Federal Court of Australia

Rindeklev v Commonwealth of Australia (No 2) [2026] FCA 764

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    Any application for an order as to costs shall be made on or before 3 July 2026.

3.    Any application for costs shall be made by filing and serving a written outline of submissions of no more than 7 pages specifying the order sought and the reasons why the order should be made together with any necessary affidavit in support.

4.    Any submissions of no more than 7 pages and any necessary affidavit in response shall be filed and served within 14 days of the filing and serving of any application for costs in accordance with these orders.

5.    Unless otherwise ordered, any application for an order as to costs will be determined on the papers.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    Any application for an order as to costs shall be made on or before 3 July 2026.

3.    Any application for costs shall be made by filing and serving a written outline of submissions of no more than 7 pages specifying the order sought and the reasons why the order should be made together with any necessary affidavit in support.

4.    Any submissions of no more than 7 pages and any necessary affidavit in response shall be filed and served within 14 days of the filing and serving of any application for costs in accordance with these orders.

5.    Unless otherwise ordered, any application for an order as to costs will be determined on the papers.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Ms Gunilla Rindeklev was an employee of the Commonwealth between 2013 and 2021. She began working at Centrelink. In November 2017, Ms Rindeklev moved to the Child Support Agency. Ms Rindeklev resigned from her employment by the Commonwealth voluntarily in December 2021.

2    In 2022, Ms Rindeklev commenced two proceedings in this Court against the Commonwealth in its capacity as her employer. They each concern the way in which various complaints raised by her during the course of her employment were responded to by her employer. The first proceeding (WAD156/2022) relates to the period when Ms Rindeklev was employed by Centrelink. The second proceeding (WAD165/2022) relates to her employment at the Child Support Agency.

3    At the time of the relevant events Ms Rindeklev used a different surname. However, to aid understanding, throughout these reasons I will refer to Ms Rindeklev using her current surname. Many of the documents refer to Ms Rindeklev using her first name, Gunilla, and are quoted accordingly.

Complaints management policy and the Code of Conduct

4    It is common ground that at all material times the Commonwealth had in place a Complaints Management Policy. Two versions are of possible relevance. A version issued on 21 May 2013 and a version reviewed in July 2018. Both versions of the Complaints Management Policy provided for informal and formal processes. One of the possible outcomes of a formal investigation process was a finding that there had been a breach of the Australian Public Service Code of Conduct.

Overall chronology

5    Ms Rindeklev commenced her employment at Centrelink in June 2013. Her role required her to deal with telephone inquiries, including complaints. She worked in an open-plan office environment where there were many other employees undertaking the same work. Like other employees undertaking the same work, Ms Rindeklev was part of a small group supervised by a team leader. The team leaders were supervised by more senior management. More complex inquiries could be 'escalated' to be dealt with by others. The workplace was supported by a Human Resources team. A similar work structure and practice applied at the Child Support Agency.

6    In both workplaces, there were detailed procedures to be followed in dealing with people making inquiries (referred to in the workplace as customers). There were also expectations as to the number of inquiries that would be completed during each working day by each person handling those inquiries. As might be expected given the nature of the work, there could be difficulties in dealing with some customers and the work had its own pressures.

7    Before commencing work, Ms Rindeklev undertook a period of training. Initially, Ms Rindeklev was employed as what was known as an 'irregular/intermittent employee' or 'IIE' and she was remunerated based upon hours worked. This continued until 26 November 2017 when Ms Rindeklev was employed as a public servant at the level of APS3.

8    Of significance for understanding the issues is the fact that, from about October 2014, Ms Rindeklev was in a relationship with Mr Omar Bahemia, a work colleague at the time. Mr Bahemia was a more senior employee, but was not one of Ms Rindeklev's managers. He worked in a separate part of the workplace as a member of what was known as the complex assessment team. The relationship continued until June 2016. Mr Bahemia was not a party to these proceedings and he did not give evidence. Therefore, he has not had an opportunity to provide his own account of relevant events to the Court. The documents before the Court included a statement given by Mr Bahemia but it did not assume any real significance.

9    As will emerge, the Commonwealth's defence accepted the validity of some aspects of the complaints raised by Ms Rindeklev concerning Mr Bahemia's behaviour and addressed the claims made by Ms Rindeklev on that basis. There are issues in the case about the appropriateness of the Commonwealth's response to those (and other) complaints raised by Ms Rindeklev. Otherwise, the Court is not called upon to make and does not make findings concerning Mr Bahemia's conduct.

10    In late April 2015, Ms Rindeklev raised concerns with her then team leader, Ms Erika Theodoropoulos, about the way she was being treated in the workplace by Mr Bahemia. Steps were taken at that time. Ultimately, Ms Rindeklev informed Ms Theodoropoulos that she did not wish to make a formal complaint against Mr Bahemia.

11    On 1 May 2016, there was a written exchange between Mr Bahemia and Ms Rindeklev using an internal workplace instant messaging system known as 'Lync'. There was also a verbal exchange that was observed by a Mr Brett Coates. The next day there was a communication by Ms Theodoropoulos with Mr Bahemia about those matters.

12    There was a further meeting between Ms Theodoropoulos and Ms Rindeklev a few days later to discuss the events on 1 May 2015. Ms Theodoropoulos sent an email to Ms Rindeklev after the meeting recording what was discussed. These communications are addressed below in dealing with the claims made by Ms Rindeklev.

13    More than a year later, on 1 July 2016, a new concern was raised by Ms Rindeklev about Mr Bahemia. It was recorded in a long email sent by Ms Rindeklev to her line manager Ms Joelle Ferre. It was headed 'This letter is to notify you of a harassment concern I have with a fellow colleague, Omar Bahemia'. It raised concerns about Mr Bahemia's conduct in the workplace. It also referred to aspects of their personal relationship outside of work. Amongst the matters complained of were the Lync communications from Mr Bahemia in 2015.

14    Ms Ferre passed the email complaint to the People Support team.

15    Ms Rindeklev's email complaint was the subject of a formal preliminary investigation. It was conducted by Mr Shane Richards for report to Mr Richard Fleay, a service support manager who supervised the activities of team leaders. Mr Richards prepared a preliminary investigation report dated 22 August 2016 (2016 Report). The 2016 Report considered things that were alleged to have been said by Mr Bahemia to others in the workplace about Ms Rindeklev. It also considered the content and extent of Lync messages (referred to in the report as Skype messages) that had been exchanged between Mr Bahemia and Ms Rindeklev in 2015. Mr Richards recommended to Mr Fleay that a formal investigation be conducted into possible breaches of the Code of Conduct by Mr Bahemia in relation to his behaviour towards Ms Rindeklev and possible breaches by both Ms Rindeklev and Mr Bahemia in relation to the sending of the Lync messages.

16    The 2016 Report was sent by the head of People Support to Ms Margaret Lambkin at Human Services. She was part of the Conduct Standards team. The responsibilities of Ms Lambkin included considering whether it was appropriate for a formal investigation to be conducted as to whether there had been a breach of the Code of Conduct. Ms Lambkin formed the view that the conduct was not serious enough for referral for investigation as to a possible breach of the Code of Conduct.

17    After that, Mr Fleay considered the matters the subject of the 2016 Report and handed 'directions letters' to each of Mr Bahemia and Ms Rindeklev directing them to comply with the Code of Conduct in relation to their respective communications. At the same time, he also handed a separate letter addressed to Ms Rindeklev concerning the outcome of her complaint, which I will refer to as the 2016 Outcome Letter.

18    The directions letter bore the date of 10 August 2016. The 2016 Outcome Letter bore the date of 4 August 2016. However, the letters must have been delivered in September 2016 after the 2016 Report had been completed and the decision was made by Ms Lambkin (after considering the recommendation in the 2016 Report). It appears that draft letters that were included as attachments to the 2016 Report were redrafted at that later time. These matters were addressed by Mr Fleay in his evidence and are addressed below.

19    The next relevant event took place more than a year later in October 2017 when Mr Fleay sent Ms Rindeklev a letter referring to an incident where Ms Rindeklev was said to have been disrespectful to another staff member by calling them an 'idiot'. It referred to the communication the previous year in which the expectations of appropriate behaviour were said to have been outlined to Ms Rindeklev. The October 2017 letter advised Ms Rindeklev (who at that time was still an IIE) that her shifts would be reduced to three shifts each week.

20    The chronology then moves to a much later time when Ms Rindeklev was working at the Child Support Agency. By then, Ms Rindeklev was a permanent public service employee having completed probation training in June 2018.

21    In March 2019, Ms Rindeklev sent a long email to People and Culture raising what she described as a 'Bullying issue'. The email referred to a chronology of events that commenced from the time of Ms Rindeklev's probation. The email expressed concern that the matters raised had been ongoing for about 12 months and were delaying her approval for overtime work and advancement to APS4 level. The email concluded with a statement that Ms Rindeklev was just seeking support as to what she needed to do and what resolution could be achieved 'apart from repeatedly being told to seek counselling'.

22    The matters set out in the email were treated as being a complaint raised by Ms Rindeklev. Ms Caron Caudwell was appointed to undertake a preliminary assessment of the complaint. She conducted inquiries and prepared a report (2019 Report). The complaint that was the subject of the report was said to concern interactions between Ms Rindeklev and Ms Janice Leung, a colleague. The 2019 Report also described the complaint as alleging 'that her Leadership Team (Ms Samantha Harwood, Mr Adam Proll and Ms Melody Tay), did not know how to acknowledge and manage the alleged bullying'.

23    The 2019 Report concluded, in effect, that Ms Leung had not engaged in bullying and that the Leadership Team had acted appropriately. Amongst other things, the report said that '[Ms Rindeklev's] subjective opinion alleging bullying behaviour does not establish the fact of behaviour'. It found there to be insufficient evidence to substantiate either the matters raised by Ms Rindeklev concerning Ms Leung or those concerning the Leadership Team. The 2019 Report also concluded that Ms Rindeklev had lodged at least 12 complaints against staff since November 2017 and that the complaints had been appropriately managed by the Leadership Team.

24    In the discussion section in the 2019 Report, Ms Caudwell expressed the following views:

In her complaint Ms [Rindeklev] uses phrases to describe Ms Leung and her behaviour such as; she was disgusted; Janice’s clique; Janice took upon her to enact some sort of an attitude of her being the popular, dominating, and loud person; moronic; Janice seem to be a bit of the ringleader; drawn into a net of manipulation by her. These comments are assumptions and border on being vexatious accusations.

Mr Proll has raised these vexatious type allegations with Ms [Rindeklev] on a number of occasions. Ms [Rindeklev's] behaviour does not appear to have changed with regards to this. Sometimes showing respect requires staff to modify their behaviour, letting others do it their way, or allowing compromise.

Ms Leung has advised that she has been coming into work every day in fear of a new complaint being lodged against her and that she feels she is obligated to record every interaction that she has with Ms [Rindeklev] to ensure that when questioned by management, she can explain the sequence of events, even though they are what would be considered standard day-to-day interaction.

It is not reasonable for Ms Leung to feel the need to record these interactions for fear of ongoing complaints by Ms [Rindeklev].

(Italics added).

25    The 2019 Report included the following recommendation:

With regards to any future complaints I recommend that:

•    Ms [Rindeklev] should be reminded of the principles of lodging complaints as per The Department’s Managing Complaints Policy which include:

1.     You should try local and informal solutions where possible.

2.     Your complaint will be made professionally and in good faith. Your complaint should be based on fact, supported by enough detail, and not be frivolous or vexatious.

3.     Your complaint will be considered fairly, independently and without bias.

4.     You will not be subject to discrimination, victimisation or any other form of adverse action. Principles of natural justice, including procedural fairness will be applied.

5.     Your complaint will be handled consistent with the Australian Privacy Principles.

I also recommend that:

•    Ms [Rindeklev] be reminded to treat everyone with respect and courtesy and without harassment.

•    If a matter (complaint) is resolved, Ms [Rindeklev] should be advised of her review rights.

•    Ms [Rindeklev] be offered the use of Rehabilitation Case Manager or EAP to assist her with strategies to build effective and positive working relationships in the workplace.

26    The references to 'border on being vexatious accusations and 'vexatious type allegations' and the recommendation about future complaints by Ms Rindeklev were matters that assumed considerable significance for Ms Rindeklev's case against the Commonwealth.

27    On 15 May 2019, Ms Melanie Stocker wrote to Ms Rindeklev informing her of the outcome of the preliminary assessment of Ms Rindeklev's complaint. The letter repeated the matters that have been quoted above.

28    In the period from June 2019 there were ongoing workplace issues concerning Ms Rindeklev. During that time, Ms Rindeklev submitted two injury reports relating to stress that she said she experienced following interactions with work colleagues and her team leader Ms Tay.

29    The injury reports were considered by Ms Kym Dalton, a senior rehabilitation case manager working in HR Support. Ms Dalton met with Ms Rindeklev on 11 July 2019. One of the matters raised in the meeting was the possibility of additional support under 'Early Intervention' with the assistance of a 'Workplace Rehabilitation Provider'.

30    Ms Rindeklev agreed to participate in the Early Intervention process. She met with Mr Adam Dean, a rehabilitation consultant. Mr Dean prepared an early intervention assessment report (EIA Report). It addressed the matters raised in the injury reports made by Ms Rindeklev in June 2019. As part of the process of preparing the EIA Report, Mr Dean met with Ms Tay. Mr Dean recommended that Ms Rindeklev would benefit from an Early Intervention Rehabilitation Program that assisted her in sustaining current hours and duties safely. Thereafter, Ms Rindeklev did participate in such a Program with Mr Dean.

31    In late July 2019, there was a formal coaching session in which Ms Tay and Ms Rindeklev participated.

32    In the following months, Ms Tay adopted the practice of sending Ms Rindeklev emails confirming their conversations about issues raised by Ms Rindeklev concerning events in the workplace. The following is an example sent on 6 August 2019:

Just confirming our conversation from today

- You said that yesterday when [redacted] returned to work from leave, [redacted] commented to [redacted] that "it's been very quiet here without you". You said that that you felt hurt by this because you were sitting in the same isle as [redacted] and have tried to initiate conversation with her several times while [redacted] was away

- You also commented that you feel that [redacted] does not like you and there have been a few issues in the past where [redacted] made an inappropriate gesture to you and that [redacted] had dealt with that.

- You said that in the past 15 months, [redacted] has never initiated a conversation with you and you feel 'harassed' by this.

-You also said that you are aware that there have been other complaints made and this may have affected how others in the team perceive you. You said that you felt that these complaints have been dealt and that you are now trying to make things better.

- I said that I cannot control how people behave however can ensure that we are being respectful and courteous to each other.

- I said that I will talk to the team about our charter at the tech update scheduled for today and will talk to [redacted] if you want.

- You requested that I talk to [redacted] about this issue and I said that I will do this

(Redactions in version of email in evidence).

33    A further email with the subject 'Coaching Notes' that was sent on 26 August 2019 by Ms Tay to Ms Rindeklev began as follows:

Here are the notes from coaching today

Engagement:

• Gunilla advised that everything is going well with the team and that she is going well with rehab at the moment.

Health and wellbeing

• Gunilla advised that she is still not fully recovered from the effects of the flu

• She is glad to go on her regular hours agreement next SP and is really looking forward to having 1 day off a fnth

34    An email with the subject 'Today's Discussion re: QA and performance' that was sent on 5 September 2019 by Ms Tay to Ms Rindeklev began as follows:

Just confirming our discussion today

- I advised that I am concerned with the quality of your work recently. I have had feedback regarding delegations, decision making and not following the correct process to manage DPO and INC customer in the past 2 weeks

- I also went through the QA I conducted for you last week. I went through each case again and highlighted what I found and noted that I am concerned with the quality of the work conducted on these case as there was no PP contact when they should have been, Level 1 search documentation did not indicate that you had checked incomes, cases unlocked without PA monitoring and in one instance TRIP released without the appropriate delegation and case unlocked with a debt.

35    There are other coaching notes which record discussion with Ms Rindeklev about her health and well being as well as her work attendance.

36    Ms Tay sent an email to Ms Rindeklev with the subject 'Return to work discussion- 8 November 2019' which included the following:

Here is a record of our discussion today. Thank you for talking to me today Gunilla and I had a long RTW discussion today She advised that she had some bad news about her daughter's husband which upset her and was teary this morning. I asked if she was she was ok to be at work today, Gunilla advised that she does not think she is well enough to be at work. She said that she could use her flex today and I approved flex from 10am onwards

Gunilla also advised that she spoke to [redacted] yesterday and they discussed some options to help her balance her work/personal life. She talked about spending more time with her daughter and making time to take care of her health and well-being. She said that she is thinking about going part-time and is 3 days one week and 4 day the next week. we talked about days that would be suitable in our team and I advised Gunilla that I will get back to her with these days.

I also talked to Gunilla about how she is feeling in the team at the moment and if there was anything I could do to assist. Gunilla said that she thought that I was "out to get her" as I had upheld behavioural complaints recently. She said that she has reflected on the complaints that she has been receiving recently and said that she feels like there is something going on with her and customers are picking up on that.

We talked about the two most recent complaint that I had listed to, one I did not uphold as she was professional and managed the call well. I advised Gunilla that I had upheld the one she got just before going on annual leave and was going to send her feedback in regards to this complaint. I advised that I also asked our PSM [redacted] to listen to the call and provide feedback as I had identified that her behavioural complaints has increased in the past few weeks and I wanted to be as objective about the feedback I was providing. I advised Gunilla that I will send a my feedback in regards to this complaint in writing with a link to the call so that we can listen to it later next week.

We also discussed what we can do to improve her conversations with customers. Gunilla self­identified that she needs to reflect on her behaviours and attitudes as this is resulting in complaints. She said that she has not been paying attention to customers while they are speaking as she is checking her emails or in-trays at the same time. She confirmed that she is going to stop doing this and concentrate on what the customer is saying. She also said that having a PT hours agreement in place may help her manage her work-life balance and reduce complaints.

We talked about broadbanding to an APS 4 and taking on PT hours. Gunilla was concerned that going PT and the complaints would affect her broadbanding. I advised Gunilla that PT hours will not affect her broadbanding. With the complaints that are coming through, we will work together to improve her call management and de-escalation skills…

(Redactions in version of email in evidence).

37    The reference in the email to 'complaints' was to complaints that had been raised by customers who had dealt with Ms Rindeklev.

38    Ms Rindeklev responded to some of these emails correcting aspects of them. For example, she responded to the email from Ms Tay concerning the discussion on 8 November 2019 in the following terms:

Thank you for the email.

I would like to note that at no point in time did I, nor would I say that you are out to get me. In the context that I said something to this effect it would have been as an off the cuff joke, I remember I said this with a smile and the context was not in a sentence were I believe this as a present situation, nor ever. I believe that it was said in the same paragraph as reflecting on what is happening own behalf, I remember we both smiled? These records are filed and I would never say anything like this, as I like to be professional and this comment is not professional.

Once again, I do not believe that you are out to get me. If I were to elaborate on the issue, which we did not, I would say the following:

I am flabbergasted at the last upheld complaint, indeed all of the recent ones. I did not go into this in detail with you at this meeting, however I am happy to discuss this further. I believe a behavioural complaint should be upheld if my behaviour was inappropriate. I do not believe 'failing to deescalate' is a reason for upholding a complaint. Nor do I believe I used an inappropriate tone speaking to that last customer Fri before I went on holidays. That customer was completely unreasonable and accused me of things I did not do, refused to speak to me about a hardship claim and put up barriers for not discussing debt. If we uphold complaints that error on the side of the customer, that erodes confidence in CSA staff doing their job they are meant to do, and also cements customer inappropriate behaviour for the future. I have noticed, though, that a lot of complaints are coming through, and I did believe something is happening with my confidence, directly due to the fact that some complaints have been upheld and this is causing a lack in my confidence about having tough discussions with customers.

I think from this perspective, I would like you to strike out the comment that I believe you are out to get me. I am really not OK with these sorts of comments being recorded, and I am very disappointed that you took this home from that conversation. I got this job on the back of a degree, and I had an HD average - I consider myself an intelligent person, and having this sort of thing recorded is degrading, and not constructive. If there was some sort of allusion to the above comment, once again, I do not think it was said with that intention, and would have been said in jest and I remember it being alluded to in the introduction broaching the subject, which was difficult and to appease the start of the conversation, and was said in the negative, meaning something as in" I do not believe you are out to get me". I was said with a smile and a snigger, not a comment to be recorded in the affirmative, and as a fact. I cannot fathom how on earth this comment could be recorded as a factual conversation, and find its inclusion quite degrading to me.

39    The response from Ms Rindeklev did not correct other aspects of the email.

40    During this period from August to November 2019, Ms Rindeklev was meeting with Mr Dean as part of her Early Intervention Rehabilitation Program.

41    In November 2019, approval was given for Ms Rindeklev to work part-time hours.

42    In October or November 2019, there was a meeting with representatives of the Community and Public Sector Union concerning enterprise agreement negotiations. Ms Rindeklev raised an issue about team leadership in the meeting. After the meeting, Ms Harwood had a conversation with Ms Rindeklev about the appropriateness of her actions. The precise nature of the conversation is a matter in issue between the parties. Ms Rindeklev says she was given a verbal warning not to raise matters in the meeting.

43    On 22 November 2019, Mr Dean sent an email to Ms James with the subject 'Touching Base'. The email said:

How are you going? I was a bit worried after I chatted to you last week (with the needing to escalate things to HR) and just wanted to check in that the work drama isn't weighing you down?

I've attained some more time from Kim [Dalton] if you require anything - this includes if there are any staff or performance meetings you would like someone else to attend with you.

Hope you're doing well - here if you need a catch up.

44    On 5 December 2019, a significant meeting was held to discuss 'communication difficulties' between Ms Rindeklev and Ms Tay. In attendance with them was Ms Harwood, Ms Dalton and Mr Dean. There are issues between the parties as to what transpired at that meeting (December 2019 Meeting).

45    In July 2020, Ms Rindeklev was issued with a workers' compensation medical certificate and then made a claim for workers compensation. The next month, Ms Rindeklev provided a detailed statement as to her claimed injury (Statement of Injury).

46    On 27 August 2020, a letter was sent to Allianz. It responded to a notice that had been issued under s 71 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) requesting the provision of information about Ms Rindeklev. The letter included a 'timeline of events'. In the body of the letter there was reference to complaints having been raised by Ms Rindeklev against Mr Bahemia. Precisely what was communicated by the terms of the letter about those complaints (Comcare Response) is contentious.

47    Almost two years later, Ms Rindeklev commenced proceedings in this Court seeking compensation and other relief under the Fair Work Act 2009 (Cth) and the Work Health and Safety Act 2011 (Cth) (WAD156/2022). Ms Rindeklev then commenced further proceedings against the Commonwealth seeking relief under the Fair Work Act (WAD165/2022).

The matters in issue between the parties

48    Orders were made in late 2023 for a conference to be held before a registrar to seek to finalise a list of issues for determination in each of the proceedings. The documents prepared by the registrar to record those issues and contentions also contained some cross-references to the pleadings. With some further conferral between the parties, the conference process resulted in an agreed list of issues with a summary of the contentions advanced by each of the parties in respect of those issues and limited cross-references to the pleadings to provide further details (List of Issues). On 30 July 2024, it was ordered that the proceedings were to continue on the basis that the issues for determination are those set out in the List of Issues prepared by the registrar. Since then, the proceedings have been conducted on that basis: see, Rindeklev v Commonwealth of Australia (Recusal Request) [2025] FCA 354 at [5]-[10] and James v Commonwealth of Australia [2023] FCA 1241 at [25]-[27].

49    In addition, Ms Rindeklev, at her request, was allowed to file a detailed written opening of up to 70 pages to explain her case and to identify, by reference to books of documents that had been prepared by the parties, the documents to which she wished to refer. The Commonwealth also filed a short written opening. I have had regard to these documents as well as the List of Issues (together with certain clarifications provided by way of oral submissions) in identifying the matters in dispute between the parties.

50    Orders were made in both proceedings to the effect that the nature and extent of any relief to be granted will be determined at trial, save only for the quantum of any award of compensation or damages (to be determined at a subsequent hearing, if necessary).

51    The claims in issue between the parties reflect the basis upon which the Commonwealth sought to defend the claims. Aside from submissions about the evidence given by Dr Samuel (addressed separately below), issues about causation, loss and the nature of relief that might be granted if Ms Rindeklev was successful in establishing liability were not the subject of evidence or submissions. In effect, as to those matters, Ms Rindeklev was put to proof. I will address those aspects separately after dealing with the matters in issue between the parties concerning the Commonwealth's alleged liability to Ms Rindeklev. In the result, there were seven such claims that were pursued by Ms Rindeklev.

Claim 1: Alleged discriminatory conduct by failing to take action in response to conduct of Mr Bahemia (being Issue 1 in WAD156/2022)

52    The first claim relates to the period between 24 April 2015 and 8 July 2016. I note that 24 April 2015 is the date upon which Ms Rindeklev is first said to have raised concerns about Mr Bahemia when she spoke with Ms Theodoropoulos. The date of 8 July 2016 appears to have significance because it is just after Ms Rindeklev again raised concerns about Mr Bahemia.

53    The claim made is that the Commonwealth contravened s 104(1) of the Work Health and Safety Act by engaging in 'discriminatory conduct' for a prohibited reason. Relevantly, for the purposes of the claim made by Ms Rindeklev, discriminatory conduct includes altering the position of a worker to the worker's detriment: s 105(1)(a)(iv). The prohibited reasons for discriminatory conduct include conduct engaged in because an issue or concern about work health and safety has been raised or is proposed to be raised with a person of the kind specified in the legislation: s 106(h).

54    A person affected by a contravention of s 104 can apply to the Court for various orders, including an order for payment of compensation that the Court considers appropriate: s 112. However, they can only do so if the prohibited reason was a 'substantial reason' for the conduct: s 112(4).

55    Put in terms of the statutory language, Ms Rindeklev says that the Commonwealth altered her position as an employee to her detriment for the reason that she had raised a concern about her own work health and safety with a person of the kind specified in the legislation, that being a substantial reason for the conduct.

56    Respectfully, the precise way in which the claim of contravention of s 105 is articulated in factual terms is somewhat difficult to follow. The alteration of Ms Rindeklev's position to her detriment is said to take the form of exposing Ms Rindeklev to an 'occupational health and safety risk' in the form of conduct by Mr Bahemia. Ms Rindeklev is said to have been exposed to that risk by conduct 'in the form of omission and procedural failure'. The precise failures are said to have been engaged in by Ms Theodoropoulos, Ms Ferre and Mr Fleay in the way they responded to Ms Rindeklev raising her concerns about Mr Bahemia. A substantial reason why they are each said to have engaged in those failures is because Ms Rindeklev had raised concerns about Mr Bahemia's conduct towards her in the workplace.

57    So, at its essence, the claim made is that because Ms Rindeklev raised a concern about Mr Bahemia's conduct (being conduct that was said to be exposing Ms Rindeklev to an occupational health and safety risk), three people failed to do things about Mr Bahemia's conduct. A case of that kind attributes a perverse form of rationale to the three people involved, namely that a substantial reason why they did not take certain action in relation to Mr Bahemia was because Ms Rindeklev had raised concerns about his conduct. It alleges that the operating reason for their omissions was the actual raising by Ms Rindeklev of the issue about Mr Bahemia.

58    It strikes me as a very odd form of claim. It must be differentiated from a claim that there was some form of breach of duty by reason of failure by the three individuals to do things in relation to Mr Bahemia. A claim of that kind does not depend upon demonstrating the reasons why the duty was not performed. Indeed, the statement of issues expressly records Ms Rindeklev's acknowledgment that she is not making a negligence claim to the effect that the Commonwealth failed to prevent injury to her (noting that Ms Rindeklev has advanced separate claims outside these proceedings about alleged workplace injury). Nevertheless, the submissions advanced in support of the discriminatory conduct claim were very much focussed on what should have been done and not upon the reasons why those things were alleged not to have been done. They were also expressed in quite general terms so it was difficult to understand who the actors were who were said to have omitted to do things and the facts by reference to which it was said that a determination was to be made as to the reason or reasons for the alleged omissions.

59    The Commonwealth's case was that appropriate steps were taken to address the matters raised by Ms Rindeklev and there were no omissions of the kind alleged. It relied upon evidence from each of the three individuals said to have been responsible for the omissions as to their reasons for the way they responded to the issues raised by Ms Rindeklev about Mr Bahemia. The Commonwealth also said that Claim 1 is statute barred.

60    Accordingly, the following issues are raised by Claim 1:

(1)    Precisely what are the alleged omissions that are said to have altered the position of Ms Rindeklev to her detriment?

(2)    Were there omissions of the kind alleged?

(3)    If yes to (2), was the raising of concerns about Mr Bahemia by Ms Rindeklev the reason for those omissions?

(4)    Is the claim out of time?

(5)    Having regard to the answers to (1) to (4), has the claim been established?

61    The List of Issues identified a further issue as being advanced by the Commonwealth in answer to Claim 1. It concerned whether the making of complaints about Mr Bahemia by Ms Rindeklev could amount to the raising of an issue or concern about work health and safety. However, that aspect was not pressed in closing submissions. I suggest that was an appropriate course. Having regard to the subject matter of the concerns and the prospect of their consequences for the well-being of Ms Rindeklev, it seems to me that the raising of those matters would amount to the raising of an issue or concern about work health and safety for the purposes of s 106(h). However, I note that the issue or concern must have been raised or proposed to be raised with one of the persons specified in the legislation. The case proceeded on the basis that the communication of the concern in this case was to such a person.

Claim 2: Alleged misrepresentation by Mr Fleay of the result of the preliminary investigation conducted by Mr Richards (being Issue 2 in WAD156/2022)

62    The Fair Work Act provides that a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person or the exercise of those rights: s 345(1).

