Gramotnev v Queensland University of Technology - [2013] QSC 158

SUPREME COURT OF QUEENSLAND

CITATION:

Gramotnev v Queensland University of Technology [2013] QSC 158

PARTIES:

DMITRI GRAMOTNEV

Plaintiff

And

QUEENSLAND UNIVERSITY OF TECHNOLOGY

Defendant

FILE NO/S:

S6286/2010

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane

DELIVERED ON:

19 June 2013

DELIVERED AT:

Supreme Court Rockhampton

HEARING DATE:

26-27 March 2013

JUDGE:

McMeekin J

ORDER:

1. My answer to each of the separate questions is “no”;

2. I direct that the defendant make any such submission as it may be advised as to any further order that it seeks on or before 4pm on 26 June 2013. I direct that the plaintiff make any such submission as he may be advised as to any further order that he seeks on or before 4pm on 3 July 2013.

CATCHWORDS:

CONTRACT – BREACH OF CONTRACT - EXPRESS AND IMPLIED TERMS –whether the provisions of the defendant’s enterprise bargaining agreements and/or manual of policies and procedures and/or the defendant’s statutes and policies constituted a term or terms of the employment contract - whether the employment contract contained the additional terms which are alleged to have been implied by law

Crime and Misconduct Act 2001 (Qld)

International Covenant on Civil and Political Rights adopted by General Assembly resolution 2200A (XXI) of 16 December 1966

Uniform Civil Procedure Rules 1999

Whistleblowers Protection Act 1994 (Qld)

Workers’ Compensation and Rehabilitation Act 2003

Workplace Health and Safety Act 1995 (Qld)

Workplace Relations Act 1996 (Cth)

ABC v Lenah Game Meats (2001) 208 CLR 199

ACTEW Corp Ltd v Pangallo (2002) 127 FCR 1

Addis v Gramaphone Co [1909] AC 488

Australasian Meat Industry Employees' Union v Frugalis Pty Ltd (1987) 14 FCR 535

Australian Industry Group v Fair Work Australia [2012] FCAFC 108

AWU v BHP Iron Ore [2001] FCA 3

Baltic Shipping Co v Dillon (1993) 156 CLR 344

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301

Barker v Commonwealth Bank of Australia [2012] FCA 942

Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266

Burazin v Blacktown City Guardian (1996) 142 ALR 144

Byrne & Frew v Australian Airlines (1995) 185 CLR 410

Concut Pty Ltd v Worrell [2000] HCA 64

Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Ltd (1997) 78 FCR 347

Deatons Pty Ltd v Flew (1949) 79 CLR 370

Dye v Commonwealth Securities Ltd [2012] FCA 242

Eastwood v Magnox Electric plc [2005] 1 AC 503

Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120

Grosse v Purvis [2003] QDC 151

Hamling v Australia Meat Holdings Pty Ltd [2005] QCA 415

Hawkins v Clayton (1988) 164 CLR 539

Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44

Lau v WorkCover Queensland [2003] 2 Qd R 53

McCormick v Riverwood International (Australia) Pty Ltd (1999) 167 ALR 689

McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375

Moama Bowling Club Ltd v Armstrong (No 1) (1995) 64 IR 238

Nelson v BHP Coal Pty Ltd [2000] QCA 505

New South Wales v Lepore (2003) 212 CLR 511

Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186

RiverwoodInternational Australia Pty Ltd v McCormick [2000] FCA 889

Russell v Trustees of the Roman Catholic Church Arch Diocese of Sydney (2008) 72 NSWLR 559

Schiliro v Peppercorn Childcare Centres Pty Ltd (No 2) [2001] Qd R 518

Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359

Soliman v University of Technology, Sydney [2008] FCA 1512

South Australia v McDonald (2009) 104 SASR 344

Taske v Occupational and Medical Innovations Ltd [2007] QSC 147

Thomson v Orica Australia Pty Ltd (2002) 116 IR 186

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

Transport Workers’ Union of Australia v K&S Freighters Pty Ltd (2010) FCA 1225

Van Efferen v CMA Corporation Ltd [2009] FCA 597

Vozza v Tooth & Co Ltd (1964) 112 CLR 316

Walker v Citigroup Global Markets Australia Pty Ltd (2006) 233 ALR 687

Wattyl Ltd and Others v Australian Liquor, Hospitality and Miscellaneous Workers Union (1995) 134 ALR 203

Wright v Groves [2011] QSC 66

Wylie v ANI Corporation Ltd [2002] 1 Qd R 320

Yousif v Commonwealth Bank of Australia (2010) 193 IR 212

COUNSEL:

Dr D Gramotnev is self-represented as plaintiff

D Kelly SC and D de Jersey for the Defendant

SOLICITORS:

Minter Ellison Lawyers for the Defendant

McMeekin J: These proceedings involve the determination of separate questions under Chapter 12 Part 5 of the Uniform Civil Procedure Rules 1999 concerning the terms of an employment contract between the plaintiff and the defendant.

