Gramotnev v Queensland University of Technology - [2018] QSC 37

SUPREME COURT OF QUEENSLAND

CITATION:

Gramotnev v Queensland University of Technology [2018] QSC 37

PARTIES:

DMITRI GRAMOTNEV

(plaintiff)

v
QUEENSLAND UNIVERSITY OF TECHNOLOGY

(defendant)

FILE NO/S:

No 6286 of 2010

DIVISION:

Trial

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 March 2018

DELIVERED AT:

Brisbane

HEARING DATES:

8 and 10 May, 30 – 31 October and 6 – 7 November 2017

JUDGE:

Flanagan J

ORDERS:

1. The plaintiff’s claim is dismissed.

2. I will hear the parties as to costs.

CATCHWORDS:

EMPLOYMENT LAW – TERMINATION AND BREACH OF CONTRACT – TERMINATION OR BREACH – where the plaintiff was employed by the defendant university as a lecturer – where the defendant terminated the plaintiff’s employment on grounds of ‘serious misconduct’ – where a prior proceeding in the Queensland Court of Appeal had determined that clause 44 of the defendant’s enterprise bargaining agreement constituted a term of the plaintiff’s employment contract – where the plaintiff brought proceedings alleging breaches of that term – whether the proper construction of the term required the defendant to notify the plaintiff of an allegation of misconduct, rather than simply conduct – whether the defendant breached the term by insufficiently notifying the plaintiff of allegations of misconduct, as opposed to conduct – whether the plaintiff’s conduct in sending a number of emails was incapable of amounting to ‘serious misconduct’, such that the plaintiff’s employment would not have been terminated had he received proper notification from the defendant of the allegations – whether the defendant further breached the term by failing to refer allegations to a Misconduct Investigation Committee – whether any finding by a Misconduct Investigation Committee in the plaintiff’s favour would have been binding on the defendant such that the plaintiff’s employment would not have been terminated

EMPLOYMENT LAW – TERMINATION AND BREACH OF CONTRACT – TERMINATION OR BREACH – where the plaintiff further alleged that the three-tiered procedures set out in the defendant’s policy on discrimination-related grievances formed part of his employment contract – where the plaintiff also alleged that the defendant’s failure to engage those procedures constituted a breach of his employment contract – whether the procedures could be accurately characterised as promissory obligations giving rise to contractual entitlements – whether, if the procedures were contractual, the defendant was required to act to engage the procedures in response to emails it received from the plaintiff – whether, if the defendant had followed the procedures, the plaintiff’s employment would not have been terminated

INDUSTRIAL LAW – WORK HEALTH AND SAFETY – DUTIES AND LIABILITIES – EXTENT OF DUTY AND GENERALLY – where the plaintiff further alleged that the defendant’s termination of his employment was a breach of the defendant’s duties under s 174(1)(b) Workplace Health and Safety Act 1995 (Qld) – whether the emails forming the basis of the plaintiff’s dismissal contained a complaint or raised an issue concerning workers’ exposure to risk of illness or injury for the purposes s 174(1)(b) – whether, for the purposes of the section, the defendant’s dominant or substantial reason for terminating the plaintiff’s employment was the plaintiff’s making of such a complaint or raising of such an issue – whether the remedies available under the section have relevance to any damages available for breach of contract

Workplace Health and Safety Act 1995 (Qld) (Repealed), s 174

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813, applied
City of Wanneroo v Holmes (1989) 30 IR 362, applied
Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498, 503, applied
Goldman Sachs JBWere Services Pty Ltd v Nikolich 163 FCR 62; [2007] FCAFC 120, applied
Gramotnev v Queensland University of Technology [2010] FWA 6237, considered
Gramotnev v Queensland University of Technology [2011] FWAFB 2306, considered
Gramotnev v Queensland University of Technology [2013] QSC 158, considered
Gramotnev v Queensland University of Technology (No 2) [2015] QCA 178, applied
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4, applied

COUNSEL:

The plaintiff appeared on his own behalf
D Kelly QC, with D de Jersey, for the defendant

SOLICITORS:

The plaintiff appeared on his own behalf
Minter Ellison Lawyers for the defendant

The plaintiff, Dr Dmitri Gramotnev, was employed as a Lecturer in Physics by the defendant, Queensland University of Technology (QUT). The plaintiff commenced this appointment on 1 January 2000. The defendant terminated the plaintiff’s employment for ‘serious misconduct’ on 3 July 2009.
The plaintiff seeks damages for breach of contract. He alleges four specific breaches of his employment contract; two breaches of QUT’s Enterprise Bargaining Agreement 2005 – 2008 (Academic Staff) (the EBA) and two breaches of QUT’s Manual of Policies and Procedures 2005 (the MOPP) Policy A/8.5 “Grievance resolution procedures for discrimination related grievances” (the Grievance Policy).[1]
[1] Second Further Amended Statement of Claim, [16].
The employment contract
The employment contract between the plaintiff and the defendant was in writing, constituted by a letter from the defendant to the plaintiff dated 23 November 1999.[2]
[2] Second Further Amended Statement of Claim, [13]; Amended Defence, [6].
In earlier proceedings, the Queensland Court of Appeal has determined that, under MOPP Policy B/8.4 “Academic and Professional Staff Misconduct”, the defendant contractually promised the plaintiff that an allegation of misconduct or serious misconduct against him would be dealt with by the procedures outlined by clause 44 of the EBA.[3] There is therefore no dispute between the parties that clause 44 of the EBA constitutes a term of the employment contract.[4]
[3] Gramotnev v Queensland University of Technology (No 2) [2015] QCA 178.
[4] Second Further Amended Statement of Claim, [14]; Amended Defence, [6].
There is, however, a dispute as to whether the procedures set down by the Grievance Policy are contractual.[5]
[5] Second Further Amended Statement of Claim, [15]; Amended Defence, [7].
Conduct of the trial
The plaintiff was self-represented. He relied on three affidavits affirmed by him on 19 October 2016, 7 December 2016 and 30 August 2017 together with an affidavit of his wife, Dr Galina Gramotnev.[6]
[6] Affidavit of Galina Gramotnev sworn 19 October 2016.
The defendant relied on the affidavit of Professor Kenneth Bowman. The plaintiff and Professor Bowman were cross-examined. Both parties made submissions regarding the credit of the plaintiff and Professor Bowman.[7] This is not a case which is resolved by findings of credit but rather by reference to the extensive contemporaneous documents and upon a proper construction of the employment contract.
[7] Plaintiff’s Written Submissions, [168]-[180]; Defendant’s Written Submissions, [100]-[101].
What informs the plaintiff’s case, however, is his belief that from 2007 to 2009 he was “repeatedly and systematically subjected to bullying, harassment, workplace mobbing, intimidation, discrimination, impediment and retaliation” by the defendant.[8] This belief is also held by Dr Galina Gramotnev.[9] These allegations have been directed by the plaintiff to senior staff of the defendant including:
(a)the Deputy Vice Chancellor (Academic), Professor David Gardiner (2007);
(b)the Executive Dean of the Faculty of Science and Technology, Professor Margaret Britz (2007);
(c)the Acting Head of the School of Physical and Chemical Sciences, Associate Professor Godwin Ayoko (2007-2008);
(d)the Executive Dean of the Faculty of Science and Technology, Professor Simon Kaplan; and
(e)the Vice Chancellor, Professor Peter Coaldrake.
The plaintiff asserts that a determination of whether he was bullied, harassed and/or discriminated by the defendant or whether he had reasonable grounds to believe so, is relevant to all four breaches of the plaintiff’s employment contract.[10] As submitted by the plaintiff:
“… the determination of these questions is relevant to the determination of whether or not the contractual breaches occurred and what would have been the likely outcomes and the events, had the contractual breaches not eventuated.”[11]
[8] See Plaintiff’s Written Submissions, [15]; Second Further Amended Statement of Claim, [45]-[153].
[9] Affidavit of Galina Gramotnev sworn 19 October 2016, [169]-[170].
[10] Plaintiff’s Written Submissions, [26]-[55].
[11] Plaintiff’s Written Submissions, [27].
On the basis that the defendant did not challenge at trial the plaintiff’s allegations of bullying, harassment and discrimination, the plaintiff seeks a determination by this Court that he was bullied, harassed and/or discriminated by the defendant or he had reasonable grounds to believe so. While the events of 2007 to 2009 provide background leading to the plaintiff’s dismissal it is neither necessary nor appropriate for this Court to make the determination sought by the plaintiff. The plaintiff’s evidence and that of his wife constitutes a wholly inadequate basis for the Court to make any determination as to whether the conduct of senior staff of the defendant, including the Vice-Chancellor, constituted bullying, harassment and/or discrimination. More particularly, the mere fact that the plaintiff held this belief and repeatedly made this allegation in the contemporaneous correspondence does not constitute a proper basis for such a determination. Further, the plaintiff’s belief that he was subjected to bullying, harassment and/or discrimination is, as submitted by the defendant, irrelevant to whether the employment contract was breached as alleged.[12] As the plaintiff however relies on the allegations of bullying, harassment and/or discrimination as being relevant to the four breaches, it is necessary to set out some of the history of dealings between the plaintiff and his wife and senior staff of the defendant.
[12] T5-10, lines 35-44.
The plaintiff’s personal history