63    Ms Rindeklev contends that the 2016 Outcome Letter from Mr Fleay to Ms Rindeklev misrepresented the complaint, process and outcome of Mr Richards' investigation. Although her claim was formulated by reference to the 'complaint, process and outcome', it was plain from her written opening submissions that her case focussed upon an alleged misrepresentation by Mr Fleay of the substance of the findings made by Mr Richards in the 2016 Report.

64    Ms Rindeklev contended that Mr Richards made serious and substantiated findings against Mr Bahemia. She says that Mr Fleay chose to reframe the findings by issuing an outcome letter to Ms Rindeklev that focussed on '[Ms Rindeklev's] alleged ICT misuse and implied co-contribution to the workplace conflict'. It is Mr Fleay's conduct that is said to give rise to the misrepresentation. He is said to have misrepresented 'the serious WHS findings' made by Mr Richards. The reference to 'ICT' is to information and communication technology, relevantly the Lync messaging system.

65    Although Ms Rindeklev advanced some submissions about the process conducted by Mr Richards, she did 'not press a claim of misrepresentation…in respect of Mr Richards' report'. Rather, the misrepresentation was said to have occurred by Mr Fleay issuing the 2016 Outcome Letter. The letter is said to have understated the seriousness of the outcome of the 2016 Report which is said to have upheld the bullying allegations against Mr Bahemia.

66    I note that the submissions by Ms Rindeklev also dealt with a separate claim to the effect that there was a form of discrimination by Mr Richards in referring to personal issues between Ms Rindeklev and Mr Bahemia as 'not related to work'. However, ultimately the claim that Ms Rindeklev was discriminated against because her colleague (Mr Bahemia) was also her partner at the time was not pressed. Accordingly, those aspects of the submissions can be put to one side.

67    The Commonwealth says that, in fact, there was no misrepresentation of the kind alleged. It says that the nature of the whole investigation process (including the consideration of what to do having regard to the contents of the 2016 Report) must also be considered because the letters were the conclusion of the whole process and were not simply a report to Ms Rindeklev of the contents of the 2016 Report. In addition, the Commonwealth says that the matters communicated in the letters to Ms Rindeklev sent after the 2016 Report were not about a workplace right.

68    The List of Issues also records an issue as to whether the representation, if made, was made knowingly or recklessly. The Commonwealth, in closing, did not make submissions as to that point. It is the kind of alternative that is forensically difficult for a respondent who denied the making of representations to advance because it requires evidence to be led from witnesses as to their state of mind in respect of the making of a representation that they say was not made. I regard that aspect as not being pressed by the Commonwealth. Its case was to the effect that the alleged representations were not made.

69    Finally, the List of Issues refers to a contention to be advanced by Ms Rindeklev to the effect that Mr Richards' report was not provided to her at the time and the failure to do so caused injury and detriment because she was prevented from making a fully informed decision about next steps. I regard this aspect of the issues to be of possible relevance only to compensation. I am unable to discern from the List of Issues any basis for a claim that the failure to provide the report of Mr Richards was some form of legal wrong. In particular, there is no articulated basis for a claim that Ms Rindeklev was entitled to a copy of the 2016 Report. Nor is there any indication of the basis for the claim to some form of compensatory or other remedy for a failure to provide a copy of the 2016 Report.

70    Therefore, the issues for determination in relation to Claim 2 are:

(1)    Did the Commonwealth, in the 2016 Outcome Letter to Ms Rindeklev, make a false or misleading representation about the seriousness of the outcome of the preliminary investigation conducted by Mr Richards?

(2)    If yes to (1), was the representation about the workplace rights of Ms Rindeklev or their exercise?

(3)    Having regard to the answers to (1) and (2), has the claim been established?

Claim 3: Alleged misrepresentation in Comcare Response (being Issue 3 in WAD156/2022)

71    Ms Rindeklev claims that the Comcare Response sent in August 2020 contained an incorrect summary of the outcome and findings of the 2016 Report. In particular, she claims that the summary was to the effect that the 2016 Report raised issues from her personal life that contributed to the conduct considered in the 2016 Report. Ms Rindeklev claims that by this conduct the Commonwealth made a false or misleading representation that contravened s 345 of the Fair Work Act.

72    In her submissions, Ms Rindeklev also referred to a failure to disclose in the Comcare Response that the 2016 Report had concluded that Mr Bahemia's conduct was bullying, posed a foreseeable health and safety risk and likely constituted misconduct. Ms Rindeklev also refers to certain statements in the Comcare Response as having falsely implied that the 2016 Report concerned 'mutual misconduct'. She said the Comcare Response constructed an alternative narrative that 'reframed substantiated bullying as interpersonal conflict', downplayed work health and safety obligations and was misleading as to a 'determinative issue of fact'.

73    Ms Rindeklev also referred to the failure to include a copy of the 2016 Report in the attachments to the letter containing the Comcare Response.

74    Ms Rindeklev submitted that the Comcare Response also presented a flawed characterisation of the course of subsequent events and of the way later complaints by Ms Rindeklev were addressed. I regard these matters to be irrelevant to determining whether there was a false or misleading representation of the kind alleged. Separately, the Comcare Response was said to have omitted referring to Ms Rindeklev's participation in rehabilitation programs and that she had been certified as unfit for work due to work-related psychological injury. These too are matters that are unrelated to whether there was a false or misleading misrepresentation of the kind alleged concerning the 2016 Report.

75    In relation to the misrepresentation claim, Ms Rindeklev also made detailed submissions complaining about other documents that had been prepared for the purposes of assessing her workers' compensation claim, including the contents of a rehabilitation assessment report. She appeared to allege that all these matters had consequences for her workers' compensation claim.

76    All these matters appear to be advanced for the purpose of demonstrating that there was some form of consequence for Ms Rindeklev from the alleged representation. They are matters which are not relevant to whether there was a representation by the Comcare Response of the kind alleged. They bear upon whether the relief sought should be granted if the Claim is upheld.

77    The Commonwealth says that no representation of the kind alleged was made by the Comcare Response. It also says that the representation as alleged is not about a workplace right. It says that the Comcare Response is not dealing with a workplace right or the exercise of any such right.

78    The defence rests on those denials. Therefore, no issue arises in relation to the knowing or reckless aspect. The Commonwealth also indicated that a point in relation to an alleged collateral attack on Comcare proceedings was not maintained.

79    Therefore, the issues for determination in relation to Claim (3) are:

(1)    Did the Commonwealth, in the Comcare Response, make a false or misleading representation about the outcome and findings of the preliminary investigation conducted by Mr Richards?

(2)    Were the statements in the Comcare Response concerning the preliminary investigation made about the workplace rights of Ms Rindeklev or their exercise?

(3)    Having regard to the answers to (1) and (2), has the claim been established?

Claim 4: Alleged adverse action by Mr Fleay in reducing Ms Rindeklev's shifts (being Issue 5 in WAD156/2022)

80    Section 340 of the Fair Work Act enacts a protection from 'adverse action' taken because a person has a workplace right or has (or has not) exercised a workplace right or proposes or has proposed to exercise a workplace right (or not to do so). The protection also applies where adverse action is taken to prevent the exercise of a workplace right. In the case of action by an employer against an employee, the action will be adverse action if the employer (a) dismisses the employee; (b) injures the employee in their employment; (c) alters the position of the employee to their prejudice; or (d) discriminates between the employee and other employees of the employer; see s 342.

81    Where adverse action has been taken then it is presumed that the action has been taken because the person has a workplace right or is (or is not) exercising or proposing to exercise a workplace right unless the person taking the action proves otherwise: s 361. So, in cases where adverse action has been taken by an employer, it is up to the employer to prove that it was taken for some other reason.

82    Ms Rindeklev claims that the reduction of her shifts in 2017 was adverse action because it discriminated between Ms Rindeklev and other employees or altered her position to her prejudice. The reduction in shifts was also said to have occurred without any prior investigation process. The imposition of the sanction was also said to involve discrimination in the approach to complaints handling. Others, including Mr Bahemia, were said to have not been sanctioned with a reduction in hours even after a negative investigation finding. Ms Rindeklev claimed that the reduction in hours had been imposed because of discrimination or because of her complaints about Mr Bahemia and not because of Ms Rindeklev's alleged misconduct.

83    I note that the reference to discrimination appears to be a claim that Ms Rindeklev was treated differently to other employees in a similar position. There was no claim that there was some aspect of Ms Rindeklev's identity or circumstances that was the basis for the discrimination. There was no attempt to articulate the discrimination as being contrary to some law or policy in relation to discrimination on particular grounds. It was a claim that there was adverse action because there was discrimination in that the process and outcome for Ms Rindeklev was different to the process allegedly followed for other employees. The existence of adverse action of that kind was a matter for Ms Rindeklev to prove.

84    In her written opening submissions, the only comparison made by Ms Rindeklev between her treatment at the time her shifts were reduced in 2017 and the treatment of others was with Mr Bahemia. There was no explanation as to how the process or sanction applied to her was different to other employees. Therefore, that aspect of her case can be put to one side as being unsubstantiated in any way. As to the alleged discrimination in the way Ms Rindeklev was treated compared to Mr Bahemia, the written opening submissions relied upon the way Mr Bahemia had been treated after the 2016 Report where no sanctions or remedial action was said to be imposed.

85    There is no logic in the comparison with Mr Bahemia. The events in 2017 that led to the reduction in Ms Rindeklev's shifts did not concern Mr Bahemia. They concerned an entirely separate allegation to the effect that Ms Rindeklev had called another staff member an idiot. There was no suggestion that a complaint of that kind had been established against Mr Bahemia. Further, there is no suggestion that there was some subsequent occasion after the 2016 Report and its consequences where Mr Bahemia was sanctioned for failure to comply with the direction issued to him in 2016 concerning his communications using the ICT system (a direction also issued to Ms Rindeklev at the time). There is simply no basis for any form of discrimination complaint as between Ms Rindeklev and Mr Bahemia. For those reasons, the remaining aspect of the discrimination claim that relies upon a comparison between the treatment of Ms Rindeklev and Mr Bahemia also falls away.

86    However, Ms Rindeklev also claimed that that the reduction in shifts occurred because of her complaints about Mr Bahemia and not because of her alleged misconduct. The nature of this claim is difficult to follow. It appears to rely upon the fact that the explanation given by Mr Fleay for the reduction in shifts was a failure to adhere to the direction that had been given to Ms Rindeklev after the 2016 Report (by calling a colleague an idiot).

87    The submission advanced appeared to involve the following steps. First, the 2016 Outcome Letter mischaracterised the conduct of Ms Rindeklev and 'reframed a substantiated bullying complaint as mutual fault'. Second, the justification for the reduction in shifts was 'the repurposing of a misrepresented narrative to impose a fresh detriment'. Third, the result was 'a strategic invocation of an earlier false narrative' to classify the 2017 incident as repeat behaviour. I observe that these submissions appear to proceed on the premise that aspects of Claim 2 have been upheld.

88    So, putting to one side the unsupported discrimination complaint, Claim 4 had two aspects. First, a claim that there was adverse action by issuing the directions letter in 2017 without any prior investigative process. Second, a claim that there was adverse action by deploying what had occurred in 2016 as the justification for reducing the shifts in 2017.

89    Ms Rindeklev separately complained that the inclusion of a link between the letter sent to her advising that her hours had been reduced and the making of her complaint on 1 July 2016 about Mr Bahemia the previous year was a form of 'post complaint harassment'. It is difficult to understand what is meant by this characterisation. It appears to be no more than a label coined by Ms Rindeklev to refer to the second of the two claims I have just described.

90    The letter and the reduction in shifts as a reduction in work hours was admitted by the Commonwealth to be adverse action for the purposes of s 361 of the Fair Work Act, but it maintained that the adverse action was not taken for a prohibited reason. The Commonwealth's case was that it had conducted a proper process before imposing the sanction. The claim that there had been no prior investigation process was denied.

91    Further, the Commonwealth's case was that the reduction in Ms Rindeklev's hours was a consequence of her poor conduct to a colleague (who was not Mr Bahemia) that occurred in September 2017 and had not been imposed for the reason that Ms Rindeklev had previously made a complaint about Mr Bahemia. The Commission said that the conduct history of Ms Rindeklev and previous counselling about her behaviour at work were matters that were taken into account by Mr Fleay in deciding that the reduction in hours was appropriate.

92    The Commonwealth did not advance an affirmative case responding to the alleged discriminatory reason for the conduct in dealing with the complaint. That is to say, the Commonwealth did not seek to adduce evidence of the reasons why the complaint had been addressed in the way in which it had. It did not seek to explain the reason for the alleged discrimination between Ms Rindeklev and other employees when it came to the investigation process if the claim of alleged discrimination was upheld. Rather, its case was to the effect that it denied any adverse action of that kind. For the reasons I have given, there is no basis for any discrimination case.

93    The employment contract between Ms Rindeklev and the Commonwealth at the time was for employment as an IIE. On the face of the contract terms, the Commonwealth could reduce her shifts. Further, no issue is raised by Ms Rindeklev as to whether the reduction in shifts was permitted. Indeed, her claim assumed the existence of a contract term that allows for a reduction but says that the circumstances in which the reduction occurred amounted to adverse action.

94    Therefore, the issues for determination in relation to Claim 4 are:

(1)    Did Mr Fleay impose the sanction of reduced shifts without any prior investigation process?

(2)    Taking account of the onus on the Commonwealth and the answer to (1), was the reason for altering the position of Ms Rindeklev to her prejudice by reducing her shifts because she had made a complaint against Mr Bahemia in 2016?

(3)    Having regard to the answers to (1) and (2), has the claim been established?

Claim 5: Alleged adverse action in the conduct of the investigation and outcome the subject of the 2019 Report (being the first part of Issue 1 in WAD165/2022)

95    Ms Rindeklev says that the conduct of the investigation of the email that she sent in March 2019 (raising what she described as a bullying issue) and the outcome of that investigation (which she says was a finding that she was a frivolous and vexatious multiple complainer) was adverse action. The investigation is said to have lacked procedural fairness and the making of the alleged finding is said to have altered Ms Rindeklev's position to her detriment.

96    In her written opening submissions, Ms Rindeklev also referred to the making of a finding that she had made multiple internal complaints 'in bad faith'. I understand this to be an alternative way in which Ms Rindeklev formulated the gravamen of the finding that she said was the outcome of the process conducted in 2019 in dealing with the matters raised in her March 2019 email.

97    In what follows, I will refer to the findings allegedly made that Ms Rindeklev was a frivolous and vexatious multiple complainer and that she had made multiple internal complaints in bad faith as the Adverse Finding (recognising that there are two distinct formulations of the nature of that finding which alternatives I have described above).

98    The outcome of the 2019 Report is said to have been a 'formal adverse outcome' issued by the assistant director at the time, Ms Stocker, based on a draft letter prepared by Ms Caudwell (who conducted the relevant investigation and prepared the 2019 Report).

99    Allowing for the discursive way in which the case was put and doing the best I can, Ms Rindeklev appears to advance the following claims as part of her case that the manner in which the findings were made was procedurally unfair:

(1)    Ms Rindeklev's initial email had not been a complaint, but had been a request for support;

(2)    There was a failure to 'circle back' with Ms Rindeklev before proceeding to formulate the content of Ms Rindeklev's email into a complaint document for internal handling;

(3)    The process of investigating and reporting on the matters raised in her initial email turned into a deliberation on Ms Rindeklev's own conduct;

(4)    The process conducted by Ms Caudwell amounted to an adverse investigation being undertaken against Ms Rindeklev in which the issue was whether she had engaged in serious misconduct by engaging in vexatious complainant behaviour;

(5)    The procedure followed failed to afford procedural fairness to Ms Rindeklev by failing to initiate and undertake a proper investigation of matters relating to her previous complaints;

(6)    The procedure failed to follow the proper procedure for a misconduct investigation of Ms Rindeklev's own behaviour which required notice to be given to Ms Rindeklev of the allegation being made;

(7)    Ms Rindeklev was not afforded an opportunity to provide further evidence or clarification and was not given an opportunity to respond to allegations made against her, particularly a history of complaints provided by each of Ms Harwood and Mr Proll;

(8)    The 2019 Report did not address the inappropriateness of discussions around Ms Rindeklev being treated for autism which formed part of her concerns as to bullying;

(9)    The way in which questions were posed to team leaders failed to reflect the concerns that had been raised by Ms Rindeklev about a lack of familiarity amongst team leaders with the procedures for handling complaints and were a kind of 'self-referential' inquiry in which team leaders were asked whether they were familiar with general complaints-handling procedures;

(10)    The above matters meant that the investigation process was contaminated by bias and pre-judgment and was predisposed in favour of the positions of Ms Harwood and Mr Proll as team leaders; and

(11)    The reasoning by Ms Caudwell failed to address those terms of the bullying policy which were to the effect that intent was not to be considered (that is, conduct could amount to bullying despite an absence of intention to harm or act unfairly towards the other person).

100    Ultimately, Ms Rindeklev advanced submissions to the effect she had sought assistance by her March 2019 email and her actions in doing so were 'protected conduct' in the same way that making a complaint or raising a formal grievance would be protected. I take this to mean that the adverse action was allegedly taken because Ms Rindeklev exercised a workplace right to seek assistance concerning an issue about bullying in the workplace.

101    As to why the making of the alleged Adverse Finding was said to be adverse action, Ms Rindeklev advanced three alternatives:

(1)    It was adverse action because it altered her position to her detriment by labelling Ms Rindeklev as a frivolous, vexatious and multiple complainant which biased and prejudiced all future complaints made by Ms Rindeklev;

(2)    It was adverse action because it resulted in injury to Ms Rindeklev in that the conduct of the investigation and the outcome was itself a form of employer bullying, harassment and victimising; and

(3)    It was adverse action because it discriminated between Ms Rindeklev and other employees in a similar situation who had made bullying complaints.

102    Possibly the claim by Ms Rindeklev involves two alternatives as to the alleged adverse action. The first alternative is that the making of the alleged Adverse Finding was adverse action. The second alternative is that the making of the alleged Adverse Finding by a process that was procedurally unfair was adverse action. The alternatives are interrelated because the reason advanced by Ms Rindeklev as to why the process is said to have been procedurally unfair is because the process was an unfair way of reaching a formal conclusion that Ms Rindeklev was a frivolous and vexatious, multiple complainer.

103    The distinction between the two alternatives might have significance for the purposes of s 361 in a case where the respondent seeks to adduce evidence to prove that the reasons for the conduct are otherwise than that which would be presumed by operation of s 361. However, here the distinction has no such significance because, as is explained below, the Commonwealth did not seek to adduce evidence for the purposes of s 361 in answer to Ms Rindeklev's claim based upon the alleged Adverse Finding.

104    Otherwise, because the complaints about a lack of procedural fairness assume that the investigation process and outcome concerned whether Ms Rindeklev was a vexatious multiple complainer and a person who made complaints in bad faith, the claims of lack of procedural fairness fall away if the claim to the effect that the Adverse Finding was an outcome of the process is not accepted.

105    The Commonwealth disputed the claim that there had been some form of formal finding of the kind alleged by Ms Rindeklev. It also disputed whether there could be said to be adverse action in circumstances where the 2019 Report had not made any determination about the conduct of Ms Rindeklev or imposed any sanction on Ms Rindeklev as the person who had raised the matters the subject of the investigations and the 2019 Report. The Commonwealth said that it was not the case that findings were being made against Ms Rindeklev in the sense that there would be any consequence for her own employment.

106    The Commonwealth also disputed the claim that the process had been procedurally unfair in some way to Ms Rindeklev. However, the Commonwealth's position was to the effect that the premise for Ms Rindeklev's complaint about procedure, namely that the investigation turned into a investigation as to whether Ms Rindeklev had engaged in misconduct by being a multiple vexatious complainant, was not established. That is to say, the answer advanced by the Commonwealth depended upon the Court upholding its contention that the alleged Adverse Finding had not been made. It did not separately seek to engage with the claim that the process was procedurally unfair on the premise that the Alleged Finding had been made.

107    In addition to pointing to the nature of the process as not being concerned with whether there should be some form of sanction or adverse outcome for Ms Rindeklev, the Commonwealth pointed to the availability of a review right that was available to Ms Rindeklev as the party raising the complaint. The Commonwealth relied upon the failure by Ms Rindeklev to exercise that right as an answer to any claim that the process was adverse action.

108    The Commonwealth did not seek to advance a case in the alternative to the effect that if the Adverse Finding was made then it was not made for a proscribed reason. Nor, as I have said, did it seek to meet the claims of procedural unfairness on the basis of some form of alternative case which assumed there had been an Adverse Finding but sought to demonstrate that the procedure followed in making that finding was procedurally fair. Its case was that there was no Adverse Finding as alleged by Ms Rindeklev. It said that there was no such finding by Ms Caudwell or Ms Stocker. As mentioned, it also relied upon the availability of an appeal as an answer to any claim that the making of the Adverse Finding or the making of that finding in a way that was procedurally unfair amounted to adverse action.

109    Ms Rindeklev also made submissions to the effect that the alleged Adverse Finding had ongoing consequences for Ms Rindeklev. It was said to have been 'operationalised' and used at later times to justify actions that were adverse to Ms Rindeklev. It was also said to have contaminated future decision-making and led to psychological decline on the part of Ms Rindeklev. These submissions cannot be taken to be raising some form of separate allegation of adverse action arising from those alleged subsequent events, as no case of that kind was expressed in the List of Issues.

110    Therefore, I take the submissions by Ms Rindeklev as to what happened after the alleged Adverse Finding was made as being advanced to explain Ms Rindeklev's case as to the consequences that were said to flow from the adverse action (being the alleged Adverse Finding and the unfair process said to have been followed in making the Adverse Finding). Consequently, those subsequent matters only have relevance if it is determined that the alleged Adverse Finding was made.

111    Aside from challenging evidence given by Dr Samuel, the case for the Commonwealth did not engage with the causation and loss aspects of Ms Rindeklev's submissions and evidence. The significance of Dr Samuel's evidence is dealt with separately at the end of these reasons. The Commissioner's case was otherwise focussed upon whether there was a finding of the kind alleged by Ms Rindeklev.

112    Finally, I note that at one point in her written opening submissions, Ms Rindeklev referred to the '2019 HR outcome' (that is, the alleged Adverse Finding) as being treated by the Commonwealth, as Ms Rindeklev's employer, as having a binding character 'whether formally issued or not' and being distributed informally within leadership networks. This instance of an alleged consequence for Ms Rindeklev is not linked to the claim made, namely that there was a formal finding against Ms Rindeklev in the 2019 Report to the effect that she was a repeat vexatious complainer who acted in bad faith which finding was communicated to Ms Rindeklev as an outcome of the investigation (into the matters raised in her March 2019 email) and the 2019 Report. This single passing reference in the written opening submissions advanced for Ms Rindeklev could not be the foundation for a new kind of adverse action not otherwise alleged in the issues recorded through the process with the registrar. I do not regard the case as advanced by Ms Rindeklev to include a claim that there was adverse action in the form of treating the reasoning in the 2019 Report as a formal finding that was adverse to Ms Rindeklev even though it was not a formal finding. A case of that kind would be contrary to the case alleged which was to the effect that there was a formal finding in the terms of the alleged Adverse Finding.

113    Therefore, the issues for determination in relation to Claim 5 are:

(1)    Was the Adverse Finding made in the 2019 Report?

(2)    If yes to (1), was the process that culminated in the Adverse Finding procedurally unfair?

(3)    Was the unexercised right of appeal an answer to the claim by Ms Rindeklev concerning the alleged Adverse Finding?

(4)    Having regard to the answers to (1) to (3), has the claim been established?

Claim 6: Alleged incitement by Ms Harwood and Mr Proll of the adverse action in the conduct of the investigation and outcome the subject of the 2019 Report (being the second part of Issue 1 in WAD165/2022)

114    Relevantly for present purposes, s 362 of the Fair Work Act provides that if, for a particular reason, a person advises or encourages a second person to take action and the action, if taken by the second person for that reason, would contravene the adverse action protection provisions then the first person is taken to have contravened those provisions. I note that s 362 also applies to action taken for a particular reason to incite or action taken with intent to coerce action. However, Ms Rindeklev did not rely upon those aspects of the provision. It can also apply to other contraventions of Part 3-1, but none was suggested.

115    The List of Issues included a claim that the outcome of the 2019 Report 'incited the Respondent…to continue taking adverse action against [Ms Rindeklev]' in that 'her complaints were treated as frivolous or vexatious'. Expressed in those terms, the claim appeared to be one of causation that attributed ongoing adverse consequences for Ms Rindeklev to the alleged Adverse Finding in the 2019 Report. However, Ms Rindeklev expressed that aspect as a claim of incitement contrary to s 362.

116    In her written opening, Ms Rindeklev included a long section headed 'Section 362 institutional Incitement Foundation'. The submission was not formulated by reference to the elements of s 362, nor was it connected to the List of Issues. It was discursive and replete with adverse characterisations of the way that Ms Harwood and Mr Proll and others responded to various concerns and complaints raised by Ms Rindeklev concerning the actions of other employees. It was expressed in terms that appeared to be directed to explaining the full history of complaints that had been raised by Ms Rindeklev during her time at the Child Support Agency. It sought to characterise the complaints made by Ms Rindeklev during that time as justified and alleged that the responses to her complaints were not appropriate, describing them at various points as 'incitement' although the purport of that description was not apparent.

117    Many of the submissions under the heading 'institutional Incitement Foundation' were expressed as conclusions characterising the conduct of others rather than as descriptions of conduct that was said to be a contravention of the Fair Work Act by application of s 362. Doing the best I can to extract the substance of what was being said in the 'institutional Incitement Foundation' part of the written opening, the allegations made appear to be to the following effect:

(1)    During her probation period as an employee at the Child Support Agency in 2018, Ms Rindeklev had to advocate to be able to access training opportunities that had been provided to others in her cohort and raised two informal concerns which were neither vexatious or frivolous;

(2)    The complaints were the beginning of retaliatory actions by Ms Harwood over the next 4 years that 'incited HR Staff and all leadership staff that came into contact with [Ms Rindeklev]';

(3)    Various complaints were made by Ms Rindeklev in 2018 and were dealt with by Ms Harwood by allegedly reframing legitimate concerns as misconduct and fostering a culture that penalised complaint-making;

(4)    Mr Proll's handling of Ms Rindeklev's concerns in mid-2018 'exemplifies a pattern of invalidation that characterised the employer's broader response to her complaints';

(5)    Mr Proll used 'gaslighting techniques' and 'psychological invalidation' when responding to Ms Rindeklev's complaints and invalidated and reframed Ms Rindeklev's legitimate concerns;

(6)    Ms Harwood contacted Ms Wojcikowski, a service support manager at Centrelink, acting outside any formal complaint or misconduct process and not via Human Resources in making an inquiry as to whether the pattern of complaints by Ms Rindeklev had been an issue when Ms Rindeklev was engaged as an IIE at Centrelink;

(7)    The responses to Ms Rindeklev's complaints reflected 'a broader pattern of pretextual investigations and institutional bias, directed not at resolution but at reputational harm';

(8)    Ms Harwood expressed the view that Ms Rindeklev had made a large number of complaints and said that there was a lack of evidence supporting the complaints and 'the frequency of complaints may be impacting her relationship with the team' thereby portraying Ms Rindeklev as 'a serial complainant whose concerns lacked merit';

(9)    Ms Harwood was alleged to have reframed genuine concerns raised by Ms Rindeklev about being routinely ignored or greeted in a demeaning tone by team members 'in the context of a clique of former probationers' as being 'trivial or exaggerated' and this was contrary to published workplace policies;

(10)    Ms Harwood's conduct, alongside that of Mr Proll, 'reveals a deeper institutional problem: both managers actively incited staff to adopt the view that raising concerns about respectful behaviour was frivolous, vexatious, or even a form of misconduct', which reframing 'served to delegitimise [Ms Rindeklev's] complaints, discourage others from raising similar issues, and normalise exclusionary behaviour';

(11)    In August and September 2018, Mr Proll was alleged to have repeatedly suggested that Ms Rindeklev undergo testing for Autism Spectrum Disorder and to have recorded speculations about her that 'might explain why she was being bullied by the team';

(12)    Mr Proll engaged in actions that 'escalated the situation and incited further breakdown';

(13)    Ms Harwood used information gleaned from Centrelink to say that Ms Rindeklev had a history of making frivolous complaints about greetings;

(14)    Ms Rindeklev experienced and reported workplace stress in 2018;

(15)    Through the way he handled a meeting with Ms Rindeklev on 28 September 2018, Mr Proll 'singlehandedly incited [Human Resources] to treat [Ms Rindeklev] as an employee who routinely lodged vexatious complaints' and that was not an honest assessment or was a misunderstanding on his part;

(16)    When Mr Proll went on leave in October 2018, Ms Rindeklev was met with an aggressive and inappropriate response when she tried to raise a complaint about bullying with his replacement;

(17)    In March 2019, Mr Proll and Ms Harwood provided Human Resources 'with a collection of withdrawn, minor, or informal issues, including complaints not made by [Ms Rindeklev] and cast these as examples of her supposed pattern of frivolous or unfounded reporting';

(18)    The allegedly selective and distorted input to Human Resources was calculated to persuade Human Resources that Ms Rindeklev was untrustworthy and misusing the complaints processes; and

(19)    The conduct in March 2019 of Mr Proll and Ms Harwood 'incited and materially influenced the decision-making process, shaping the adverse finding and its characterisation of [Ms Rindeklev's] conduct' and their role satisfied the definition of incitement under s 362 of the Fair Work Act.

118    The submission is also replete with disagreement on the part of Ms Rindeklev with the appropriateness of the response to her various complaints. It also seeks to link ongoing issues with Ms Rindeklev's mental health to the way she was treated when it came to the complaints she raised in 2018.

119    The section of the submission concerned with 'institutional Incitement Foundation' concludes by referring to her email of 13 March 2019 raising a 'Bullying issue' and the reasons why it was sent by Ms Rindeklev.