Background

In late November 1999 the plaintiff, Dr Dmitri Gramotnev, was appointed to the position of lecturer of physics in the school of physical sciences, faculty of sciences at the Queensland University of Technology. He took up his employment on 1 January 2000. There was a period of employment prior to this which is irrelevant for present purposes. His employment was terminated for serious misconduct on 3 July 2009.

By these proceedings Dr Gramotnev claims that the University breached his employment contract. There are 11 breaches particularized. The damages claimed vary with the breach asserted but in some instances is in excess of $2.5M.

Dr Gramotnev’s complaint in the first five breaches pleaded relates essentially to an alleged failure to follow the procedures laid down by the University in his several applications for promotion and appeals therefrom. Dr Gramotnev complains that he has suffered loss as a result. The six remaining breaches allege more general complaints. They include allegations of impeding Dr Gramotnev’s career, bullying, harassment, intimidation, psychological abuse and abuse of power, coercive management practices, and the like. There is a great deal more in the 53 pages of his statement of claim, 16 pages of reply and 102 pages of particulars. Where necessary I will detail his allegations. While I did not discern a direct complaint in the Amended Statement of Claim concerning the termination of his employment, such a complaint appears in the particulars at paragraphs 376-378.

The University’s response to the claimed breaches of contract is to assert that the terms allegedly breached are not terms of the employment contract at all.

Dr Gramotnev was not legally represented and appeared in person.

The Separate Questions

On 7 December 2012 Peter Lyons J ordered that the following questions be set down for separate determination to be heard before the trial of the proceedings:

a) Whether the provisions of the defendant’s enterprise bargaining agreements and/or manual of policies and procedures and/or the defendant’s statutes and policies constituted a term or terms of the employment contract between the plaintiff and the defendant entered on or about 23 November 1999 (“the employment contract”);

b) Whether the employment contract contained the additional terms which are alleged to have been implied by law in paragraph 7 of the amended statement of claim.

Paragraph 7 of the amended statement of claim provides that the following terms were implied by law into the employment contract:

a) A duty of good faith owed by the defendant to the plaintiff that obliged the defendant to exercise honest (sic), fairness, prudence, caution and diligence in the performance contract (“the term of good faith”);

b) A duty that the defendant would not without proper and reasonable cause act in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the plaintiff and the defendant (“the term of trust and confidence”)

c) A duty that the defendant would create, maintain and not breach healthy (sic) and safe workplace environment for the plaintiff (“the term of health and safety”);

d) A duty that the defendant would not breach the plaintiff’s civil and legal rights, including by a reprisal, retaliation and or recrimination conduct (sic) (“the term of civil and legal rights”).

The University contends the answer to each question is “no”. Dr Gramotnev submits to the contrary.

In relation to each question the parties are agreed that the determination of the question is not affected by any extraneous circumstance – there is no need for any further oral evidence beyond the documents placed before me.

The approach that I am required to take with respect to the determination of the questions is not contentious. Black CJ in Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 at [23] explained the relevant principles:

“It is well established that if a reasonable person in the position of a promisee would conclude that a promisor intended to be contractually bound by a particular statement, then the promisor will be so bound. This objective theory of contract has been repeatedly affirmed as representing Australian law by the High Court. Thus, in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179, the Court said:
‘It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.’”