The plaintiff was born on 18 November 1957 in Kapustin Yar, Astrakhan Region, Russia. He has been married to Dr Galina Gramotnev for 37 years. They migrated from Russia to Australia with their two children in 1995. He became an Australian citizen in 1997.[13]
[13] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [1]-[12].
The plaintiff is a theoretical physicist with developed expertise in the field of nanophysics, specifically in ‘nano-optics’ and ‘physics of nanoparticles’.[14]
[14] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [15]-[19].
The plaintiff was awarded a PhD in 1989 from the Moscow Institute of Electronic Technology.[15] Prior to emigrating from Russia, he was employed as a Senior Research Fellow at the Research Institute of Physical Problems, Zelenograd in Moscow.[16]
[15] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [24].
[16] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [25].
The plaintiff’s wife, Dr Galina Gramotnev, is also a physicist and statistician, with expertise in the fields generally known as ‘environmental sciences’ and ‘statistical data analysis’.[17]
[17] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [20].
Dr Gramotnev’s employment at QUT
The plaintiff commenced casual and part-time employment with QUT in February 1996 in the School of Physical and Chemical Sciences (formerly, the School of Physical Sciences) (‘the School’). The plaintiff was offered and accepted appointment to the position of Lecturer in Physics by letter dated 23 November 1999. He commenced that appointment on 1 January 2000. That position was permanent, subject to a three-year probationary period.[18]
[18] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [41]-[47], Exhibit 3.
Under the EBA, the plaintiff was classified as an ‘Academic Level B’ from his commencement on 1 January 2000. There are three levels of classification higher than Academic Level B identified in the EBA: Senior Lecturer (Level C), Associate Professor (Level D) and Professor (Level E). The plaintiff applied for promotion four times during the course of his employment with the School. He was never promoted beyond the position of Academic Level B and remained so until the cessation of his employment. [19]
[19] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [27]-[28], [52]-[54].
Dr Galina Gramotnev’s connection to QUT
Between September 2000 and September 2005, Dr Galina Gramotnev was enrolled as a PhD student in the international Laboratory for Air Quality and Health in the School.[20]
[20] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [59].
Dr Galina Gramotnev was awarded her PhD by QUT in April 2007.[21]
[21] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [60].
The plaintiff claims that the relationship between himself and his wife was common knowledge in the School at least from September 2000.[22]
[22] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [61].
In November 2005, the plaintiff proposed that Dr Galina Gramotnev be appointed as a Visiting Fellow without remuneration within the Applied Optics Research Program in the School. After receiving the plaintiff’s proposal, the Acting Head of the School (Associate Professor Thomas) and the Acting Executive Dean of the Faculty (Professor Herrington) discussed the potential conflict of interest arising with the plaintiff and his wife.[23]
[23] Second Further Amended Statement of Claim, [33]; Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [62]-[65].
Professor Herrington sent an email to the plaintiff on 10 November 2005 agreeing to “support the proposal and to formally inform Human Resources as to the nature of [the plaintiff’s] family relationship with Galina.”[24] The plaintiff claims that this email constitutes the defendant’s acceptance of the potential conflict of interest.[25]
[24] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [66].
[25] Second Further Amended Statement of Claim, [35].
By way of letter dated 24 November 2005, QUT’s Human Resources Director, Mr Graham MacAulay, invited Dr Galina Gramotnev to be a Visiting Fellow without remuneration for the term from 31 October 2005 to 31 December 2006.[26] The plaintiff was approved as her supervisor, conditional on the Head of the School playing an oversight role in respect of the supervision.[27] Dr Galina Gramotnev accepted this invitation. Her main activity was to collaborate in research with the plaintiff and his PhD students.[28]
[26] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [67].
[27] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [68].
[28] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [71] and [73].
Her appointment expired on 31 December 2006. The plaintiff applied to extend his wife’s Visiting Fellowship in January 2007. The plaintiff lodged that proposal with the Acting Head of the School, Dr Ayoko.[29] The plaintiff did not receive a formal response regarding his request for an extension.[30]
[29] Second Further Amended Statement of Claim, [43].
[30] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [83].
In February 2007, Dr Galina Gramotnev submitted a proposed draft application for a research grant to QUT’s Office of Research. Her application was for a research grant to be requested from the Australian Research Council (ARC). That application was put though the Applied Optics Research Program in collaboration with the plaintiff and two other universities.
Dr Galina Gramotnev was the First Chief Investigator on the application, with the plaintiff as an Associate Investigator.
On 21 February 2007, two days before the application deadline, Dr Galina Gramotnev received an email from the Faculty Assistant Dean (Research), Professor Mengersen, informing her that:
“I have been instructed by the Dean that the Faculty will not allocate any resources to your research. Therefore, I regret to inform you that I cannot approve your project and have instructed the Office of Research to withdraw it from the list of QUT ARC DP applications to be submitted to the ARC. You are free, of course, submit (sic) your proposal through another university.
If you would like to discuss this further, please contact the Dean, Professor Margaret Britz.”[31]
[31] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [104], Exhibit 11.
One hour after receiving the email from Professor Mengersen, Dr Galina Gramotnev received an email from Professor Britz stating:
“I’ll expect an instant barrage!
Marg”
Professor Britz’s email copied in Professor Mengersen and the Director of the Office of Research, Mr McArdle.[32]
[32] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [106]; Second Further Amended Statement of Claim, [54]-[55].
The plaintiff’s belief was that his wife’s application had been “blocked”.[33] Dr Galina Gramotnev viewed Professor Britz’s email as “offensive, bullying and intimidating”.[34]
[33] T 1-46, line 15.
[34] Affidavit of Galina Gramotnev sworn 19 October 2016 [51(a)].
The events in 2007
On 5 March 2007, the plaintiff sent an email to the QUT Vice-Chancellor, Professor Coaldrake, in which he:
(a)complained that Professor Britz’s conduct in blocking Dr Galina Gramotnev’s proposed ARC application was, amongst other things, “unexpected”, “unfair”, “bullying” and “humiliating”;
(b)sought that the Faculty fund the research equipment that was sought to be funded by the ARC Application (in the amount of $143,534.00);[35] and
(c)sought an apology from Professor Britz (the 5 March 2007 complaint).
Professor Coaldrake responded to the plaintiff on 23 March 2007 informing him that the Deputy Vice-Chancellor, Professor Gardiner, would “look into the matter…in the first instance”.[36]
[35] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 16.
[36] Second Further Amended Statement of Claim, [56]-[57].
The plaintiff met with Professor Gardiner on 4 April 2007 to discuss the complaints raised in his email to Professor Coaldrake. During this meeting, Professor Gardiner raised the ‘undisclosed’ conflict of interest of the plaintiff in relation to Dr Galina Gramotnev, including in relation to the blocked ARC grant application.[37] The plaintiff subsequently emailed Professor Coaldrake on 5 April 2007 requesting Professor Gardiner cease being involved in consideration of the plaintiff’s complaint about Professor Britz on the basis of Professor Gardiner’s conflict of interest in the matter. In that email, the plaintiff complains that:
(a)Professor Gardiner had been directly involved in alleged breaches of the Faculty of Science and QUT promotion procedures in 2004 – 2006 and “on numerous occasions, he clearly expressed his consistently negative/dismissive attitude to my concerns and complaints”;[38]
(b)Professor Gardiner was not involved in the submission and preparation of ARC Grant applications; and
(c)Professor Gardiner was not involved in the introduction of the new mandatory peer review system for ARC applications at QUT.
The plaintiff requested, based on his complaints, that Professor Gardiner “be excluded from any further investigation and/or consideration of the above-mentioned issues”.[39]
[37]    Second Further Amended Statement of Claim, [59].
[38]    Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 14.
[39]    Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 14.
On 27 April 2007, the plaintiff received a letter from Professor Coaldrake.[40] That letter enclosed a ‘Report on Preliminary Inquiry into an ARC matter raised with the Vice‑Chancellor by Dmitri Gramotnev’ (the 2007 Report) dated 12 April 2007. In that letter, Professor Coaldrake informed the plaintiff that he was aware of the plaintiff’s views regarding Professor Gardiner’s inability to assess these matters, however Professor Coaldrake did “not consider it justified that senior officers of the university should be removed from the conduct of their duties on the basis of the personal perceptions of complainants or on the grounds of their involvement with previous unsubstantiated complaints”. The 2007 Report included a finding about possible misconduct on behalf of the plaintiff in relation to the “declaration and management of conflict of interest in relation to his spouse”.[41] That report was authored by Professor Gardiner.
[40] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 15.
[41] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 16; Second Further Amended Statement of Claim, [66].