120    The only point at which the statutory concept of incitement is referenced in these contentions is the claim that the conduct of Mr Proll and Ms Harwood in March 2019 was inciting and shaping the 'adverse finding' (which appears to be a reference to the Adverse Finding in the 2019 Report). It appears to be a claim that the described course of conduct by Mr Proll and Ms Harwood was engaged in to influence the making of the Adverse Finding (or perhaps simply that it did influence the making of the Adverse Finding).

121    Significantly, there is no claim that the conduct by Mr Proll and Ms Harwood described in these lengthy contentions is itself adverse action of some kind that falls within the protection afforded by s 340. Further, there is no claim of that kind in the List of Issues. As the heading indicates, it appears to be directed towards making some type of case based on the incitement provision.

122    Notably absent also is any contention as to the reason why Ms Harwood and Mr Proll are alleged to have engaged in the conduct attributed to them in Ms Rindeklev's written opening. There is no contention to the effect that the conduct complained of was taken because Ms Rindeklev has a workplace right or is (or is not) exercising or proposing to exercise a workplace right. Perhaps it may be inferred that the allegation is that the conduct is being engaged in by Ms Harwood and Mr Proll because Ms Rindeklev has exercised her right to make complaints. However, essential to any reliance upon s 362 is an articulation of the action which the person engaging in the advising or encouraging is seeking to have the second person take. A claim that relies upon s 362 must identify action by a second person that is sought to be advised or encouraged (or incited or coerced) which action, if taken by the second person, would be a contravention. It must also identify the reason for advising or encouraging that action. The only action of that kind is the making of the alleged Adverse Finding in the 2019 Report (prepared by Ms Caudwell).

123    Rather, it seems that the claim being made is that Ms Harwood and Mr Proll incited and materially influenced the alleged Adverse Finding in the 2019 Report. Of course, the 2019 Report was only triggered by Ms Rindeklev's own email in March 2019..

124    In its opening, the Commonwealth pressed for the nature of the incitement claim being made to be specified. In particular, it sought the identification of the person or persons who were said to have incited and the second person or persons whose actions were sought to be affected. The Commonwealth emphasised that the claim was inherently serious.

125    Ms Rindeklev was given an opportunity to explain her case the following day. At that time, Ms Rindeklev put the incitement claim in terms that Ms Harwood and Mr Proll advised and encouraged the process that was followed in relation to Ms Rindeklev's email about the 'bullying issue' by advancing the position to various staff members that Ms Rindeklev was a vexatious complainant to human resources and to Ms Caudwell (who prepared the 2019 Report).

126    Ms Rindeklev also maintained that communication by Human Resources to 'various staff after', that is after the 2019 Report, also amounted to incitement. However, for reasons I have given, I consider that aspect to involve an allegation that there were ongoing consequences from the alleged Adverse Finding. It is not a recognisable claim of contravention of s 362 because it does not identify the required elements. Also, it is not a claim of a kind articulated in the List of Issues.

127    The Commonwealth denied the claim as formulated by Ms Rindeklev in relation to conduct by Ms Harwood and Mr Proll. In closing, its position was that the claim must fail for three reasons, namely (a) the claim lacked particularity; (b) the claim was not put to witnesses; and (c) there was an absence of evidence to support the claim.

128    Therefore, Claim 6 gives rise to the following issues:

(1)    Was the claim of incitement adequately particularised and, if so, precisely what was the claim?

(2)    Was it necessary for the claim to be put to Ms Harwood and Mr Proll?

(3)    If yes to (2), was the claim put to them?

(4)    Was there evidence to support the claim?

(5)    Having regard to the answers to (1) to (4) has the claim been established?

Claim 7: Alleged adverse action in issuing a warning for speaking in a Union meeting (being Issue 2 in WAD165/2022)

129    Relevantly for present purposes, s 346 provides that a person must not take adverse action against another person because the other person has engaged or is proposing to engage in industrial activity.

130    Ms Rindeklev claims that she was given a warning by Ms Harwood for speaking at a meeting arranged by the Union at the workplace in November 2019. The Union meeting was for the purpose of discussing matters that were relevant to a process of workplace bargaining. The adverse action was said to take the form of a verbal warning for speaking at the meeting. In her written submissions, Ms Rindeklev said that Ms Harwood gave her the warning during the December 2019 Meeting.

131    The Commonwealth accepts that attendance at the Union meeting in late November 2019 would meet the definition of industrial activity. The Commonwealth also accepts that there was a conversation that took place between Ms Harwood and Ms Rindeklev about whether it was appropriate for Ms Rindeklev to raise personal concerns about another employee in a Union meeting of the kind concerned. However, the Commonwealth denies that any form of warning was given to Ms Rindeklev.

132    Ms Rindeklev advanced specific submissions about what she claimed to be the immediate consequences from the alleged conduct. She claimed to be so distraught when she came to work the following day (Friday, 6 December 2019) that she left work to seek medical assistance. Ms Rindeklev relies upon a medical record provided by Dr Chen and a medical certificate that she was unfit for work from the following Monday (9 December) to 22 December 2019. The medical record does not indicate anything specific about a warning being given about speaking at the Union meeting. Rather, its terms reflect the context of the December 2019 Meeting which sought to address communication issues between Ms Tay and Ms Rindeklev.

133    The medical record was in the following terms:

ISSUES:

Anxiety stress caused by long standing harrassment [sic] and bullying from her team leader at child protection. Recent meeting with her, together with HR and work psychologist, worsened the situation.

Very anxious upset talking about work, frightened, fearful with dealing with the team leader. Limited support structure at work.

Lives at a rental property, has friends to talk to.

Appetite, sleep ok.

No self harm thoughts, or susbtance [sic] issues.

Good insighty [sic]. Cognition seem intact.

PLAN:

•long chat

•listen advise

•continue with psychologist at work

•med cert given for next 2 weeks, in case needed, she will still try go to work on Monday. Hopefully, can be moved to another team in 2 weeks.

•mindfulness practice

•review 2-3 weeks

134    On the face of the medical record, the concerns raised at the time relate to the concerns Ms Rindeklev was having with her team leader which she described to her doctor as being long standing harassment and bullying. Having regard to the chronology, the reference to the recent meeting appears to be a reference to the December 2019 Meeting. This is consistent with the nature of the submission advanced by Ms Rindeklev which refers to the events of the previous day which, in context, must include the events of the December 2019 Meeting.

135    The documents include an email from Ms Rindeklev to Ms Tay sent on 9 December 2019. It was in the following terms:

Recapping on the discussion with you just this morning:

The med cert provided by me today covers about 2 weeks, from 13/12-20/12. This is a concern, if I am not well yet here at work.

I am not feeling a 100% but feeling a little better from Friday, I have also ended up with a very severe back pain currently in addition.

I stated to you that I came in as I have no sick leave left. We discussed the possibility of coding Annual leave, as with retracting the one on 24/12, I would have nearly six days available of annual leave. Wed decided to code this annual leave, with the addition of a small flex available (possible) to make up so that I can be away and yet be paid.

We also discussed that I will miss my big training event about change however this can be made up for in the next available offer for the next year.

I will come in for the 23/12 and the 24/12.

136    I refer to these documents because they indicate that the medical records relied upon concerned the consequences of the events on 5 December 2019, particularly the December 2019 Meeting. That is the context in which they were referred to by Ms Rindeklev in her affidavit evidence. I do not regard that evidence as establishing a specific consequence for Ms Rindeklev's health at the time that might be attributed in some way to the specific comment made by Ms Harwood about the Union meeting. I deal separately with other issues that arise in relation to causation, loss and damage below.

137    Therefore, Claim 7 gives rise to the following issues:

(1)    What was said by Ms Harwood to Ms Rindeklev after the Union meeting in November 2019 about Ms Rindeklev speaking in the meeting?

(2)    Did the words spoken amount to a warning being given to Ms Rindeklev for speaking in the meeting?

(3)    Having regard to the answers to (1) and (2), has the claim been established?

Causation and relief

138    If any of the claims are upheld then issues arise as to whether the contravening conduct gave rise to compensable harm or provides the basis for other forms of relief. In order to succeed in obtaining an award of compensation or damages, Ms Rindeklev would need to demonstrate a causal connection between the contravening conduct and the loss claimed. As to claims to aggravated and exemplary damages there would need to be some legal basis for an award of that kind.

139    In respect of Claims 1 to 4, Ms Rindeklev seeks compensation and damages totalling $8 million. It is claimed as a 'consolidated' amount for pain and suffering, general damages, aggravated damages and exemplary damages. She also seeks civil penalties exceeding $1.4 million. The claims to some penalties are made on the basis that there have been serious contraventions.

140    In respect of claims 5 to 7, Ms Rindeklev seeks an award for allegedly lost earnings and superannuation, general damages for alleged psychiatric and reputational injury as well as aggravated and exemplary damages of $50 million. Ms Rindeklev also seeks awards of pecuniary penalties of over $2 million most of which is claimed on the basis that there have been serious contraventions. She claims that there should also be an order for payment of pecuniary penalties to the Commonwealth of $66,600.

141    In addition, as to all claims, Ms Rindeklev seeks an order requiring a written apology, a publication order and what she describes as orders for compliance and systemic reform.

142    These claims to relief are advanced without any supporting submissions. The nature and extent of any relief was a matter for determination at the hearing. As I have explained, only the issue of the quantum of damages or compensation was deferred for later determination.

The nature and extent of the lay evidence and the documents

143    The two proceedings were heard together with evidence in one proceeding being evidence in the other. The final hearing was on affidavit.

144    To assist Ms Rindeklev with understanding the requirements for cross-examination and other aspects of conducting the hearing, an explanatory conference was arranged with a Registrar well before the hearing.

145    Although the hearing took place over two weeks, most of the relevant chronology of events was not in issue. Books of documents were received into evidence from Ms Rindeklev and from the Commonwealth. Ms Rindeklev and most of the key participants in the relevant events provided affidavits. Ms Rindeklev was cross-examined. Most of the deponents relied upon by the Commonwealth were cross-examined by Ms Rindeklev who appeared on her own behalf.

146    As to the lay evidence, I formed the view that all of the witnesses who were cross-examined were credible witnesses who responded with care to the questions they were asked. This includes the evidence given by Ms Rindeklev. Generally, there was a level of overall consistency in the accounts given as to the chronology and the nature of the complaints raised by Ms Rindeklev. A considerable period of time had elapsed between the events the subject of the witness testimony and the giving of their evidence. Nevertheless, I formed the view that much of what had occurred had been of significance to all involved and for that reason most witnesses were able to draw upon a degree of actual recollection, in some instances a detailed recollection. This was reflected in the way evidence was given by the witnesses. I did not have concerns as to whether the evidence given reflected the actual recollection of events of any witness.

147    Although I accept the sincerity with which Ms Rindeklev believed in the basis for her claim and the genuineness of her descriptions of the way she remembers her experience of past events, I have concerns about the reliability of Ms Rindeklev's recollection. I would attribute those concerns to the way in which Ms Rindeklev has perceived and remembered events, rather than any concern about her truthfulness. I do so based upon evident inconsistency between aspects of her account and the documentary record, the language she uses to describe her case in submissions when compared to the evidence and those parts of her case which depend upon what I would describe as a form of revisionist approach to the documents (whereby particular aspects of documents were focussed upon by Ms Rindeklev and sought to be given a significance that they did not bear at the time). I will address examples of these matters where they are of particular significance for the findings to be made.

148    All that said, much of what was in issue was the subject of contemporaneous documents written by or provided to Ms Rindeklev at the time. Indeed, Ms Rindeklev's case as presented depended almost entirely upon the documentary record as to events that were not in issue and the conclusions that may be drawn from the contents of those documents. Mostly, those documents contained a contemporaneous record of matters discussed. Many were provided to those involved in the discussions at the time or were prepared by Ms Rindeklev herself. Therefore, generally speaking, I consider that the oral testimony must be evaluated in the context of what was recorded at the time, with preference being given to the written record.

149    In these reasons, unless the context indicates otherwise, I should be taken to make findings in terms of the matters described. In particular, where I recount evidence given without qualification or adverse comment then I have accepted the account. This includes the reasons I have set out above. Where I consider there to be a reason to doubt the evidence given, I will identify the issue and make specific findings.

150    As has been mentioned, Ms Rindeklev also relied upon expert evidence provided by Dr Mathew Samuel, a psychiatrist. It concerned the state of Ms Rindeklev's mental health and the extent to which her mental health had been affected adversely by actions or events in the workplace during her employment by the Commonwealth. I will deal with his evidence and the reasons why I find that his evidence is not of any assistance after I have considered the issues raised by Ms Rindeklev's claims as to liability on the part of the Commonwealth.

Claim 1: Alleged discriminatory conduct by failing to take action in response to conduct of Mr Bahemia

Issue 1(1): Precisely what are the alleged omissions that are said to have altered the position of Ms Rindeklev to her detriment?

151    The List of Issues identifies three alleged omissions that are said to constitute the discriminatory conduct, namely:

(1)    Failing to follow up with Mr Bahemia after he was spoken to by Ms Ferre on 1 May 2015, when Mr Bahemia told Ms Ferre he may 'have some difficulty in managing this as some of those work colleagues are colleagues or essentially friends of long standing - 15 years or so at work'. The quotation is taken from notes prepared by Ms Ferre of her meeting with Mr Bahemia on 1 May 2015.

(2)    Failing to recognise or escalate the issue with Mr Bahemia to management.

(3)    Failing to follow up or monitor Mr Bahemia's behaviour after the 1 May 2015 meeting (up until 1 July 2016) in circumstances where Ms Rindeklev had attended hospital on 30 July 2015 and made a further formal complaint about Mr Bahemia on 1 July 2016.

152    The three matters are connected. The essence of the alleged omission is the failure to take appropriate action about Mr Bahemia after Ms Rindeklev raised issues about his behaviour. Part of the claim is to the effect that it was known to Ms Ferre that Mr Bahemia was going to reveal personal information about their relationship to work colleagues. It also appears to be part of the claim that the failure occurred in circumstances where it was known that Ms Rindeklev was unwell and, presumably, that her health issues were attributable to the actions of Mr Bahemia in the workplace.

153     In her written opening, Ms Rindeklev identified three persons of responsibility. She put the complaints in the following terms:

(1)    As to Ms Theodoropoulos, she was said to have received a formal complaint on 24 April 2015 and 'failed to act adequately';

(2)    As to Ms Ferre, she was said to have 'independently made a reckless error in the course of managing the complaint'; and

(3)    As to Mr Fleay, he was said to have played 'an early supervisory or advisory role in relation to [Ms] Theodoropoulos, who was then new to management'.

154    Ms Rindeklev relied upon the documents to support her claims as to what occurred at the time and what was known to each of Ms Theodoropoulos, Ms Ferre and Mr Fleay. In particular, she submitted that the findings in the 2016 Report 'revealed the scope of the harm and the extent to which [Centrelink] had failed in its duty [that is, the duty not to engage in discriminatory conduct in breach of s 104 of the Work Health and Safety Act]'. Ms Rindeklev maintained that Mr Bahemia's conduct was repeated, intrusive and intimidating and was a recognised psychosocial hazard.

155    Therefore, as to the alleged omissions, Ms Rindeklev claimed that the events in April 2015 exposed an issue with the behaviour of Mr Bahemia and its effect upon Ms Rindeklev and there was a failure thereafter by Ms Theodoropoulos (supervised by Mr Fleay) to take action (even though there was an awareness of consequences to her health that resulted in her hospitalisation) as was shown by the 2016 Report. The specific conduct alleged against Ms Ferre relates to a failure to follow up a comment by Mr Bahemia on 1 May 2015 to the effect that he may have difficulty not talking to his colleagues about his relationship with Ms Rindeklev.

Issue 1(2): Were there omissions of the kind alleged?

156    The case advanced by Ms Rindeklev, as explained in her written opening, began with a complaint that she made on 24 April 2015.

157    On that date, Ms Theodoropoulos sent an email to Ms Rindeklev in the following terms:

Thanks you for meeting with me today. As discussed if you wish me to take action over what we discussed I will need you to document details and what action you would like me to take. Please send this to me by COB Tuesday 28/04.

Below are a list of [Harassment Contact Officers] in Perth Smart Centre

[list of names of officers]

They are available to provide confidential advice and options regarding Harassment and Bullying in the workplace. Please make contact with one of them to arrange a meeting.

Also, please see the below link regarding EAP. Their contact number is… They are an external agency and available to help support you and allow you to get support regarding this issue…

158    Ms Rindeklev then sent an email to Ms Theodoropoulos. It commenced with the following:

Hi Erica

I spoke to Deanne [one of the Harassment Contact Officers]…just then which was helpful. She gave me a few different options. With her approval, we decided that I could approach [Mr Bahemia] by Lync and suggest that he also contact Deanne himself to have a talk and settle the matter. I have just Lynced Omar with this suggestion and a short explanation, however he stated he would not be contacting Deanne.

159    The email continued with 'a brief outline' of Ms Rindeklev's concern. The outline described tumult in their personal relationship. It then referred to Mr Bahemia having gone to a social worker and divulged his account of things that Ms Rindeklev had said in the course of their personal relationship. Ms Rindeklev explained that the social worker was known to her and that the social worker's son works at Centrelink 'near me on the floor'. Ms Rindeklev described these events as having 'led to us breaking off and me moving out eventually'. The email then records:

I was barely able to come to work, and indeed thought I would not come back, except for Erica being very understanding of my absence. I have had a lot of absences prior and thought this may be the end of my employment. I felt extremely conscious about the integrity of the social worker, whether she was bound by ethics not to disclose this to others at work. I imagined she may have talked to [her son] about it and that [he] possibly could have said something to the rest of [the work team].

160    The email then referred to Ms Rindeklev 'self-consciously' thinking that '[Mr Bahemia] had been speaking to the leadership about me'. The email went on to express Ms Rindeklev's concern that Mr Bahemia may be divulging details about their relationship and matters she has told him during their relationship with her work colleagues. The email concluded:

I would like [Mr Bahemia] to be made aware of appropriate conduct so that I can go [sic] the work place feeling ensured that there is an understanding that I have rights…He ought to have known better about contacting the social worker, but my main concern is what will now be said about me, joked about me, and so forth, when I return to work after the Anzac weekend.

161    Ms Rindeklev submitted that the email disclosed that Mr Bahemia had resumed making disparaging comments in their workplace. The email did not take that form. Rather, it disclosed Ms Rindeklev's anxiety that Mr Bahemia could be disclosing matters that he knew from the time they were in a personal relationship. It is a contemporaneous record by Ms Rindeklev herself and it discloses distress caused by the breakup of her personal relationship with Mr Bahemia. It does not refer to any evidence that Mr Bahemia was actually making any disclosure of the kind feared by Ms Rindeklev. It also does not refer to any previous process by which Ms Rindeklev had raised any form of complaint about Mr Bahemia's workplace communications.

162    Ms Rindeklev contended that, despite knowing that contact had been made with a Harassment Contact Officer, Ms Theodoropoulos 'waited four days' before contacting Human Resources. I note that 24 April 2015, being the date when the email was sent, was a Friday. As Ms Rindeklev said in the email, her concern was about coming back after the Anzac Day holiday. So, 28 April 2015 was the next working day. In any event, Ms Theodoropoulos did not wait until 28 April 2015. On 24 April 2015, she forwarded the email she had received from Ms Rindeklev that day to Human Resources with a copy to other managers including Mr Fleay. The email from Ms Theodoropoulos was in the following terms:

I am referring this for advice regarding a harassment and bulling [sic] informal complaint made as per below.

So far we have referred the staff member to EAP and HCO as per below. She has had a meeting with a HCO officer on the 24/04.

[Ms Rindeklev] has advised she does not want mediation with the other party as the relationship is over. She wants her privacy assured and APS code of conduct being upheld in regards to her reputation in the workplace and with her work colleagues.

We are unsure of how to progress and are seeking some guidance regarding this. Please feel free to contact me for more information.

163    On 28 April 2015, Mr Rob Costa, Assistant Director, People Support provided an email response. It accurately summarised the matters raised in Ms Rindeklev's email and the position of Ms Rindeklev that she was not making a formal complaint. The summary included the following:

•    she is concerned that [Mr Bahemia] may have or may in the future talk to others in the workplace about her - either in a derogatory way or about personal and private matters;

•    she has not provided any evidence that this has happened but she is concerned that it may have;

164    Mr Costa suggested a course of action. It was to the effect that Ms Theodoropoulos should meet again with Ms Rindeklev and explain that she had reached conclusions that included the matters that Mr Costa had summarised and that she would not be arranging a formal investigation as there is no formal complaint. Also, that she would continue to support Ms Rindeklev in her efforts to work regularly and could consider the possibility of arranging for someone to speak with Mr Bahemia on the basis that no findings had been made against him but that Ms Rindeklev was concerned. It would be a reminder that neither he nor Ms Rindeklev should be discussing their previous relationship with colleagues in the workplace. Mr Costa suggested that, before taking those steps, Ms Theodoropoulos should clarify that is what Ms Rindeklev is seeking and only proceed if she agrees. Otherwise, in the view of Mr Costa, there was not much else that could be done unless Ms Rindeklev wanted her complaint to be investigated.

165    I can see no criticism that could be made of Mr Costa's summary or suggested course of action in the circumstances at the time.

166    Ms Theodoropoulos forwarded the email from Mr Costa to her managers, including Mr Fleay. She then engaged in what appears to have been an exchange of instant messages on Lync. Mr Fleay said he was reading the email about Ms Rindeklev. Mr Fleay asked 'what number are you on'. Ms Theodoropoulos responded '000 hahaha' and then gave her work number.

167    Ms Rindeklev submitted that this casual joke illustrated 'a dismissive attitude directly as a result of the number of complaints'. The reference by Ms Rindeklev to there being a number of complaints does not make sense because, as I have explained, on the evidence, the email of 24 April 2015 from Ms Rindeklev was the first time her concerns about Mr Bahemia were raised and those concerns were not expressed as a complaint.

168    On 30 April 2015, Ms Theodoropoulos sent an email to Ms Rindeklev recording notes of a discussion between them on that day. I accept that it was the practice of Ms Theodoropoulos to send an email after a discussion of that kind to the other person in the discussion to record what they had discussed (rather than make a personal note of some kind). The email sent on 30 April 2015 included the following:

…I have discussed with you that I would not be progressing this as a formal complaint. There will be a meeting with [Mr Bahemia] and his manager. This will be to remind him that it is not appropriate for either you or him to discuss your relationship with colleagues in the workplace.

I have discussed with you your new seating position on the ground floor. You advised this was a better location and you were happy. I offered EAP's services. They are an external agency and are completely confidential and can provide help and support. Please contact them at any time,

If you would like any further changes to the notes above please let me know. If you wish any further action or there is a change in circumstances please come and see me at any time.

As always happy to discuss!

169    Next, Ms Rindeklev relies upon notes from a meeting between Ms Ferre and Mr Bahemia on 1 May 2015. Ms Ferre confirmed that the notes were an accurate record of her conversation with Mr Bahemia. The notes began by stating: 'I met with [Mr] Bahemia on an informal basis as a result of concerns raised by [Ms Rindeklev]'. Then, after recording what Ms Ferre told Mr Bahemia about the nature of the discussion, the notes stated that she 'was making sure that [Mr Bahemia] is aware that he should (and also the other party) not be discussing private matters about the relationship and the other party with work colleagues'.

170    The notes then continued (referring to Mr Bahemia as Omar and Ms Rindeklev as Gunilla):

Omar advised of the following:

•    he appreciates that this an informal discussion;

•    that he understands that he is being advised not to discuss the relationship or the other party with colleagues in the workplace;

•    that he might have some difficulty in managing this as some of those work colleagues are colleagues or essentially friends of longstanding – of 15 years or so at work;

•    he is aware that the other party has spoken to the HCO (Deane);

•    that he won’t say that he has not discussed the other party with work colleagues as he has and he says that he has not told Gunilla that he has.

I discussed Omar’s current situation with him and advised:

•    that whilst this was an informal discussion, that I would be writing notes about the discussion and letting Wendy know that I have spoken with him and the expectations;

•    that I or his Team Leader can further discuss with him how he manages the situation as he has expressed that he might not find it easy to manage it; and

•    that the services of EAP are available to him to seek strategies on how to manage this;

•    in the interim, It is however expected that he will not be discussing the relationship or the other party with colleagues in the workplace.

Omar also advised during this discussion that he had information available should he need to use this of contacts from Gunilla that he had not initiated (texts), but given that this was an informal discussion he would not be bringing this information into the discussion today.

171    Ms Rindeklev submitted that these records about conversations with Mr Bahemia demonstrate that there was a missed opportunity to intervene and involved a series of omissions that were taken in blatant disregard for Ms Rindeklev's actions in presenting complaints and safety concerns. I do not accept that characterisation. The records indicate diligent and genuine attempts to address the concerns raised by Ms Rindeklev. Further, I do not accept that the record of the conversation between Ms Ferre and Mr Bahemia indicates a basis for some alleged omission in following up with Mr Bahemia. The records are simply not to that effect.

172    Ms Ferre deposed that when she put the facts of Ms Rindeklev's complaint to Mr Bahemia he accepted that the facts were true and did not dispute any of the allegations. Further she deposed that Mr Bahemia told her, and gave her an undertaking, that it would not happen again and that would be the end of the matter. She said that after her discussion with Mr Bahemia she had no reason to think that he would continue to talk with his colleagues about Ms Rindeklev. Ms Ferre explained in cross-examination that she did not arrange for a follow up with Mr Bahemia after her conversation because she was satisfied that Mr Bahemia took the complaint seriously and stated that he accepted the complaint. In re-examination Ms Ferre said that Mr Bahemia was receptive to the feedback and took the matter seriously. Ms Ferre said that Mr Bahemia initially said that there may be difficulty because he had known his colleagues for a number of years. Her evidence was that: 'However, he was going to follow the feedback and not let it occur again'.

173    Mrs Rindeklev says that her decision at that time not to take further action was based on a communication from Ms Theodoropoulos that the matter had been resolved with Mr Bahemia. I do not accept that evidence. It is apparent from the documentary record at the outset that Ms Rindeklev did not want to make a formal complaint.

174    As to the reference to '000' in the Lync exchange with Mr Fleay, in her affidavit Ms Theodoropoulos deposed as follows:

I have a sarcastic sense of humour. In these messages, was trying to convey to [Mr Fleay] in a very light-hearted way, that I felt like I was manning an emergency line in dealing with [Ms Rindeklev's] complaints.

I did not and do not find the actual events set out in [Ms Rindeklev's] complaint to be funny in any way. I did not think that [Ms Rindeklev] was being overly sensitive about her complaint, as details about [Ms Rindeklev's] relationship with [Mr Bahemia] were flowing over into the workplace.

Although [Ms Rindeklev] was making a complaint over personal issues between [Mr Bahemia] and [Ms Rindeklev], and [Ms Rindeklev] would frequently lodge complaints, I did not discount the seriousness of [Ms Rindeklev's] complaints. If I did not take Gunilla's complaint seriously, I would not have taken the steps I did in helping [her] report the matter to HR. Me saying to [Mr Fleay] that my phone number was "000" was a reference to the fact that I felt like I was [Ms Rindeklev's] emergency contact.

175    Ms Theodoropoulos gave evidence to similar effect in cross-examination. In asking those questions, Ms Rindeklev accepted that Ms Theodoropoulos did have a sarcastic sense of humour. Ms Theodoropoulos explained that the reference to triple zero was 'to lighten something that was probably quite heavy on me'.

176    I accept the explanations given by Ms Theodoropoulos that her reference to triple zero was an attempt to lighten the burden on her of having to deal with the complaints that had been made by Ms Rindeklev. I accept that her actions in dealing with the matters in issue were appropriate and reflected a genuine concern to address the matters that Ms Rindeklev had raised about communications by Mr Bahemia in the workplace. I also accept that, at the time, Ms Theodoropoulos was not aware of any kind of complaints history or other complaints being raised by Ms Rindeklev.

177    On 1 May 2015, Ms Rindeklev sent the following Lync message to Ms Theodoropoulos:

Erica [Mr Bahemia] has just told me he is talking to friends and collegues [sic] about me at work. He is doing it and has been doing it over the last few weeks and onsists [sic] he can do it now. This just has to stop…

178    Ms Theodoropoulos asked for a copy of the Lync exchange. It was provided. It began with a message in which Mr Bahemia said: 'you forget that there are two parties here'. It also said: 'i may want to explain to my firends [sic], etc about what happened'. His message continued:

btw, i do understand 'omerta'.

i was the one who introduced you to the word, remember?

179    The reference to the Mafia code of silence indicates that Mr Bahemia was making clear that he was not revealing personal details about their relationship to colleagues.

180    Ms Rindeklev responded: 'Yes but what now? You have talked to more people at work????????????????'

181    After a further exchange, Mr Bahemia sent a message that said: 'it related to us having an affair in the first instance. i am at work. please leave me in peace. Please let me get on with my work without further distractions'. There was then the following exchange of messages:

[Ms Rindeklev] NO OMar! Are you telling people that I wanted to kill you ? abusive. Why can you not take some blame

[Mr Bahemia] thank you

[Ms Rindeklev] What are you telling people!

?

Why?

182    I would not characterise the content of the Lync exchange between Mr Bahemia and Mr Bahemia as communicating an intention on the part of Mr Bahemia to speak to others about the details of their past personal relationship.

183    Ms Rindeklev says that at some point in the morning she approached Mr Bahemia to tell him to stop speaking about her in the workplace.

184    On 1 May 2015, Ms Theodoropoulos showed Ms Rindeklev how to block messages from Mr Bahemia on Lync. She also offered to move Ms Rindeklev to a quieter position.

185    Ms Theodoropoulos followed up by meeting with Ms Rindeklev on 4 May 2015. After their discussion she sent an email in the following terms to Ms Rindeklev which I find to be an accurate record of their discussion at the time:

We discussed your altercation on Friday 01/05 with [Mr Bahemia]. I had feedback from a team leader on the ground floor that this was instigated by you and the conversation was quite heated. You confirmed this was what happened. You advised me this this [sic] was after a “lync” exchange that had caused you distress. I witnessed the end of this discussion with [Mr Bahemia] and you approached me at the time.