The Letter of Appointment

The starting point for any consideration is the plaintiff’s letter of appointment dated 23 November 1999. The letter:

· confirms an offer of appointment;

· states that the appointment “will be on an ongoing, full time basis” pursuant to the provisions of the Higher Education Contract of Employment Award 1998;

· identifies the plaintiff’s supervisor;

· identifies the effective date of appointment and sets out the salary, the salary being in accordance with the QUT Enterprise Bargaining Agreement (Academic Staff) 1997-1999;

· indicates that confirmation of the employment is subject to a probationary period;

· identifies that “as a condition of employment” the University would provide superannuation coverage and identifies the available schemes; and

· concludes with a reference to a method of acceptance of “this offer of employment”: According to its terms the offer contained in the letter could be accepted by the signing and return of an enclosed copy. Upon acceptance “this letter will also become the instrument of appointment advising you of your conditions of employment for the purpose of clause 3 of the Higher Education Contract of Employment Award 1998.”

Significantly the letter also includes the following:

“Terms and conditions of appointment”

“The terms and conditions of your appointment are prescribed by the relevant enterprise bargaining agreements applicable to the University. In addition, the University has developed a Manual of Policies and Procedures (MOPP) and makes Statutes and Policies from time to time. Your employment conditions include the provisions of the MOPP and relevant University Statutes and Policies as current from time to time. Current copies of these can be viewed at the Human Resources Department, or are available to staff through QUT’s home page on the World Wide Web ( Should a variation to terms of your employment be necessary, such variation will be confirmed in writing by the Human Resources Director and shall not be binding until it is so confirmed. (This requirement for written advice shall not apply to variations arising from changes through enterprise bargaining, changes to the MOPP, or the making of new Statutes and Policies.)”

The Submissions

While Dr Gramotnev’s written submissions occupied 92 pages, his supplementary submissions 5 pages and his arguments took a full day to develop, in essence he submits the letter of appointment could not be clearer. “Terms and conditions of appointment” means precisely that - the express inclusion in his “employment conditions” of the terms of the enterprise bargaining agreement, the Manual of Policies and Procedures and University Statutes and Policies as current from time to time. The result he submits is that that agreement, the manual and those statutes and policies have contractual force.

The University’s response is that none of the agreement, the manual nor the statutes and policies current from time to time has any contractual force. While the manual, statutes and policies might inform an employee of various matters, such as the approach the University might take in particular situations covered by those documents, the terms were not contractually binding or in many instances even capable of being contractually binding.

The distinction that the University draws is between terms of the employment contract for breach of which an employee can claim damages and terms and conditions that govern the employment relationship but are not contractual in nature and so do not permit a damages claim.

That such a distinction might exist is clear. Awards (Byrne & Frew v Australian Airlines[1]), enterprises bargaining agreements (Australian Industry Group v Fair Work Australia[2]), certified agreements under the Workplace Relations Act 1996 (Cth) (ACTEW Corp Ltd v Pangallo[3]) and university statutes and policies (Soliman v University of Technology, Sydney[4]) have each been held to fall outside the contract of employment but to govern the employment relationship.
[1](1995) 185 CLR 410
[2][2012] FCAFC 108
[3](2002) 127 FCR 1
[4][2008] FCA 1512

The Issues

In relation to each document – whether it be the enterprise bargaining agreement, the Manual of Policies and Procedures or the University’s Statutes and Policies – Dr Gramotnev argued that the document referred to was expressly incorporated into the contract by reference, or if not, that it, or the terms of those documents, should be implied as terms of the contract. The implication it was said could be by application of the presumed or imputed intention of the parties, by law or by custom.

While I will consider each nominated document separately I am conscious of the need to construe the letter of appointment as a whole.

The Enterprise Bargaining Agreement

Dr Gramotnev submits there is nothing in the reasoning in Byrne, the principal authority on which the University relies, to preclude the enterprise bargaining agreement (“EBA”) being expressly incorporated into the contract. That is so. The question is whether that express incorporation has occurred here.

There are three references to the EBA in the letter of appointment. The first appears under the heading “Classification and Remuneration” that makes express reference to the “QUT Enterprise Bargaining Agreement (Academic Staff) 1997-1999”.[5]
[5]The first in time of the EBAs provided to me in the papers came into force on 13 October 2000 (ie after the commencement of the contract) and by its terms replaced and rescinded the agreement referred to in the letter of appointment (see clause 5.1). It was in turn replaced by a later agreement with the same effect. They are the agreements allegedly breached, on the plaintiff’s case. Presumably the parties are content that the 1997 EBA was to no different relevant effect to the two agreements provided.