The plaintiff’s belief is that Professor Gardiner did not conduct a fair and open investigation of the matters raised in the plaintiff’s complaint regarding the blocking of Dr Galina Gramotnev’s ARC application. The plaintiff also claims that Professor Gardiner “transformed the investigation of the Plaintiff’s 5 March 2007 complaint into the recriminating and harassing investigation of the Plaintiff”.[42] The plaintiff viewed certain findings of the report as being “in the nature of a reprisal against myself and Galina and were recriminatory”.[43]
[42] Second Further Amended Statement of Claim, [66].
[43] Affidavit of Dmitri Gramotnev affirmed 19 October 2016 [121(d)].
Following the receipt by the plaintiff of the 2007 Report, a large volume of correspondence was exchanged between the plaintiff and various employees of the defendant. The key events are discussed below.
The primary complaints of the plaintiff related to his claimed disclosure of the relationship between himself and his wife and the fact that the investigation of his complaint was conducted by Professor Gardiner. The plaintiff also claimed that the 2007 Report’s discussion of the conflict of interest between the plaintiff and his wife was “designed to intimidate, bully and harass the Plaintiff because of his complaint”. The plaintiff claimed that the further emails received from Professor Britz had the same effect as the 2007 Report, as “Professor Britz referred to the findings of Professor Gardiner and furthered the harassment of the Plaintiff by repeatedly directing and requiring him to declare his conflict of interest in relation to his wife Galina.”[44]
[44] Second Further Amended Statement of Claim, [71]-[72].
On 8 May 2007, the plaintiff again emailed Professor Coaldrake objecting to Professor Gardiner’s 2007 report. In this email the plaintiff:
(a)“fully dismissed” the 2007 Report as its author Professor Gardiner was conflicted;
(b)stated that he would continue to complain about Professor Britz’s email dated 21 February 2007 and the “blocking” of his wife’s ARC application;
(c)demanded that Professor Britz provide full compensation for the equipment requested from ARC in the blocked application (in the amount of $143,534) and consumables and rental costs ($5,000 per year for three years); and
(d)demanded a written apology from Professor Britz for “inappropriate blocking” of the ARC application.[45]
[45] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 17.
Professor Gardiner emailed the plaintiff on 10 May 2007. Professor Gardiner copied in, amongst others, Professor Coaldrake and Professor Britz. Professor Gardiner requested that the plaintiff take appropriate steps to declare and resolve the situation regarding the “undeclared conflict of interest” regarding his wife.[46] Dr Galina Gramotnev’s prior nomination for Visiting Fellow without remuneration had ceased by 31 December 2006.
[46] Second Further Amended Statement of Claim, [68].
Professor Gardiner further counselled and cautioned the plaintiff in respect of “inappropriate use of QUT’s internet system to send broadcast e-mails”. Professor Gardiner informed the plaintiff that his email of 2 April 2007 contained “defamatory material, including with respect to the Executive Dean and her legitimate responsibilities”.[47] Professor Gardiner also requested that the plaintiff’s supervisor counsel him in relation to policy and practice in relation to resource and budget decisions and responsibilities and research grant practices.
[47] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 18.
The plaintiff responded to Professor Gardiner’s email of 10 May 2007 in an email to Professor Coaldrake dated 11 May 2007. In this email the plaintiff repeated his objections to Professor Gardiner from having any further involvement in relation to the 5 March 2007 complaint. The plaintiff reiterated that he had “dismissed” the 2007 Report. The email relevantly concludes:
“Therefore, I am not prepared to accept, act, or get involved into further discussions based on further emails and/or advices from Prof. D. Gardiner … related to my current complaints.”[48]
Professor Coaldrake responded to this email by letter dated 7 June 2007.[49] In this letter the Vice-Chancellor relevantly states:
“I do not accept your reasons for dismissing the findings of Professor Gardiner and I expect you to comply with my final decision to accept the findings of the Report which I attach herewith once again for your information and careful attention.
I also attach for your information the web link to policy B/8.1 Code of Conduct … As you are aware, staff are expected to comply with the Code including 8.1.4(a) Respect for the law and system of government, and (b) Complying with QUT statutes, rules, policies and decisions. Staff who breach the Code may face consequences including disciplinary action for misconduct.
It is my understanding that you will be offered counselling and guidance, which I expect you to accept, in relation to the matters raised in the Report, including ARC grant application and resource and budget matters, peer review of research applications, conflict of interest, academic freedom and appropriate use of the email system.
With regard to the promotion matter, I am informed that you have received correspondence from the Queensland Ombudsman and that this matter is closed.
As my decision to accept the Report is final, no further correspondence will therefore be entered into on either of these matters.”
[48] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 19.
[49] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 23.
On 14 and 25 May 2007, the plaintiff received two emails from Professor Britz. Those emails referred to the findings of Professor Gardiner. The plaintiff responded by emails dated 15 and 29 May 2007. The plaintiff claimed that he explained his family relationship with Dr Galina Gramotnev and any conflict of interest “had been properly declared and discussed with the Defendant on numerous occasions”.[50] The plaintiff stated that he felt further harassed by this repeated “directing and requiring him to declare his conflict of interest in relation to his wife”.[51]
[50] Second Further Amended Statement of Claim, [73].
[51] Second Further Amended Statement of Claim, [72].
By email dated 5 December 2007 to Professor Coaldrake, Dr Galina Gramotnev made a formal complaint alleging discrimination by the Executive Dean of the Faculty, Professor Britz. Professor Coaldrake responded to this email on 21 December 2007 stating that he would investigate the complaint and respond as early as possible in 2008.[52]
[52] Second Further Amended Statement of Claim, [85].
Performance, Planning and Review – Academic Staff Process in 2007
The Performance, Planning and Review – Academic Staff (the PPR-AS) was a process conducted by QUT annually to assess the level of performance of academic staff members. This process was conducted by Dr Ayoko, who was the plaintiff’s PPR-AS supervisor.[53] Dr Ayoko was also the Acting Head of the School.
[53] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [136] and [139].
On 19 July 2007, the plaintiff emailed Dr Ayoko requesting to complete his PPR-AS that year. The plaintiff’s first PPR-AS meeting occurred on 26 July 2007. Dr Ayoko informed the plaintiff during that meeting that his performance in three areas of academic activity (research, teaching and service) had been “very satisfactory”.[54] During the meeting, Dr Ayoko “decided to raise issues that had been highlighted for ‘counselling and guidance’ in the QUT’s 7 June 2007 letter”.[55]This is a reference to Professor Coaldrake’s letter to the plaintiff dated 7 June 2007.
[54] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [144].
[55] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [145].
The plaintiff objected to Dr Ayoko’s conduct regarding the PPR-AS process on the basis that Dr Ayoko raised the potential issue of a conflict arising from the plaintiff’s relationship with his wife.[56] This was a topic specifically identified by Professor Coaldrake in respect of which the plaintiff was to be offered counselling and guidance. Two more subsequent meetings between Dr Ayoko and the plaintiff occurred on 1 and 16 August 2007 to discuss issues raised at the first meeting and in the PPR-AS form. The plaintiff alleges that during the conducted PPR-AS evaluation, Dr Ayoko “designed a form for declaring conflicts of interest within the School”.[57] The plaintiff completed and returned the form to Dr Ayoko on the date of the third meeting. Dr Ayoko did not complete and sign the form until May 2009. The plaintiff alleges that the delay shows that “reasonable management of the Plaintiff’s potential conflict of interest was not the real goal of the Defendant during the PPR-AS process in 2007”. He alleges that the real goal of the PPR-AS process for the defendant was to “intimidate, harass and bully the Plaintiff on the basis of his family relationship for his earlier complaint about the conduct of Professor Britz”.[58] QUT denies that allegation.[59]
[56]    Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 25.
[57]    Second Further Amended Statement of Claim, [81].
[58]    Second Further Amended Statement of Claim, [83].
[59]    Amended Defence of the Defendant, [56(a)].
The events in 2008
On 4 January 2008, the plaintiff received an email from Dr Ayoko. Dr Ayoko advised the plaintiff not to involve his wife in the research projects of his postgraduate students on the grounds of the family relationship and a potential conflict of interest.[60]
[60] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 36.
The plaintiff claims that he had provided full disclosure of the ‘new arrangements’ regarding his wife’s voluntary collaborative research with the plaintiff and his postgraduate students on 16 August 2007, and that Dr Ayoko did not object to that arrangement until Dr Ayoko’s email of 4 January 2008.[61]
[61] Second Further Amended Statement of Claim, [87].
The plaintiff responded to Dr Ayoko stating that his advice to not involve Dr Galina Gramotnev in the research projects of his post-graduate students did not seem appropriate and/or reasonable because:
(a)his wife’s previous appointment as a Visiting Fellow involved her in several research projects of the Applied Optics Program, to which she had already made substantial contributions;
(b)as the plaintiff had provided full disclosure about the new arrangements and involvement of his wife, it would be “grossly unfair and highly inappropriate” for the plaintiff to now exclude her from being involved in the plaintiff’s research projects;
(c)the plaintiff could not see any grounds to not involve his wife in the voluntary collaborative research.
The plaintiff then sought clarification from Dr Ayoko about whether he was advising or directing him to not involve his wife.[62]
[62] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 37.
Dr Ayoko sent an email on 8 January 2008 providing the clarification sought by the plaintiff. Dr Ayoko informed the plaintiff that he believed “that the best option for managing the disclosed interest is to ‘avoid’ the potential/perceived/actual conflict”.[63]
[63] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 38.
The plaintiff claims that the email sent by Dr Ayoko on 4 January 2008 was caused by Dr Galina Gramotnev’s complaint regarding Professor Britz, sent on 5 December 2007.[64] The plaintiff claims that the email from Dr Ayoko dated 4 January 2008 “constituted an attempt by the Defendant to significantly impede in a discriminatory way the Plaintiff’s contractual research, supervisory duties and activities.”[65]
[64] Second Further Amended Statement of Claim, [89].
[65] Second Further Amended Statement of Claim, [90].
The plaintiff claims that the emails of Dr Ayoko of 4 and 8 January 2008 and further emails of a similar nature sent on 22 February and 14 March 2008 were “repeated unwanted and harassing advices” and “constituted a pattern of repeated less favourable treatment in the form of bullying and discrimination of the Plaintiff on the basis of his family relationship.”[66]
[66] Second Further Amended Statement of Claim, [94].
The defendant denies that this correspondence constituted a harassing advice, threats, bullying or discrimination.[67]
[67] Amended Defence of the Defendant, [67].
The plaintiff received an additional email from Dr Ayoko on 20 March 2008. That email stated that given there was no financial or formal association with QUT, Dr Ayoko would “not further pursue the conflict of interest matter” regarding Dr Galina Gramotnev while she remained neither formally affiliated nor employed by QUT.[68] The plaintiff responded to that email on 24 March 2008 informing Dr Ayoko that he:
(a)should have already been aware that Dr Galina Gramotnev was not financially or formally associated with QUT from July 2007; and
(b)had acted in a way that was inconsistent with the QUT Code of Conduct and constituted bulling, harassment and impeded on the contractual duties owed to the plaintiff by the defendant.[69]
[68] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 48; Second Further Amended Statement of Claim, [95].
[69] Second Further Amended Statement of Claim, [97].
Previously on 10 January 2008, the plaintiff had emailed Professor Coaldrake to draw the Vice-Chancellor’s attention to the plaintiff’s concern “regarding the current administrative situation in the School of Physical and Chemical Sciences in the Faculty of Science…”.[70] The email relevantly states:
“As you probably know, the former Head of the School of Physical and Chemical Sciences, Prof. J. M. Pope, retired in June 2005. This means that for more than 2.5 years, the School has been without an actual Head. May be I am wrong, but as far as I know, there are no attempts at the current moment to fill in this power vacuum. For example, at the moment, there is no event an advertisement for the position of the Head of School, though the staff has been informed on numerous occasions (at least since the middle of 2007) that this position would be re-advertised.
…
This is especially worrying for me, because, in my personal view, the current Acting Head of School, Dr. G. Ayoko, does not seem to demonstrate sufficient leadership and management abilities. It is possible that I am misjudging this, but to my sincere regret, some of the actions of Dr. G. Ayoko do not seem to demonstrate adequate understanding of the management policies and practices at QUT. In particular, my concerns are based upon my own experiences and facts outlined in my previous email to you dated 18 August 2007. These concerns have unfortunately been significantly reinforced by the further developments within the last several days, which are related to my earlier (on 29 June 2007) declaration of my potential conflict of interest with my wife, Dr. Galina Gramotnev, under the changed circumstances with her formal association with QUT…
I also believe that the responsibility for such a inadequate situation lies with the Executive Dean of the Faculty of Science, Prof. M. Britz, who is directly responsible for ensuring smooth and effective functioning of all the Schools in the Faculty, including the due and timely selection of a long awaited new Head of the School of Physical and Chemical Sciences.”[71]
The plaintiff requested that Professor Coaldrake begin the process of selecting a new Head of the School.
[70] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 40.
[71] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 40.
The plaintiff emailed Professor Coaldrake on 1 June 2008 reiterating his “very serious concerns in relation to the current administrative situation in the School of Physical and Chemical Sciences”. The plaintiff referred to the similar email he had sent on 10 January 2008. The plaintiff, in large part, repeated the points he raised in his email of 10 January 2008. The plaintiff informed Professor Coaldrake that to his “deep regret” his “whistle blowing email” of 10 January 2008 had “been left with no response and/or any visible reaction”.[72] Those concerns were that:
(a)since the retirement of Professor Pope, the School had been without a permanent Head of School;
(b)the Acting Head of School (Dr Ayoko) was “continuing to act as a Head of School without any proper selection process”;
(c)Dr Ayoko did not demonstrate sufficient leadership and management abilities, nor adequate understanding of the management policies and practices of QUT; and
(d)Dr Ayoko had misused his position and disregarded the needs and well-being of staff members.
[72] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 56.
The plaintiff requested Professor Coaldrake to replace Dr Ayoko with a suitable Acting Head of School, to urgently move to appoint a new Head of School and to develop clear and unambiguous policies and procedures at QUT for the replacement and selection of Heads of School.[73]
[73] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 56.
The plaintiff’s email of 1 June 2008 was copied to the QUT Chancellor, Retired Major General Peter Arnison AC and the QUT Registrar, Dr Carol Dickenson.
It is the defendant’s failure to investigate the matters in the plaintiff’s letter of 1 June 2008 that is pleaded as constituting the third alleged breach, being a breach of the Grievance Policy. According to the plaintiff the Grievance Policy applies to the resolution of grievances associated with discrimination and harassment. As the plaintiff’s letter of 1 June 2008 was a complaint relating to bullying, intimidation and discrimination of the plaintiff by Dr Ayoko, it should have been dealt with in accordance with the Grievance Policy. The plaintiff pleads that had the 1 June 2008 complaint been investigated in accordance with the Grievance Policy, there would have been no need for him to send the 2 March 2009 emails which in part led to the termination of his employment contract.[74]
[74] Second Further Amended Statement of Claim, [261]-[262].
Professor Coaldrake responded to the plaintiff on 16 July 2008. Professor Coaldrake acknowledged the plaintiff’s previous emails and disagreed with the Plaintiff’s concerns about Dr Ayoko’s performance as Head of School.[75]
[75] Second Further Amended Statement of Claim, [107].
On 5 August 2008, Professor Coaldrake announced that Dr Ayoko had been appointed to Associate Professor. The plaintiff claims that this appointment demonstrated Professor Coaldrake’s “full support and acceptance of the harassing and discriminating conduct of A/Professor Ayoko”.[76]
[76] Second Further Amended Statement of Claim, [109].
The next complaint lodged by the plaintiff was by him and his wife on 17 November 2008 “about the misconduct, mismanagement, harassment and bulling by several QUT administrators including Professor Coaldrake.”[77] This complaint was lodged with the Chancellor and was the subject of an investigation and report by an external advisor, Mr Andrew See (a Barrister).[78]
[77] Second Further Amended Statement of Claim, [110].
[78] Second Further Amended Statement of Claim, [114].
The events in 2009
Mr See’s completed report was received by the plaintiff and his wife on 25 February 2009. In summary, Mr See was of the opinion that:
(a)there was no evidence of persistent or gross neglect in the discharge of the Vice‑Chancellor’s duties, nor misconduct on the part of the Vice‑Chancellor;
(b)there was no information in the documentation provided that warranted any further investigation of misconduct against any other officers of QUT; and
(c)there was no evidence of reprisal conduct arising from any complaints being made, nor evidence of unlawful conduct on behalf of QUT staff members.