186    It appears that the basis upon which Ms Rindeklev challenged Mr Bahemia in person was the Lync exchange This record does not indicate any harassment or bullying conduct by Mr Bahemia.

187    In evidence was a very extensive record of Lync messages exchanged between Ms Rindeklev and Mr Bahemia. Those before the Court include the exchange on 21 April 2015. Then there is a break in the messages (at least those in evidence) until 26 June 2015 when a conversation is initiated by Ms Rindeklev. It is in the following terms:

[Ms Rindeklev] I think a greeting would have been in order; is there any reason you can't achknowledge [sic] me?

[Mr Bahemia] i gave you a big smile.

i didnt think that you wanted more.

certainly not a big 'hi'.

[Ms Rindeklev] I'm blind as you know. That was really awkward

[Mr Bahemia] you didnt say anything, or come over.

i admired you v much.

[Ms Rindeklev] I would never approach you anywher [sic] here

[Mr Bahemia] i was thinking how great you look.

[Ms Rindeklev] Thanks. Pity I could not see your smile.

Pls do not under any circumstances discuss your relationship with me to anyone, including her Im done with being harassed by people Ive never spoken to

If you cannot comit [sic] to that I cannot date you

You know this request. I have made it repeatedly. Are you in agreance? [sic]

[Ms Rindeklev] Can you confirm?

[Mr Bahemia] sorry

Back now

Yes, I so confirm

[Ms Rindeklev] I certainly do not speak to anyone about any negative stuff to my collegues [sic] only ordinary things.

[Mr Bahemia] our relationship is not a topic of conversation.

ha ha

[Ms Rindeklev] Thank you

[Mr Bahemia] you dont discuss anything with your colleagues, do you?

'ordinary stuff'?

i am clear about that.

[Ms Rindeklev] Never. Nothing Omerta

188    The conversation continued. Its contents were consistent with the two of them being in an ongoing personal relationship. It concluded with Ms Rindeklev sending a message 'xx (heart) bfn'.

189    Out of this very long exchange that appears to have continued during the course of most of the workday, Ms Rindeklev drew attention only to the statement by Mr Bahemia: 'our relationship is not a topic of conversation. ha ha'. She advanced the following written submission based on the statement:

Although the Applicant did not escalate this exchange to management - unaware that Mr Bahemia had previously expressed reluctance to comply - it occurred just four days before she presented to Sir Charles Gairdner Hospital.

190    The reference to a claim that Mr Bahemia had previously expressed a reluctance to comply is a reference to Ms Rindeklev's incorrect characterisation of the exchange between Ms Ferre and Mr Bahemia on 1 May 2015. As I have found, it was not the case that Mr Bahemia refused to comply.

191    The case advanced by Ms Rindeklev involves an attempted reconstruction, by way of submission, of the record of events to present a narrative that has no foundation in fact.

192    Ms Rindeklev also submitted that she believed that the alleged issue of Mr Bahemia making disparaging comments had been resolved after an earlier complaint by her in February 2015. This submission was advanced, it would seem, to explain why she made no further complaint. There is no evidence of any such earlier complaint. There is evidence that the relationship between Ms Rindeklev and Mr Bahemia continued after the events of 1 May 2015. There is no evidence of a basis for further concerns as to conduct by Mr Bahemia.

193    Based on the above findings there were no omissions of the kind alleged. As I have mentioned, the Commonwealth's case is that appropriate steps were taken to address the concerns raised by Ms Rindeklev about Mr Bahemia. On the findings I have made, that contention is upheld.

Issue 1(3): If yes to 1(2), was the raising of concerns about Mr Bahemia by Ms Rindeklev the reason for those omissions?

194    For reasons given in dealing with Issue 1(2), this issue does not arise.

Issue 1(4): Is the claim out of time?

195    The originating application in WAD156/2022 was lodged on 27 July 2022. It was subsequently accepted for filing. As has been explained, the alleged omissions constituting the relevant discriminatory conduct are said to have commenced after the 1 May 2015 meeting and to have continued up until 1 July 2016. Therefore, Claim 1 concerns omissions alleged to have occurred many years before the commencement of the proceedings.

196    The application was commenced on the basis of allegations in a statement of claim. The statement of claim did not articulate a claim of discrimination of the kind the subject of Claim 1. It was added later. As will emerge, it is not necessary to be precise about the date when that occurred or consider whether Claim 1 was based on facts that formed part of the basis for the application when filed.

197    It is common ground that the limitation expressed in s 113(1) of the Work Health and Safety Act applies to Claim 1. Section 113(1) provides that the relevant proceeding 'must be commenced not more than 1 year after the date on which the applicant knew or ought to have known that the cause of action accrued'.

198    Ms Rindeklev says that she did not know of the omissions on which her claim is based until 13 January 2023 when she obtained disclosure through compliance with a notice to produce process. She says that her claim was commenced within one year of that date.

199    The Commonwealth says that Ms Rindeklev knew of the relevant events in 2015 and 2016. It says the limitation period for the claim expired, at the latest, in 2017. It did not advance any alternative contention based upon when the relevant amendment was made to introduce Claim 1 if Ms Rindeklev's contention that the time when she knew or ought to have known the relevant facts did not occur until information was provided in these proceedings in response to a notice to produce is accepted.

200    The matter that Ms Rindeklev says was significant was the 2016 Report conducted by Mr Richards. The report was said to have been produced by the Commonwealth on 18 November 2022 and not read by her until 13 January 2023. It was then that Ms Rindeklev says that she became aware for the first time of the matters in the 2016 Report and the note by Ms Ferre of her meeting with Mr Bahemia.

201    As I have explained, the essence of the alleged omission said to constitute the discrimination is the failure to take appropriate action about Mr Bahemia after Ms Rindeklev raised issues about his behaviour. Part of the claim rests on an allegation to the effect that it was known to Ms Ferre that Mr Bahemia was going to reveal personal information about their relationship to work colleagues. However, other aspects of her claim allege a failure thereafter by Ms Theodoropoulos (supervised by Mr Fleay) to take action (even though there was an awareness of consequences to her health that resulted in her hospitalisation). It appears that Ms Rindeklev relies upon the fact that the bullying finding in the 2016 Report has significance for that claim.

202    Therefore, the claim as formulated depends upon awareness of the 2016 Report and the note by Ms Ferre of her meeting with Mr Bahemia. On the evidence, Ms Rindeklev was not aware of those matters until January 2023. On that basis, the matters raised by the Commonwealth do not mean that Claim 1 was out of time.

Issue 1(5): Having regard to the answers to Issues 1(1) to 1(4), has the claim been established?

203    Having regard to the answers to Issues 1(1) to (4), Claim 1 has not been established.

Claim 2: Alleged misrepresentation by Mr Fleay of the result of the preliminary investigation conducted by Mr Richards

Issue 2(1): Did the Commonwealth, in the 2016 Outcome Letter to Ms Rindeklev, make a false or misleading representation about the seriousness of the outcome of the preliminary investigation conducted by Mr Richards?

204    It is first necessary to understand the nature of the investigation that was undertaken by Mr Richards. It was described as a preliminary investigation. On the evidence, the investigation was conducted to determine the appropriate steps to be taken, including whether it was appropriate for any conduct to be dealt with informally or whether a more formal process should be conducted. As to the formal processes that might be conducted, one possibility was the taking of formal action under the Public Service Act 1999 (Cth) to determine whether there had been a breach of the Code of Conduct. If a breach was found to have occurred then a further process would be conducted to determine the nature of any sanction to be imposed.

205    As has been mentioned, at the time of the relevant events, there was a Complaints Management Policy that applied to the Department responsible for Centrelink. The Policy referred to the availability of a 'range of channels and processes' being available to employees to 'address areas of concern'. It referred to concerns being resolved informally wherever possible. The Policy addressed the making of complaints. As to the complaint process, the Policy said:

Employee complaints can be managed in a number of ways. In many cases, resolution may require no more than a manager having an informal discussion with the employee, particularly if the employee considers they have been listened to respectfully and where any commitments given as a result of the discussion are followed through.

There will be other circumstances in which a more formal approach, including an investigation, is required. The approach taken will depend upon the issue, the information or evidence available and the seriousness of the matter, including whether the employee has invoked statutory processes such as a review of action or made a whistleblowing report.

206    The Policy also referred to the rights and responsibilities of employees when it came to complaints:

All employees have the right to make complaints or raise concerns, including seeking review, about matters affecting them in the workplace, without fear of criticism for doing so. In making a complaint or raising concerns, employees must ensure they:

•    do so in good faith

•    raise concerns in a respectful, courteous, constructive and factual manner, and

•    cooperate with the review process

207    Therefore, as might be expected, whenever a complaint was made, issues may arise as to whether there was a proper basis for the complaint and whether the complaint process has been appropriately invoked.

208    The Policy set out the responsibilities of managers concerning complaints:

On receiving a complaint from an employee, a manager should:

•    treat the matter seriously, in confidence and give the complaint due consideration

•    attempt to resolve the matter informally at the local level in the first instance

•    assess whether the matter raised requires a formal process

•    observe the principles of natural justice and procedural fairness in seeking to resolve the matter

•    ensure that the employee is not penalised or victimised in any way for raising the issue

•    seek advice from the local People team where support is required or where more formal processes may be appropriate, and

•    advise local People team if the complaint is time sensitive, highly complex, or where there could be potentially criminal activities involved

209    Also in evidence was a guide to be used by Human Resource Managers in handling claims of misconduct. It too contained statements to the effect that processes for raising and handling complaints could be varied and may involve a range of avenues. Generally, it was not for the person raising the complaint to determine the process. There was a reference to the taking of management action where the behaviour has been assessed to be less serious or pose a lower risk to public confidence in the public service. It contemplated the issuing of a direction in appropriate cases. These are all steps that may be taken outside of a formal investigation of serious misconduct in breach of the Code of Conduct.

210    On the evidence, the preliminary investigation conducted by Mr Richards was undertaken for the purpose of informing the steps to be taken. The procedures that might be followed as part of a formal investigation are not apt to inform the process that was undertaken by Mr Richards nor the decisions that might be taken, such as to deal with an issue at management level, with or without the making of a direction.

211    The relevant complaint was made by Ms Rindeklev by email. A decision was made to conduct a preliminary investigation. Both Mr Bahemia and Ms Rindeklev were told that the investigation was to occur. They were each formally directed not to contact each other in connection with their employment while the process was undertaken. Mr Bahemia was given an opportunity to respond to the matters raised by Ms Rindeklev in her complaint. As part of the investigation, Mr Richards obtained what he referred to as 'Mr Bahemia's Skype and email messages'. It appears that the reference to Skype was to the messages sent using the internal Lync messaging system.

212    Mr Richards included the following in his decision:

An analysis of the Skype messages indicates that there was far too much personal messaging between [Ms Rindeklev] and Mr Bahemia [sic] where the content was:

•    too personal and intimate to be discussed on a workplace IT facility;

•    there were many extensive argumentative discussions ; and

•    there were a number of conversations where the content was inappropriate for the workplace.

It is not for an employer to make judgements about who was right or wrong in their personal and domestic dispute. However the two sided and personal Skype messages between Mr Bahemia and [Ms Rindeklev] occurred on departmental IT facilities whilst at work and I have considered these messages in my investigation.

213    Mr Richards found the extended conversations between Mr Bahemia and Ms Rindeklev using Skype messages to involve 'excessive personal use of the Department's IT facilities'. He concluded that they had both used Skype inappropriately and that their conduct was inconsistent with the Code of Conduct.

214    Mr Richards then dealt with those aspects of Ms Rindeklev's complaint that concerned Mr Bahemia talking to work colleagues about their relationship. Mr Richards identified four instances where Mr Bahemia had sent Lync messages (referred to by Mr Richards as Skype messages) to other employees about Ms Rindeklev which Mr Richards found to be 'disrespectful and disparaging'. He then reached the following conclusion:

Mr Bahemia was aware that [Ms Rindeklev] was not comfortable with him discussing her with colleagues. He had also been told by Ms Ferre not to do this. These comments were disrespectful and disparaging of [Ms Rindeklev]. I consider these remarks by Mr Bahemia meet the Department's definition of bullying in that it was unreasonable behaviour directed towards an employee and this created a risk to [Ms Rindeklev's] health and safety. Even outside of a bullying context Mr Bahemia's actions in making those comments about Ms James to other employees were not consistent with the APS Code of Conduct - specifically treating others with respect and courtesy and without harassment.

215    Importantly for present purposes, the extent of the finding by Mr Richards concerned the making of disrespectful and disparaging remarks by Mr Bahemia. It was the making of those remarks that Mr Richards considered to be bullying. Without seeking to diminish those findings, the reference by Mr Richards to a risk to Ms Rindeklev's health and safety must be viewed in that context.

216    Mr Richards recommended that an investigation be conducted in relation to probable breaches of the Code of Conduct by Mr Bahemia in relation to comments he had made and by both Mr Bahemia and Ms Rindeklev in relation to the inappropriate use of what he referred to as Skype.

217    Accordingly, the material conclusions reached by Mr Richards were about inappropriate use by both Mr Bahemia and Ms Rindeklev of 'Skype' at work and the making by Mr Bahemia of disrespectful and disparaging remarks about Ms Rindeklev to work colleagues in circumstances where he was aware that Ms Rindeklev was not comfortable with him discussing such matters at work. Further, the findings were made in a report of a preliminary investigation that was prepared for the purpose of considering further action. The applicable complaints policy contemplated steps of that kind.

218    Therefore, although Mr Richards recorded a decision and recommendations, his report did not have any operative effect. The making of a decision as to further steps first involved deliberation as to whether to commence the formal process to ascertain whether there had been a breach of the Code of Conduct. As to that possibility, Ms Lambkin considered the 2016 Report and formed the view that the matters the subject of the 2016 Report were not serious enough to proceed with the formal process in respect of the Code of Conduct. Her conclusion was recorded in an email dated 31 August 2016 in the following terms:

The lync messages were excessive and a few were inappropriate, but that’s mostly from 12 months ago. My view would be that both parties (and likely the whole centre) should be reminded of the proper use [of IT] facilities guidelines, and perhaps do some checking in a month. This could take the form of a formal warning letter.

Mr B has denied making comments to colleagues since the counselling occurred but also I don’t consider that it was a direction given the notes indicate it was informal. The skype log examples indicate extremely poor judgement in regard to the comments he makes, and the fact that he’s making them to his colleagues rather that manager or support person. I agree that some of the comments would be perceived as derogatory, however that said, I don’t think they’re serious enough to take to code. I think for him, this should be covered in counselling and the issue of a warning. I’d expect someone at this level, who has previously had an informal discussion about bringing personal relationships into the workplace, would have more insight.

I think the outcome letters need to be more broad and say that the allegations have been assessed and appropriate action will be taken.

219    Ms Rindeklev directed no specific criticism to this analysis. On the evidence, it was undertaken by Ms Lambkin after her own consideration of the matters the subject of the 2016 Report and the contents of that report. Ms Lambkin (not Mr Richards) was entrusted with making decisions of that kind. Ms Lambkin's decision presents as one that was appropriate in the circumstances and there is nothing to suggest that it was motivated by anything other than a concern to adopt the appropriate course in all the circumstances. The course proposed by Ms Lambkin was discussed with Mr Fleay. It appears that Mr Rob Costa was the conduit for that communication. As the decision had been made not to invoke a formal Code of Conduct process concerning the matters in the 2016 Report, it was then a matter for management to decide the steps to be taken having regard to the outcome of the preliminary investigation.

220    On 6 September 2016, Mr Fleay met with Ms Rindeklev. By that time Mr Fleay had considered the initial complaint made by Ms Rindeklev, Mr Bahemia's response and the email and internal messages that had been exchanged between them. Mr Fleay had formed the view that some of Mr Bahemia's conduct was bullying towards Ms Rindeklev and that some of the internal messages sent by Ms Rindeklev to Mr Bahemia did not meet ICT facilities standards in terms of content and excessive use. Mr Fleay found the contents of the messages to be 'very confronting' and concluded that they did not meet appropriate standards 'due to their frequency and inappropriate sexual content'.

221    In the meeting with Ms Rindeklev, Mr Fleay handed to her the 2016 Outcome Letter and a separate directions letter. He said that he agreed with the recommendations that Mr Richards had made in his report. He also counselled Ms Rindeklev as to misuse of the 'electronic facilities', that is the Lync messaging system.

222    Therefore, the evidence establishes that two letters were given by Mr Fleay to Ms Rindeklev on 6 September 2016. Though dated 4 August 2016 (as to the 2016 Outcome Letter) and 10 August 2016 (as to the directions letter to Ms Rindeklev), both were handed over at the meeting on 6 September 2016. Draft letters that had been prepared by Mr Richards and attached to the 2016 Report were not sent.

223    The 2016 Outcome Letter, which is said to be the letter by which the alleged misrepresentation occurred through the conduct of Mr Fleay, was in the following terms (to the extent presently relevant):

I write to you further to allegations of bullying and harassment made by yourself regarding Omar Bahemia.

Shane Richards was appointed to undertake a preliminary investigation into this matter and has considered all of the information that has been provided by Ms Bahemia [sic] and yourself. Mr Richards has made a preliminary finding and recommendation which I have accepted.

My role, as the delegate in this instance, was to determine whether:

•    there was sufficient evidence to justify an investigation under the procedures for dealing with breaches of the Code of Conduct; or

•    the issues raised in the complaint are more appropriately dealt with in another way; or

•    to recommend other action as appropriate.

In investigating the complaint I considered all of the following information:

•    the initial complaint made by yourself on 1 July 2016

•    Mr Bahemia’s responses to the complaint on 29 July 2016; and

•    email and skype messages between April and June 2015 and May and July 2016.

My findings are that some of Mr Bahemia’s behaviour was bullying behaviour towards yourself.

In addition, as part of the review of skype and email messages between yourself and Mr Bahemia, I have found that some messages sent by you do not meet the Department’s appropriate use of ICT facilities standards in terms of content and excessive use of these facilities.

224    The 2016 Outcome Letter then recorded Mr Fleay's determination:

I have determined that as a result of these findings:

1.     Behavioural issues will [be] dealt with by using the Department of Human Services People policies and processes; and

2.     That you should be formally counselled to remind you of your obligations in terms of the standards expected when using Departmental ICT facilities and the Australian Public Service Code of Conduct – including being directed to:

a.     When acting in connection with APS employment, treat everyone with respect and courtesy, and without harassment; and

b.     You should use Commonwealth resources in a proper manner and for a proper purpose

225    It is relevant to note that the terminology 'treat everyone with respect and courtesy, and with harassment' reflects the terms of the Code of Conduct.

226    Separately, a directions letter was provided by Mr Fleay to Ms Rindeklev. It was (relevantly for present purposes) in the following terms:

Further to your complaint about Omar Bahemia’s behaviour which have now been investigated.

I have formed the opinion that these matters require that you are directed to comply with the Australian Service Code of Conduct (APS Code of Conduct) in relation to your communication.

This is regarding the use of Departmental ICT facilities which were:

•    Inappropriate content of a sexual nature

•    Excessive in terms of volume and duration

You are directed to ensure that your communication complies with the APS Code of Conduct:

•    When acting in the connection with APS employment, treat everyone with respect and courtesy and without harassment, specifically :

Not make comment of a sexual nature to any other staff member

•    Use Commonwealth resources in a proper manner and for a proper purpose, specifically :

Limit your use of Departmental ICT facilities to work related matters and for these to be appropriate in terms of volume or duration

This direction is provided to you under the APS Code of Conduct which requires that an employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction.

This direction replaces the direction provided to you dated 12 July 2016. This direction takes effect on the date of this letter and will remain in force until 9 August 2017.

227    It can be seen that the direction about respect and courtesy and without harassment referred specifically to making comments of a sexual nature.

228    At the time of these letters, the APS Code of Conduct included requirements that every public servant must:

(1)    when acting in connection with APS employment, treat everyone with respect and courtesy, and without harassment; and

(2)    use Commonwealth resources in a proper manner and for a proper purpose;

229    Taking the terms of the 2016 Outcomes Letter and the direction to Ms Rindeklev together and reading them in the context of the above provisions of the Code of Conduct, I conclude that the documents reflect and record a finding by Mr Richards (accepted by Mr Fleay) to the effect that Ms Rindeklev had breached each of the above two standards by reason of inappropriate and extensive use of Skype for discussion of personal and intimate matters. This reflected Mr Richards' conclusion about the personal and intimate matters included in their Skype conversations. Further, Ms Rindeklev was directed to comply with each of the two standards quoted above and was also given specific requirements as to that compliance in each case. The direction given to Ms Rindeklev was as to her general compliance with the two standards as well as the specific compliance about not making comments of a sexual nature to other staff members and to confine internal messaging to work matters and not to use the internal messaging excessively.

230    Consequently, the directions operated in respect of each of the standards both generally and specifically. So, it would not be an answer to a subsequent complaint of breach by Ms Rindeklev of one of the two standards that the breach was of a different kind and therefore was not a further instance of the same kind of breach.

231    In those circumstances, for the following reasons, the 2016 Outcome Letter did not misrepresent the outcome of the preliminary investigation conducted by Mr Richards in the ways contended by Ms Rindeklev in her submissions.

232    First, it was not the case that Mr Richards' findings concerning the bullying allegations against Mr Bahemia were more serious in nature than those communicated to Ms Rindeklev by the 2016 Outcomes Letter. The findings by Mr Richards of bullying conduct were confined to the making of disrespectful and disparaging comments in direct messages to other employees (with four examples being given).

233    Second, the letters from Mr Fleay to Ms Rindeklev (being the 2016 Outcome Letter and the separate directions letter) were not letters giving effect to Mr Richards' preliminary report. Rather, they represented Mr Fleay's own conclusions having considered the preliminary report from Mr Richards. They also reflected the decision by Ms Lambkin that the matters the subject of the preliminary report were not serious enough for referral according to the formal process for breaches of the Code of Conduct to be followed for instances where the conduct would amount to serious misconduct if established. Therefore, the statements in the letters did not make representations as to the contents of Mr Richard's report.

234    The statement in the 2016 Outcome Letter that 'Mr Richards has made a preliminary finding and recommendation which I have accepted' is consistent with the above conclusions. It makes clear that it is the acceptance by Mr Fleay of 'a preliminary finding' that is the operative event. Further, the letter then sets out what Mr Fleay has considered in investigating the complaint. Mr Fleay's evidence was to the effect that he had considered the matters referred to in the 2016 Outcomes Letter and had formed the views expressed in the letter. Finally, the letter goes on to refer to 'My findings' (that is, the findings of Mr Fleay) and that 'I have determined as a result of these findings' (that is, Mr Fleay has determined).

235    Third, the statement at the beginning of the 2016 Outcomes Letter that Mr Fleay had accepted a preliminary finding and recommendation of Mr Richards did not represent that all of Mr Richards findings and recommendations had been accepted. The extent to which there had been such acceptance is indicated in what follows. The letter does not purport to be an adoption of everything that was found by Mr Richards in his preliminary investigation.

Issue 2(2): If yes to 2(1), was the representation about the workplace rights of Ms Rindeklev or their exercise?

236    Having regard to the conclusion reached in relation to Issue 2(1), this issue does not arise. In those circumstances, I will deal with the issue briefly. The claim made by Ms Rindeklev was not to the effect that she was misled in some way about her right to bring a complaint or the circumstances in which that right may be exercised or the nature of the consequences that may flow from an exercise of her right to complain. Further, Claim 2 did not raise any issue about the nature of the process. Rather, her claim was to the effect that the communication of the outcome of her complaint misrepresented the result.

237    Section 345 only applies to false or misleading representations about workplace rights or their exercise. The provision protects the rights given to workers by the Fair Work Act itself and ensures that 'no person (whether [an] employee or anyone else) misleads workers about what rights they have under the [Fair Work Act]': Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091 at [250] (Mortimer J, as the Chief Justice then was). The provision requires a connection between the subject matter of the representation and the existence of the workplace right (or the manner in which it may be exercised): at [251], applied by Logan J in Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd [2020] FCA 1258 at [37]. The fact that a representation may be inconsistent with a workplace right does not make it a representation about a workplace right: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 at [156] (Logan, Bromberg and Katzmann JJ).

238    The Commonwealth relied upon the reasoning in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 at [156]-[162]. However, that case was concerned with statements made by the Union in a policy document concerned with overtime. The issue was whether the document made a representation about the overtime terms that applied at BHP mines under a particular agreement. Accordingly, aside from general statements as to the nature and scope of s 345, the reasoning in that case does not assist with the resolution of Issue 2(2).

239    The misrepresentation alleged by Ms Rindeklev was said to take the form of a false or misleading statement about the seriousness of a finding made by Mr Richards as part of the process of dealing with a complaint. For reasons that have been given there was no such misrepresentation. However, assuming (contrary to that finding) that there had been a misrepresentation of that character, it would have concerned the nature of the conclusions reached by Mr Richards in undertaking the preliminary investigation as part of the process of reaching a conclusion as to the outcome of the complaint brought by Ms Rindeklev. It would not have been a misrepresentation about a workplace right or its exercise or the effect of its exercise. The alleged misrepresentation did not concern whether a workplace right existed or the nature of the right or the way in which it could be exercised or the effect of its exercise. It was not a misrepresentation that would engender in a person in the position of Ms Rindeklev (as the complainant) some misunderstanding as to the nature and extent of her workplace rights as to the making of complaints or the way they could be exercised or the effect if they were.

240    Rather, the allegation was about whether the outcome of the exercise of those rights was communicated in a way that accurately described what had happened as part of that process. A representation of that kind was not about the workplace right itself. It was about the process that had actually been followed in giving effect to the right.

241    For those reasons, if I had concluded Issue 2(1) in the affirmative, I would have found that the representation was not about a workplace right.

Issue 2(3): Having regard to the answers to Issues 2(1) and 2(2), has the claim been established?

242    Having regard to the answers to Issues 2(1) and 2(2), Claim 2 has not been established.

Claim 3: Alleged misrepresentation in Comcare Response

Issue 3(1): Did the Commonwealth, in the Comcare Response, make a false or misleading representation about the outcome and findings of the preliminary investigation conducted by Mr Richards?

243    Having regard to the way in which the Comcare Response is said by Ms Rindeklev to have been false and misleading in describing the outcome and findings of the preliminary investigation conducted by Mr Richards, there appear to be the following aspects to Claim 3:

(1)    The Comcare Response described the outcome and findings of Mr Richards' investigation (being those recorded in the 2016 Report) as raising issues from Ms Rindeklev's personal life thereby implying or saying that it was those matters that contributed to the conduct that was investigated;

(2)    The Comcare Response failed to disclose that the 2016 Report had concluded that Mr Bahemia's conduct was bullying of a kind that posed a foreseeable health and safety risk and likely constituted misconduct;

(3)    The Comcare Response did not include a copy of the 2016 Report.

244    The Comcare Response is a detailed document responding to questions posed by Allianz for Comcare in the exercise of the authority conferred by s 71 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The relevant question posed was:

Any relevant written documents concerning the issues or circumstances which have been raised by the abovenamed employee in this claim and any subsequent submissions

245    The passage in the Comcare Response relied upon by Ms Rindeklev is introduced by the following statement:

[Ms Rindeklev] provided a written statement, dated 28 July 2020 and an updated statement dated 11 August 2020, to support her claim for compensation and reported a number of events that have led to her claimed condition. There is very detailed information contained in [Ms Rindeklev's] statements and in the manager's responses. The agency provides the following information in summary:

246    The summary began with a section headed 'Personal relationship with O:' (a reference to Mr Bahemia):

[Ms Rindeklev] has indicated in an email to her team leader on 1July 2016 [sic] (Attachment D4) that 'O and I have had an on-off/love-hate relationship and it has been personally difficult for me… We are as good as each other when it comes to fighting and so forth and text messages has been flying from both of us'. [Ms Rindeklev] has raised complaints regarding O to management over several years. [Ms Rindeklev's] complaints were investigated and both parties were found to have acted inappropriately and not in line with the APS code of conduct. [Ms Rindeklev] cites that both parties have also alleged inappropriate actions regarding each other outside of the workplace. As many of the concerns raised by [Ms Rindeklev] in her statement in regards to O, are outside of the scope of [Ms Rindeklev's] employment, as they relate to her personal relationship, further comment will not be made in this response.

(Italics in original).

247    The above statement simply indicated that matters that Ms Rindeklev had herself addressed in the written statements that she had provided in support of her Comcare claim [dated 23 July 2020 and 11 August 2020] that concerned matters outside of her employment were not addressed in the Comcare Response. There was no suggestion by Ms Rindeklev that there were no personal matters of any kind in those statements. Rather, the contentions she advanced to support her claim of alleged misrepresentation concern the way the 2016 Report was presented in the Comcare Response.

248    The Comcare Response then presented a timeline of concerns with references to attachments provided with the Comcare Response. The timeline began in 2015. Then, there was an entry for '01 July 2016' which was as follows:

[Ms Rindeklev] notified her manager of a harassment concern she had with a fellow colleague, 'O' (Attachment D4). An investigation of the complaint was conducted and an outcome letter was issued on 04 August 2016 (Attachment D5). The findings following the investigation were that 'some of 'O's' behaviour was bullying behaviour towards' [Ms Rindeklev]. It was further noted that [Ms Rindeklev] and 'O' were communicating excessively and inappropriately via skype and email. A direction letter was issued to [Ms Rindeklev] on 10 August 2016 (Attachment D6) in relation to the use of Departmental ICT facilities which were:

'Inappropriate content of a sexual nature' and 'Excessive in terms of volume and duration'.

(Italics in original).

249    I note the dates given for the two attachments. The date of the 2016 Report (being the preliminary report prepared by Mr Richards) was 22 August 2016. As has already been explained the 2016 Outcome Letter (which bears the date 4 August 2016) and the directions letter to Ms Rindeklev (which bears the date 10 August 2016) were both given to Ms Rindeklev by Mr Fleay at a face-to-face meeting on 6 September 2016. Therefore, the date references make clear that the documents being referred to as being attached were the 2016 Outcome Letter and the directions letter to Ms Rindeklev, not the 2016 Report.