The second appears in the paragraph that I have quoted in full under the heading “Terms and Conditions of Appointment”. The relevant sentence reads:

“The terms and conditions of your appointment are prescribed by the relevant enterprise bargaining agreements applicable to the university.” (my italics)

The third again appears in that same paragraph in its statement of the manner of the alteration of the terms. The letter provides that no variation to the terms of employment would be binding until confirmed in writing by the Human Resources Director save that the requirement for written advice “shall not apply to variations arising from changes through enterprise bargaining ….”.

Dr Gramotnev makes, or could make, the following arguments:

(a) The letter of appointment is couched in the language of offer and acceptance and so suggestive of contract – on its face an objective reader would reasonably think that it should detail the terms of the contract in question;

(b) The heading “Terms and Conditions” and the reference to “employment conditions” and “terms of employment” is the language of contract and prima facie carry the connotation of the detailing of the terms of the contract;

(c) If the University wished to assert in a letter of appointment that the “terms and conditions” set out were not contractual in nature it was a very simple thing to say and it did not;

(d) The University is a well funded institution in receipt of the highest quality legal advice and, unlike Dr Gramotnev, presumably aware of the subtleties in this area of industrial law, yet it chose not to alert him to any claim that the “terms and conditions” identified were not contractual in nature; and

(e) No decided case that the University can identify has a factual context as strong as this one for the adoption by reference of the EBA as a part of the contract.

In my view these arguments have considerable force. As Dr Gramotnev pointed out, in determining the objective meaning of the letter of appointment “it is a reasonable person or a reasonable business person – not a lawyer with the special knowledge of specific cases like Soliman an/or (sic) AWU v BHP Iron Ore – that should be perceived to evaluate and interpret the wording of the employment contract”.[6] I agree with that submission. Why the University should leave the important question of whether contractual remedies were available to its staff to be determined by argument and close analysis when the issue could so very easily have been made plain is inexplicable.
[6]See para 22 of Dr Gramotnev’s primary written submission and cf. the comment of Jessup J in Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 at [290]: “I cannot think that the hypothetical new employee reading the provision for the first time — and without an antenna keenly tuned to signals emitted by cases decided by the Federal Court…”

However whilst acknowledging the force of the arguments I have come to the opinion, albeit not with overwhelming confidence, that the better view is that the letter should not have the effect Dr Gramotnev argues for.

First, Dr Gramotnev’s primary submission was that the words themselves, objectively read and without more, required the incorporation of the terms of the EBA as terms of his contract of employment. In my view that submission must be rejected. That is so because the relevant words used – “are prescribed by…” – are insufficiently explicit to have the effect contended for.

The same formula was used in AWU v BHP Iron Ore[7] and the enterprise agreement there was held not to have been incorporated into the employment contract. Findings of fact in another case are not of course determinative of the issue here. What the case illustrates is that an objective reading of the formula used is capable of bearing the interpretation the University seeks to be put on it. Context is all important but the context there was very similar to that here.
[7][2001] FCA 3 at [247]

Dr Gramotnev submits that the letter of appointment here does not contain the generalities present in AWU v BHP Iron Ore. There the document equivalent to the letter of appointment in this case was headed “Information for New Employees at Newman” and under the heading “Conditions of Employment” stated that those conditions “are in general ….. as prescribed in the ….. Award and …. and the [EBA]….” (my italics).

I accept the submission that the heading (“Information for New Employees at Newman”) and the preliminary words (“in general”) made the argument for express incorporation more tenuous in AWU than here. I note however that Kenny J in AWU did not refer, at least expressly, to either the heading of the document or the words “in general” in her analysis[8]. Her Honour did say that the words were construed “in context”. Her Honour’s view was that the words were “explanatory or descriptive of the instruments that are applicable to [the worker’s] employment. What the letter of offer did was to inform him that the Award applied to him, and that his employment relationship with the company was to be governed by it and the agreements to which the letter referred.” That meaning is at least open here.
[8]See at p 552 para 252

By way of contrast, an example of an express incorporation of an award in a contract of employment can be found in Moama Bowling Club Ltd v Armstrong (No 1)[9] where the Industrial Court of New South Wales so held by virtue of a clause in the contract that provided:

“This Agreement shall be deemed to incorporate the whole of the provisions of the Award as the Award stands at the date of this Agreement together with all future variations of the Award and the provisions of any Award made in substitution thereof and the provisions of this Agreement shall be read and interpreted so as to be subject to the provisions of the Award or any Award made in substitution therefore.”[10] (my italics)

[9](1995) 64 IR 238

[10]At pp 239-240

One can hardly have more express words than “deemed to incorporate” on a question of whether the parties intended to incorporate the provisions of a nominated document into a contract.

