This article was written by Jamie Wells and Emily Harvey.
KWM acted for CSIRO in successfully defending a $1.5 million general protections claim brought by a former employee in the Federal Court. The allegations concerned her employment at CSIRO from 2012 to 2016 and the circumstances leading to her departure. In particular, the applicant made a number of allegations of sexual harassment and discrimination against a number of senior managers.
The four week trial was heard by Justice Rangiah, with over 27 witnesses called for CSIRO. The case received signification attention from the national media.
Justice Rangiah handed down his decision on 29 October 2019, dismissing all but one of the applicant's claims – a technical, procedural breach in handling just one of the applicant's many complaints. In the circumstances, Justice Rangiah considered a nominal award of $1,000 was appropriate compensation.
Justice Rangiah clarified the interaction between anti-discrimination laws and adverse action under the Fair Work Act (FW Act). His Honour’s comments are significant, as they clarify an apparent tension between two previous Federal Court decisions on the issue.
The case also shows the importance of obtaining discovery of text messages, Facebook and other social media, particularly where compensation is sought for alleged resultant psychiatric or other injuries. Material going to credit is particularly important in adverse action cases, where the employer carries a reverse onus.
Finally, it confirms that the Courts will not simply accept the evidence of medical experts at face value. Justice Rangiah was critical of the expert reports opining on the applicant’s fitness for work.
Interaction between anti-discrimination laws and adverse action
Previously, cases had considered the issue of whether the discrimination legislation was incorporated into s351(1) of the FW Act, which prohibits an employer from taking adverse action against a person because of a protected attribute. Under s351(2), a defence applies if the action taken was not unlawful under applicable anti-discrimination laws.
The applicant argued that the discrimination legislation was incorporated, relying on the decision in Sayed v CFMEU,  where Justice Mortimer found that ss351(1) and (3) “expressly pick up the detailed regimes of each of the territory, state and federal anti-discrimination statutes”.
CSIRO relied on RailPro Services Pty Ltd v Favel, where Justice Perry stated that the discrimination legislation serves as a carve out to s351, so that where conduct is lawful under discrimination laws, it will not offend the Fair Work Act. He clarified that a contravention of anti-discrimination laws does not necessarily mean that s351(1) has been contravened.
Justice Rangiah found that those cases could be read consistently in rejecting the submission that s351(1) of the FW Act incorporated provisions of the Sex Discrimination Act 1984, including the vicarious liability provisions. His Honour considered that this would be an unlikely construction of s351(1) of the FW Act, having regard to the statutory framework. His Honour adopted the analysis of Justice Perry in RailPro – that s 351(1) of the FW Act stands independently from the anti-discrimination legislation. Accordingly, conduct which contravenes anti-discrimination legislation does not necessarily mean a contravention of s 351(1) of the FW Act has occurred. The decision therefore clarifies that sexual harassment claims do not fall within the Fair Work regime.
Early in the case, CSIRO successfully obtained discovery of the applicant's Facebook account and text messages. This evidence was relied on by the Court in rejecting much of the applicant's evidence. It found that many of her claims were invented, implausible, fabricated, inconsistent and overly exaggerated.
In finding that the applicant was not a credible or honest witness, Justice Rangiah said “there are so many other implausible or inconsistent aspects of the applicant's evidence that it is difficult to describe them all”.
The Court found that there was a remarkable inconsistency between the applicant's activities on social media and the symptoms of psychiatric illness that she had reported to her doctors. While Justice Rangiah did not rule out that the applicant had some kind of psychiatric condition, he considered that she had substantially exaggerated her symptoms to her doctors. As a result, the Court rejected her doctors’ diagnoses of serious psychiatric injury, because the medical evidence depended substantially upon the applicant's own false and misleading reporting of her symptoms. Justice Rangiah concluded in any event that CSIRO did not cause any psychiatric condition that the applicant may have or had, and considered that, in dismissing her claim for economic loss, she was a person with substantial capacity for employment.
 (2015) 149 ALD 88 at -.
 (2015) 242 FCR 424 at -.
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