return to the Taskforce, noting that it was not “viable for [her] to return to the D&I branch as her behaviour was unsafe for others”.

253    I am satisfied that Dr McQuestin was not motivated by any prohibited reasons to make the performance appraisals that she did.

254    Each of the decision-makers in relation to the direction to attend the IME – Ms Talbot and Ms Anderson – were cross-examined, but their stated motives for making the decisions was not put in issue. Ms Talbot denied that her decision was affected by any prohibited reason, and I accept her evidence. She was in any event not challenged on this. Mr Georgilas was part of the chain but it was not his responsibility to make the decision. Again, he was not challenged on this aspect of his evidence. I have set out above Ms Anderson’s response in relation to her reasons. I accept her evidence, particularly as the criticisms of Ms Anderson by Dr Zabortseva were not focused on Ms Anderson’s reasons for providing a brief to Ms Talbot, but instead the contents (or absence of content) of that brief.

255    As for the placing of the applicant on miscellaneous leave with pay, and excluding her from the workplace, there were two stages. The first decision was made by Ms Anderson in September 2024. She denied that she made that decision because the applicant had made complaints or inquiries in relation to her employment. She said leave with pay was granted:

… on occasions where we don’t have a full understanding of the requirements or adjustments that might be required for an employee to safely undertake their position. We seek medical or independent opinion or recommendations, to have an understanding if there are any adjustments that may need to be made for an employee’s conditions, or considerations that need to be taken into account. And until we have that information, there are circumstances where it is more appropriate for an employee to not be in the work environment where we have concerns that we may not have the ability to be able to have a full understanding of what’s required for them.

256    Mr Georgilas gave his reasons that the miscellaneous leave with pay was to support Dr Zabortseva to attend the IME, and to assist with her return to work, “in a manner that was safe to herself and to her colleagues”.

257    As noted, I have accepted Mr Georgilas and Ms Anderson as witnesses who did their best to tell the truth. I accept their evidence, and it accords with the documentary record as set out in my factual determinations above.

Dr Zabortseva’s submission as to reasons

258    Dr Zabortseva submitted that I should not accept the reasons given by the various witnesses, because it was not believable that they were concerned for her safe return. Dr Zabortseva linked this with Dr McQuestin’s extended absences, and submitted that the purpose of the adverse actions, particularly the direction to attend the IME, was to enforce her silence. She submitted:

… when Dr McQuestin had first discussions with me and was emphasising that I’m a valid team member and I need to be incorporated to the working styles of everyone in the team, what it meant in practice that I would keep working under the same place in the absences of Dr McQuestin. There would be no one appointed Acting Manager. In the absences of [the colleague], I would be maintaining work of several people without ever raising further complaints.

What it meant, in fact, is contemporary slavery has been implemented and has been – there was an attempt to enforce this contemporary slavery through independent medical assessment. But once I return from it, I will continue working, being silent, never raising complaints about absences, and just submitting the documents that I was supposed to submit.

259    There is not the slightest suggestion in the evidence to support this submission of silencing or contemporary slavery. Nothing in the extensive documentary record, nor anything I gained from my impression of the witnesses for the respondent, indicated that there was such an intention.

Final orders

260    The proceedings should be dismissed.

261    The respondent has asked for 14 days to consider the question of costs. I will stand the matter over to a convenient date for the parties to address on costs. As these orders are made shortly before the end of the 2025 Court term, pursuant to r 36.03(b) of the FC Rules, I fix the time for the filing of any notice of appeal to 4pm on 20 February 2026 to take account of the holiday period.

262    The respondent has indicated that its undertaking in relation to not pursuing the Code of Conduct process, including enforcing the IME direction, will remain in force until delivery of judgment. It may be more appropriate that such an undertaking should continue until 20 February 2026, but I will hear submissions on that when I hear submissions as to costs, if any.

Associate:

Dated:    15 December 2025