250    As far as I can determine, the above matters are the extent of the material relied upon to support Claim 3.

251    For the following reasons, there was no misrepresentation by the Comcare Response of the kind alleged.

252    First, there was no statement in the Comcare Response concerning the content of the 2016 Report.

253    Second, there was no reference to the 2016 Report being attached to the Comcare Response.

254    Third, the descriptions concerning the 2016 Outcome Letter and the directions letter to Ms Rindeklev are accurate. Further, as has been explained, it is those documents and not the 2016 Report that record the outcome of Ms Rindeklev's complaint.

255    Fourth, to the extent that Ms Rindeklev says there was some misrepresentation as a result of not including a copy of the 2016 Report, I cannot see how that would be the case given that the documents recording the outcome were provided.

256    Fifth, I do not accept the submission that the Comcare Response somehow implied that the 2016 Report (or for that matter the 2016 Outcome Letter and directions letter) raised issues from Ms Rindeklev's personal life or that her personal life explained the conduct of Mr Bahemia that was the subject of the findings in the 2016 Outcome Letter (as explained above). That is to say, I do not accept Ms Rindeklev's contentions to the effect that the Comcare Response was seeking to attribute any harm suffered by Ms Rindeklev to her personal life.

Issue 3(2): Were the statements in the Comcare Response concerning the preliminary investigation made about the workplace rights of Ms Rindeklev or their exercise?

257    I have already addressed the scope of s 345 in dealing with Issue 2(2). In addition, the group to whom the representation is directed must be identified. The statutory provision only applies to false or misleading representations that are made knowingly or recklessly. The provision contemplates the making of a representation 'purposely or deliberately or intentionally'. As to these matters see the summary by Jagot J in Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225 at [453]-[458].

258    For the relevant representation to have the requisite degree of purpose, deliberation or intention to lead a person into error as to a workplace right or its exercise it must be directed to someone who has some form of concern or interest as to the nature or extent of that workplace right.

259    In the present case, the Comcare Response was directed to Allianz. It had no concern as to the nature or extent of the workplace rights of Ms Rindeklev or the exercise of those rights when it came to the making of complaints.

260    Further, as I have explained, there is significance in the use of the word 'about' in s 345. The statements in the Comcare Response about which complaint is made by Ms Rindeklev did not concern the workplace rights of Ms Rindeklev or their exercise. They did not communicate anything concerning the character of those rights or the circumstances in which they may be exercised.

261    For those reasons, assuming (contrary to the finding I have made in dealing with Issue 3(1)) there were misrepresentations made of the kind alleged by Ms Rindeklev, those statements were not made about the workplace rights of Ms Rindeklev or their exercise.

Issue 3(3): Having regard to the answers to Issues 3(1) and 3(2), has the claim been established?

262    Having regard to the answers to Issues 3(1) and 3(2), Claim 3 has not been established.

Claim 4: Alleged adverse action by Mr Fleay in reducing Ms Rindeklev's shifts

263    On 13 October 2017, Mr Fleay sent a letter to Ms Rindeklev with the reference 'Direction to adhere to the APS Code of Conduct'. The letter began:

Departmental requirements

You are employed by the department as an irregular and intermittent employee. Consistent with your letter of offer, the department is not obliged to offer you shifts and you are not obliged to accept shifts.

However, as set out in the behaviour section of the Statement of Expectations Irregular/Intermittent Employees, the department requires you, demonstrate behaviors (sic) consistent with our Culture (We) and to uphold and apply the APS Values (ICARE), Employment Principles and Code of Conduct

I am writing this direction because on 27 September 2017 you:

•    Were disrespectful to another staff member by calling them an 'idiot'.

This direction has been issued as a result of your failure to adhere to the expectations of appropriate behaviour in the workplace and discussions held with you on the following date in which the expectations were clearly outlined:

•    10 August 2016

264    The reference to the date of 10 August 2016 reflected the date on the directions letter that was sent to Ms Rindeklev by Mr Fleay after the 2016 Report and its subsequent consideration. However, as has been explained, the date on the letter is not correct. The final version of the letter was delivered to Ms Rindeklev in early September 2016. Nothing turns on these matters for the purposes of Claim 4.

265    The letter of 13 October 2017 continued as follows:

Direction

You were advised on 10 August 2016 that this behavior (sic) was not appropriate and were referred to the following departmental policies to become familiar with:

•    The standard of conduct expected of you as a DHS employee;

•    Undertake behaviour as per the departmental guidelines and statement of expectations provided to you; and

•    Comply with the requirements as detailed in the guidelines provided to you.

As a result of the above behaviour I am writing to advise you the department will be offering you three (Monday to Friday) shifts each week.

This direction takes effect on the date of this letter and will remain in force until 15 February 2018.

Failure to comply with the direction

Failure to comply with the direction may result in the department deciding not to offer you further shifts.

266    The balance of the letter contained formal notifications that are not relevant for present purposes.

Issue 4(1): Did Mr Fleay impose the sanction of reduced shifts without any prior investigation process?

267    The evidence of Ms Rindeklev when cross-examined as to the nature of the investigation that occurred before the 2017 directions letter was given to her was inconsistent. When first asked about the topic of the 2017 directions letter, Ms Rindeklev agreed that, in about mid-October 2017, Mr Fleay met with her about an incident in the workplace between her and a colleague. Ms Rindeklev agreed that what she understood from that meeting was that there was a complaint from another employee that Ms Rindeklev had called them an idiot. Then when asked whether the meeting was to understand her version of events, Ms Rindeklev gave the answer:

No. He met with me and just told me he had taken that complaint on face value and wasn’t interested in hearing my side of it, and he didn’t – he just recorded – he didn’t go and – like, I – I said, 'No, this is not what happened,' but he said, 'Well, here’s the direction letter.' So he didn’t investigate.

268    It was then put to Ms Rindeklev that Mr Fleay had a conversation with Ms Rindeklev in which she admitted saying the word 'idiot' but said that she had not intended to direct it at anyone. In response Ms Rindeklev gave a long answer as to what she told Mr Fleay. It was to the effect that after a long conversation with a technical support officer she (Ms Rindeklev) said that she was going to put the person on hold. She then walked away with her headset and said 'What an idiot' thinking that the call was on mute, but it was not. The support officer then asked: 'Did you call me an idiot?' Ms Rindeklev realised the headset was not on mute and responded that she had and tried to explain, but the support officer hung up on the call.

269    Ms Rindeklev said it was accidental and she was mortified. She said that Mr Fleay would not listen to the recording of the call to confirm the gap in the conversation when she walked away (being a matter that would support Ms Rindeklev's version of events). She said that she told Mr Fleay that she was apologetic and she thought he conveyed the apology to the support officer.

270    Ms Rindeklev also expressed the view that: 'It was accidental, but still I was mortified, and I thought he [that is, Mr Fleay] could have probably sacked me on the spot. I think I was quite thankful that he didn't'.

271    Ms Rindeklev agreed that Mr Fleay also spoke to her at the time about the fact that in 2016 he had also had a conversation with Ms Rindeklev about engaging courteously with her colleagues. However, Ms Rindeklev went on to say 'but there was no complaint at all at that time about any discourteous behaviour to Mr Bahemia'. Ms Rindeklev agreed that Mr Fleay referred to the directions letter that she received after the 2016 Report. However, she maintained that there was significance in the fact that there was nothing in the complaint considered in the 2016 Report about Ms Rindeklev being disrespectful in what she said to Mr Bahemia.

272    Therefore, it is not the case that Mr Fleay imposed the sanction without any investigative process. Ms Rindeklev's concerns appear to relate to the fact that Mr Fleay did not listen to the recording and Mr Fleay had regard to the direction given in 2016 (which was not based upon any finding that Ms Rindeklev was being disrespectful to Mr Bahemia). There was no need to listen to the recording of the telephone conversation having regard to the admissions made by Ms Rindeklev. As Ms Rindeklev herself accepted, she should not have said what she said.

273    As to the relevance of the direction given in 2016, its relevance to Ms Rindeklev's conduct in 2017 did not depend upon whether the 2017 conduct was of the same kind as the 2016 conduct (in the sense that on both occasions Ms Rindeklev had been disrespectful in what she said to or about a work colleague). As I have explained above (in dealing with Issue 2(1)), the direction given in 2016 required Ms Rindeklev to ensure that her communications in her employment treated everyone with respect and courtesy and without harassment, being the relevant provision in the Code of Conduct. The admitted communication in 2017 was a breach of that same standard, albeit of a different kind. The difference between the conduct does not support the claim that there was no investigation.

274    Ms Rindeklev also gave evidence to the effect that her conduct was not deliberate or intentional and therefore could not amount to serious misconduct. This is to raise a false issue. The October 2017 direction was not the outcome of some form of process in which Ms Rindeklev was said to have engaged in serious misconduct. Rather, what was put to Ms Rindeklev was that the conduct was a breach of the same standard that she had been directed in 2016 to ensure she complied with.

275    Plainly, there was an investigation and it included an opportunity for Ms Rindeklev to give her version of events.

Issue 4(2): Taking account of the onus on the Commonwealth and the answer to Issue 4(1), was the reason for altering the position of Ms Rindeklev to her prejudice by reducing her shifts because she had made a complaint against Mr Bahemia in 2016?

276    Mr Fleay gave evidence concerning the reasons why he made the decision to reduce Ms Rindeklev's shifts. He explained that the decision he made to reduce Ms Rindeklev's shifts was made following previous incidents in which Ms Rindeklev had been found to behave inappropriately and had been formally or informally counselled. He deposed to those previous incidents as being:

(1)    formally counselled and given a directions letter by Mr Fleay on or about 17 July 2015;

(2)    being informally counselled by a Service Support Officer on or about 30 September 2015;

(3)    being formally counselled and given a directions letter by Mr Fleay in early September 2016; and

(4)    being informally counselled by a Team Leader on or about 23 November 2016.

277    Mr Fleay was cross-examined about the content of his letter to Ms Rindeklev of 13 October 2017, particularly the statement: 'You were advised on 10 August 2016 that this behavior (sic) was not appropriate'. As has been established, the letter dated 10 August 2016 was actually handed to Ms Rindeklev by Mr Fleay on 6 September 2016. Mr Fleay was asked whether, in referring to the 2016 directions letter, he was saying that there was a finding at the time of the 2016 directions letter of Ms Rindeklev being disrespectful to Mr Bahemia. He gave the following answer (which was in terms that reflect the fact that Ms Rindeklev has asked the question):

…so this letter [the 2017 letter] was issued to you as a result of your failure to adhere to the expectations around behaviours. The expectations on your behaviours were outlined to you at a previous date [in the 2016 letter]. That is all that letter is saying. That’s my understanding of that letter.

278    As to the question, I understand that Ms Rindeklev was seeking to suggest that there was some significance in the fact that the direction given in 2016 was not based upon any finding that Ms Rindeklev had been disrespectful to Mr Bahemia. The answer given by Mr Fleay is to the effect that his reference to the 2016 direction was not made on the basis that there had been a finding in 2016 that Ms Rindeklev had been disrespectful to Mr Bahemia. Rather, it was based upon his view that Ms Rindeklev had again failed to meet expectations around her behaviour.

279    The form of the question reflects aspects of the written opening submissions advanced by Ms Rindeklev concerning Claim 4. Those submissions complained, in effect, that the 2017 letter was based on a view that the 2016 direction concerned Ms Rindeklev engaging in disrespectful conduct towards Mr Bahemia. This echoes aspects of the submissions advanced by Ms Rindeklev in support of Claim 2. In support of Claim 2, Ms Rindeklev alleged that her complaint against Mr Bahemia had been reframed as 'mutual fault' and did not reflect the findings of Mr Richards of bullying by Mr Bahemia. Further, she contended that the direction that she had been given in the 2016 letter concerning the requirement to treat everyone with respect and courtesy and without harassment was misleading because it suggested that Ms Rindeklev had been speaking to Mr Bahemia without respect and courtesy. However, as has been explained, the 2016 directions letter referred to that general standard and then identified the specific respect in which Ms Rindeklev was directed to comply, namely 'Not make comment of a sexual nature to another staff member'.

280    Significantly, Mr Fleay was the person who had formed the view which resulted in the 2016 direction. He understood the context. On his evidence, he did not consider the 2016 direction to have been given because of a finding in 2016 that Ms Rindeklev had engaged in disrespectful conduct or harassment directed towards Mr Bahemia. Rather, he considered the 2016 direction to be relevant in 2017 because it was a past direction requiring Ms Rindeklev to treat everyone with respect and courtesy and her conduct in calling a colleague an idiot was a failure to conform to that requirement.

281    Otherwise, there is no submission advanced by Ms Rindeklev to support her claim that a reason for the reduction in shifts was the fact that she had made a complaint against Mr Bahemia. Her submissions all depend on the idea that there was some lack of connection between the basis for the 2016 direction and her conduct in calling a colleague an idiot. For reasons I have given, those submissions should not be accepted. On the evidence, Mr Fleay's decision to reduce the shifts of Ms Rindeklev had nothing to do with the fact that she had complained about Mr Bahemia. It was based upon past findings concerning her own behaviour, including the fact that one outcome of the consideration of her complaint concerning Mr Bahemia was that she had been given a formal direction in 2016 to treat everyone with respect and courtesy.

Issue 4(3): Having regard to the answers to Issues 4(1) and 4(2), has Claim 4 been established?

282    It follows from the answers to Issues 4(1) and 4(2) that Claim 4 has not been established.

Claim 5: Alleged adverse action in the conduct of the investigation and the outcome the subject of the 2019 Report

283    Before considering the specific issues raised by Claim 5, I begin with the relevant aspects of the events that led to the preparation of the 2019 Report and the matters addressed by the 2019 Report.

284    The initial email from Ms Rindeklev to Human Services dated 13 March 2019 recounted Ms Rindeklev's concerns about what she considered to be bullying behaviour over the time that she had worked at the Child Support Agency. It set out a very extensive history of concerns on the part of Ms Rindeklev about many of her work colleagues. It described various 'incidents'. It concluded with the following:

As you can probably tell, I am upset, confused as to what I can do to improve the situation, and it is beyond my control. I am frustrated as leadership is not able to get a handle of the ongoing negativity. I have had sick days in the last year due to this although That is getting better and that last year I had 15 days personal sick leave- and that is exactly the average of every single public servant in DHS for last year. However those days off is affecting how I feel and also I feel my performance is not reaching excellent levels.

I suggest as a solution that It gets clarified to Janice [Leung] that the ongoing issue stops, that professionalism means consistency and that issues dealt with are finalised and that we can all move on. I suggest, if that does not work, that I get moved to a different team. I am also willing to leave Perth altogether and move East. I can do this very easily and within a Two week time frame.

Most of all, I love my job, I love speaking to customers, and feel otherwise it is a job that suits me.

I am just seeking support as to what I need to do and what resolution I can achieve apart from repeatedly being told to seek counselling.

285    It was clear from the terms of the email that Ms Rindeklev considered the issue to be serious. Ms Rindeklev was raising issues about incidents involving named individuals and also attributing responsibility for allowing what she described as bullying to a failure by managers to act. Ms Rindeklev was proposing action directed to Ms Leung and the 'leadership'. The email concluded by saying 'I am just seeking support as to what I need to do and what resolution I can achieve apart from repeatedly being told to seek counselling'.

286    It was suggested by Ms Rindeklev that, in effect, the email was no more than a request for personal support. I do not accept that characterisation. Regard to the email as a whole shows quite clearly that the email was a detailed complaint about alleged bullying behaviour alleged to have been directed to Ms Rindeklev over a considerable period and which she alleged had not been addressed by management. The email did not seek personal support of any specific kind. Rather, it sought support for the purpose of achieving 'resolution'. It advanced Ms Rindeklev's own suggestions as to the action that should be taken. The reference to 'apart from repeatedly being told to seek counselling' emphasised that Ms Rindeklev wanted some action taken about the way the workplace was being managed.

287    The day after Ms Rindeklev's email was sent, a response was sent by the People Advisory Centre. It appeared to be a standard response. It said: 'Thank you for your enquiry, I have referred your request to the People Support team for assistance'. On the same day, an HR Advisor sent the following email to Ms Rindeklev:

PAC have forwarded your email to HR Support. I am writing to confirm that your email has been received.

Ms Caron Caudwell, HR Consultant from HR Support will review the matters that you have raised in your email. Ms Caudwell will be in contact with you early next week. I have attached the Preventing & Resolving Workplace Bullying Policy and Managing Complaints Policy for your reference. I would like to offer you the support of a Rehabilitation Case Manager (RCM) from HR Support to assist with your health and wellbeing. If you would like to explore this option please let me know and I will arrange for an RCM to make contact with you. Lastly, I would like to remind you that if you want to talk to a private and confidential counsellor about work related or private matters, you may make use of the Employee Assistance Program by contacting Benestar on [1300 number].

288    A formal response to the email was sent to Ms Rindeklev by Ms Caudwell on 18 March 2019. It was in the following terms:

Re: Formal Complaint

This is to acknowledge receipt of your complaint dated 13 March 2019.

As you are aware, I am now investigating your complaint for the delegate.

Please be assured that the Department of Human Services takes all matters in relation to allegations of bullying very seriously.

As part of the review into your complaint and allegations, I may contact you to obtain further information. Please be advised that you should not discuss the issues mentioned in your email with other employees in the workplace.

I would like to remind you that if you want to talk to a private and confidential counsellor about work related or private matters you may make use of the Employee Assistance Program by contacting Benestar on [1300 number].

If you have any queries or require further information in relation to this matter please contact me on [phone number and email].

289    There is no evidence of any objection being raised by Ms Rindeklev to the matter proceeding on the basis that the concerns raised in her email were a formal complaint.

290    Ms Caudwell then proceeded by requesting and obtaining written responses from Ms Leung, Ms Tay, Ms Harwood and Mr Proll. There could be no criticism of this approach from a procedural perspective. As the email from Ms Rindeklev contained allegations about each of them (either individually or because they formed part of the relevant management team), fairness required that they be given an opportunity to respond.

291    The response provided by Ms Harwood began as follows:

Please find attached a timeline of events where Ms James has made complaints in relation to Janice Leung, who she references as being the main person that she has raised in her complaints to you. I have also attached a timeline of all of the other complaints that Ms James has raised regarding other staff, or that other staff have made about her conduct.

I have attempted to resolve the complaints at a local level, discussing the issues with both Ms James and other impacted parties and I have also sought HR advice over the course of the complaints, which have begun to escalate again since the changeover of Team Leader in Mainstream Services Team 1 from Adam Proll to Melody Tay…

292    Having regard to the suggestion by Ms Rindeklev that leadership was unable to get a handle on the alleged negativity towards Ms Rindeklev, it is entirely understandable that Ms Harwood would seek to paint a complete picture of what had been occurring in the workplace concerning Ms Rindeklev. The reference to other complaints raised by Ms Rindeklev and the way in which they had been addressed was relevant to the matters that had been raised. Contrary to submissions advanced by Ms Rindeklev, the nature of the response does not indicate that there was some form of retaliative action being taken by Ms Harwood. It is simply a consequence of the nature of the allegations made by Ms Rindeklev.

Issue 5(1): Was the Adverse Finding made in the 2019 Report?

293    As has been explained, the alleged Adverse Finding was formulated in two different ways by Ms Rindeklev, namely: (a) Ms Rindeklev was a frivolous and vexatious multiple complainer; and (b) Ms Rindeklev made complaints in bad faith. I regard the two aspects as being advanced as alternative ways of supporting Claim 5. Ms Rindeklev says that the Adverse Finding was made in the 2019 Report and formed part of the outcome that was communicated to her after the 2019 Report. The Commonwealth says that there was no such finding.

294    It is necessary to consider the relevant parts of the 2019 Report in their overall context. The 2019 Report was a consideration of the matters raised by Ms Rindeklev in her email dated 13 March 2019. The report included various attachments. Attachment A to the 2019 Report was an itemised schedule prepared by Ms Caudwell that addressed each substantive complaint raised by Ms Rindeklev in her email and recorded findings made by Ms Caudwell. It was a very comprehensive approach to the complaints raised by Ms Rindeklev. No criticism has been raised by Ms Rindeklev as to the detailed findings made by Ms Caudwell.

295    The 2019 Report also attached a copy of the complaint by Ms Rindeklev and the responses to the matters raised by Ms Rindeklev from each of Ms Leung, Ms Harwood, Mr Proll and Ms Tay. It also attached schedules prepared by Ms Caudwell of other complaints made by Ms Rindeklev and of complaints made by other staff about Ms Rindeklev.

296    The 2019 Report described the complaint by Ms Rindeklev as having two parts. First, a complaint that Ms Leung had bullied Ms Rindeklev. Second, a complaint that the leadership team 'do not really know how to acknowledge…exactly what is bulling' and are 'not able to get a handle on the ongoing negativity'.

297    The 2019 Report then referred to the responses to the complaint that had been received from each of Ms Leung, Ms Harwood, Mr Proll and Ms Tay.

298    Next, the report described Ms Caudwell's role as being to undertake a preliminary assessment to determine whether:

•    there is sufficient evidence to justify an investigation under procedures for breaches of the Code of Conduct; or

•    the issues raised in [Ms Rindeklev's] complaints are more appropriately dealt with in another way; or

•    Recommend other action as appropriate.

299    The 2019 Report referred to Attachment A as setting out a detailed summary of Ms Caudwell's 'assessment, considerations and conclusions'.

300    As to the complaint against Ms Leung, Ms Caudwell found that all of the complaints in Ms Rindeklev's March email had previously been addressed by Mr Proll, Ms Tay and Ms Harwood. Ms Caudwell observed that '[Ms Rindeklev's] subjective opinion alleging bullying behaviour does not establish the fact of behaviour'. Ms Caudwell concluded that there was no intent by Ms Leung to make it difficult for Ms Rindeklev to carry out her duties. Ms Caudwell accepted that Ms Leung greets Ms Rindeklev professionally and respectfully.

301    As to the complaint against the leadership, Ms Caudwell concluded that Ms Rindeklev's complaint was based upon her opinion and perception that a number of matters had not been dealt with appropriately and had not been resolved to the satisfaction of Ms Rindeklev. After referring to the responses provided, Ms Caudwell concluded:

I believe that the information provided by Mr Proll, Ms Tay and Ms Harwood demonstrates that they have a good understanding of what bullying is, the departmental policies that guide them and the appropriate way to manage bullying in the workplace.

302    Ms Caudwell also concluded that Mr Proll, Ms Tay and Ms Harwood had appropriately managed complaints that Ms Rindeklev had previously lodged. The 2019 Report then undertook specific consideration of the way in which other complaints made by Ms Rindeklev had been addressed followed by a consideration of the way complaints against Ms Rindeklev had been addressed. Having regard to the nature of the complaint raised by Ms Rindeklev about management's approach generally, it was relevant and appropriate for Ms Caudwell to deal with these aspects as part of the report.

303    Ms Caudwell then addressed 'Other Matters'. Ms Caudwell began by making reference to the following aspect of the email from Ms Rindeklev raising her concerns:

My TL said that a possible reason is that my continued complaints is making Janice [Leung] understandably apprehensive and that she might be avoiding me and it was also stated to me that as opposed to me she has consulted EAP counselling and that the whole issue is affecting her mentally.

I said that I cannot guess as to what is going on in Janice’s mind and that this cannot be my concern.

304    As to this aspect of the complaint made by Ms Rindeklev, Ms Caudwell found:

I find this comment in contradiction to [Ms Rindeklev's] expectation that staff and managers treat her with respect and courtesy yet she appears to be unaware of how her own behaviour is impacting on them and that it 'cannot be my concern'.

305    The above finding was based upon Ms Rindeklev's own statements in the email raising her complaints.

306    Ms Caudwell then continued:

I believe that [Ms Rindeklev] should treat others as she would like to be treated. This requires being considerate of the views and feelings of others. It means gauging her interactions, responding to verbal and non-verbal cues and adjusting her behaviour.

307    I consider it to be entirely consistent with the nature of the investigative task being undertaken by Ms Caudwell for her to consider the conduct of Ms Rindeklev when it came to her complaints against other employees and Ms Rindeklev's own statements concerning her interactions with them. It was also appropriate and relevant to consider what may be the reasons behind the views expressed by Ms Rindeklev in her email. It was part of an evaluation as to whether there was a proper foundation for the concerns that has been expressed by Ms Rindeklev. It was not an approach that turned the investigation into one concerning the conduct of Ms Rindeklev and whether there should be some consequence for Ms Rindeklev.

308    Next, Ms Caudwell made the statements in her report that are the basis for Ms Rindeklev's claim that there was a finding in the 2019 Report to the effect that she was a frivolous and vexatious multiple complainer. These have already been quoted, but I set them out again for ease of reference. The statements made by Ms Caudwell were as follows:

In her complaint [Ms Rindeklev] uses phrases to describe Ms Leung and her behaviour such as; she was disgusted; Janice's clique; Janice took upon her to enact some sort of an attitude of her being the popular, dominating, and loud person; moronic; Janice seem (sic) to be a bit of the ringleader; drawn into a net of manipulation by her. These comments are assumptions and border on being vexatious accusations.

Mr Proll has raised these vexatious type allegations with [Ms Rindeklev] on a number of occasions. [Ms Rindeklev's] behaviour does not appear to have changed with regards to this. Sometimes showing respect requires staff to modify their behaviour, letting others do it their way, or allowing compromise.

(Italics added).

309    No doubt these statements are critical of Ms Rindeklev's conduct. They question whether there is a proper basis for the language used by Ms Rindeklev in her complaint concerning certain aspects of Ms Leung's conduct. They also refer to Ms Rindeklev's terminology as 'assumptions' that 'border on being vexatious accusations'.

310    However, the overall complaint made by Ms Rindeklev's email is not characterised by Ms Caudwell as vexatious. Rather, the statements in the 2019 Report are directed specifically to particular allegations made by Ms Rindeklev in her March email concerning Ms Leung. The statements are not made as to all of the matters raised by Ms Rindeklev in her email. The consideration of those particular allegations about Ms Leung and the characterisation of them as bordering on vexatious does not turn the subject matter of the report into an investigation into whether Ms Rindeklev was a frivolous and vexatious multiple complainer or a person who made complaints against others in bad faith. Rather, they deal with and express views about certain aspects of the matters raised by Ms Rindeklev in her March email about one person, namely Ms Leung. It may be accepted that the comments are critical of Ms Rindeklev, particularly as to whether the complaints she has raised about her colleagues have a sufficient foundation to justify the language used by Ms Rindeklev in her March 2019 email. However, they fall short of concluding that Ms Rindeklev is a vexatious multiple complainer. They certainly do not conclude that Ms Rindeklev has made complaints in bad faith.

311    Further, the statements are not made in the part of the 2019 Report where Ms Caudwell considered the other complaints made by Ms Rindeklev. As to those complaints, as has been explained, the conclusion reached was to the effect that those complaints have been previously and appropriately addressed. If indeed there was a finding being made by Ms Caudwell to the effect that Ms Rindeklev was a vexatious multiple complainer then it would be expected that a conclusion of that kind would have been expressed when dealing with the other complaints that had been made by Ms Rindeklev. Instead, the observation about comments bordering on raising vexatious allegations concerned only the matters that had been raised by Ms Rindeklev as part of her email in March 2019, particularly the complaint of bullying by Ms Leung (being the subject matter of the preliminary investigation).

312    For those reasons, the statement that certain comments in the email were 'assumptions and border on being vexatious accusations' did not involve any conclusion of the kind alleged by Ms Rindeklev as the Adverse Finding. Rather, in my view, the concern expressed by Ms Caudwell was that certain aspects of the allegations made in the email to which she had made specific reference (and the language used to express them) were based upon assumptions rather than evidence and for that reason bordered on being vexatious in the sense of being unfounded. In context, the reference to assumptions also indicates a conclusion that Ms Rindeklev is acting on her own assumptions as to how others should behave. There is no suggestion in the language used that Ms Caudwell had formed the view that the particular matters to which she referred bordered on vexatious because they involved multiple complaining about those matters or that they were made in bad faith (that is, knowing them to be false or in some sense being advanced for some improper motive).

313    The next paragraph in the 2019 Report dealt with steps that had been taken by Mr Proll. At this point, the reasons expressly addressed 'these vexatious type allegations' (that is, allegations made based upon assumptions concerning Ms Leung). Plainly, the reference was to allegations of the kind just described in the previous paragraph, namely those raised in the March email concerning Ms Leung that are based upon assumptions. Ms Caudwell refers to Mr Proll having raised the making of these vexatious type allegations with Ms Rindeklev previously. I do not regard this to be a suggestion by Ms Caudwell that Mr Proll had indicated to Ms Rindeklev on those previous occasions that he thought Ms Rindeklev had made vexatious allegations. Rather, in context, the statement in the reasons is to the effect that Ms Rindeklev has made previous allegations based on assumptions as to what was behind what was happening and, despite that being pointed out by Mr Proll, similar assumptions are still being made as the basis for Ms Rindeklev reaching adverse conclusions about her colleagues (in this case Ms Leung), particularly as to how they should behave. The reasons then focussed upon consequences for Ms Leung of Ms Rindeklev’s conduct.

314    Again, the focus of the reasoning by Ms Caudwell is not upon whether the other complaints made by Ms Rindeklev might be found to have been made vexatiously in the sense that they involve multiple or repeat complaining or complaining in bad faith. Rather, the focus is upon the inappropriateness of making allegations concerning Ms Leung which are based on assumptions and therefore border on being vexatious (in the sense that they have no real basis other than the assumptions being made by Ms Rindeklev), particularly in circumstances where Mr Proll has raised this aspect with Ms Rindeklev when it comes to her complaints.