The language used here is plainly well short of that in Moama Bowling Club and much closer to that in AWU and, given the issue to be resolved, not determinative.

Secondly, in reading the letter the reasonable, objective person would consider whether the offeror – the University – would intend to make available to the prospective employee a range of contractual remedies over and above the remedies provided by the EBA or provided as a result of the statutory framework in which the EBA exists.

One of the relevant surrounding circumstances known to the parties, and the most significant one, was that the EBA was an agreement certified under the Workplace Relations Act 1996 (Cth) (“WRA”). Once certified, the EBA binds both the employer and “all persons whose employment is, at any time when the Agreement is in operation, subject to the Agreement” (see s170M (1) WRA). The EBA prevails over an existing award to the extent of any inconsistency (s 170LY(1)(a)). The EBA could be varied only by the employer on approval of the Commission (s 170MD(2)) but only if “a valid majority of the employees whose employment is subject to the agreement at the time genuinely approve the variation” (s170MD(3)(a)). The EBA is enforceable under the WRA (s 178). Penalties can be recovered even by the affected employee (s 178(5A)(b)). An employee has a right to sue for wages provided for in the EBA (s 179). The EBA, in short, exists within a statutory framework and has statutory force.

The reasonable person would be presumed to be aware of the existence of those remedies. While there would be some benefit to the employee in introducing contractual damages for any breach, the possible benefits to the University are much more tenuous.

It was presumably well understood by both parties that there would have been compromises on both sides to reach the agreement embodied in the EBA. The careful balancing of interests that the process requires suggests that the introduction of a new and additional set of remedies was not contemplated.

If it is relevant, and I do not think it is, I observe that the WRA was replaced by the Fair Work Act 2009 (Cth) which came into force towards the end of the relevant employment period. But there has been no relevant alteration to the effect of such agreements: Australian Industry Group v Fair Work Australia where the Full Federal Court held: “The Agreement has statutory force. It is neither a contract, arrangement or understanding within the meaning of the [Competition and Consumer Act 2010 (Cth)], but a creature of statute.”[11]
[11][2012] FCAFC 108 at [72]

Thirdly, identification of the purpose and object of the transaction between the parties does not assist Dr Gramotnev. It was, of course, to enable the parties to enter into an employment relationship on identified terms, enforceable by each. But it is not necessary that the EBA be incorporated into the employment contract to bring that about. The provisions of the WRA and the certification of the EBA had that effect.

Thus there was no need for express incorporation in the contract of employment for the terms of the EBA to be both identifiable and enforceable. As Brennan CJ, Dawson and Toohey JJ observed in Byrne: “Neither from the point of view of the employer nor the employee is there any need to convert those statutory rights and obligations to contractual rights and obligations”.[12]
[12](1995) 185 CLR 410 at 420, 421.

In Byrne the Court was concerned with an industrial award but the same reasoning has been consistently held to apply to certified agreements: Australasian Meat Industry Employees' Union v Frugalis Pty Ltd (1987) 14 FCR 535; Wattyl Ltd and Others v Australian Liquor, Hospitality and Miscellaneous Workers Union (1995) 134 ALR 203; Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Ltd (1997) 149 ALR 296; and ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325 [28]-[35] per Whitlam and Gyles JJ and particularly at [33] where after identifying that changes to the relevant statutes “reflect a movement to more consensual industrial arrangements” the reasons continued: “A certified agreement now may be rather more like an award was at the time of [Byrne] than it might be now. However, the trend towards consensual arrangements has not resulted in any fundamental change to the nature and effect of a certified agreement. The submission for the appellant that a certified agreement is solely a creature of statute having force by virtue of the statute remains correct. In a sense, the term ‘agreement’ is a misnomer because it will bind individuals whether or not they authorise it or are in favour of it. There is no scope for private law concepts of contract or equity in such circumstances.”

Consistently with that reasoning, upon acceptance of employment the EBA bound Dr Gramotnev whether he approved and agreed with it or not. There was no discussion in the letter as to whether the prospective employee was satisfied with the bargain that the representatives had struck and a majority of his prospective colleagues had accepted. A contract struck as a result of individual bargaining would be a much more natural vehicle for the imposition of the usual contractual remedies.