Mr See’s report concludes as follows:
“While I have concluded that I do believe that there are aspects of the way in which these administrative issues have been dealt with by the University, that indicate elements of unfair treatment, there is no sign of misconduct or any weightier charge, that emerges from out of the conduct of the University staff.”[79]
[79] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 62.
The plaintiff alleges that QUT’s decision not to pursue the matter further after receipt of Mr See’s report:
(a)disregarded all of the plaintiff’s concerns and complaints prior to February 2009;
(b)meant that the plaintiff’s concerns and complaints were not investigated in accordance with the MOPP procedures and principles of natural justice; and
(c)demonstrated the serious risks of further recurrences of similar bullying, harassing and discriminative management with regard to other staff members.[80]
[80] Second Further Amended Statement of Claim, [121].
On 2 March 2009, the plaintiff sent an email to ‘[email protected]’ copying in, amongst others, Chancellor Arnison, Professor Bowman and Professor Kaplan (2 March 2009 email). That email reads:
“Dear Staff Members,
You may remember that at the staff meeting in June 2008 I raised a question about the inadequate leadership in the School of Physical and Chemical Sciences, caused by the absence of a properly appointed permanent Head of School who would be able to provide adequate administrative support and leadership to the School, its staff and major ongoing efforts and activities.
Unfortunately, I am of a view that the current leadership by A/Prof. G. Ayoko is damaging for the School, the well-being of its staff and students, and their ability to perform the essential contractual duties and responsibilities.
…
At the same time, the reaction of the QUT administration and senior management to my concerns about the well-being of the School has so far been the disregard or denial of my complaints and whistleblowing disclosures.
My repeated requests (and then demands) to replace A/Prof. G. Ayoko by another more suitable and appropriate person in the position of the Acting Head and urgently proceed to properly filling this vital management position (which has already been vacant for almost 4 years (!) since the retirement of Prof. J. Pope in the middle of 2005) have been left with no reaction from the Faculty and University administrations.
Last Thursday (26 February 2009), I received a letter from the QUT Chancellor, Major General P. Arnison, in which he wrote that, based on an advice from an ‘independent external advisor’, he does not ‘intend to take any further action under the relevant Council procedure or University policy for misconduct and serious misconduct’. In particular, as far as I have understood from this letter, no any actions will thus be undertaken against the current Acting Head of School, A/Prof. G. Ayoko, who (as far as I understand) will thus continue to lead this School for at least an unspecified period of time into the future.
… As a result, I have to conclude that my continuous efforts for more than a year (since January 2008) to ensure that the School of Physical and Chemical Science is not disadvantaged in any way by the continuing absence of proper, independent, responsible leadership and administrative support have so far failed …
Under these circumstances, this is my direct responsibility as an academic staff member at this University and in this School to inform you about my major concerns in relation to the well-being of the School. I also believe that this is my essential duty as a human being to ensure that what has happened to me and what I have endured and suffered during the recent years will never be repeated with anyone else in the School, especially under the continuing (so far) leadership of A/Prof. G. Ayoko.
Therefore, I forward you the supporting evidence and further information in the form of my email correspondence with the Acting Head of School, A/Prof. G. Ayoko, and the QUT senior management. The first set of these emails is appended below to this message. The other two sets will be forwarded immediately.
In conclusion, I would like to repeat that I strongly believe that the Acting Head of School, A/Prof. G. Ayoko, should be replaced by another person, and urgent steps should be undertaken to finally and properly fill in the long‑existing vacancy of the Head of School of Physical and Chemical Sciences.
Thank you very much.
Best regards,
Dmitri Gramotnev.”[81]
[81] Affidavit of Kenneth Bowman affirmed 9 November 2016, Exhibit 14.
This email was one of three emails sent by the plaintiff on 2 March 2009. The first email contained the text set out above and attached the plaintiff’s 1 June 2008 complaint.[82] The other two emails forwarded the plaintiff’s emails of 18 August 2007[83] and 10 January 2008[84] to Professor Coaldrake.[85] These three emails were sent to all the staff members of the School (around 45 academic staff) and around 18 technical and administrative staff and copied to senior executives of QUT and five members of the QUT Council.[86] The authoring and sending of the 2 March 2009 emails, and subsequent emails dated 6, 12 and 30 March 2009 constituted the basis for the commencement of disciplinary proceedings against the plaintiff.
[82]    Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 56.
[83]    Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 32.
[84]    Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 40.
[85]    Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [279]-[281], Exhibit 66.
[86] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [279], [282] and [283], Exhibit 66.
According to the defendant, the 2 March 2009 emails made serious and arguably defamatory allegations about Associate Professor Ayoko. On their face, the emails sought Associate Professor Ayoko’s removal as the Acting Head of the School.
The defendant highlights the following specific comments and accusations contained in these emails:[87]
[87] Defendant’s Written Submissions, [38].
(a)“the current leadership of A/Prof G. Ayoko is damaging for the School, the well‑being of its staff and students and their ability to perform the essential contractual duties and responsibilities”;
(b)“since January 2008, the School has been disadvantaged by ‘the continuing absence of proper, independent responsible leadership’”;
(c)“I strongly believe that the current Acting Head of School, A/Prof G. Ayoko should be replaced by another person”;
(d)“Dr G. Ayoko has demonstrated his complete failure and incapacity to reasonably manage staff in the school and their needs”;
(e)“Dr G. Ayoko has demonstrated his readiness to misuse his position and administrative power of direction and disregard to the real needs and well‑being of staff members”;
(f)“Dr G. Ayoko had issued ‘highly inappropriate and unjustified’ directions”;
(g)“I accuse you of continuously and repeatedly bullying, intimidating and even threatening me, manipulating facts and my statements, wasting my time … and repeatedly attempting impediment of my research and supervisory duties”;
(h)“Who will take responsibility for terrorising, intimidating, bullying and even threatening me by you for more than half a year?”
(i)“Do you think that after what you have been doing to me for more than half a year, you will be able to quietly walk away from this? To my sincere regret I cannot say that I would be able to stop pursuing you for your serious misconduct, misuse of your position, intimidation, bullying and impediment of my research and supervisory duties at QUT.”
Professor Simon Kaplan was the Executive Dean of Science and Technology and was Associate Professor Ayoko’s immediate supervisor. As part of the process for managing the outcomes of Andrew Sees’ Report, Professor Kaplan met with the plaintiff to discuss matters.
According to the plaintiff, at a meeting on 4 March 2009 Professor Kaplan:
(a)attempted to convince the plaintiff to accept QUT’s decision not to take any further actions with regard to his complaints;
(b)threatened the plaintiff by saying that “the University has teeth” to deal with him if he continued to pursue his complaints and grievances;
(c)repeatedly stated that Acting Professor Ayoko had Professor Kaplan’s full support and the support of QUT;
(d)directed the plaintiff to comply with the Code of Conduct. This was in circumstances where according to the plaintiff he had never breached the Code and had no intention to breach it in the future;
(e)expressly admitted and stated that Dr Galina Gramotnev had been unfairly treated by the University;
(f)admitted and agreed that almost four years without a permanent Head of the School had been “an absolutely unacceptable situation”.[88]
[88] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [290].
The defendant did not call Professor Kaplan nor was the plaintiff challenged as to his recollection of what was discussed at the meeting with Professor Kaplan on 4 March 2009. The substance of the plaintiff’s recollection is, in any event, supported by Professor Kaplan’s subsequent letter to the plaintiff dated 5 March 2009.[89] In this letter Professor Kaplan confirms the following:
[89] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 68.
(a)that all future email and written communications from the plaintiff should be directed through the normal channels of communication for an academic staff member.
(b)the plaintiff was requested not to direct emails or written communications to officers of the University who did not have primary responsibility for managing such issues.
(c)the plaintiff was directed to comply with the University’s Code of Conduct, in particular the requirement (section 8.1.4(a)) to not engage in debate or criticism of current affairs (including University affairs) in a defamatory or potentially defamatory manner and the requirement in section 8.1.5(a) to act towards and communicate with the plaintiff’s colleagues and others in the University community in a respectful and courteous manner.
(d)it was agreed that the plaintiff’s supervisor for PPR purposes would be Professor Chris Langton rather than Associate Professor Ayoko.
Relevantly Professor Kaplan states in the letter:
“These are all reasonable expectations of a staff member and reasonable management directions. I wish to advise you that failure to follow them will result in formal processes being initiated by the University with potential consequences for you.
I wish to confirm that I believe that the email sent by you on Monday 2 March 2009 to all staff of the School of Physical and Chemical Sciences and to internal QUT Council members making allegations regarding the leadership of Associate Professor Ayoko and calling for steps to be taken to remove him from this role is unacceptable conduct, is potentially a breach of the Code of Conduct and should not be repeated.
Associate Professor Ayoko has my full support in the role of Acting Head of School and I will not tolerate public attacks of this nature on the leadership and integrity of any Head of School within this Faculty.
Finally, I wish to thank you for the positive spirit in which you engaged in the meeting with me. We value your contributions as a teacher and researcher, and I sincerely hope that you will choose to engage with me to find an alternate path forward for the current situation.”
On 6 March 2009, the plaintiff sent an email to Professor Kaplan, copying in the Chancellor (6 March 2009 email). That email reads:
“Dear Simon,
This is further to our meeting on Wednesday, 4 March 2009, initiated in accordance with the letter to me from the QUT Chancellor, Major General P. Arnison, of 25 February 2009.
…
In the beginning of our meeting, you indicated that you wanted to have the majority of the discussion at our meeting to be about how to move forward from here. I explained to you that there are only two possible ways forward from the current unacceptable situation created entirely due to the repeated and anfair (sic) actions and misconduct of some of the representatives of the University administration.
First is a comprehensive settlement between myself and the University administration. Such a settlement should necessarily involve simultaneous and fair resolution of all the aspects of this complex situation that has only been escalating for the last four years. The second of the two possible ways is to continue to fight with all available lawful means in order to rid this University of the existing culture of bullying, harassment, intimidation, and administrative misconduct, which has unfortunately spread up to the very top of the QUT senior management.
…
I also reminded you about the major misconduct of the former Executive Dean of the Faculty of Science, Prof. M. Britz, including her unjustified and unfair actions in blocking our efforts to bring in external funding for our research and vital equipment that would have been highly beneficial for my several postgraduate students. Following my complaint to the Vice‑Chancellor, Prof. P. Coaldrake, instead a fair investigation of my complaint and disciplining the Executive Dean for her major misconduct, the Deputy Vice-Chancellor (Academic), Prof. D. Gardiner, attempted to create a non-existent issue of an ‘undeclared conflict of interests’ with my wife, and inappropriate use of the email system (despite his own admitted in writing conflict of interests in this matter).
…
In the process of our conversation, you stated that if I continue with my actions against the University administration (to ensure their responsibility for their misconduct and mistreatment of staff in breach of the existing policies, regulations, and the principle of administrative fairness), including emails to staff members, the University has teeth to deal with me. I have to say that I take this statement as a suggestion of possibility of further reprisal actions from the University against me, and further intimidation for attempting to make legitimate public disclosures and undertake legitimate and justified actions (for the benefit of QUT) against the administrative misconduct and the existing culture of bullying, harassment and intimidation of staff. I have all the rights and even moral responsibilities as an academic staff member at this University to raise my voice and disclose the acts of administrative bullying and harassment to other members of staff in order to protect them from similar repeated actions in future.
…
You told me that you had been asked to tell me not to send any more emails to the Chancellor and Vice-Chancellor, and indicated that they will no longer respond to me. In this regard, I reserve my natural right to send emails to any administrative person at the University or outside whenever I deem necessary and appropriate, including the Chancellor and Vice-Chancellor, and I will continue doing so in future. I also reserve my full rights to send appropriate true information and make public interest disclosures to staff members or any other audience, especially when the administration neglect their direct duties and responsibilities.
…
…I would also like to indicate, that continuing keeping (and clearly supporting) A/Prof. G. Ayoko in the position of the Acting Head of School in the meantime also means for you taking responsibilities for his (A/Prof. Ayoko’s) wilful serious misconduct, bullying, harassment, intimidation of staff, impediment of their essential contractual duties and responsibilities, and misuse of his empowered position…”[90]
[90] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 67.
Professor Kaplan relied to this email on 12 March 2009.[91] In this email Professor Kaplan states:
“1.     The University does not seek to prevent or limit your ability to make legitimate public interest disclosures. However for a disclosure to be legitimate, it needs to be made in the appropriate way to an appropriate recipient, and as I indicated in my 5^th March letter, it is our view that some of your communications, for example those in relation to A/Prof Ayoko, are not so.
2.     You can of course continue to raise any issues of genuine concern with me.
3.     I wish to clarify that it was not my intention to threaten you in any way. However, it is part of my duty as Executive Dean to point out to you that continued breach of the Code of Conduct could have disciplinary consequences for you. As I indicated in the meeting, it would be better for all concerned if we did not find ourselves in the position where such actions become necessary.
4.     I therefore encourage you to accept the requirements of my letter dated 5 March 2009.”
[91]    Affidavit of Kenneth John Bowman affirmed 9 November 2016, Exhibit KB-14, page 233.
On 12 March 2009, the plaintiff sent another email to Professor Kaplan, copying in the Chancellor (12 March 2009 email). That email relevantly reads:
“Dear Simon,
…
Unfortunately, the somewhat different tone and spirit of your letter dated 5 March 2009, compared to the meeting on 4 March 2009, have suggested to me that the University and Faculty administrations have decided to step up the direct threats of further reprisals, as well as bullying and intimidation with respect to me and my legitimate efforts related to my major concerns about the well-being of QUT and riddling of the existing culture of bullying, harassment, intimidation, and impediment of the essential contractual duties of staff at this University (see also my previous email of 6 March 2009).
…
2. You have directed me ‘to comply with the University Code of Conduct (B/8.1 of the Manual of Policies and Procedures) in all respects’ (your underline)….I have never breached the University Code of Conduct in any way or in any respect for the duration of my career at QUT. No one has ever been able to demonstrate, justify, and/or prove that I have ever breached any aspects of the Code. I have never had any intentions of breaching the QUT Code of Conduct in any way, and no one has any grounds for assuming otherwise. Therefore, there are absolutely no any grounds for you to issue me such a direction ‘to comply with the University Code of Conduct … in all respects’ (your underline), apart from if you wish to further intimidate and bully me.
…
As I indicated above, I have never violated any of these or other clauses and conditions of the Code of Conduct, and intend to follow this Code in the future.
To my deepest regret, these are the senior management figures, including A/Prof. G. Ayoko, Prof. D. Gardiner, and Prof. P. Coaldrake, who have committed (unlike me) numerous and most serious breaches of all of these Code clauses.
…
3. You have also decided to direct me to comply with the University’s Email policy presenting two specific bullet points from this policy. Similar to the above-discussed direction to comply with the Code, this second direction is completely unjustified and ungrounded, because I have always complied and will continue to comply with the University’s Email policy. I have never infringed any conditions of my employment through my completely adequate and appropriate use of the University’s Email system.
…
Based on the above arguments, I do not regard your directions as reasonable management, but rather further attempts to bully, intimidate and confuse me, which results in further major stress and suffering for me. This includes your direct threats of completely unjustified disciplinary actions against me in the form of ‘formal process being initiated by the University with potential consequences’.
I repeat again that my email send on 2 March 2009 was absolutely appropriate and certainly complied with the Code of Conduct, regulations for the use of email system, and the law. This is the direct responsibility of the Faculty and University administrations, including the Executive Deans and the Vice‑Chancellor, Prof. P. Coaldrake, that the problem with the obvious lack of adequate leadership in the School of Physical and Chemical Sciences had not been fixed ages ago, and A/Prof. G. Ayoko continued with his repeated acts of bullying, intimidation and impediment of staff’s duties in 2007 – 2008, despite the full information provided to the Vice-Chancellor, Prof. P. Coaldrake. I strongly believe that the Vice-Chancellor will have to feel his own responsibility for not fixing this problem and allowing it to flourish and escalate to this current extent.
…
In conclusion, I completely reject any kind of allegations and/or implications of breaches of the QUT Code of Conduct related to my email of 2 March 2009, or to any other my emails, letters, statements, and/or actions.
…
Please excuse me, but I would sincerely like to caution you against any further breaches of the QUT Code of Conduct and committing any further unfair actions and breaches of the principles of procedural fairness and good governance (see MOPP sections B/8.1.3 and B/8.5).
Under the circumstances, I will put my life on the line to ensure that Prof. P. Coaldrake, Prof. D. Gardiner and newly promoted A/Prof. G. Ayoko will not be able to destroy another single life or career neither at QUT nor elsewhere.”[92]
In this email the plaintiff also rejected Professor Kaplan’s suggested communication protocol.
[92] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 69.