315    Next, Ms Caudwell considered the consequences for Ms Leung in the following passage:

Ms Leung has advised that she has been coming into work every day in fear of a new complaint being lodged against her and that she feels she is obligated to record every interaction that she has with [Ms Rindeklev] to ensure that when questioned by management, she can explain the sequence of events, even though they are what would be considered standard day-to-day interaction.

It is not reasonable for Ms Leung to feel the need to record these interactions for fear of ongoing complaints by [Ms Rindeklev].

316    These paragraphs show that the focus of Ms Caudwell's reasons is upon the specific complaints being made about Ms Leung and the consequences for their ongoing working relationship.

317    The reasons about 'Other Matters' concludes by stating that Ms Rindeklev's team leaders and managers have suggested a number of different strategies to assist Ms Rindeklev in working with her colleagues. This though, is made in the context of what has gone before, all of which focusses upon the complaints made about Ms Leung.

318    In the next section of the 2019 Report, Ms Caudwell records a 'Summary of Findings'. There is a finding that there is insufficient evidence to substantiate any of the matters raised by Ms Rindeklev in relation to her bullying and harassment complaints (that is the complaints raised in her March email). There is a further finding that Ms Rindeklev 'uses her opinion and perception to support her allegations'. This finding echoes the earlier concern expressed by Ms Caudwell about the making of assumptions. They do not indicate that Ms Rindeklev herself has become the subject of some form of investigation. Rather, they are directed towards addressing whether the matters raised in Ms Rindeklev's March 2019 email have any foundation and whether there should be an investigation under the procedures for a Code of Conduct breach or some other appropriate action.

319    Next there was a finding that Mr Proll, Ms Tay and Ms Harwood had demonstrated 'a good understanding of what bullying is, the departmental policies that guide them and the appropriate way to manage bullying in the workplace'. There was a further finding that leadership had gone out of their way to deal with matters raised by and about Ms Rindeklev.

320    As to the previous complaints, the finding made was in the following terms:

[Ms Rindeklev] has lodged at least 12 complaints about staff since November 2017. I am satisfied that Mr Proll, Ms Tay and Ms Harwood have appropriately managed complaints that [Ms Rindeklev] has previously lodged.

321    If indeed Ms Caudwell was intending to make some form of finding against Ms Rindeklev that she was a vexatious and multiple complainer who made complaints in bad faith then you would expect that to be expressed in the findings made concerning the other complaints. Instead, the finding was directed to whether Mr Proll, Ms Tay and Ms Harwood had acted properly in addressing the complaints that had been raised by Ms Rindeklev. In circumstances where much of the complaint made by Ms Rindeklev was to the effect that, over a considerable period, management had allowed a culture of bullying to prevail without addressing the concerns of Ms Rindeklev, a finding of that kind addressed the complaint. It did not open upon an inquiry into Ms Rindeklev's own conduct. Significantly for present purposes, it was focussed upon the issue raised by Ms Rindeklev, namely whether management had acted appropriately in dealing with her concerns. Further, it did not seek to characterise Ms Rindeklev's complaints as being without substance or motivated by bad faith. It did not suggest that Mr Proll, Ms Tay and Ms Harwood had treated Ms Rindeklev as a vexatious multiple complainer or a person who made complaints in bad faith. It simply referred to the fact of the complaints and concluded that they had been appropriately managed.

322    The final findings were in the following terms:

In addition, [Ms Rindeklev] had received emails from leadership upon discussions of her concerns for the interactions between herself and Ms Leung. The emails highlighted that managers had spoken to [Ms Rindeklev] about her concerns and have considered the matter resolved.

The issues that [Ms Rindeklev] has raised in her complaint of 13 March 2019 have previously been discussed and addressed by Mr Proll, Ms Tay and Ms Harwood. There are no new complaints to consider.

323    Again, these findings addressed the matters raised by Ms Rindeklev against Mr Proll, Ms Tay and Ms Harwood as the relevant managers who were alleged by her to misunderstand bullying and to have allowed that conduct to occur in respect of Ms Rindeklev.

324    The final part of the 2019 Report was headed 'Recommendations'. It began:

Whilst I acknowledge that by lodging her complaint [Ms Rindeklev] wants, what she believes to be inappropriate behaviours by Ms Leung, formally addressed, I do not believe that such action is viable or reasonable in these circumstances, nor sufficiently serious to be warranted at this point. I consider the evidence does not establish that Ms Leung engaged in bullying or harassment against [Ms Rindeklev]. Therefore I recommend that the matter does not warrant referral for consideration of breaches of the APS Code of Conduct.

In line with the Department's Managing Complaints Policy where possible an attempt to informally resolve [Ms Rindeklev's] concerns should be attempted. This will provide an opportunity for her to raise her concerns directly with Ms Leung with the view to seeking an amicable and timely resolution and an agreement about future behaviour or improved work practices.

As there is a need for Ms James and Ms Leung to work together, I would recommend the use of a professional mediator to work with them both to re-establish an effective and professional working relationship - this could only occur if they were both comfortable in participating in mediation.

325    I regard these recommendations as being inconsistent with the claims made by Ms Rindeklev concerning the alleged Adverse Finding. First, the recommendations begin by acknowledging that Ms Rindeklev believes that there has been inappropriate behaviour by Ms Leung. Second, they propose an informal resolution so that Ms Rindeklev can raise her concerns with Ms Leung. Third, they propose the involvement of a professional mediator. None of those statements are consistent with the notion that Ms Caudwell has made the alleged Adverse Finding and somehow labelled Ms Rindeklev in the way she suggests by Claim 5.

326    The recommendations addressed 'any future complaints' and recommended the following:

[Ms Rindeklev] should be reminded of the principles of lodging complaints as per The Department's Managing Complaints Policy which include:

1.    You should try local and informal solutions where possible.

2.    Your complaint will be made professionally and in good faith. Your complaint should be based on fact, supported by enough detail, and not be frivolous or vexatious.

3.    Your complaint will be considered fairly, independently and without bias.

4.    You will not be subject to discrimination, victimisation or any other form of adverse action. Principles of natural justice, including procedural fairness will be applied.

5.    Your complaint will be handled consistent with the Australian Privacy Principles.

327    Two aspects should be noted. First, the inclusion of this recommendation contemplates that there may be future occasions for complaints by Ms Rindeklev and, at least implicitly, manifest a view that there is a basis for a concern to ensure that they are made properly. Second, parts of the recommendation are confirmation of the independence of the process for consideration of any such future complaints. Although it includes a reference to the need for the complaint to be made professionally and in good faith, based on fact and not frivolous or vexatious, that language, like the rest of the recommendation, reflects the terms of the Managing Complaints Policy at the time. I am not persuaded that the recommendation, expressed in those terms, reflects a conclusion that the complaints that had been made by Ms Rindeklev were vexatious or had been made in bad faith. Still less, for reasons that I have given, does it amount to a finding of a kind that could be said to be adverse to Ms Rindeklev in the sense that it is a form of sanction against Ms Rindeklev or that might have consequences for future complaints that might be made by Ms Rindeklev.

328    I regard the recommendation concerning 'future complaints' as being a practical response to a concern that Ms Rindeklev may be making assumptions rather than raising concerns that have an objective basis. As it says, the recommendation is to operate as a reminder of the circumstances in which and way in which complaints should be raised.

329    For those reasons, I do not consider the terminology in the 2019 Report to imply that some view had been formed that Ms Rindeklev was a person who made complaints in bad faith without detail or otherwise vexatiously. Rather, it was an attempt to try and ensure that Ms Rindeklev was aware of, and had regard to, all aspects of the Policy when it came to future complaints.

330    To similar effect is the final recommendation which is as follows:

I also recommend that:

•    [Ms Rindeklev] be reminded to treat everyone with respect and courtesy and without harassment.

•    If a matter (complaint) is resolved, [Ms Rindeklev] should be advised of her review rights.

•    [Ms Rindeklev] be offered the use of Rehabilitation Case Manager or EAP to assist her with strategies to build effective and positive working relationships in the workplace.

331    That was a recommendation to remind Ms Rindeklev of the whole nature of the complaint process. It reflects the concerns expressed in the 2019 Report about the complaints made in the present case about Ms Leung. It is not a recommendation that is based upon the making of the alleged Adverse Finding. It includes a recommendation to offer assistance to Ms Rindeklev in dealing with her personal relationships in the workplace.

332    In those circumstances, the alleged Adverse Finding was not made against Ms Rindeklev.

333    It follows that there was no Adverse Finding in the 2019 Report of the kind alleged by Ms Rindeklev as amounting to adverse action. Indeed, there was no finding of any kind made as to Ms Rindeklev. Rather, there was reasoning in the 2019 Report that concerned the conduct of Ms Rindeklev as to aspects of her complaint in that instance. The focus on those matters was necessary and appropriate in order to address the complaints that had been raised by Ms Rindeklev in her March 2019 email.

334    Ms Rindeklev also relied upon the letter that she received from Ms Stocker after the 2019 Report had been prepared. It was said to record a conclusion in terms of the alleged Adverse Finding as the outcome of the matters that Ms Rindeklev had raised in her March 2019 email.

335    Relevantly for present purposes, the letter from Ms Stocker to Ms Rindeklev included the following:

(1)    As to the complaint against Ms Leung:

Ms Leung's approach and communication style may not have been one that you were comfortable with. In your complaint you described how this approach made you feel and I accept the accuracy of your account.

However, I do not believe that the evidence establishes that there was any intent by Ms Leung to make it difficult for you to carry out your duties. As indicated above I do believe that her communication approach and style may have had that effect.

In line with the Department's Managing Complaints Policy where possible an attempt to informally resolve your concerns should be attempted. This will provide an opportunity for you to raise your concerns directly with Ms Leung with the view to seeking an amicable and timely resolution and an agreement about future behaviour or improved work practices.

As there is a need for you and Ms Leung to work together, I would support the use of a professional mediator to work with you both to re-establish an effective and professional working relationship - this could only occur if you were both comfortable in participating in mediation.

(2)    As to the complaint against the leadership:

I consider this element of your complaint is based on your opinion and perception that a number of reasonable management actions were not dealt with appropriately and have not resolved your previous complaints to your satisfaction.

…

I believe that the information provided by Mr Proll and Ms Harwood demonstrates that they have a good understanding of what bullying is, the departmental policies that guide them and the appropriate way to manage bullying in the workplace.

(3)    As to 'Additional Complaints':

In your complaint you stated that in a meeting you had with your Service Leader, Ms Harwood and your Team Leader, Ms Tay and that Ms Harwood stated that you were, (sic) 'a repetitive complainant that keeps complaining of the same issue and that there is no resolution, a circular behaviour'.

In Ms Harwood's response to Ms Caudwell about your complaints, she provided details of a number of previous complaints you had made and complaints made about you from other staff during your time working in the Child Support Program (since November 2017).

You have made at least 12 complaints to 'Leadership'. 3 of these complaints are specifically about Ms Leung whilst she is also named in a further 2 complaints along with other staff. Another 11 staff are named in various complaints. In addition, Ms Harwood could be added to this list as part of the 'Leadership' group.

6 staff have made complaints about you which have been managed by 'Leadership'. These complaints have been made about your inappropriate behaviour and the way you spoke towards particular staff.

Ms Leung has advised that she has been coming into work every day in fear of a new complaint being lodged against her and that she feels she is obligated to record every interaction that she has with you to ensure that when questioned by management, she can explain the sequence of events, even though they are what would be considered standard day-to-day interaction.

It is not reasonable for Ms Leung to feel the need to record these interactions for fear of ongoing complaints by yourself.

336    At the end of the 'Additional Complaints' section of the letter from Ms Stocker, the references by Ms Caudwell about particular comments about Ms Leung being 'assumptions' that 'border on being vexatious accusations' were repeated. As was the reference to Mr Proll having raised 'these vexatious type allegations with you on a number of occasions'.

337    The letter from Ms Stocker also set out recommendations in terms that reflected the recommendations by Ms Caudwell.

338    Generally, I regard the statements in the letter from Ms Stocker to reflect the findings and analysis of Ms Caudwell and, consequently, to not involve the making of the Adverse Finding. The only material difference between the 2019 Report and the subsequent letter to Ms Rindeklev concerns the matters stated in the section concerned with 'Additional Complaints'. In a departure from the 2019 Report, this section of the letter was introduced by an aspect of Ms Rindeklev's March email by which Ms Rindeklev alleged that Ms Tay and Ms Harwood had described her as a repetitive complainant. The letter then referred to the material provided by Ms Harwood to Ms Caudwell about previous complaints. These matters were presented as the introduction to passages taken from Ms Caudwell's preliminary report about assumptions and comments that border on being vexatious accusations.

339    The question is whether the different way these matters were contextualised in the letter means that the outcome of the preliminary investigation was a finding that Ms Rindeklev was a frivolous and vexatious multiple complainer or a person who made complaints in bad faith (even though no such finding had been made by Ms Caudwell).

340    Although the letter from Ms Stocker places the language of Ms Caudwell's report in a different context, the wording relied upon by Ms Rindeklev to support her claim that the alleged Adverse Finding was made remains the same. It remains language that is used to refer to the way in which Ms Rindeklev expressed certain aspects of her complaints about Ms Leung. Further, the recommendations by Ms Stocker in her letter to Ms Rindeklev were expressed in the same terms as the recommendation by Ms Caudwell in the 2019 Report. There is no direction to Ms Rindeklev concerning the making of complaints. There is no conclusion expressed in terms of the Adverse Finding.

341    I am not persuaded that the outcome communicated to Ms Rindeklev by Ms Stocker in her letter recorded a conclusion that Ms Rindeklev was a frivolous and vexatious multiple complainer or that Ms Rindeklev made complaints in bad faith.

342    The Commonwealth also relied upon evidence from each of Ms Caudwell and Ms Stocker to support their case that the alleged Adverse Finding was not made by them.

343    The evidence of Ms Caudwell was to the effect that she did not use anything from what Mr Proll had written to form the views that she expressed in her 2019 Report about not being vexatious and frivolous with regards to submitting complaints. Rather, she used the Policy (which I considered to be a reference to the Complaints Handling Policy referred to in the 2019 Report). Ms Caudwell also maintained that she did not say in the 2019 Report that any vexatious complaints were lodged. Rather she used the terminology 'bordering on vexatious'.

344    The evidence of Ms Stocker was to the effect that she did not think she had made a decision that Ms Rindeklev was a vexatious complainant. Rather, her task was to decide whether to refer the matter for consideration for further formal investigation. Any conclusion as to whether a person should go through a formal process to answer a complaint that they had been engaging in serious misconduct by making vexatious complaints was a matter for another person with authority to commence an investigation under the Code of Conduct process.

345    In all those circumstances and for the reasons I have given, I am not persuaded that the alleged Adverse Finding was made as part of the 2019 Report of the preliminary investigation conducted by Ms Caudwell. I am also not persuaded that the Adverse Finding was some form of outcome of the process by which the matters raised in Ms Rindeklev's March email were considered and then reported to Ms Rindeklev in the letter from Ms Stocker.

Issue 5(2): If yes to (1), was the process that culminated in the Adverse Finding procedurally unfair?

346    Having regard to the conclusions reached as to Issue 5(1), this issue does not arise for determination.

347    Further, as I have explained, the Commonwealth's answer to Ms Rindeklev's contentions about the fairness of the process was to the effect that the Adverse Finding was not made. For reasons that I gave when explaining the issues, I accept the validity of that contention.

348    If it is assumed that the Adverse Finding was made then the Commonwealth does not advance a case about the reasons why the Adverse Finding was made. A case of that kind would face the difficulty that the witnesses involved, Ms Caudwell and Ms Stocker, would have to give reasons for a finding that they say they did not make. Therefore, a conclusion to the effect that the Adverse Finding was made would establish the adverse action claim advanced by Claim 5.

349    It is difficult to see what additional adverse action arose from the procedure that was followed given the nature of the case advanced by Ms Rindeklev as to the consequences of the adverse action. All those consequences are said to flow from the making of the Adverse Finding not from the way in which it was made.

350    Nevertheless, I will address the claim briefly on the basis of an assumption (contrary to my conclusion as to Issue 5(1)) that the Adverse Finding was an outcome of the 2019 Report and the letter sent to Ms Rindeklev by Ms Stocker.

351    The List of Issues prepared by the registrar recorded the case as to alleged lack of procedural fairness in the following terms:

…the alleged conduct (the labelling of [Ms Rindeklev] as a multiple complainant) arose out of the [investigation that culminated in the 2019 Report] which lacked procedural fairness and justice, as:

(i)    there was no compliance with workplace Policies;

(ii)    there was no notice provided to [Ms Rindeklev] of allegations against her and no notice that it had become a misconduct investigation into [Ms Rindeklev];

(iii)    there was no opportunity for [Ms Rindeklev] to respond;

(iv)    it ignored evidence of bullying; and

(v)    it was flawed and biased in favour of Ms Harwood and Mr Proll;

352    As to compliance with workplace Policies, in her written opening submissions as to the alleged adverse action concerning the 2019 Report, Ms Rindeklev referred to the 'outcome issued on 15 May 2019' as being 'a formal, adverse outcome' that 'constituted managerial findings, made without procedural fairness, without notification of allegations, without an opportunity to respond, and without any formal misconduct process under [s 15(3) of the Public Service Act]' that was 'operationalised and used to inform subsequent adverse processes'. It was said that there was conduct by which protected complaint making was reframed as misconduct. It was also said that the 'assertion' that Ms Rindeklev's complaints were frivolous 'appears to have been institutionally embedded'.

353    These submissions mischaracterise the nature of the process conducted by Ms Caudwell. It was not an investigation into whether Ms Rindeklev had engaged in misconduct. It was a preliminary investigation to consider the appropriate course to take as a result of Ms Rindeklev raising the matters in her March 2019 email. For reasons I have given, an investigation of that kind conducted for that purpose was consistent with the applicable policy. Further, it was appropriate to consider whether there was a proper basis for the matters raised and what might be behind the complaint. I do not accept the claim that there was a failure to comply with relevant workplace policies as to what to do in response to an email such as Ms Rindeklev's March 2019 email.

354    As to whether the procedure that was followed ignored evidence, as I have explained Ms Caudwell considered the matters advanced by Ms Rindeklev and did so in considerable detail in Attachment A. In written submissions there was a specific complaint raised by Ms Rindeklev to the effect that there was no consideration by Ms Caudwell of what was said to be 'the inappropriate nature of discussions around [Ms Rindeklev] being tested for autism'. This appears to refer to the following statement made by Ms Rindeklev in her March 2019 email:

At other times, other issues once or twice have been raised and my TL Adam quite enthusiastically pursued the idea that that [sic] I should have myself diagnosed for autism, and if not that, avail myself of EAP.

355    In support of her written submissions, Ms Rindeklev referred to Mr Proll's detailed response to this aspect of her complaint. In that response, Mr Proll referred to the issue of Ms Rindeklev possibly having Autistic traits being a matter raised by Ms Rindeklev herself, initially joking but later as something that she thought may have some truth.

356    Ms Caudwell considered this aspect in her detailed annexure to her 2019 Report (to which reference has been made) which set out 'Considerations and Reasons for Decision'. Her reasoning was as follows:

[Ms Rindeklev] has used emotive language in describing Mr Proll’s attempts to assist her in the workplace, ie 'quite enthusiastically pursued the idea that that I should have myself diagnosed for autism, and if not that, avail myself of EAP.' Mr Proll states 'It is my job to address concerns around the health and well-being of members of my team.' Mr Proll (and supported by Ms Harwood) has provided evidence in the form of coaching notes that record Ms James as having raised this issue (of autism) herself and her feelings that it may be impacting her reading of social situations. Mr Proll sought out support for [Ms Rindeklev] in response to this and had regularly followed up with Ms James to ensure that he could show ongoing support to her previously raised concerns.

It is standard procedure for Managers to refer their staff to EAP as an option for them to manage their health and wellbeing.

I find no evidence of bullying or harassment by Mr Proll in regard to this element of the complaint. The reasonable management actions were carried out professionally and reasonably by Mr Proll.

357    It is not the case that the matter was not addressed by Ms Caudwell.

358    As to whether Ms Rindeklev was given an opportunity to respond, as I have explained in identifying the scope of the issues raised concerning Claim 5, the detailed contentions by Ms Rindeklev to the effect that she was not given an opportunity to respond were premised on the view that the Adverse Finding was made. If indeed the Adverse Finding was made and there was an adverse consequence for Ms Rindeklev of that finding then the procedure was unfair because it may be expected that Ms Rindeklev would be given an opportunity to respond before reaching a conclusion of that kind as part of a process that imposed some form of adverse consequence. However, the difficulty with this aspect of Ms Rindeklev's case is that, even assuming the Adverse Finding was made, the process did not impose any adverse consequence for Ms Rindeklev.

359    There was nothing in the 2019 Report or the letter by Ms Stocker to Ms Rindeklev that resulted in any form of formal finding against Ms Rindeklev. Rather, the outcomes of the investigation of the complaint were:

(1)    An opportunity for Ms Rindeklev to raise her concerns with Ms Leung with a view to seeking an amicable and timely resolution and an agreement about future behaviour or improved work practices;

(2)    The use of a professional mediator to work with Ms Leung and Ms Rindeklev to re-establish an effective and professional working relationship;

(3)    A reminder as to the principles of lodging complaints as per the Managing Complaints Policy; and

(4)    The offer of a 'Rehabilitation Case Manager or EAP' to assist with strategies to build effective and positive working relationships in the workplace.

360    There was no formal finding, there was no sanction, there was no decision to refer Ms Rindeklev's conduct for consideration as part of a formal Code of Conduct process. Consequently, even if (contrary to my finding in dealing with Issue 5(1)) the Adverse Finding had been made, there was no procedural unfairness in not seeking a response from Ms Rindeklev before recording the Adverse Finding.

361    The suggestion that the procedure was said to be flawed and biased in favour of Ms Harwood and Mr Proll is advanced without any details. There was no evidence that might support any claim of bias on the part of Ms Caudwell who conducted the investigation and the preparation of the 2019 Report.

362    On the basis of the findings I have made, I also conclude that the investigation and outcome of the process that involved (a) the preparation of the 2019 Report by Ms Caudwell; and (b) the decision by Ms Stocker recorded in the letter that was sent based upon a consideration of the 2019 Report was not a form of discrimination against Ms Rindeklev and was not a form of employer bullying, harassment and victimising.

363    To the extent that the claim that there was an unfair procedure was sought to be supported by the written submissions advanced by Ms Rindeklev to the effect that there was some form of 'Institutional Incitement' or influence by Ms Harwood and Mr Proll, I have explained why it is not relevant. In short, the unfair procedure claims assumed that Ms Caudwell made the Adverse Finding. Against the possibility that I am wrong in this approach, I also address this aspect separately below.

Issue 5(3): Was the unexercised right of appeal an answer to the claim by Ms Rindeklev concerning the alleged Adverse Finding?

364    If I had found that the Adverse Finding had been made and that it had been made in circumstances that were procedurally unfair then I would not have been persuaded that the availability of a right of appeal meant that the conduct was not adverse action. The Commonwealth's case in that regard was not developed. I consider the Commonwealth's point to be met by what was said in Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163; (2023) 300 FCR 170 at [7]-[13] (Rares ACJ), [142]-[164] (Katzmann J) and [407]-[425] (Colvin J).

Issue 5(5): Having regard to the answers to Issues 5(1) to 5(3), has the claim been established?

365    Having regard to the answers to 5(1) to 5(3), Claim 5 has not been established.

Claim 6: Alleged incitement by Ms Harwood and Mr Proll of the adverse action in the conduct of the investigation and outcome the subject of the 2019 Report

Issue 6(1): Was the claim of incitement adequately particularised and, if so, precisely what was the claim?

366    As I have explained, Ms Rindeklev's case was to the effect that Ms Harwood and Mr Proll were telling staff and those in Human Resources that Ms Rindeklev was a vexatious complainant. This was said to have occurred in 2018 'just prior' to Ms Rindeklev's email raising an alleged bullying issue. It is said to form part of the reason for taking the alleged adverse action, that is the making of the alleged Adverse Finding in the 2019 Report.

367    So, the case as explained by Ms Rindeklev when she was asked to clarify her 'incitement' case was in the same terms as in her written opening, namely that both Mr Proll and Ms Harwood communicated unfounded or unjustifiable views that Ms Rindeklev engaged in making frivolous and vexatious complaints to Human Resources in 2018 and thereby incited and materially influenced the decision-making process and shaped the alleged Adverse Finding in the 2019 Report.

368    As I have explained, in order to rely upon s 362 to establish a contravention of s 342, the claimant must identify the action that the person is advising or encouraging the second person to take (as well as the reason that the person is advising or encouraging the second person to take that action). No claim of that kind was particularised. It is certainly not to be found in the List of Issues. Nowhere in the detailed written opening does Ms Rindeklev specify the action that she alleges Ms Harwood and Mr Proll were advising or encouraging Ms Caudwell to take. Nowhere in the detailed opening does Ms Rindeklev specify conduct that might amount to advising or encouraging Ms Caudwell to take particular action in relation to the investigation for, and preparation of, the 2019 Report.

369    What Ms Rindeklev appears to be saying is that by the way Ms Harwood and Mr Proll dealt with Ms Rindeklev in 2018 when it came to the various complaints she raised at that time, they somehow sought to advise or encourage Ms Caudwell to conduct a process in 2019 that investigated whether Ms Rindeklev had engaged in misconduct and then made the Adverse Finding. That is to say, the way Ms Harwood and Mr Proll responded to Ms Rindeklev's complaints in 2018 was to incite and materially influence (advise and encourage) the approach and outcome of a process that no-one is said to have known or expected at the time those events took place.

370    For those reasons, Ms Rindeklev's claim based upon s 362 was not adequately particularised. It follows that there was no claim of that kind that could be fairly adjudicated

Issue 6(2): Was it necessary for the claim to be put to Ms Harwood and Mr Proll?

371    Had there been a claim that was adequately particularised then, in all likelihood, it would have been necessary for the claim to be put to each of Ms Harwood and Mr Proll. However, it may have been the case that the claim having been particularised, it was obvious what the case was that needed to be met and Ms Harwood and Mr Proll may have been expected to put on their evidence, including as to any part of their evidence that dealt with the reason for their actions to which s 361 applied.

372    It is not possible to express a concluded view as to these matters as it would require formulating a hypothetical as to whether such a case might have been particularised and the way in which that might have occurred.

Issue 6(3): If yes to 6(2), was the claim put to them?

373    This issue does not arise.

Issue 6(4): Was there evidence to support the claim?

374    This issue does not arise. For that reason, I will deal with it briefly on the assumption that an incitement case of the kind I have described above was properly advanced.

375    The evidence was to the effect that Ms Caudwell invited each of Ms Harwood and Mr Proll to provide a response to the detailed matters raised by Ms Rindeklev in her March 2019 email. They did so. There is no foundation for any suggestion that they were involved in any communications with Ms Caudwell beyond submitting their written responses. Therefore, any incitement case of the kind that Ms Rindeklev sought to run must be founded on the contents of those written responses.

376    The allegations made by Ms Rindeklev were serious. They were to the effect that there had been a serious and sustained course of bullying and harassment that had not been addressed by management. It was a relevant way of responding to point to the history of complaints that had been made and the way in which they had been addressed. The extent to which there had been complaints about other behaviour made by or against Ms Rindeklev was relevant to evaluating whether there was a proper foundation for the particular matters raised in the 2019 email concerning the conduct of Ms Harwood and Mr Proll. I can see nothing in the nature of the responses that were provided that might be said to be a basis for the claim of incitement that Ms Rindeklev sought to advance.

377    Otherwise, as I have already explained, I will address the claims raised in the 'Institutional Incitement' part of Ms Rindeklev's written submissions separately below. Those submissions relied upon documents that were in evidence. The reasons I provide below further support my conclusion that the documents referred to by Ms Rindeklev do not support her contention that Ms Harwood and Mr Proll incited Ms Caudwell to reach a particular conclusion as part of the preliminary investigation conducted by Ms Caudwell that resulted in the 2019 Report.

Issue 6(5): Having regard to the answers to 6(1) to 6(4) has the claim been established?

378    It follows that Claim 6 has not been established.

Claim 7: Alleged adverse action in issuing a warning for speaking in a Union meeting

Issue 7(1): What was said by Ms Harwood to Ms Rindeklev after the Union meeting in November 2019 about Ms Rindeklev speaking in the meeting?

379    It is common ground that Ms Harwood was the service manager for the Child Support Agency during the time that Ms Rindeklev was employed undertaking work for the Agency. Ms Rindeklev's affidavit evidence about the alleged conversation with Ms Harwood about speaking in the Union meeting formed part of her evidence that recounted her version of what occurred at the December 2019 Meeting. It included the following paragraphs:

Harwood gave me a verbal warning about my participation in a workplace union meeting (26 November 2018)…, and Tay said I was 'running' to the Union all the time. I had communications with the Union in 2020 regards the interaction and the emails contain details about the union meeting 26 November 2019.

…

Harwood advised against submitting a broadbanding application, expressing concerns about ongoing multiple complaints and comparing my behavio[u]r to that of a whistleblower.

…

In the final moments of the meeting (which likely was a few minutes after the mediation had ceased and other staff left, therefore a separate counselling session), Harwood accused me of being a multiple complainant saying I had acted inappropriately in a union meeting and that I had not changed my behaviour.

380    Therefore, on the face of the affidavit account of Ms Rindeklev, an issue in relation to what had been said by her at a Union meeting was raised by Ms Harwood during the December 2019 Meeting and was also raised by Ms Harwood after other staff had left the meeting.

381    In her written submissions, Ms Rindeklev described the relevant conversation where she was alleged to have been warned in the following terms:

After the others had left, Harwood asked the Applicant to stay behind - still without a support person - and continued to caution her against making complaints. She accused the Applicant of taking personal grievances into meetings in her role as a Site Connect Representative and of breaching Tay's privacy during a recent union bargaining session. Harwood stated that the Applicant's continued complaints made her seem 'almost like a whistleblower'. The Applicant understood this as a direct warning linked to her union involvement and efforts to correct false records…Tay had placed on her employment file.