Fourthly, the textual considerations Dr Gramotnev argued for are at best neutral.

Dr Gramotnev submits that the heading to the relevant paragraph – “Terms and conditions of appointment” - is indicative of an intention to incorporate the EBA. While I agree, the force of that submission is weakened considerably when one considers that the paragraph goes on to include within its ambit statutes and policies which, as will be seen, I consider to include matters that are merely exhortatory, aspirational, undefined or, in some instances, incapable of amounting to contractual promises.

The two other references in the letter of appointment do not assist Dr Gramotnev’s submission. The reference to the setting of the salary, if anything, is against his submission. That is so because the express statement of an amount of salary, in context, can amount to a promise to pay that salary. As the University contends the express reference is precisely the language that permits a finding of express incorporation. Absent such language, and it is absent in respect of every other clause of the EBA, the contention points the other way.

The reference to the lack of any need for written notification of changes brought about by enterprise bargaining tends against express incorporation. Generally terms of a contract are negotiated between the parties and cannot be varied save through mutual agreement.

As Dr Gramotnev rightly points out this last point is not conclusive – a power to unilaterally alter from time to time does not mean that the University did not intend to be bound, and him to be bound, by the terms of the document in whatever form it existed during the currency of his employment. And capricious and unfair alterations might be avoided by the adoption of an implied term as suggested by Mansfield J in RiverwoodInternational Australia Pty Ltd v McCormick.[13] But Dr Gramotnev’s case is not advanced by the lack of a need for notification of changes.
[13][2000] FCA 889; 177 ALR 193 at [152]

In my view there is no express incorporation of the EBA into the employment contract.

Implication of a Term?

Nor can there be any implication of a term that the EBA be given contractual force. Given the applicability of the reasoning in Byrne to certified agreements there is no scope for the implication of the terms of the EBA into the employment contract unless some different circumstance be identified. None was. Precisely the same considerations apply and the question was settled by the decision of the High Court.

As in Byrne no custom has been proved, there is no principle of law that requires the implication, and Dr Gramotnev cannot demonstrate the need for such implication to give business efficacy to the contract – one of the essential pre-requisites: see Byrne at 422 and 441 citing BP Refinery (Westernport) Pty Ltd v Shire of Hastings.[14]
[14](1977) 180 CLR 266 at 283

On that latter point the principal difficulty is that the enterprise agreements in place during his employment included dispute resolution clauses. There was both an internal[15] and an external procedure.[16] Those procedures applied in the event of a dispute about interpretation or implementation of the agreements.
[15]See for example cl 13.1 – 13.2 of each agreement
[16]See cl 13.4 of each agreement

As in Byrne the statutory framework within which the EBA was made explicitly provided for mechanisms through which the obligations imposed by the EBA, said by Dr Gramotnev to be relevant, could be enforced and breaches remedied.[17] The relevant clauses of the EBAs[18] are:
[17](1995) 185 CLR 410 at 423 and see [36] above
[18]See the defendant’s summary at paras 28 and 29 (which I have adopted) of its written submission and the plaintiff’s summary at paras 31 and 32 of his primary submission to much the same effect

(i) The Queensland University of Technology Enterprise Bargaining Agreement (Academic Staff) 2000 – 2003:

(a) Clause 7 – objective of agreement;

(a) Clause 43 – equal employment opportunity issues; and

(b) Clause 45 – code of conduct.

(ii) Queensland University of Technology Enterprise Bargaining Agreement (Academic Staff) 2005 – 2008:

(a) Clause 7 – objectives of agreement;

(b) Clause 17.3 – statement of aspiration that academic staff will have adequate and appropriate opportunities to perform their roles;

(c) Clause 29.5 – statement that committees investigating unsatisfactory performance and misconduct allegations are to determine their own procedures which must be consistent with principles of natural justice and procedural fairness;

(d) Clause 31 – performance planning and review of academic staff;

(e) Clause 37.1 – statement that rights of academic freedom will be recognised and protected;

(f) Clause 37.2 – statement that any alleged limitation of rights of academic freedom are to be dealt with under the grievance resolution procedures for workplace related grievances in the MOPP;

(g) Clause 37.3 – statement that academic staff have the right to express unpopular or controversial views, but that this does not mean that they have a right to harass, vilify, defame of intimidate;

(h) Clause 39 – code of conduct;

(i) Clause 40 – workplace bullying and grievance procedures;

(j) Clause 44.2.1 – statement that the Vice-Chancellor must take the steps set out in clause 44 prior to taking disciplinary action against an academic staff member for misconduct or serious misconduct;

(k) Clause 44.2.2 – statement that the Vice-Chancellor will provide sufficient details of alleged misconduct or serious misconduct to allow an affected academic staff member to respond; and

(l) Clause 44.2.7 – statement of what the Vice-Chancellor may do if an allegation of misconduct or serious misconduct is wholly or partly denied or not responded to.