The defendant highlights the following statements from the plaintiff’s emails of 6 and 12 March 2009:[93]
(a)There is a reference to the “major misconduct” of Professor Britz;
(b)“… I will pursue A/Prof G. Ayoko with all available lawful means and capacities until the level of disciplinary actions against him by the University is adequate to his serious misconduct”;
(c)“Similarly I will continue pursuing the Deputy Vice‑Chancellor (Academic) Prof D Gardiner and the Vice‑Chancellor Prof P Coaldrake until they feel the adequate personal responsibility for their misconduct and mistreatment of staff and until the current unacceptable situation is adequately rectified”;
(d)“I want my life back and I will get it back whatever it takes”;
(e)“… I reserve my natural right to send emails to any administrative person at the University or outside whenever I deem necessary and appropriate, including the Chancellor and Vice‑Chancellor and I will continue doing so in the future”;
(f)by keeping Prof Ayoko in his position, Professor Kaplan was “taking responsibilities for his (A/Prof Ayoko’s) wilful serious misconduct, bullying, harassment, intimidation of staff, impediment of their essential contractual duties and responsibilities and misuse of his empowered position”;
(g)“I repeat again that my email sent on 2 March 2009 was absolutely appropriate and certainly complied with the Code of Conduct, regulations for the use of email system and the law”;
(h)“Under the circumstances I will put my life on the line to ensure that Prof P Coaldrake, Prof D Gardiner and newly promoted A/Prof G Ayoko will not be able to destroy another single life or career neither at QUT nor elsewhere”.
[93] Defendant’s Written Submissions, [40(a)-(h)].
Professor Kaplan responded to the plaintiff’s six page email of 12 March 2009 by letter dated 24 March 2009. In this letter Professor Kaplan sought to clarify some particular matters:
“1.     The University has completed its investigation into the allegations made by you against senior University employees. The University regards those matters as concluded.
2.     Should you independently pursue your grievances and allegations directly against University employees, particularly having regard to statements you have made in relation to how you intend to do this, breach of the University’s Code of Conduct would be likely.
3.     The principle of academic freedom does not justify any action by you which would otherwise be a breach of the Code of Conduct.
4.     In particular, your statement that ‘under the circumstances, I will put my life on the line to ensure that Prof. P. Coaldrake, Prof. D. Gardner and newly promoted A/Prof. G. Ayoko will not be able to destroy another single life or career neither at QUT nor elsewhere’ could be regarded as a threat against those individuals which, in my view, would be in breach of the Code of Conduct and a serious matter. I would regard any action by you, directed at an individual university employee, which was designed to intimidate or threaten them, or damage them professionally or personally, as a clear breach of the Code of Conduct which would likely to result in disciplinary action.”[94]
[94]    Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 70.
On 30 March 2009, the plaintiff sent another email to Professor Kaplan, copying in the Chancellor (30 March 2009 email). Relevant parts of that email are reproduced below:
“My statement ‘I will put my life on the line to ensure that Prof. P. Coaldrake, Prof. D. Gardiner and newly promoted A/Prof. G. Ayoko will not be able to destroy another single life or career neither at QUT nor elsewhere’ is not a threat – it is a statement (and I fully stand by it).
…
Do you disagree with my statement that it is my direct duty as a human being to do my best to ‘ensure that Prof. P. Coaldrake, Prof. D. Gardiner and newly promoted A/Prof. G. Ayoko will not be able to destroy another single life or career neither at QUT nor elsewhere’? Or would, in your opinion, destroying lives and careers be something that should be allowed to do?
These are outrageous actions of Prof. P. Coaldrake, Prof. D. Gardiner and newly promoted A/Prof. G. Ayoko, which were clearly designed to intimidate, threaten and victimise me (for daring to raise my voice against the procedural irregularities and administrative misconduct in this Faculty and at this University), destroy my career, and damage me professionally and personally within the last four years. According to your letters and emails, you do not seem to think that this is a clear breach of the Code of Conduct which should have already resulted in serious disciplinary actions against the mentioned persons. Do you think that I do not have the right to defend myself against such mistreatment, bullying, harassment, intimidation and the direct impediment of my essential contractual duties? Let me reassure you that I strongly believe that I do not have such a right, and will be exercising it to the fullest possible extent allowed by the law.
…
I would also like to note that, despite my serious and sincere cautioning to you not to get involved in further serious breaches of the QUT Code of Conduct, procedural fairness and the law, you have continued not only with your clearly bullying and intimidating attempts and direct threats in relation to me (which you yourself call ‘a clear breach of the Code of Conduct which would likely to result in disciplinary action’), but you have even made further steps towards the direct and severe impediment of my essential contractual research and supervisor duties at this University. I, therefore, once again most seriously and sincerely caution you against any further breaches of the QUT Code of Conduct and the law, for which you will be held responsible, and once again refer you to sections B/8.1.3 and especially B/8.5 of QUT MOPP.
In conclusion, I would also like to state once again that your ‘reasonable management’ that clearly constitutes bullying, intimidation and, currently, the direct impediment of my essential contractual duties and responsibilities at this University are causing major stress and suffering for me. This is something that you will also be held responsible for, especially in the event of continuation of your breaches of the QUT Code of Conduct and the law.”[95]
[95] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 71.
As correctly submitted by the defendant, this email did not resile from, but rather affirmed, all previous statements of the plaintiff and added that Professor Kaplan was himself now guilty of bullying, intimidation and the direct impediment of the plaintiff being able to carry out his contractual duties and responsibilities at the University.[96]
[96] Defendant’s Written Submissions, [41].
By letter dated 3 April 2009 the plaintiff sent a formal complaint to the Chancellor about harassment and discrimination by Professor Kaplan. This letter is relevant to the plaintiff’s fourth alleged breach. The plaintiff pleads that as the 3 April 2009 letter complained of bullying, intimidation and discrimination, it should have been investigated in accordance with the Grievance Policy. Had the complaint been investigated in accordance with the Grievance Policy, it would have been demonstrated that the plaintiff’s four emails of 2, 6, 12 and 30 March 2009 were justified and his employment would not have been terminated.[97]
[97] Second Further Amended Statement of Claim, [279]-[285].
No response was received in relation to that complaint.[98] As no response was received Dr Galina Gramotnev, by way of three successive emails dated 11 April 2009, sent from her husband’s email address, “made a public interest disclosure to the academic staff members of the Faculty”.[99]
[98] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, [309]-[311], Exhibit 74; affidavit of Galina Gramotnev sworn 19 October 2016, [167].
[99] Affidavit of Galina Gramotnev sworn 19 October 2016, [172], Exhibit 22.
The Commencement of the disciplinary process
In 2009 Professor Bowman was the Acting Deputy Vice-Chancellor (Academic) of QUT having held that role since August 2008. He ceased in that role on 2 March 2012. In his role as Deputy Vice‑Chancellor (Academic) he was the Chair of the University Academic Board and a member of the University Council. Processor Bowman was aware of grievances raised by the plaintiff against University employees.[100]
[100] Affidavit of Kenneth John Bowman affirmed 9 November 2006, [16].
By letter dated 6 May 2009, Professor Coaldrake, as Vice-Chancellor, delegated Professor Bowman to act as the Vice-Chancellor’s nominee in relation to any allegations of misconduct concerning the plaintiff.[101] Throughout the process, Professor Bowman took advice from time to time from Dr Carol Dickenson, the Registrar of QUT, and Ms Jane Banney from QUT’s Human Resources Department.
[101] Affidavit of Kenneth John Bowman affirmed 9 November 2016, Exhibit KB-12, page 194.
According to Professor Bowman, the aspects of Dr Gramotnev’s conduct which potentially justified disciplinary action were his action in sending the correspondence of 2 March 2009 to all of the staff at the School (as well as Council members), and also his subsequent correspondence with Professor Kaplan in which the plaintiff made, what Professor Bowman regarded, as threatening statements in relation to senior members of QUT staff.[102]
[102] Affidavit of Kenneth John Bowman affirmed 9 November 2006, [40].
On 8 May 2009, Professor Bowman wrote to the plaintiff advising of two allegations and requesting the plaintiff to respond within ten (10) working days. The letter relevantly states:
“Dear Dr Gramotnev,
Your Employment
As you may be aware, it is the Vice-Chancellor’s role pursuant to the Enterprise Bargaining Agreement (Academic Staff) 2005-2008 (Academic Staff EBA) to determine, in relation to members of academic staff, whether they have engaged in conduct amounting to misconduct or serious misconduct and, if satisfied in this regard, any disciplinary action which is appropriate.
The relevant provision of the Academic Staff EBA (clause 44) is enclosed for your information.
Under the Academic Staff EBA, the Vice-Chancellor may nominate another person to carry out this role. In accordance with this authority, the Vice‑Chancellor has nominated me, as his nominee pursuant to the Academic Staff EBA, to consider an allegation of conduct on your behalf which potentially may amount to misconduct or serious misconduct.
….
I enclose copies of the relevant correspondence as follows:
(a)     an email from you to all staff of the School of Physical and Chemical Sciences and to internal QUT Council members dated 2 March 2009;
(b)     a letter from Professor Simon Kaplan to you dated 5 March 2009;
(c)     an email from you to Professor Simon Kaplan dated 6 March 2009;
(d)     an email from Professor Simon Kaplan to you dated 12 March 2009;
(e)     an email from you to Professor Simon Kaplan dated 12 March 2009;
(f)     a letter from Professor Simon Kaplan to you dated 24 March 2009;
(g)     an email from you to Professor Simon Kaplan dated 30 March 2009;
(h)     an email dated 11 April 2009 addressed to ‘Dear Academic staff members’, which purports to be from Dr Galina Gramotnev, but has been sent from an email address which appears as if it may have been owned by you.
I have serious concerns about this correspondence and, in my capacity described above, I require you to answer specific allegations about your connection with the correspondence set out below.
Allegations
Allegation 1 – items (a)-(g)
In relation to items (a) to (g) of the correspondence, I am proceeding on the basis that you were the author of the emails and you caused the emails to be sent. Please let me know if you contest this conclusion.
Allegation 2 – item (h)
The email which is item (h) appears to have been sent by your wife, Dr Galina Gramotnev, however it was sent from an email address which appears to be associated with you … and also contains extracts from some of the above correspondence from you to Professor Kaplan and others.
Would you please advise whether the email referred to in item (h) was authored by you (in whole or in part), or whether you were involved in causing the correspondence to be sent to the recipients within the School of Physical Chemical Sciences and to other recipients.
I only require a response in relation to the specific presumptions and allegations about the authorship and sending of the emails. The correspondence speaks for itself.
…
My Concerns in relation to the Correspondence
It is appropriate for me to explain the nature of my concerns so that you can understand in particular why I am seeking undertakings from you that you will not continue with the conduct.
In summary, my concerns are:
(a)     The correspondence suggests that you have embarked on a deliberate, public campaign against the leadership of Associate Professor Ayoko, Professor Simon Kaplan, Deputy Vice-Chancellor (Academic) Professor Gardiner and the Vice-Chancellor, Professor Coaldrake.
(b)     In pursuance of this campaign, you have sent, and you have stated that you will continue to send, correspondence containing serious allegations against these members of staff to a wide range of university recipients, including within the School of Physical and Chemical Sciences and beyond.
(c)     You have indicated an intention to continue with this course of action against Associate Professor Ayoko until Associate Professor Ayoko has received disciplinary action from the university which you regard as adequate for his serious misconduct.
(d)     You have indicated an intention to continue pursuing the Deputy Vice‑Chancellor (Academic) and the Vice-Chancellor until they feel adequate personal responsibility for their misconduct and treatment of staff and until the current situation is adequately rectified.
Assuming the correspondence was in fact authored and sent by you (which I will assume unless advised otherwise that it is not contested in relation to items (a) – (g)), then unless I receive an undertaking from you that the correspondence will not be repeated and the foreshadowed campaigns will not be pursued, I would have to consider whether your employment should be continued.
…
I am also aware that you are not satisfied with the outcome of a recent investigation into allegations made by you concerning senior members of university staff, and that the correspondence may be prompted in part by that disappointment. However, as advised to you, the university regards those allegations as having been appropriately and independently investigated. The university has also been advised by the Crime and Misconduct Commission that it has no further requirements of the university concerning the matter, and I understand that you have also been advised accordingly.
Undertakings
The undertakings requested are as follows:
(a)     To the extent you have concerns about matters relating to your employment or the university (which I accept you have the right to have and to raise) you will adopt the communication protocol required in paragraph 1 of Professor Kaplan’s letter to you dated 5 March 2009.
(b)     You will otherwise refrain from any further correspondence, particularly of a broadcast nature, which is critical of any member of academic staff.
You will take no action of any kind which is in the nature of a ‘pursuit’ of any member of QUT staff, including Associate Professor Ayoko, Professor Kaplan, the Deputy Vice-Chancellor (Academic) and the Vice-Chancellor, and you will take no action with the intention or likely to have the effect of threatening or vilifying them or damaging their careers.”[103]
[103] Affidavit of Kenneth Bowman affirmed 9 November 2016, Exhibit KB-14.
The letter drew the plaintiff’s attention to particular extracts from his emails of 2, 6 and 12 March 2009.
Instead of responding to Professor Bowman the plaintiff emailed the Chancellor enclosing the letter of 8 May 2009. The plaintiff informed the Chancellor that as the matter was related to the actions of the Vice-Chancellor and in light of his previous complaint to the Chancellor dated 17 November 2008 the plaintiff would forward any response to Professor Bowman’s letter to the Chancellor directly.[104]
[104] Affidavit of Kenneth John Bowman affirmed 9 November 2016, Exhibit KB-15.
On 11 May 2009 Professor Bowman wrote to the plaintiff advising that his response to the correspondence of 8 May 2009 needed to be provided to Professor Bowman as the Vice-Chancellor’s nominee under clause 44 of the EBA. Professor Bowman informed the plaintiff that the Chancellor did not have a role in academic staffing matters which were covered by the EBA.[105]
[105] Affidavit of Kenneth John Bowman affirmed 9 November 2016, Exhibit KB-16.
On 15 May 2009 the plaintiff again emailed the Chancellor directly.[106] Attached to this email was the plaintiff’s “formal complaint about further misconduct, bullying and reprisal actions of the QUT Vice-Chancellor, Prof P Coaldrake, and the Acting Deputy Vice-Chancellor (Academic), Prof. K. Bowman”. The email also attached a copy of the letter from Professor Bowman dated 11 May 2009. The attached “formal complaint” is a letter dated 14 May 2009. The letter stated that it was not the plaintiff’s formal response to Professor Bowman’s letter of 8 May 2009 but was rather a “formal complaint”. The plaintiff’s letter of 14 May 2009 is seven pages. In it he questions the power of the Vice‑Chancellor to nominate or delegate his authority to Professor Bowman. Whilst this was an initial issue at trial, it may be accepted that the definition of “Vice-Chancellor” in clause 6.25 of the EBA includes anyone acting in that role on a temporary basis or any nominee of the Vice-Chancellor. Professor Bowman was the Vice-Chancellor’s nominee for the purposes of the conduct of disciplinary proceedings in respect of the plaintiff.[107] The 14 May 2009 letter referred to both Allegation 1 and Allegation 2 in Professor Bowman’s letter dated 8 May 2009. As to Allegation 2 which concerned the emails of 11 April 2009, the plaintiff stated that these emails were written and sent by his wife. The plaintiff accepted as “an obvious fact” that as to Allegation 1 he was the author of the emails dated 2, 6, 12 and 30 March 2009. The plaintiff asserted that being an author of some emails could not constitute an allegation of misconduct. Accordingly, the making of the allegations by Professor Bowman could, in the plaintiff’s view, “only be regarded … as further major bullying, intimidation, harassment, major direct threats of unjustified disciplinary actions, and clear attempts to damage [him] personally, [his] career and well‑being” by the Vice-Chancellor and Professor Bowman. The letter is highly critical of the Vice-Chancellor. It makes allegations of misconduct and attempts to damage the plaintiff’s career. The letter relevantly states:
“Any attempts by Prof P Coaldrake to breach the Code of Conduct, principles of procedural fairness and fair administration, and misuse his empowered position for a personal revenge will be met with adequate and proportional actions and measures within the limits of the law.”
[106] Affidavit of Kenneth John Bowman affirmed 9 November 2016, Exhibit KB-17.
[107] Affidavit of Kenneth John Bowman affirmed 9 November 2016, [34]-[36]; Exhibit KB-12.
The plaintiff reserved to himself the right “to criticise anyone whose actions are in my opinion, detrimental for the School, Faculty and/or the University, and to pursue anyone for his/her misconduct, bullying, harassment, mistreatment of staff, and/or any other unfair actions to the fullest extent of the law and lawfully available means and options.” The plaintiff was also critical of the Chancellor identifying a number of alleged failures and concluding:
“As a result, unfortunately, I have to say that in the event of any further breaches of the QUT Code of Conduct and procedural fairness by the QUT Vice‑Chancellor Prof P Coaldrake, or any of his subordinates (including Prof S Kaplan and Prof K Bowman), and continuing reprisal and bullying actions against me in relation to this matter, I will be left with no choice other than to regard you personally responsible for any such actions and breaches.”