382    When cross-examined about the matters the subject of Claim (7), Ms Rindeklev insisted that it was after the December 2019 Meeting when everyone had left that Ms Harwood raised the issue about what Ms Rindeklev had said at the Union meeting. As to the content of the conversation, Ms Rindeklev initially agreed with the proposition that Ms Harwood said to Ms Rindeklev: 'you needed to be careful about raising personal complaints in a public forum', but clarified her answer by saying Ms Harwood did not say 'public forum' rather she said 'in a union meeting'. Ms Rindeklev then said that Ms Harwood mentioned 'as a Site Connect Representative'. These aspects of the way Ms Rindeklev gave her account reflect adversely on its credibility. However, what was clear was that Ms Rindeklev agreed that what was being addressed was an issue about raising personal complaints.

383    There was then the following exchange as part of that cross-examination:

I’m not talking about a verbal warning at the moment; I’m just talking about what she was talking to you about in terms of the substance of what she had a concern was – was that you were discussing private matters in front of other people; is that - - -?---No.

- - - right?---No, her concern was that she took – basically took me aside to tell me that word had come to her about a union meeting, and that I had in – acted. She didn’t give me any details, but she said, “You’ve” – “You’ve mentioned some stuff in the union meeting, and that was inappropriate,” and I should be considerate of what I was saying, and - - -

But she did not issue you any kind of warning, did she?---That was a warning, definitely.

Ms Harwood’s recollection is not that she had a meeting. There’s no recollection of her having a meeting just with you, and there’s no recollection of her giving you a warning, but you’re confident that that is something she said to you alone?---I – it’s – it’s just something that has come to me afterwards and - - -

When you say come to you afterwards, what do you mean by that?---Probably about two years, when I was really having to start to think about what happened, because there was something weird about – you can’t give a warning in public, like, you can’t give a warning to another person in front of staff, other staff; it has to be private. Because it concerned Tay, so Tay can’t be present at the meeting when you’re giving a warning. And I do – the memory has come to me that she asked me whether I wanted Dean stay as a support person, and we kind of looked at, you know, I’m going to – she probably said something – I think she said, “I’m going to have a word” – “quick word with you. It won’t take long. Do you want a support person?” And Dean was kind of like just out of the room. He was my counsellor, and was supposed to be a support person in that mediation meeting. And I didn’t know that there was going to be – I hadn’t been forewarned that there was going to be any type of adverse situation, so I didn’t ask my support person to stay, and so that’s how I remember it.

But none of these details about Mr Dean – a question being asked whether Mr Dean wanted to stay; you staying by yourself – those aren’t matters that have ever been raised before, are they?---It’s not a – a matter; it’s just description of what happened.

But that - - -?---The – the matter is the warning, the - - -

I see?--- - - - union warning.

But that description isn’t something you’ve mentioned before?---I – I think I started writing it into my affidavit. If not affidavits, it would have been in my various – I think there was two – interlocutory applications for altering my statement of claim, and that’s how it got formulated in there. That’s around about the time where I started.

So it appears in submissions – well, a slightly different version appears in submissions?---Yes.

384    Later, Ms Rindeklev was asked about the statement in her affidavit (quoted above) as to what was said about Ms Rindeklev speaking in a Union meeting and being given a verbal warning. Ms Rindeklev explained that the reference to a verbal warning about participation in a workplace union meeting and the response from Ms Tay was about a separate occasion. Consequently, it was the later paragraph in her affidavit that was recounting the basis for her claim.

385    I note that in Ms Rindeklev's affidavit account of what took place after the December 2019 Meeting there is no reference to a warning being given by Ms Harwood. On Ms Rindeklev's account, when the other staff had left, Ms Harwood spoke to Ms Rindeklev about being a multiple complainant and about acting inappropriately in a Union meeting. This too reflects adversely on the credibility of her account.

386    Ms Rindeklev was asked to explain when it was that she remembered there being two separate conversations about Union meetings. Her explanation was to the effect that it emerged when she prepared the affidavit and possibly the submissions and various statements. Her evidence was as follows:

That’s when I started formulating and working through from my statement of claim through to my potential statement of claims, which became much more detailed. And that’s when I started thinking – what was it? It must have been separate because there’s – I don’t – I don’t remember – like, maybe because I know the work practice and that there’s no way she could have given me a counselling session with the aggrieved person there. That would have been completely out of bounds.

387    Later, Ms Rindeklev agreed that she did not have an independent recollection of being kept back to speak to Ms Harwood after the December 2019 Meeting. However, she maintained that she had recovered her recollection by the time of preparation of her affidavit. Ms Rindeklev also agreed that the words 'verbal warning' were not used in her affidavit to describe the conversation that occurred between her and Ms Harwood after the December 2019 Meeting. Ms Rindeklev then maintained that was the substance of what Ms Harwood said. Ms Rindeklev then gave the following evidence:

But she said I needed to be mindful about raising private issues – no, no, actually, she didn’t say what it was – no, no, she did. She said private issues about Tay, that’s about as far – but the actual content of it was not discussed, and I wasn’t, obviously, anticipating it because she had - - -

Sorry, so she raised that you shouldn’t be discussing Ms Tay’s private matters?---Private matters in the bargaining session.

388    I regard the nature of Ms Rindeklev's evidence to the effect that she was given a verbal warning by Ms Harwood after the December 2019 Meeting when the others had left to be a form of reconstruction based upon Ms Rindeklev's assessment after the event as to what Ms Harwood was trying to do when she asked to speak to Ms Rindeklev after the meeting. Significantly, there is no reference in Ms Rindeklev's affidavit to a warning being given by Ms Harwood at that time. This language is only used in the earlier paragraph in her affidavit which was about a different occasion. Further, in her submissions, Ms Rindeklev refers to an accusation by Ms Harwood that Ms Rindeklev was taking personal grievances about Ms Tay into meetings. This is consistent with Ms Harwood's account (see below) and inconsistent with the claim as now formulated by Ms Rindeklev. Finally, in cross-examination Ms Rindeklev's evidence was that Ms Harwood had told her to be mindful of raising private matters in the bargaining session (noting that the Union meeting was being conducted for the purposes of a bargaining process). Therefore, both at the beginning and end of her cross-examination Ms Rindeklev described what Ms Harwood was saying in terms of referring to raising personal grievances in public.

389    In the result, Ms Rindeklev's own evidence falls short of establishing that there was some form of verbal warning of the kind she alleges. Ms Harwood was not admonishing Ms Rindeklev for speaking in a Union meeting or suggesting that she should not speak at a Union meeting. The actual words spoken, on Ms Rindeklev's own account (both in cross-examination and in her description in written submissions) were words about raising private matters in the Union meeting; that is, in a public context.

390    That is a version of the conversation that accords with Ms Harwood's recollection. Her evidence was to the effect that she had been told that, at a Union meeting held on 26 November 2019, Ms Rindeklev had raised some personal complaints about individual staff that were not related to the topic of the meeting. At some point, Ms Harwood became aware that Ms Tay had told Ms Rindeklev that the meeting was not the appropriate forum at which to raise personal concerns. Ms Harwood believed that in the December 2019 Meeting she may have said words to the effect that 'she should be aware of when she discussed work matters and who she raised them with'. In the view of Ms Harwood, the Union meeting had been to discuss general workplace matters and it was not the appropriate place to raise personal complaints.

391    Ms Harwood was asked questions by Ms Rindeklev by way of cross-examination on that topic. The terms of the question put by Ms Rindeklev reflect her evidence as to what was said by Ms Harwood. The question followed on from questions about the December 2019 Meeting and was in the following terms:

Do you remember counselling me about attending the union just recently and that you told me information had come to you that I had spoken about personal details about Ms Tay in that union meeting?

392    The answer given by Ms Harwood was:

I don’t recall whether I discussed that specific issue immediately after that meeting with the mediation with the provider, but I definitely do recall we had a conversation about I had received feedback from some participants in a CPSU-led meeting around workplace change that you had raised personal issues with your interactions with your team leader Melody Tay. Yes, I do recall that.

393    Ms Harwood's evidence was to the effect that she did say to Ms Rindeklev that she (that is Ms Harwood) did not feel it was appropriate to raise personal concerns in the Union meeting. In context, this was a conversation about raising personal issues with other staff members in a public forum such as the Union meeting. It is an account which I accept.

Issue 7(2): Did the words spoken amount to a warning being given to Ms Rindeklev for speaking in the meeting?

394    Ms Harwood did say, when being cross-examined, that she was following up on a complaint that had been raised about what Ms Rindeklev had said at the Union meeting. However, I am not persuaded that the words spoken at the time amounted to some form of warning being given to Ms Rindeklev about speaking at the Union meeting. The words spoken were not directed towards preventing Ms Rindeklev from speaking at Union meetings or warning her that she should not do so.

395    Further, there was unchallenged affidavit evidence from Ms Harwood in the following terms:

We had no problem with the staff speaking to the [Union] or having [Union] delegate attend meetings to support them.

My recollection of the issue in relation to the 26 November 2019 meeting is not that [Ms Rindiklev] spoke to the union - doing that was commonplace and appropriate. The issue was that she discussed matters specific to her and to her line manager in front of a group of other employees.

396    There was no part of the context of what was said that indicated it was giving some form of warning about speaking in Union meetings. Rather, what was raised was the need to avoid raising personal issues with other staff members in public.

Issue 7(3): Having regard to the answers to (1) and (2), has the claim been established?

397    It follows from the answers to (1) and (2) that Claim 7 has not been established.

Causation and relief

398    As I have mentioned, the Commonwealth did not advance any submissions as to causation and relief save for submissions concerning the evidence of Dr Samuel. The Commonwealth's defence of Ms Rindeklev's claims focussed upon whether the alleged breaches of the statutory provisions had been established. For reasons that have been given, the Commonwealth's defence of those claims has been upheld.

399    However, it should be noted that the Commonwealth maintained a general denial of all of the claims. Therefore, had I reached the conclusion that any or all of the claims by Ms Rindeklev should be upheld then it would have been necessary to consider issues of causation and relief.

400    Beside identifying the relief sought, Ms Rindeklev did not advance submissions as to causation and relief. Therefore, there are no specific submissions to be addressed on the assumption that any of the individual claims were successful. In those circumstances, I can deal with the issues of causation and relief succinctly.

401    As to the claims for aggravated and exemplary damages, no basis has been demonstrated for upholding claims of that kind. I would have dismissed those claims even if I had upheld any or all of the claims.

402    As to what Ms Rindeklev described as compliance and systemic reform orders, no basis has been advanced for the making of such orders at the suit of Ms Rindeklev. The proposed orders extend well beyond her own interest in the subject matter of the proceedings. For those reasons, I would not have made orders of the kind sought even if I had upheld any or all of the claims.

403    As to the claims for compensation and damages, it was necessary for Ms Rindeklev to demonstrate that particular heads of loss and damage had been caused by a particular breach and then to advance a meaningful basis for quantification of the compensation or damages to be awarded. As I have explained, the issue of quantification of any demonstrated loss and damage was to be held over. However, it remained necessary, as part of the hearing of the two proceedings, for Ms Rindeklev to demonstrate that any breaches that were upheld resulted in loss and damage and to identify its nature.

404    Ms Rindeklev's claims to compensation and damages were advanced in two parts. First, in respect of the claims in WAD156/2022. Second, in respect of the claims in WAD165/2022. However, the case as to both parts was put on the basis that the evidence of Dr Samuel established that Ms Rindeklev's mental health had been deleteriously affected by all of the conduct complained of by Ms Rindeklev.

405    Ms Rindeklev's case as to causation was based on the evidence of Dr Samuel. As I have mentioned, the Commonwealth challenged that evidence. For reasons given below, I do not accept the evidence of Dr Samuel. Even if I had accepted that evidence, it would still have been necessary for Ms Rindeklev to demonstrate a causative connection between the breach and a particular type of loss and damage. It was not possible to assert in a global way that each of the Claims, if established, caused all of the consequences attributed by Mr Samuel to Ms Rindeklev's employment. As I explain below, Mr Samuel's evidence was given in such general terms that, even if it had been accepted, it would not have provided a basis upon which to reach a conclusion that Ms Rindeklev's mental health had been adversely affected in a particular way by the Commonwealth's conduct the subject of a particular claim.

406    It was Ms Rindeklev's burden to demonstrate by reference to the evidence that had been led at trial and accepted that the breach as found was a material cause of a type of loss. As I have mentioned, beside reliance on the evidence of Dr Samuel, there were no submissions directed by Ms Rindeklev to that aspect of the case.

407    Nevertheless, taking account of the fact that Ms Rindeklev advanced her case as a litigant in person, as a matter of fairness, if I had upheld any or all of the claims made, I would have afforded Ms Rindeklev an opportunity to advance further submissions as to causation and heads of loss to support her claims to damages and compensation. Given the position adopted by the Commonwealth (which amounted to putting Ms Rindeklev to proof as to such matters), I would not have sought further submissions as to those matters from the Commonwealth.

408    Otherwise, in circumstances where all the claims have failed, I do not consider it necessary or appropriate to further address the relief claimed.

Ms Rindeklev's claims of 'Institutional Incitement'

409    For reasons I gave when explaining the matters in issue in the two proceedings, the written submissions advanced by Ms Rindeklev to the effect that there was some form of institutional incitement by Ms Harwood and Mr Proll in the year or so before the preparation of the 2019 Report are not relevant to the matters in issue between the parties. For that reason, I have not addressed them in the above reasoning.

410    Nevertheless, I note that they constituted a considerable portion of the written submissions advanced by Ms Rindeklev that were concerned with the alleged Adverse Finding the subject of Claim 5. They may also have been advanced to support aspects of Claim 6. The matters referred to in the 'Institutional Incitement' part of the written submissions appeared to culminate in the following contentions:

Mr Proll and Ms Harwood each provided HR with a collection of withdrawn, minor, or informal issues, including complaints not made by the Applicant, and cast these as examples of her supposed pattern of frivolous or unfounded reporting. They failed to mention complaints that had in fact been upheld, or the Respondent’s previous findings confirming that bullying had occurred. The selectivity and distortion of this input were calculated to persuade HR that the Applicant was untrustworthy and misusing complaint processes.

…

In doing so, both Proll and Harwood incited and materially influenced the decision-making process, shaping the adverse finding and its characterisation of the Applicant’s conduct. Their role satisfies the definition of incitement under s 362 of the Fair Work Act.

411    These submissions indicate a complaint about some form of influence exerted by Mr Proll and Ms Harwood over the approach to fact-finding and investigation undertaken in preparing the 2019 Report. However, no claim of that kind formed part of the List of Issues that was the outcome of the process before the registrar.

412    More fundamentally, Mr Proll and Ms Harwood were not involved in preparing the 2019 Report or the letter that was sent by Ms Stocker after the 2019 Report communicating her conclusions as to what should be done concerning the matters raised in Ms Rindeklev's March 2019 email. Rather, Mr Proll and Ms Harwood were two of the people who were asked to provide information to Ms Caudwell for the purposes of the preliminary investigation that she conducted.

413    Therefore, ultimately what appears to have been contended by Ms Rindeklev's Institutional Incitement submissions was that Mr Proll and Ms Harwood responded to the requests for information by presenting an inaccurate or misleading account of what had occurred in the past, being a continuation of a course they had adopted for some time in not treating Ms Rindeklev's complaints with the seriousness they deserved.

414    As I have explained, I am unable to see how contentions of that kind would bear upon whether or not the alleged Adverse Finding was made or that the procedure was unfair in the respects alleged by Ms Rindeklev (much of which concerns the extent to which the process was said to have been turned into an investigation of Ms Rindeklev without affording her an adequate opportunity to respond). That is especially so when account is taken of the nature of the defence that was advanced by the Commonwealth, namely that the alleged Adverse Finding (to the effect that Ms Rindeklev was a vexatious complainant) was not made in the 2019 Report, a contention that I have upheld.

415    Nevertheless, against the prospect that I may be found to be in error as to the view I have taken as to the lack of relevance of the matters raised, in what follows I will deal with what appear to be the key allegations advanced by Ms Rindeklev to support her Institutional Incitement submissions and the basis for them. I do so by considering the material relied upon by Ms Rindeklev and noting that no submissions were advanced by the Commonwealth as to these matters (by reason of the nature of its defence).

416    In what follows, paragraph references are to the written opening submissions of Ms Rindeklev (AWOS). These reasons respond to the submissions advanced. Those submissions were expressed as being supported by particular documents included in the applicant's bundle of materials. As these were the only materials advanced to support the contentions, these reasons consider the particular documentary materials referred to by Ms Rindeklev to support the submissions advanced and other aspects of the evidence that are relevant to the contentions advanced.

417    At AWOS [108]-[109], Ms Rindeklev submitted that two informal complaints that she had raised during her probation period at the Child Support Agency 'set off the beginning' of retaliatory actions by Ms Harwood. A generalised and pejorative description of the alleged retaliatory actions was given, but no reference was made to any evidence that might support any aspect of that description.. As to her complaint made at the time, Ms Rindeklev's own evidence was that the complaint was addressed and that no notes were placed on file. Another reference given is to an email from Ms Rindeklev to Mr Fuller (the team leader at the time for the New Recruit Starter Program). In the email, Ms Rindeklev alleges that, on 1 March 2018, the Team Support Officer approached Ms Rindeklev at her work station and interrupted her and asked ‘what it was [she] did not understand’. Ms Rindeklev's email includes the following statement:

I feel there is a lack of respectful conversation with me and an impatience that disrupts and affects me. This time she once again adopted a condescending attitude and without having a quiet and muted approach, was quite loud and directed me to bring up my Cuba to do this. I had just been in the process of shutting everything down for tea break.

Most of all, I do not feel respected and I do not feel that I am being approached in a collaborative way that she has with others that I observe.

418    In an email from the Team Support Officer to Mr Fuller, a response is given to the matters raised by Ms Rindeklev. It is plain from the terms of the response that the Team Support Officer was annoyed at the nature of the complaints and did not agree with them. The response includes the following (referring to Ms Rindeklev as Gunilla):

I have not treated Gunilla any differently than anyone else in the team, ever. I find that Gunilla does not ask questions, and I have to 'figure out' if she understands. I only get slight visual clues as she does not articulate her thoughts - this was the case all throughout training where I had to continually prompt her to participate and answer questions. I also find it offensive that she has implied this. If nothing else, I am consistent with how I treat people, whether that person is a New starter, a Team Leader or an EL2.

419    There is no evidence of any involvement of Ms Harwood in these matters that occurred in March 2018. Significantly, there is no mention of these matters in the information provided by Ms Harwood to Ms Caudwell for the purposes of the process that resulted in the 2019 Report.

420    The Team Support Officer did not give evidence. In circumstances where the matters related to complaints made by Ms Rindeklev about a year before the events that led to the 2019 Report and the complaints were not raised as part of the process followed in preparing the 2019 Report, no inference could be drawn from that failure.

421    In the circumstances, I do not see how these matters could support the claims made about Ms Harwood and Mr Proll.

422    At AWOS [112], Ms Rindeklev alleged that on 9 April 2018 she raised with Ms Harwood certain concerns that she had about her supervisor, Mr Fuller, being 'gruff and unapproachable', referring to an email to Ms Harwood. Ms Rindeklev also alleged that she raised concerns the next day about a failure by Mr Fuller to conduct mandatory coaching sessions and delays in signing off her workbook in an email. She also said that she had been left shattered by Mr Fuller's behaviour after she phoned in an absence. It was then contended that Ms Harwood recorded a complaint by Ms Rindeklev that Mr Fuller did not greet her when the 'contemporaneous records' allegedly show that Ms Rindeklev’s complaints were about other matters.

423    The thrust of the submission appears to be to the effect that the records before the meeting on 19 April 2018 show that Ms Rindeklev had various concerns about Mr Fuller and they are not reflected in the note of the meeting. This is said to show that Ms Harwood downplayed genuine concerns about Mr Fuller that had been raised by Ms Rindeklev.

424    The email from Ms Rindeklev to Ms Harwood that was referred to was actually an email expressing interest in other positions that may be open. The email then said:

The reason I have not forwarded this email to Greg [Fuller], is that I am a little concerned about how I feel as a valued member of the NC 3 team and I am feeling a little 'forgotten' in the team nor am I used to Greg's leadership style. I prefer a somewhat more public servant and professional leadership style would suit me better as I am used to that from Centrelink. I feel that Greg puts favour constantly on some of my team members on less favour on others. In many respects it makes me feel undervalued and also that my work management suffers from the feeling of being unsupported.

I have also had a very unpleasant conversation with him when I called up sick which left me quite shattered. I do not know of anyone having had a conversation with him regards this, and I sit right across him so see how he treats others on the same matter. For that matter I have not had many sick days. I have no idea why he speaks occasionally to me in such a gruff way but it has been like that right from the start.

When I approach him, he is on many occasions gruff and unapproachable and there is a lack of conversationalist tone about matters.

I am very keen to move team for these reasons.

425    It can be seen that the email does not raise concerns about coaching. It is also not advanced as a complaint. It was advanced as an explanation as to why Ms Rindeklev was interested in moving to another position.

426    The email from Ms Rindeklev to Mr Fuller that was referred to in the submissions was in the following terms:

Yesterday I came up to you in the morning before shifts started and that was to touch base about were my training manual was at. I found you unamenable and unapproachable with your response and was disappointed,

I feel I do have the right to approach your desk just like every other person in the team and should be able to be spoken to according to APS principles of respect.

On several occasions I have found the way you speak to me dismissive, not just the above occasion.

As it was Monday, hence being the first day after a weekend, me 'checking in' in the morning with an issue, I expect - not a curt and short response - but a mode of greeting and speaking that is collaborative and making me feel like I am a valued member of the team conducive to me feeling ok to be hear (sic) at the start of the working week. I do not hear you speak to others in the way that I experienced, ever.

In the meanwhile, I would appreciate you be a bit mindful that as an APS employee, I expect my TL to be approachable and to be able to verbalise matters without an aggressive or irritated undertone.

I have missed yet another coaching meeting with you specifically (along with December and January, I believe), the latest missed due to the power outage in Vic Park. Prior to that scheduled meeting, I had given you the training manual to be signed off in anticipation of the meeting.

I would like it signed off and finalised so I can focus on other matters such as the competency manual, or have it returned so a can replace some of the pages for clarifications and my handwriting is not the best (if this is the issue).

My manual has now been out of my hands for several weeks.

427    There is no indication in the email or the other documents referred to by Ms Rindeklev that these matters were drawn to the attention of Ms Harwood at the time. When cross-examined, Ms Harwood said that she did not recall a complaint about coaching being missed. I accept that evidence. It is also understandable that Ms Harwood might have treated the email to her from Ms Rindeklev as explaining why she was not happy working with Mr Fuller and why she was interested in other positions rather than a complaint about Mr Fuller that should be investigated. Views may differ as to the appropriate management response to Ms Rindeklev's email to Ms Harwood. In all the circumstances, I do not draw an adverse inference of the kind suggested by the Institutional Incitement submissions about the reason why Ms Harwood did not take any action in respect of Mr Fuller after receiving the email from Ms Rindeklev.

428    Ms Rindeklev submitted that a record made by Mr Fuller at the time incorrectly characterised her complaint as having centred on a lack of greeting. The record by Mr Fuller is as follows:

I asked Gunilla re he[r] comments to others about me apparently not greeting her in the morning, yet when asked by Sam H last Friday, Gunilla admitted she hadn't actually said good morning to me. I apologised if she'd taken offence at this, but reminded her she arrives at work from behind me and so if she fails to say hello to me to announce her arrival and I'm engrossed in my work, then naturally i wouldn't see her and therefore say hello to her. I aslo (sic) reminded her that I have to stand in my workpoint to actually see if she is seated at her desk.

429    When cross-examined as to whether Ms Rindeklev's complaints were minimised or ridiculed as being about greetings, Ms Harwood's evidence was that there was a series of complaints from Ms Rindeklev relating to greetings and all of those complaints were still investigated. I accept that evidence. Therefore, statements made by Ms Harwood to that effect were accurate.

430    Ms Harwood was also questioned about whether, after the complaints raised by Ms Rindeklev about Mr Fuller, she started to call Ms Rindeklev a frivolous or vexatious complainant in the workplace. Ms Harwood's evidence was that she did not use the term vexatious complainant concerning Ms Rindeklev but that she did use the term multiple complainant. However, she further explained that she did not apply the description multiple complainant to Ms Rindeklev at the time of her complaints about Mr Fuller. Rather, that was a description that she applied to Ms Rindeklev after the 2019 Report when she referenced the importance of being sure that complaints were of substance. I accept that evidence.

431    As to whether Ms Harwood considered the complaints raised by Ms Rindeklev indicated that she had a problem focussed on greetings, Ms Harwood gave the following answer which I accept:

So I didn’t at any point in my affidavit – affidavit state that it was inappropriate to expect that you were treated with respect and courtesy. I would unpack the complaints that were made, and on a number of occasions, it wasn’t that the person had not greeted you. You referenced their perceived tone and manner in which they greeted you, and took offence to. That was my understanding.

432    It follows that I do not accept the substance of the contention advanced to the effect that Ms Harwood misrepresented the complaints made by Ms Rindeklev about Mr Fuller. Nor do I accept that Ms Harwood formed the view that Ms Rindeklev was a vexatious complainer based on the complaints that Ms Rindeklev had made about greetings.

433    At AWOS [116]-[117], Ms Rindeklev contended that Ms Harwood and Mr Fuller did not deal appropriately with complaints that Ms Rindeklev had raised about Ms Tay. She alleged that this was part of a routine practice of minimising and misrepresenting her complaints.

434    These contentions concern the first two complaints that were listed by Ms Caudwell in the attachment to her 2019 Report listing staff who have made complaints about Ms Rindeklev since she commenced working at Child Support. The first complaint by Ms Tay was recorded in the following terms:

Gunilla was having issues logging into her computer. Ruth, who was sitting right next to her stood up and mentioned this to me. I walked around to Gunilla and as I was walking towards her, I said that I would help her with the password reset. I was maybe about 3 or 4 feet from her when I said this.

Gunilla looked up and very abruptly said to me, “Are you talking to me?” When I said yes she again abruptly said “don’t talk to me from over there”. I was a bit surprised with the tone in her voice and her body language and John who was sitting opposite her, also looked up at me when she said this. This happened around 8:25am and I felt that her tone and body language was excessive and unnecessary especially considering that I was just going over to help her.

435    The second complaint was recorded as follows:

I said 'Good Morning' to Gunilla this morning when she walked past my desk. She responded abruptly and went to her desk without making any eye contact with me. After she sat down, she got up again and asked to speak to me. I asked if she wanted to go to a room to talk however just started to tell me that she did not appreciate my tone when I greeted her. She then started asking me if I was discriminating against her because of her age, that I had 'no authority', and that she was being harassed. She said that all her team mates were disrespecting her because of behaviours such as this Greg and now me.

436    Ms Rindeklev advanced two contentions about the way in which these complaints were dealt with by Ms Harwood. As to the first complaint, she said that was never raised with her and she had no opportunity to respond. As to both complaints she said they had been discussed between Mr Fuller and Ms Tay with the following note being recorded by Mr Fuller:

NOTE: Gunuilla [sic] had an "incident" with Mel Tay earlier this week and that is recorded separately in SmartCoach conversations section. This is not the first such incident and was later discussed with SM Sam [Harwood] who advocated the 3 x strikes approach for any possible future incidents: 1st = Benefit of the doubt (now done) 2nd = Official warning 3rd = Code of Conduct proceedings.

437    I do not accept that the records referred to support the inference that Ms Harwood had adopted some form of pattern about treating minimisation and misrepresentation of complaints as routine. It indicates only an approach of giving staff members the subject of the complaint (in this instance Ms Rindeklev) the benefit of the doubt as an initial response. The approach of meeting with Ms Tay and responding to her complaints about Ms Rindeklev in that way could not be said to indicate some kind of minimisation or misrepresentation of complaints by Ms Rindeklev.

438    At AWOS [118], the contention was advanced that when Mr Proll became team leader he 'likely received a negative picture from the leadership about [Ms Rindeklev's] early "complainant behaviour"'. The contention to that effect is not supported by any evidence.