Dr Gramotnev submitted that assuming there was no incorporation of the EBA by reference then implication of the terms of the EBA was necessary to give business efficacy to the contract. He exemplified his argument by reference to cl 44.2 of the EBA:

“If the procedure for a disciplinary action and resulting termination of an employment contract (including the procedure set out in Section 44.2 of EBA2005) were not in the employment contract, the contract would have been incomplete and would have not been able to function self-consistently and efficaciously, because it would have been possible to implement a disciplinary action and/or terminate the employment contract through an outside interference breaching the express terms of the contract.

For example, had the disciplinary and termination procedure set out in Section 44.2 of EBA2005 been not part of the Plaintiff’s employment contract, the termination of his employment by the Defendant on the basis of this procedure (being outside the contract) would have caused a conflict/contradiction with the express contractual term that the Plaintiff’s appointment must have been on an ongoing and full-time basis: ‘Under the provisions of the Higher Education Contract of Employment Award 1998, your appointment will be on an ongoing, full-time basis’”[19]

[19]See paras 39c and d of Dr Gramotnev’s primary submission

With respect, it is not right to assert that absent incorporation of the EBA “the contract would have been incomplete and would have not been able to function self-consistently and efficaciously”. Whether the mechanism that the parties provide for their disciplinary and termination procedure is within or without the contract seems immaterial. The important point is that provision is made. There is no consequent contradiction with the express reference in the letter of appointment to the Higher Education Contract of Employment Award 1998.

McHugh and Gummow JJ best summarised the position that applies here, when they remarked in Byrne: “The contract of employment is not, from the viewpoint of the employee, rendered nugatory if the existing provisions thereof remain, as a matter of contract, to operate concurrently with the regime established by the award and deriving its authority from statute”[20] - substituting for present purposes “agreement” for “award”.
[20](1995) 185 CLR 410 at 453

The University Statutes

Dr Gramotnev submitted[21], inter alia:
[21]Para 63(f) – (h) of Dr Gramotnev’s primary submission

a.The Appointment Letter expressly stated the MOPP and relevant University Statutes and Policies as documents whose provisions form conditions of Plaintiff’s employment.
b.By definition, the term ‘employment conditions’ includes the conditions that must be created by the Defendant for the efficacious operation of the employment contract. Thus, the Defendant contractually promised these conditions to the Plaintiff, and is contractually obliged to create and maintain these conditions for the Plaintiff. Failure to do so on behalf of the Defendant constitutes a breach of the employment contract.
c.In consequence, the parts of MOPP and relevant University Statutes and Policies, which were relevant to the Plaintiff’s appointment and regulated the working relationships between the Plaintiff and the Defendant, constituted parts of the Plaintiff’s employment contract either as:
i.express term(s), or
ii.terms incorporated by express reference, or

iii.inferred term(s) based on actual intention, or
iv.implied term(s) based on presumed intention.

The relevant terms used in the letter of appointment are: “Your employment conditions include the provisions of the … relevant University Statutes … as current from time to time. Current copies of these can be viewed at the Human Resources Department, or are available to staff through QUT’s home page on the World Wide Web ( (my italics).

Again the language used (“employment conditions include”) is supportive of Dr Gramotnev’s submission but not determinative.

Several circumstances tend against express incorporation. They include the fact that nominated documents are legislative instruments capable of alteration from time to time without any involvement of the applicant; the express reference to the lack of any need for written notification of changes to the statutes; and the failure to provide, or even identify with precision, the statutes in question.[22]
[22]Cf. Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 at [127]; [283]; [293]

It is difficult to accept that in these circumstances “a reasonable person in the position of the other party” could believe the University intended to represent any obligations in the undisclosed statutes as contractually binding.