Jackson J in agreeing with McMeekin J’s analysis and his conclusion that the whole of the Grievance Policy is not contractual stated:
“No particular part of the policy is identified as containing the promise alleged to have been breached. The allegation of breach alleges bullying or harassment, not a failure to comply with a contractual provision of the policy as to the procedure to be followed.”[168]
[168] [2015] QCA 127, [120].
By reference to this statement of Jackson J the plaintiff submits that the Court of Appeal considered that the procedures set down in the Grievance Policy constituted part of the plaintiff’s employment contract.[169] This is not correct. Jackson J’s reference to “the contractual provisions of the policy as to the procedure to be followed” is obiter. Neither McMeekin J nor the Court of Appeal was required to determine whether the procedures described in the Grievance Policy constitute contractual promises. The issue therefore falls to be determined.
[169] Plaintiff’s Closing Submissions, [127].
The plaintiff does not identify in his pleadings any specific procedure in the Grievance Policy that was allegedly breached. His allegation is that none of the procedural steps required by any of the three levels of discrimination-related grievance resolution procedures were undertaken by the defendant in response to the plaintiff’s letter of 1 June 2008.[170] This was a letter to the Vice-Chancellor and copied to the Chancellor and Dr Dickinson.
[170] Second Further Amended Statement of Claim, [258].
As to whether any of the procedures under the Grievance Policy are contractual, it is first necessary to identify those statements in the procedures which impose obligations or confer entitlement. It is only those types of statements in the nature of promissory obligations which may give rise to contractual entitlements.[171]
[171] Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120, [310] (Jessup J).
In Gramotnev v Queensland University of Technology,[172] McMeekin J, by reference to Goldman Sachs JBWere Services Pty Ltd v Nikolich,[173] listed the following considerations in determining whether a statement is contractually binding:
“(a)    where the language used in the policy denotes an expectation or aspiration that something will or will not occur, absent compelling words, it is unlikely to be a contractual promise that something will or will not occur;
(b)     words which describe a policy’s ‘aims’ or ‘guiding principles’ are more likely to be descriptive than promissory;
(c)     where a policy specifies the conduct expected of employees it is unlikely to be given contractual force unless the words used are in the nature of promises to employees about the behaviour of other employees;
(d)     where the document recognises that regrettable conduct might occur from time to time and accordingly provides a means through which such behaviour can be addressed there is less likely to be found a contractual promise. This can be contrasted with a provision which may be read as an implicit promise that certain conduct would not occur under any circumstances. In each case it is the hypothetical new employee reading a policy fairly and objectively.”
[172] [2013] QSC 158, [79].
[173] [2007] FCAFC 120.
Clause 8.5.4 of the Grievance Policy provides a number of options for a person who believes they have been discriminated against or harassed. Those options are:
(a)discuss the matter with the person they feel is discriminating against or harassing them in an attempt to resolve it constructively, although there is no onus on staff or students to do this before using these procedures; or
(b)resolve the grievances using these procedures (as outlined in section 8.5.6); or
(c)lodge a complaint with the Queensland Anti-Discrimination Commission or Human Rights and Equal Opportunity Commission, in which case the University will cooperate with the relevant Commission in having the matter resolved; or
(d)pursue a complaint through the relevant union or the QUT Student Guild.
Clause 8.5.6 of the Grievance Policy explains that there are three levels to the discrimination-related grievance resolution procedures. It relevantly states:
“(a)    Requirement to participate at each level
Staff or students involved in the grievance must participate in good faith at each level of these procedures. The Vice-Chancellor will not accept a complaint under the third level of these procedures unless those in conflict have attempted to resolve the matter through conciliation, as outlined at the first and second levels. Conciliation processes at levels one and two will take account of the needs of the persons involved, and will seek to minimise any stress or anxiety for participants (see (d)(ii) below).
…
(d)     First level – Approaching the supervisor for early conciliation
(i)Staff or students with grievances should raise the matter with an appropriate supervisor or request a Discrimination Contact Officer to do this on their behalf. Students should approach their head of school. Staff members should approach either their supervisor or the supervisor of the other person involved in the grievance.
(ii)The supervisor may use a range of strategies to conciliate the grievance including:
·    seeking the assistance of another appropriate supervisor in resolving the grievance;
·    seeking advice and assistance from the Equity Coordinator or a Discrimination Contact Officer or involving them in conciliation meetings;
·    requesting the Equity Coordinator to assign a support person to assist in clarifying the grievance and/or to assist in conciliation;
·    conducting separate interviews with the persons involved in the grievance and conveying information from one party to the other;
·    where appropriate, conducting a joint meeting with the persons involved in the grievance, taking into account the needs and wishes of the persons involved.
(iii)This level must be completed with one week of the supervisor being notified of the grievance. The Equity Coordinator must be notified if the one week period is exceeded.
(iv)If the grievance is resolved at this stage, the supervisor will follow up two months later, and at other times if necessary, with the complainant to ensure that there has been no further conflict.
(e)     Second level – Investigation and further conciliation
(i)Where the conflict has not been resolved at the first level, the complainant may refer (or ask the Discrimination Contact Officer to refer) the matter to the relevant executive dean of faculty or head of division.
(ii)The executive dean of faculty or head of division will immediately notify the Equity Coordinator of the details of the grievance and who is involved. The executive dean of faculty or head of division will discuss the matter with the Equity Coordinator who will give formal advice about an appropriate course of action.
(iii)After consulting with the Equity Coordinator, the executive dean of faculty or head of division may do any of the following to resolve the grievance:
·    consider all relevant matters including other complaints;
·    make further enquiries;
·    request the Equity Coordinator to assign a support person to assist in clarifying the nature of the grievance and/or to assist in conciliation, for example an Indigenous person;
·    where appropriate, delegate the matter to a lower level manager in the faculty or division;
·    appoint a trained person to conduct conciliation through separate interviews or a joint meeting with the persons involved. The Equity Coordinator will advise the executive dean of faculty or head of division on an appropriate conciliator. This person may be a University officer or an external conciliator, depending on the circumstances of the case;
·    conduct an investigation, or appoint a trained person to do so on their behalf, on advice of the Equity Coordinator. Any investigation must be consistent with the principles outlined in section 6.1.2 of the University’s grievance resolution policy (A/6.1).
·    assess the validity of information;
·    with the agreement of the persons involved in the grievance, implement action to resolve the grievance;
·    make findings and take decisions within his/her delegated authority;
·    refer the matter to the Vice-Chancellor.
(iv)This level should be completed within two weeks. The executive dean of faculty or head of division must immediately notify the Equity Coordinator of the outcome.
(v)If the grievance is resolved at this stage, the executive dean of faculty or head of division will follow up two months later, or at other times if necessary, with the complainant to ensure that there has been no further conflict.
(f)     Third level – Formal investigation by the Vice-Chancellor
(i)If the grievance is not resolved at the second level, the complainant may lodge a written complaint with the Vice‑Chancellor requesting a formal investigation.
(ii)Except in special circumstances, as determined by the Vice‑Chancellor with advice from the Equity Coordinator, a complaint will not be accepted if more than nine months have elapsed since the last alleged incident of discrimination or harassment.
(iii)On receiving a written complaint, the Vice-Chancellor will constitute a panel, on advice from the Registrar, to investigate the complaint.
(iv)The panel shall consist of:
·    an independent chair (external to the University and the governing body);
·    two persons from the University staff or student body, nominated by the Vice-Chancellor in consultation with the relevant union/s or QUT Student Guild.
(v)The panel will include at least one woman and one man. Where necessary, the Vice-Chancellor may co-opt a specialist adviser to assist the panel, such as someone with knowledge of Aboriginal or Torres Strait Islander cultures, cultural diversity, sexuality or disability issues.
(vi)The role of the panel is to conduct a thorough investigation into the complaint to provide advice to the Vice-Chancellor on whether or not the complaint is substantiated. Any investigation will be consistent with natural justice and procedural fairness as outlined in the University’s grievance resolution policy (see A/6.1).
(vii)In carrying out its task, the panel should:
·    interview the complainant;
·    interview the respondent;
·    interview all relevant witnesses;
·    interview any other University officer involved at levels one and two;
·    respect the fact that support persons such as the Discrimination Contact Officers and the Equity Coordinator or Equity staff will not be able to reveal confidential information without the permission of the person they are supporting;
·    request a report from the executive dean of faculty or head of division about any investigations conducted at level two;
·    review any other relevant documents;
·    consider the complaint in the context of QUT policy and relevant legislation;
·    seek advice from any person it deems appropriate;
·    give the complainant and the respondent an opportunity to respond to all relevant information gathered;
·    make a finding, on the balance of probabilities, on whether the complaint is substantiated, and whether there are any mitigating circumstances.
(viii)The panel will report its findings to the Vice-Chancellor who will determine appropriate action. With respect to these procedures, the Vice-Chancellor’s determination will be final.
(ix)The third level must be completed within one month of the lodgement of a written complaint to the Vice-Chancellor.”
As to the first level the only “obligation” that may be identified is in clause 8.5.6(d)(iii) which requires the first level to be completed within one week of the supervisor being notified of the grievance. At the first level, however, any approach to an appropriate supervisor by a staff member or student with a grievance is for the purposes of “early conciliation”. How the grievance is to be conciliated is at the discretion of the appropriate supervisor.[174] For the Second level, the only obligation created is that where a complainant refers the matter to the relevant executive dean of faculty or head of division, that person must immediately notify the Equity Coordinator of the details of the grievance and who was involved.[175] After consulting with the Equity Coordinator, the relevant executive dean or head of division has a discretion as to how to resolve the grievance. Unlike the first level, the second level does not have a specific time requirement within which the second level must be completed. Clause 8.5.6(e)(iv) simply provides that the second level “should be completed within two weeks”.
[174] Clause 8.5.6(d)(ii).
[175] Clause 8.5.6(e)(ii).
There are a number of “obligations” in the third level:
“(i)     upon receiving a written complaint requesting a formal investigation, the Vice‑Chancellor will constitute a panel to investigate the complaint;
(ii)     the panel “should” do a number of things to carry out the task of investigating the complaint to provide advice to the Vice-Chancellor as to whether or not the complaint is substantiated;
(iii)     the panel is to report its finding to the Vice-Chancellor who determines appropriate action; and
(iv)    the level must be completed within one month of a written complaint to the Vice-Chancellor.”[176]
[176] Defendant’s Written Submissions, [68(c)].
As to the third obligation identified above, there are no express limitations on how the Vice-Chancellor is to determine “appropriate action”. Given that any determination of the Vice-Chancellor is final, the Vice-Chancellor has a wide discretion in determining appropriate action.
In my view, none of the procedures in the first, second or third levels of clause 8.5.6 give rise to contractual obligations. As noted by McMeekin J, “the use of words such as ‘will constitute’ or the ‘panel should’ do some action or other is not, without more, necessarily promissory in effect.”[177] Such “promissory” language should be considered in context.[178] The relevant context for the procedures stated in clause 8.5.6 stems from the “Policy statement” in clause 6.1.1 of Policy A/6.1 quoted in [149] above. QUT’s commitment “to ensuring a harmonious, fair and just working and learning environment” is sought to be achieved by ensuring that staff and students have access to these procedures. That is, access to the procedures reflects QUT’s commitment. The “commitment” identified in clause 6.1.1 of Policy A/6.1 is expressed to be a “Policy statement”. This is the language of “aims” and “guiding principles”, not of absolutes or guarantees.[179] The procedures or rather access to the procedures, seek to achieve the aspirational goal of the “Policy statement”.
[177] Gramotnev v Queensland University of Technology [2013] QSC 158 at [181].
[178] Goldman Sachs [2007] FCAFC 120, [280] (Jessup J).
[179] Goldman Sachs [2007] FCAFC 120 per Marshall J at [161].
(b) Did the defendant breach the Grievance Policy?
Even if it was thought that the procedures in clause 8.5.6 were contractual, the plaintiff has failed to establish any breach.
The evidence does not demonstrate that by his letter dated 1 June 2008, the plaintiff sought to engage the procedures under clause 8.5.6 of the Grievance Policy. The letter of 1 June 2008 on a fair reading, cannot be construed as a complaint concerning discrimination or harassment. By this letter, the plaintiff sought to have Dr Ayoko replaced as the Acting Head of the School. The letter only refers to “bullying” conduct in the context of the plaintiff alleging that Dr Ayoko “has demonstrated his complete failure and incapacity to reasonably manage staff in the school and their needs”. The plaintiff’s letter requested the Vice-Chancellor to take “decisive and prompt actions” directed to three matters all concerning the Head of School. Nowhere in the letter is found a request for “a formal investigation”.[180] The letter makes no reference at all to the Grievance Policy.
[180] Clause 8.5.6(f)(i).
The letter of 1 June 2008 was sent by the plaintiff directly to the Vice-Chancellor. There is no suggestion that the plaintiff sought to engage either the first or second level procedures in clause 8.5.6. The plaintiff alleges that the appropriate supervisor for the purpose of his complaint was the Vice-Chancellor.[181] This was because the plaintiff’s grievances were with his immediate supervisor, Dr Ayoko. Dr Ayoko’s supervisor was Professor Britz who, according to the plaintiff, had a direct conflict of interest. Professor Britz’s supervisor was Professor Gardiner who, according to the plaintiff, also had a conflict of interest preventing his involvement in the consideration of the plaintiff’s complaint. There are a number of difficulties with this allegation. First, if the plaintiff was seeking to engage the procedures under clause 8.5.6, and believed that there was no supervisor with whom he could raise his grievance apart from the Vice-Chancellor, there is no suggestion of this in his letter of 1 June 2008. Secondly, at no stage did he request the assistance of a Discrimination Contact Officer to raise his grievances.[182] Thirdly, even if one accepts the plaintiff’s allegation that the Vice-Chancellor was his only appropriate supervisor, the approach by the plaintiff to the Vice-Chancellor should be viewed as a first level approach to a supervisor for early conciliation. There is no requirement under the first level for the Vice-Chancellor to constitute a panel to investigate the complaint. The Vice-Chancellor responded to the plaintiff by letter dated 16 July 2008 in which he acknowledged the plaintiff’s previous emails and disagreed with the plaintiff’s concerns about Dr Ayoko’s performance as Head of School. As correctly submitted by the defendant, the only “breach” would be that the plaintiff was not advised of this within the timeframe stipulated in clause 8.5.6(d)(iii).[183]
[181] Second Further Amended Statement of Claim, [252].
[182] Clause 8.5.6(d)(i).
[183] Defendant’s Written Submissions, [78].
There is no evidence that the plaintiff sought to engage either the first or second level of the procedures under clause 8.5.6. Accordingly, the Vice-Chancellor was not required to accept a complaint under the third level as the grievance had not been attempted to be resolved through conciliation as outlined at the first and second levels.[184]
(c)Was the third alleged breach causally linked to the termination of the plaintiff’s employment?
[184] Clause 8.5.6(a).
The plaintiff’s case is that had his complaint been investigated he would not have made a further complaint on 17 November 2008 about the “misconduct, mismanagement and negligence” by both the Vice-Chancellor and Associate Professor Ayoko nor would he have sent the 2 March 2009 email. As a result of not taking these steps, his employment would not have been terminated. The central flaw in the plaintiff’s case is that it necessarily proceeds on the basis that any investigation would have substantiated his complaint resulting in the Vice-Chancellor taking “appropriate action”[185] which would have relieved the plaintiff from further pursuing his grievances. There is no evidence that an investigation of the plaintiff’s grievances would have resulted in a favourable outcome for the plaintiff. To the contrary, the contemporaneous evidence is that the subject of the plaintiff’s complaint, Dr Ayoko, enjoyed the support of the Vice‑Chancellor. Not only did the Vice-Chancellor in his reply dated 16 July 2008 disagree with the plaintiff’s concerns about Dr Ayoko’s performance as Acting Head of School, the Vice-Chancellor subsequently, on 5 August 2008, announced Dr Ayoko’s promotion to Associate Professor.
[185] Clause 8.5.6(f)(viii).