439    At AWOS [119], a contention was advanced about a note recorded by Mr Proll on 31 July 2018 about matters raised in a telephone call by Ms Rindeklev seeking leave from work. It is said to exemplify a 'a pattern of invalidation that characterised the…broader response to [Ms Rindeklev's] complaints'. Mr Proll is said to have repeatedly challenged Ms Rindeklev's perception of events, 'casting doubt on the legitimacy of her emotional responses'. The contention is advanced based only upon what is in Mr Proll's note. Although it is long, it is instructive to set it out in full:

Reason for Leave: Gunilla called in. She didn`t sleep well, as she stated that she was feeling bullied at work. Gunilla felt excluded as Janice had apparently said "hello, good morning" in a disrespectful fashion yesterday. Gunilla noted that she has never had any direct issues with Janice, but due to the way she had been greeted by her, felt like she was embarrassed in front of Sean. I asked how the "hello" was offensive? Gunilla explained that the tone of "good morning" was disrespectful, like the tone that you would use when speaking to a dog. She said that she felt embarrassed and angry. Gunilla explained I do have an issue with the Vic park team, although when she entered into the team 6 weeks late, she felt like an "outcast", like she’s not in the in group. "I was chosen by a selection panel, I shouldn’t have to fit in or be punished for not hanging out with Janice or Jess." Feels she can’t reach out to Jess due to the closeness with Janice. Also concerned about what Sean would be thinking about the social interactions. Gunilla made mention of another incident where she offered help to Debra with an ATO issue last week, which was declined, that it made her feel left out. I explained that I had actually witnessed that event and that I did not share the same interpretation. To me, it seemed as though Deb had wanted to try and solve the situation on her own first. In any event, not accepting help from someone in itself is not necessarily a sign of lack of respect. Deborah had been polite during the interaction last week. Gunilla said she won’t ask Janice for help with ATO issues as she doesn’t feel comfortable. Gunilla went on to say that she feels like she doesn’t want to say 'hello' to Janice any more either. Gunilla again said she felt 'excluded', like when Janice is polite to say 'hi' with Deb, but not with her. Gunilla then went on to say that she feels that it would have been okay for an APS6 could talk down to someone, but it is not appropriate for someone at the same APS3 level (??). I stopped the conversation at that point to challenge that statement, explaining that regardless of level, we all need to abide by APS values in order to ensure that this is a safe workplace where all people are respected equally. I asked Gunilla what she wanted done about the situation? She said that she had previously broke down in tears when Marian was leading. When Janice, Jess and another walked away in the past on one occasion without saying goodbye. She had let the team know about her feelings and Janice had acknowledged that they were 'all good'. Marian had told everyone in a team meeting about 'hello’s and goodbye’s.' Gunilla went on to say 'It takes a while for some of the young ones to understand. I don`t want to just take it in, I feel old enough and wise enough to know that it is not right to be left out and spoken to like a defunct person. The language should be respectful. The tone makes me feel devalued.' I asked if she was okay with me discussing the previous 'lack of goodbye' incident with HCO and previous TL Marian and she agreed. I also explained that I would raise the importance of respecting others by being polite and courteous in the team meeting this morning. I explained that administratively, I would do what I could to ensure that she feels comfortable to be at work and that I would speak with Janice privately regarding her concerns. I also recommended that in future if Gunilla is upset about a situation, that she should speak with me about it asap, rather than letting it influence her emotional state overnight. I explained that it is normal human behaviour for people to naturally bond more in social interactions with some people, rather than others, as friendships emerge. However, there is a difference between that and behaviour that bullies other`s by exclusion. I recommended also that Gunilla contact Benestar EAP and ensured that she had their phone number. I explained that in addition to administrative options, she may want to speak with counsellors for some additional support to help develop strategies for coping with, processing, interpreting social interactions and life events. Gunilla agreed to do so. Seeing a doctor today? Yes - no leave without evidence is remaining. Expected timeframe of absence: Gunilla hopes to be back at work tomorrow. Is there any work to be actioned: I advised that we would check for any TRIP in-trays and have a RTW discussion when she gets in.

(Underlining added).

440    Having considered the record, particularly the underlined passages, I do not consider that they indicate a pattern of invalidation on the part of Mr Proll. On the contrary, they indicate an engagement with the issues that have been raised. At some points they raise a different perspective. At other points they suggest strategies to deal with situations. The note records Mr Proll's intention to take steps administratively to ensure that Ms Rindeklev felt comfortable at work. As a team leader, it is not Mr Proll's responsibility to accept every complaint as valid. It is consistent with his responsibilities to all members of the team to approach the matters raised by Ms Rindeklev in the way that he did.

441    I note that Mr Proll has a degree in psychology. Ms Rindeklev advanced extended contentions to the effect that in his approach in the conversation on 31 July 2018 Mr Proll had applied cognitive behavioural therapy and engaged in psychological manipulation. I find there to be no foundation for these submissions.

442    After the conversation, Mr Proll sent a document to team members that emphasised the need for respectful behaviour towards colleagues. He also followed up with Ms Rindeklev and with his manager Ms Harwood. On 3 August 2018, Ms Rindeklev made a complaint about Ms Leung. Mr Proll investigated the complaint and determined that it had not been substantiated. He met with Ms Rindeklev to communicate that outcome.

443    The contact with Ms Harwood is said to have prompted her to contact a former colleague who was a Service Support Manager at Centrelink, Ms Rindeklev's previous place of employment. This was said to be unauthorised and procedurally unfair and to reflect 'a broader pattern of pretextual investigations and institutional bias, directed not a resolution but at reputational harm'. I do not accept these submissions. By this point in time, complaints had been raised by Ms Rindeklev about a number of her colleagues and by colleagues against Ms Rindeklev. It may be expected that a person in the position of Ms Harwood as Ms Rindeklev's manager would be seeking out information that might help understand what was happening and why.

444    Ms Rindeklev points to a note made by Ms Harwood at a later time explaining why she contacted her former colleague. It is in the following terms:

[Ms Rindeklev's] statement about me seeking the opinion of [the Centrelink] Perth Smart Centre Service Manager regarding her harassment claim are incorrect. I never spoke with Mr F regarding [Ms Rindeklev's]. I had made contact with Service Support Manager J at Perth Smart Centre around the end of July 2018 after numerous complaints about 'disrespectful greetings' from [Ms Rindeklev] and issues regarding [Ms Rindeklev] not reporting her absences as per the local protocols consistently. My intent was to determine whether this had previously been an issue when [Ms Rindeklev] was engaged as an IIE at Perth Smart Centre and if there had been any strategies that had resolved this. I was advised that there had been a complaint about greetings, but certainly not with the frequency that this had occurred at the Perth Child Support Smart Centre. I did not reference the bullying and harassment issue at Perth Smart Centre, [Ms Rindeklev] referenced this in our discussion and I advised that was not the matter at hand that I was addressing, which was multiple complaints about greetings.

I did note that [Ms Rindeklev] had made a large number of complaints, that there was a lack of evidence supporting [Ms Rindeklev's] complaints and that the frequency of complaints may be impacting her relationship with her team.

445    Ms Harwood gave evidence to similar effect in her affidavit. She said that the action that she took was action that she would have taken with respect to any employee in a similar situation. I do not regard the evidence as to the communication with Centrelink by Ms Harwood as supporting the contention advanced by Ms Rindeklev to the effect that Ms Harwood had some form of bias when it came to Ms Rindeklev or that she was attempting to harm Ms Rindeklev's reputation by contacting Centrelink.

446    At AWOS [148]-[149], Ms Rindeklev says that she was first told about the contact with Centrelink when Ms Harwood met with Ms Rindeklev 'likely mid-September 2018' to discuss her concerns about Mr Proll's behaviour. She says that the effect was deeply harmful because it 'resurfaced the distress…in connection with the bullying she had endured at Centrelink'. This appears to be a reference to the events concerning Mr Bahemia the subject of the 2016 Report.

447    Ms Rindeklev advanced the following submission about this event:

It was a clear instance of post-decision invalidation: the harm had already been acknowledged and upheld, yet [Ms] Harwood's framing sought to rewrite that history, casting doubt not just on [Ms Rindeklev's] current concerns, but on the legitimacy of her prior complaint as well'.

448    Later she submitted further:

This kind of reputational framing, particularly in the face of a live workplace complaint, was inappropriate, manipulative, and further contributed to [Ms Rindeklev's] psychological harm'.

449    It may be noted that, despite the terms in which the submission is expressed, there is no separate claim about this event. Which is not to say there is a basis for such a complaint but to point out that the contention is advanced to support a claim concerning the alleged Adverse Finding and the alleged unfairness in the process in making that finding (or an ongoing process of some form of incitement). It is advanced as part of an overall submission to the effect that Ms Harwood's (and Mr Proll's) actions meant that the process that resulted in the alleged Adverse Finding was unfair (or produced an approach by Ms Caudwell that was incited by Ms Harwood and Mr Proll).

450    Ms Harwood gave evidence about these matters in her affidavit. In that evidence she accepted that she had contacted Centrelink and that she informed Ms Rindeklev sometime later that she had done so. Her explanation for doing so was as follows (referring to Ms Rindeklev by her first name):

I wanted to see if there were any triggers or patterns of triggers that the previous managers of Gunilla could inform me about. This would enable me to best understand what was in fact now happening and make any adjustments to the work environment for the best management of Gunilla's mental state and reduce Gunilla's distress.

451    As to what occurred, Ms Harwood's evidence was as follows:

I explained to Gunilla that I needed to understand the nature of her complaints as distressing for her and that I was trying to understand why this was happening to Gunilla to help her build better relationships with her work colleagues. My purpose was not to disregard her complaints, or to tell her not to make future complaints.

Gunilla did not appear to be overly pleased when I told her, in or around late August 2018, that I had reached out to the Service Manager at the Perth Smart Centre to understand if there had been similar issues in the past and if any strategies had been put in place to resolve them. Gunilla had come to me in an angry and distressed state on that day to make a complaint about one of the members of her team. I told Gunilla that I wanted to get the root of the triggers involved in the incidents that were occurring to understand what was happening that was leading to the complaints. If there was something that was subtle in Gunilla's current interactions with other employees that we were presently missing (e.g. exclusionary behaviours) that was not present at her previous role, then we needed to discover those behaviours.

452    I find that Ms Harwood's actions at this point were a genuine attempt to try to address the underlying cause for the complaints that were happening. I do not accept Ms Rindeklev's contention that there was some attempt to undermine her or the concerns she was raising. Rather, Ms Harwood was trying to work out why the complaints were being raised.

453    At AWOS [155]-[161], Ms Rindeklev advanced contentions to the effect that Mr Proll had treated a complaint made by Ms Rindeklev about Ms Leung about an incident that occurred on 6 September 2018 as demonstrating that Ms Rindeklev was a vexatious complainant. Ms Rindeklev expressed her complaint about Ms Leung in the following terms:

Janice [Leung] got up and walked down the aisle past me and greeted me with a tone completely void of any warmth and with a low, drawn out moronic tone said ‘good moooorning Gunilaaaaah’. It was not conveying even a trace of the chirpyness moments before. I was thrown off guard and very disappointed by this tone of greeting. This is not how Janice greets other colleagues, in the team, and other staff, where she greets with a respectful tone and attitude. I have taken it very slowly communicating with Janice since my last complaint. There is to my knowledge nothing that I have done to offend her. Hence, I am putting it down to an affectation towards me that lacks any type of respect for me personally which she is unable to mediate with a professional attitude. It is my general experience having worked for DHS, for 5 years, that time in the place commands a level of respect and there is an unspoken rule that what matters here is public service professionalism. That entails that we leave behind prejudices when we come in these doors and try not to persistently single out people for degrading behaviour no matter how little we would like them out of work.

454    Mr Proll's note of a meeting with Ms Rindeklev about her complaint includes the following (referring to Ms Rindeklev using her first name):

While reading through the letter, I cautioned Gunilla about using disparaging language that was not appropriate, like 'moronic' and 'degrading'.

I asked Gunilla 'why she felt she struggled to interact with Janice?' Gunilla explained that she felt Janice was young and because of the social skills she had picked up in school and because she uses Facebook and social media and due to her limited time in the public service (compared to Gunilla), that she therefore treated Gunilla differently because she was older and not able to 'fit in' with the way she is. Janice was therefore motivated to greet Gunilla with a disrespectful tone. I explained to Gunilla that these are assumptions, not facts. Gunilla said she has a background in psychology which qualifies her to make such statements. I challenged this by saying that I also have tertiary training in psychology and that there is no scientific way that Gunilla could possible truly 'know' what Janice was thinking. Gunilla has made a number of broad assumptions about a limited set of variables in Janice’s life of which she knows little about, relying on stereotypes to then interpret behavioural patterns based on age and culture. As such, this could be considered discrimination in and of itself and that I will not accept this type of language or agenda in the team. As I said to Gunilla, we studied 'psychology', but we are not 'psychics'. This bias would have negatively flavoured Gunilla’s interpretation of Janice’s greetings. Even if the greeting had been a bit awkward, Gunilla should not rule out the possibility of the part that she herself had played by making continued complaints against Janice, thereby creating a self-fulfilling prophecy of awkwardness.

…

I said that if Gunilla feels like she does not have a close friendship with some of the other members of the team, that she herself needs to take charge of this and take responsibility for building relationships. Janice’s popularity has nothing to do with Gunilla’s ability to build friendships.

455    When Mr Proll provided his response to Ms Caudwell for the purposes of the preparation of the 2019 Report, he reported his response to the complaint made by Ms Rindeklev in the following terms:

I informed Gunilla that I have investigated that matter and discretely spoken to several individuals in the team and no one had witnessed any behaviour at all that would be considered disrespectful or a breach of APS values… Likewise, no one else in the team shared Gunilla’s interpretation about this event with Janice [Leung], or the previous complaint she had also made against Janice.

…

Gunilla explained that she understands the findings and that the matter is now closed. She appreciates that she will naturally connect better with some people over others and that if other people have strong friendships, it does not constitute a breach of APS values.

456    There is no suggestion that he viewed the complaint as being vexatious or applied that term to the complaint in his communications with Ms Rindeklev.

457    However, at the end of his response to Ms Caudwell, after dealing with other matters, Mr Proll did used the term 'vexatious'. It is this later use of the term in responding to the request from Ms Caudwell that Ms Rindeklev relies on to support her contention as to Mr Proll's view in September 2018.

458    It is instructive to record the specific allegation in Ms Rindeklev's March 2019 email to which Mr Proll was responding when he used the word 'vexatious'. It was as follows:

The push back I [that is Ms Rindeklev] am starting to experience from my leadership seems to indicate that they do not really know how to acknowledge, despite HCO meetings and general information cascaded through to team meetings in the way of team charters and coaching sessions, exactly what is bullying?

459    Mr Proll's answer (given after he had detailed his response to the allegations made by Ms Rindeklev in her March 2019 email which themselves covered a number of complaints made over the period of about a year) was as follows:

We take these matters very seriously. To ensure that everyone has a complete understanding of issues pertaining to bullying and harassment, all staff have had training from an HCO officer, been given the DHS respect document, discussed appropriate behavioural standards in team meetings and drawn up and displayed a team charter promoting respect. In summary, I have thoroughly and objectively investigated each complaint and have not found any evidence of staff behaving in an unprofessional or offensive manner towards Gunilla James, although unfortunately, the same cannot be said about her own conduct. I am genuinely concerned that the continuous claims of harassment made by Gunilla appear to be of a vexatious nature and are not congruent with APS values, nor do they promote a safe and harmonious work place. If you require any further information, please let me know.

(Emphasis added).

460    Plainly, the comment is not directed to a view that was formed in September 2018. Nor does it record the basis upon which Mr Proll addressed Ms Rindeklev's complaint at that time. Rather, it is expressing a concern that Mr Proll had formed at the time of providing the response to Ms Caudwell based upon the full history, including complaints made after September 2018 and the matters raised in the March 2019 email.

461    At AWOS [162]-[167], Ms Rindeklev sought to bring a complaint that she made in October 2018 that was handled by a different team leader into the narrative concerning Mr Proll and Ms Harwood. A detailed record was kept by the team leader which was the basis for submissions advanced by Ms Rindeklev. Regard to that record provides no foundation for the submissions advanced which were to the effect that Ms Rindeklev's complaint behaviour was being treated as the complaint. I would characterise the record as showing that the team leader was dealing with a difficult situation where Ms Rindeklev was herself making unreasonable demands as to the action that should be taken and insisting that she should be allowed to take leave.

462    These matters provided no support for the overall contentions being advanced by Ms Rindeklev as part of her Institutional Incitement submission.

463    At AWOS [139]-[140] and [147] there were contentions to the effect that Mr Proll raised the possibility of Ms Rindeklev being tested for autism as a way to invalidate Ms Rindeklev's complaints. The records referred to indicate that the possibility of Ms Rindeklev having autistic traits was a matter first raised by Ms Rindeklev. Regard to the records for the four occasions where this topic came up between Ms Rindeklev and Mr Proll (9 August 2018, 23 August 2018, 6 September 2018 and 28 September 2018) reveals respectful engagement by Mr Proll in respect of a matter that Ms Rindeklev had herself raised, initially in a joking way but subsequently more seriously. These matters do not support the contentions advanced about some form of incitement by Mr Proll of the outcome of the process conducted by Ms Caudwell.

464    At AWOS [169]-[172], Ms Rindeklev advances contentions to the effect that Mr Proll and Ms Harwood each incited adverse findings to be made as the outcome of the investigation into her March 2019 email complaint. This is said to have been done by providing misleading accounts to Ms Caudwell. Mr Proll gave evidence in a considered way. Ms Harwood did also, but in more forthright terms. The suggestion that they tailored their responses to Ms Caudwell in some way so as was not put to either of them. There was nothing in the way in which they gave evidence to suggest that they did so. Their responses to Ms Caudwell appeared to be careful and considered attempts to respond to the claims made by Ms Rindeklev to the effect that they did not know what they were doing when it came to managing bullying.

465    Looking at the contentions advanced to support the Institutional Incitement submission in overall terms, the evidential foundation for those contentions was weak or non-existent. The contentions amounted to generalised assertion coupled with disagreement with the version of events given by Ms Harwood and Mr Proll. I have addressed the overall submission that there was some form of incitement by the course of events that preceded the process for the 2019 Report. Taking all those matters into account, I do not accept the contentions advanced about the accounts given by Mr Proll and Ms Harwood as part of the preliminary investigation conducted by Ms Caudwell.

The report of Dr Samuel

466    Ms Rindeklev relied upon a report prepared by Dr Samuel, a psychiatrist. Dr Samuel's expertise was not in issue. The report responded to six specific questions posed by Ms Rindeklev in a letter sent to Dr Samuel by Ms Rindeklev in November 2023. Dr Samuel was also provided with copies of affidavits deposed by Ms Rindeklev and medical reports prepared by other practitioners over the period from September 2020 to September 2022, as well as witness statements. A copy of the 2016 Report and attachments was also provided to Dr Samuel. All in all, he was given a considerable bundle of materials that concerned a complex history of events over a number of years.

467    Prior to preparing his report, Dr Samuel interviewed Ms Rindeklev in December 2023. On that occasion he took what he described as a 'considered and detailed history'.

468    In his report, Dr Samuel stated that he did not doubt the veracity of the account given by Ms Rindeklev when providing her history. He said that he formed the opinion that the symptoms reported by Ms Rindeklev 'currently [that is, at the date of his report] fulfil the criteria for: Adjustment Disorder'. As to the questions posed by Ms Rindeklev he responded as follows.

469    The first two questions concerned whether an alternative diagnosis of Post Traumatic Stress Disorder was possible having regard to a number of matters referred to by Ms Rindeklev in her letter to Dr Samuel. As to those questions, Dr Samuel responded:

It is my opinion that the stress from the prolonged harassment at her workplace has resulted in the initial formation of the mental illness. The physical symptoms she experienced, that of heart palpations and chest pain, in my opinion can be the first symptoms of Panic Disorder. It is my opinion that rather than a Post-Traumatic Stress Disorder, there is an initial diagnosis of Panic Disorder, which could have later lead [sic] to an Adjustment Disorder.

It is my opinion, it is unlikely that [Ms Rindeklev] has an alternative diagnosis of PTSD, as in my opinion she does not fulfill the criteria for PTSD symptoms. It is my opinion, based on clinical evidence that her diagnosis is more likely to be an adjustment disorder.

470    The third question was directed to whether Ms Rindeklev had any pre-existing mental disorder based on certain aspects of the evidence that had been provided to Dr Samuel, including her own account. Dr Samuel agreed that 'it is true to say that Ms Rindeklev had no pre-existing mental disorder on the balance of this evidence'.

471    The fourth question and answer were as follows:

Was the mental ailment, regardless of type of diagnosis, likely to have been caused by employer actions, or events in the workplace to a significant degree? The mental illness, in my opinion, is likely to have been caused by the employer's action. It is my opinion that the aetiology of [Ms Rindeklev's] mental illness can be fully attributed to her workplace stressors.

472    The fifth question concerned whether 'the triggers' outlined in posing the first question were 'a likely scenario'. Dr Samuel stated that his opinion was that the triggers outlined were a likely scenario.

473    The final question concerned a report of total and permanent incapacity for Ms Rindeklev made in 2022. Dr Samuel concurred with that report.

474    The report recorded the history taken by Dr Samuel and his diagnosis. Otherwise, the report contained no reasoning as to the basis for the conclusions reached in respect of each of the six questions posed.

475    Dr Samuel's diagnosis is not issue. The key issue for present purposes is whether the opinion of Dr Samuel that the aetiology of the mental illness of Ms Rindeklev can be fully attributed to her workplace stressors (which he described as prolonged harassment at her workplace) should be accepted.

476    The Commonwealth advanced two main contentions as to why the evidence of Dr Samuel should not be accepted. First, the factual basis on which he expressed those opinions had not been established. Related to that contention was a submission to the effect that Dr Samuel's opinion had been expressed based upon selective materials rather than a full understanding of the history of events relating to Ms Rindeklev's employment by the Commonwealth and the nature of her Claims.

477    The second contention advanced was to the effect that some of the stressors identified by Dr Samuel as bringing about Ms Rindeklev's mental illness were not relevant to the Claims advanced by Ms Rindeklev in the two proceedings. Further, the conclusion reached by Dr Samuel did not differentiate between the consequences attributable to the relevant stressors. Consequently, so it was submitted, his evidence could not be relied upon by Ms Rindeklev to establish causation.

Dr Samuel's sources of information

478    In his report, Dr Samuel said that in preparing his report he had 'relied upon information obtained from a clinical interview as well as the information in the medical records provided'.

479    As has been mentioned, Dr Samuel recorded the relevant aspects of Ms Rindeklev's history in his report. Aspects of that history concerned matters in issue in these proceedings. The record is not consistent with findings I have made. For example, Dr Samuel recorded the following which appears to relate to the events concerning the 2016 Report:

In 2016, an investigation was conducted by the Human Resources Department at Services Australia and it was alleged that Gunilla's ex-partner had breached her privacy and confidentiality by commenting to various staff that she was crazy and that she should be sacked.

480    As to matters relevant to Ms Rindeklev's Claim 5, Dr Samuel recorded the following:

[Gunilla] felt that people were targeting her and harassing her. She felt that her character had been assassinated and that she had become known as frivolous, vexatious, and a complainer. Gunilla felt that she was being bullied and was being excluded from team meetings, morning teas and similar events. Gunilla stated that a rumour had been spread that she had Autism Disorder. One of her team leaders contacted an informal person at her previous Centrelink office and asked about her previous issues in that department.

Gunilla took one week off in 2018 however upon her return she continued to feel uncomfortable in her workplace and she made complaints regarding her treatment. In 2019 it was decided that Gunilla she should receive a mental health care support team, provided by the workplace. She states 2019 was quite a good year due to the psychology support however she started having problems again in late 2019 regarding her workplace agreement.

481    Other aspects recorded in the history were not addressed by the proceedings, for example:

[I]n 2017 [Gunilla] applied for a change of position and unfortunately her Police Clearance was rejected due to a breach of a Family Domestic Violence order taken by her ex-partner, which she was not aware of. The FDV was breached by alleged contact by Gunilla via in person and telephone. This rejection of Police clearance gave her significant mental anguish and delay in getting her job at the Department of Child Protection.

482    Also, the following history was recorded as to a 'stressor' that happened after the events the subject of the Claims:

She stated that in early 2020, a third stressor unfolded. She stated that there was an argument with her team leader regarding switching off at the end of the day later than when other staff had left the office. This was apparently violating the health and safety regulation of that work place. There was a 'shouting match' with this person, and it became very clear that Gunilla was not coping at all.

483    After recording the history, Dr Samuel then reported as to the following matters:

Psychological Symptoms Associated with the Accident

Since the last part of 2021, she has been fighting for her survival. She has been having low mood, poor quality of life.

Current Functioning

She is barely managing her day-to-day activities of daily living. She is currently unemployed.

Past Psychiatric History

No documented evidence of mental health diagnosis prior to 2015

484    There is no indication in the report as to what Dr Samuel meant by 'the Accident'.

485    As you would expect, Dr Samuel accepted that if any of the information recorded in his history was not accurate then that would affect the accuracy of his diagnosis. He also accepted that to be the case if there was a relevant aspect of the history that was not included.

The documents provided to Dr Samuel

486    Dr Samuel's oral evidence was that he did not read the reports of other psychiatrists that had been given to him by Ms Rindeklev and he adopted that approach to make sure the contents of those reports did not colour his opinion. One difficulty with that statement was that one of the opinions he had been asked to express concerned whether he agreed with a report of total and permanent incapacity for Ms Rindeklev made in 2022. Initially, he maintained that he expressed that opinion without first reading the report referred to in the question (and in the answer he gave to the question). He then said that he had 'based [his] opinion after reading the report'. He then said that he did not read all of the materials before writing his report. Rather, he read all of the information he had been given 'except the previous independent medical examination by other psychiatrists'.

487    Dr Samuel was taken to a report of a Dr Jansen, a consultant psychiatrist, prepared in September 2020. At that time, Dr Jansen reported that Ms Rindeklev's adjustment and psychotic symptoms had improved and her prognosis was positive. He was also taken to a report of a Dr O'Daly in which Dr O'Daly expressed the opinion in February 2021 that there were no current barriers to Ms Rindeklev returning to full time work. He was also taken to a report of Dr Pannekoek who, in May 2021, reported that after a course of treatment sessions, Ms Rindeklev had experienced a reduction in all depression and anxiety symptoms from severe to normal to mild ranges. He was then taken to a further report of Dr Jansen in which he reported in September 2021 that Ms Rindeklev had attained full remission.

488    As to these reports, Dr Samuel expressed the opinion (in his oral testimony given during cross-examination) that from 2021 onwards there had been a deterioration and things had changed from the last time Ms Rindeklev saw Dr Jansen. When pressed as to whether he had recorded in the history that he had taken from Ms Rindeklev any triggers that would account for such a deterioration he agreed that there were no triggers and he did not have any information in his report about anything after 2020 until December 2023.

489    Dr Samuel was then taken to a report of Dr Ho that was prepared a month or so after Ms Rindeklev ceased employment with the Commonwealth. The report recorded the following opinions of Dr Ho:

[Ms Rindeklev's] symptoms related to her employment have resolved. At the time of assessment, [Ms Rindeklev] reported no longer experiencing any anxiety or depressive symptoms, that is, her adjustment symptoms had completely resolved.

…

[Ms Rindeklev's] prognosis is positive. She has shown some ability to formulate her difficulties, from a psychological perspective. She does not have current psychological symptoms. She is positive and future-focused.

490    Dr Samuel was asked why he had not addressed the above information in his report. He gave the following unconvincing answer:

Well, that is actually my independent observation: that that was actually not – I disagree with some of the things what they have put in there, and when I saw the client in my room in December 2023, I felt that her symptoms have been getting worse since 2021.

491    Questioned further, he could not articulate a satisfactory basis upon which he disagreed. His answer was to the effect that based on what he saw and was told by Ms Rindeklev in 2023 he disagreed with the opinions as to Ms Rindeklev's state of mental health at the time of the earlier reports. Further, his answers did not sit with his evidence as to the nature of adjustment disorder. Dr Samuel agreed that a specific feature of adjustment disorder was that the removal of the relevant stressor led to an improvement in symptoms and, generally speaking, that improvement happened within six months of the removal of the stressor.

492    As to the stressors that, in Dr Samuel's opinion, were those that produced the symptoms of adjustment disorder for Ms Rindeklev it was entirely unclear whether he was relying on matters that were revealed by the history he had taken or upon a list of possible stressors that had been included by Ms Rindeklev in the question posed to Dr Samual as to whether they might produce post traumatic stress disorder (a diagnosis that he did not make for Ms Rindeklev).

Conclusion as to the opinions expressed by Dr Samuel

493    Dr Samuel's diagnosis of Panic Disorder leading to Adjustment Disorder was not in issue. The focus of the Commonwealth's submissions concerning his evidence was whether it was a basis upon which to reach a conclusion that the Claims (if established) were the cause of Ms Rindeklev's state of mental health. For the following reasons, I accept the submission that no conclusion concerning causation could be based on the evidence given by Dr Samuel.

494    First, it appears from Dr Samuel's oral testimony that his opinion was based upon the history he took and recorded in his report. That history was materially different from the matters the subject of the Claims and included stressors that were not the subject of the Claims. In the opinions expressed in his report he also referred to 'triggers' that had been listed by Ms Rindeklev in her instructions in terms that were not reflected in the history he recorded. All in all, it was entirely unclear as to what were said to be the relevant stressors for his diagnosis of Adjustment Disorder.

495    Second, for reasons I have given, I have not accepted the reliability of aspects of the account given by Ms Rindeklev as to the relevant historical events yet Dr Samuel has proceeded on the basis that all of that account is to be accepted.

496    Third, to the extent that Dr Samuel's opinion was sought to be relied upon in circumstances where one or more (but not all) of the Claims were established, there was no basis advanced as to how to reason to a causation conclusion based on a report that appeared to treat the whole of Ms Rindeklev's employment as the relevant stressor by expressing the conclusions that her mental illness was 'caused by the employer's action' [which action is not specified] and the aetiology of her mental illness 'can be fully attributed to her workplace stressors' [in circumstances where there is uncertainty as to what stressors Dr Samuel had in mind].

497    Fourth, Dr Samuel referred to 'stress from the prolonged harassment at her workplace' as resulting in the initial formation of Ms Rindeklev's mental illness but Ms Rindeklev has not established that there was prolonged harassment at her workplace as a form of adverse action.

498    Fifth, Dr Samuel provided no satisfactory explanation as to why he did not accept the more contemporaneous histories recorded by other psychiatrists concerning Ms Rindeklev nor did he articulate the basis upon which he did not agree with their diagnoses.

499    Sixth, Dr Samuel provided no satisfactory explanation as to why the stressors of Ms Rindeklev's employment might be said to be the cause of her symptoms in December 2023 some two years after she ceased her employment with the Commonwealth when he agreed that generally the diagnosis of Adjustment Disorder applied where symptoms reduced after six months if the relevant stressor was removed.

500    Seventh, the report of Dr Samuel lacked any detailed reasoning to support his conclusions. His evidence was given at a level of generality that failed to disclose the basis upon which he had reached the conclusions he had reached and why they differed from the opinions of others.

Conclusion and final orders

501    For the above reasons, Ms Rindeklev has failed to establish any of her Claims. It follows that both proceedings must be dismissed. The parties have not yet had an opportunity to indicate their position as to costs. The basis for the Claims means that the terms of s 570 of the Fair Work Act must be considered. There may be other aspects of which the Court is not aware. I have not formed any views as to the appropriate approach to the question of costs. In the circumstances, I will make orders timetabling any application as to costs.

Associate:

Dated:    18 June 2026