The plaintiff has failed to establish any causal connection between the third alleged breach and the termination of his employment and subsequent loss.
The fourth alleged breach
The plaintiff alleges that the defendant failed to follow clause 8.5.6 of the Grievance Policy in respect of a complaint made by him to the Chancellor on 3 April 2009. The substance of this complaint and the events leading to it are set out in [73]-[77] above.
(a) Did the defendant breach the Grievance Policy?
I have already found that the procedures in clause 8.5.6 of the Grievance Policy are not contractual. Even if these procedures were contractual, the evidence does not establish that the plaintiff sought to engage these procedures in his complaint of 3 April 2009 to the Chancellor. This letter commences with the sentence: “This is the formal addition to my previous formal complaint to you dated 17 November 2008 about the serious misconduct of the senior management figures at QUT, including the QUT Vice‑Chancellor, Professor P Coaldrake, the Deputy Vice Chancellor (Academic), Professor D Gardiner, and the Acting Head of School of Physical and Chemical Sciences, A/Prof. G Ayoko.” The letter of 17 November 2008[186] was the plaintiff’s “formal complaint about serious misconduct”. The letter of 17 November 2008 made the following request of the Chancellor:
“Therefore, I request you to undertake adequate measures to reinstate and guarantee the rule of law and respect to persons at this University, including radical and adequate rectification and compensation for the major inflicted damage to any staff members that might have suffered loss and damages as a result of the major mismanagement and misconduct by the QUT administration including the Vice-Chancellor. I strongly believe that any resolution of this situation should also involve the full-scale personal responsibility of the involved members of the QUT administration, including the Vice-Chancellor, Prof. P Coaldrake.”
[186] Affidavit of Dmitri Gramotnev affirmed 19 October 2016, Exhibit 58.
In a similar vein the plaintiff’s letter of 3 April 2009 expressed “strong disagreement” with the Chancellor’s previous decision “not to undertake any disciplinary actions against the QUT Vice-Chancellor, Prof. P. Coaldrake, the Deputy Vice-Chancellor (Academic), Prof. D. Gardiner, and the Acting Head of School of Physical and Chemical Sciences, A/Prof. G. Ayoko, for their most serious misconduct and mistreatment of staff”.[187] The letter of 3 April 2009 concludes:
“I strongly believe that your immediate actions should be aimed at ridding QUT once and for all of the existing administrative cancer that continues to destroy the very basic fabric of the academic culture, freedom, and traditions at this University.”
[187] Affidavit of Dmitri Gramotnev, tab 74.
As is evident from these extracts, the plaintiff’s letter of 3 April 2009 was not seeking to engage the procedures under the Grievance Policy. Rather, the complaint was one of alleged serious misconduct by senior University staff made directly to the Chancellor. Further, no part of the procedures under clause 8.5.6 of the Grievance Policy involves the Chancellor.
(b)Was the fourth alleged breach causally linked to the termination of the plaintiff’s employment?
As to causation, the plaintiff alleges that had the complaint dated 3 April 2009 been investigated in accordance with clause 8.5.6 of the Grievance Policy, his employment would not have been terminated and he would not have suffered damages. The causation issues are different from the third alleged breach because the 3 April 2009 complaint was made to the Chancellor after the plaintiff had already sent the emails of 2, 6, 12 and 30 March 2009. The plaintiff alleges that had his complaint of 3 April 2009 been investigated in accordance with the Grievance Policy any investigation would have been demonstrated:
(a)that Professor Kaplan’s conduct was inappropriate in his attempts to harass, discriminate and impede the plaintiff;
(b)that there were reasonable grounds and fair justification for the plaintiff to have sent the March emails; and
(c)alternatively that there were significant mitigating factors “in the form of major and deliberate bullying, harassing and discriminating campaigns conducted against the plaintiff by the defendant over several years, including by Professor Kaplan in 2009”.[188]
There is no evidence that an investigation by a panel under the third level procedures of clause 8.5.6 would have resulted in any of the findings alleged by the plaintiff.
[188] Second Further Amended Statement of Claim, [280]-[282].
Under clause 8.5.6(f)(viii) the panel reports its findings to the Vice-Chancellor who determines appropriate action. As at 3 April 2009, the plaintiff had already sent the March emails. The authoring and sending of these emails constituted the allegation of misconduct or serious misconduct which ultimately led to the termination of the plaintiff’s employment. In these circumstances it is unlikely that any panel would have made any of the findings alleged by the plaintiff. Any loss of opportunity to have his complaints investigated in accordance with the Grievance Policy had a merely speculative as opposed to substantial prospect of producing the benefits contended for by the plaintiff.
The plaintiff’s claim in respect of the fourth alleged breach fails.
Damages
In light of my findings that the plaintiff has failed to establish any of the four alleged breaches and has also failed to establish any causal connection between the alleged breaches and the termination of his employment and subsequent loss, there is no point in assessing damages.
Disposition
The plaintiff’s claim is dismissed. I will hear the parties as to costs.

CITATION:	Gramotnev v Queensland University of Technology [2018] QSC 37
PARTIES:	DMITRI GRAMOTNEV (plaintiff) v QUEENSLAND UNIVERSITY OF TECHNOLOGY (defendant)
FILE NO/S:	No 6286 of 2010
DIVISION:	Trial
PROCEEDING:	Civil Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 March 2018
DELIVERED AT:	Brisbane
HEARING DATES:	8 and 10 May, 30 – 31 October and 6 – 7 November 2017
JUDGE:	Flanagan J
ORDERS:	1. The plaintiff’s claim is dismissed. 2. I will hear the parties as to costs.
CATCHWORDS:	EMPLOYMENT LAW – TERMINATION AND BREACH OF CONTRACT – TERMINATION OR BREACH – where the plaintiff was employed by the defendant university as a lecturer – where the defendant terminated the plaintiff’s employment on grounds of ‘serious misconduct’ – where a prior proceeding in the Queensland Court of Appeal had determined that clause 44 of the defendant’s enterprise bargaining agreement constituted a term of the plaintiff’s employment contract – where the plaintiff brought proceedings alleging breaches of that term – whether the proper construction of the term required the defendant to notify the plaintiff of an allegation of misconduct, rather than simply conduct – whether the defendant breached the term by insufficiently notifying the plaintiff of allegations of misconduct, as opposed to conduct – whether the plaintiff’s conduct in sending a number of emails was incapable of amounting to ‘serious misconduct’, such that the plaintiff’s employment would not have been terminated had he received proper notification from the defendant of the allegations – whether the defendant further breached the term by failing to refer allegations to a Misconduct Investigation Committee – whether any finding by a Misconduct Investigation Committee in the plaintiff’s favour would have been binding on the defendant such that the plaintiff’s employment would not have been terminated EMPLOYMENT LAW – TERMINATION AND BREACH OF CONTRACT – TERMINATION OR BREACH – where the plaintiff further alleged that the three-tiered procedures set out in the defendant’s policy on discrimination-related grievances formed part of his employment contract – where the plaintiff also alleged that the defendant’s failure to engage those procedures constituted a breach of his employment contract – whether the procedures could be accurately characterised as promissory obligations giving rise to contractual entitlements – whether, if the procedures were contractual, the defendant was required to act to engage the procedures in response to emails it received from the plaintiff – whether, if the defendant had followed the procedures, the plaintiff’s employment would not have been terminated INDUSTRIAL LAW – WORK HEALTH AND SAFETY – DUTIES AND LIABILITIES – EXTENT OF DUTY AND GENERALLY – where the plaintiff further alleged that the defendant’s termination of his employment was a breach of the defendant’s duties under s 174(1)(b) Workplace Health and Safety Act 1995 (Qld) – whether the emails forming the basis of the plaintiff’s dismissal contained a complaint or raised an issue concerning workers’ exposure to risk of illness or injury for the purposes s 174(1)(b) – whether, for the purposes of the section, the defendant’s dominant or substantial reason for terminating the plaintiff’s employment was the plaintiff’s making of such a complaint or raising of such an issue – whether the remedies available under the section have relevance to any damages available for breach of contract Workplace Health and Safety Act 1995 (Qld) (Repealed), s 174 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813, applied City of Wanneroo v Holmes (1989) 30 IR 362, applied Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498, 503, applied Goldman Sachs JBWere Services Pty Ltd v Nikolich 163 FCR 62; [2007] FCAFC 120, applied Gramotnev v Queensland University of Technology [2010] FWA 6237, considered Gramotnev v Queensland University of Technology [2011] FWAFB 2306, considered Gramotnev v Queensland University of Technology [2013] QSC 158, considered Gramotnev v Queensland University of Technology (No 2) [2015] QCA 178, applied Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4, applied
COUNSEL:	The plaintiff appeared on his own behalf D Kelly QC, with D de Jersey, for the defendant
SOLICITORS:	The plaintiff appeared on his own behalf Minter Ellison Lawyers for the defendant