The University submits that support for the contention they press for can be found in the decision of Jagot J in Soliman v University of Technology, Sydney[23] where his Honour did not accept the statutes in consideration there were incorporated in the contract. There the statutes in question were expressly identified and if anything the language of the inclusion stronger than here – there the relevant term in the employment contract read: “The appointment will be subject to and governed by the relevant provisions (as in force from time to time)” (my italics).
[23][2008] FCA 1512

Dr Gramotnev points out that there were considerations present in Soliman which are not present here. That is true but not relevantly so. His submissions have some force in relation to the approach taken to the incorporation of the enterprise agreement in Soliman but not on this point.

Dr Gramotnev submitted that the statutes referred to in Soliman were “documents [that] were not directly relevant to the applicant’s employment” and so supported the view that they were referred to merely by way of “additional information”. With respect, it was not demonstrated that the statutes in Soliman were any more or less “directly relevant” to the employment there than here.

I stress that the factual determination in one case, such as Soliman, can only be of limited utility in this case. But the relevant circumstances are much the same and do provide the support the University claims.

Again my conclusion is that there was no express incorporation and there is no necessity requiring implication to give business efficacy to the contract.

The Manual of Policies and Procedures

Dr Gramotnev’s primary submissions are as set out above in [56].

Some of the considerations relevant to the University statutes are relevant here. Again the language used (again “employment conditions include”) is supportive but not determinative. The fact that the Manual is available on the internet is also supportive. Dr Gramotnev argues that its ready availability combined with the wording of the letter is sufficiently unambiguous not to require any further examination but, taking the terms of the document as a whole, I cannot agree. These submissions are repeated by Dr Gramotnev in relation to virtually every policy and my response is the same.

The letter provides that the Manual of Policies and Procedures (“the Manual”) is capable of alteration from time to time without any involvement of the applicant; there is an express reference to the lack of any need for written notification of changes to the Manual; and there is a failure to provide any particular policies but, unlike the Statutes, the Manual is identified. That latter circumstance makes for a stronger case for inclusion of the Manual as incorporated in the contract but these circumstances generally again tend against express incorporation. But they are not determinative of the issue.

The Manual incorporates policies covering a diverse range of matters. The University submitted, and Dr Gramotnev denied, that the authorities suggest that unless the language used in the letter of appointment is determinative for or against incorporation, it is necessary to consider each policy in turn to determine whether the parties should be taken to have intended to incorporate the policy in the contract – a broad brush approach is wrong.

In support of this submission the University relied on the approach taken in Goldman Sachs[24] to the “Working With Us” document in issue there. Jessup J said in that case that there was “little to be gained …. by further wrestling with the question whether “Working With Us” should be regarded either as wholly contractual or as wholly non-contractual” because:

“… the terms of “Working With Us” are heterogeneous - both in content and in style - to such an extent as to render any attempt to classify them either as wholly contractual or as wholly non-contractual highly artificial. … The appropriate course, in my view, is to consider each of the particular obligations [allegedly] … imposed upon the appellant by “Working With Us” …”[25]

[24][2007] FCAFC 120

[25]At [292]

Dr Gramotnev urged that the “Working With Us” document was presented differently to the employee in Goldman Sachs than the Manual was to him and was quite distinct from the Manual so justifying a different approach. His submissions were[26]:
[26]Para 70 (d) – (f) of Dr Gramotnev’s primary submission

(a) The WWU in Goldman Sachs did not represent a document dedicated to accumulating and coherently presenting the essential workplace policies and procedures (rules of engagement between the employer and employees), whereas the QUT MOPP and relevant University Statutes and Policies were exactly this kind of documents. (sic)

(b) Unlike the WWU in Goldman Sachs, the sole or at least the major dominating purpose of the MOPP and relevant University Statutes and Policies was to instruct in writing the staff members about the existing policies, statutes and procedures at the Defendant – rules of engagement between the Defendant and its staff members – and the mutual contractual obligations (including, if relevant, consequences for non-compliance) of the staff members and the Defendant in relation to these policies, statutes and procedures.

(c) Unlike the WWU in Goldman Sachs, the MOPP and relevant University Statutes and Policies were expressly stated in the Plaintiff’s Appointment Letter as the documents including employment conditions of the Plaintiff.

These submissions are to an extent simply wrong and, in any case, unpersuasive. The “WWU” was a document “dedicated to accumulating and coherently presenting the essential workplace policies and procedures” of the employer organisation. A significant purpose of it “was to instruct in writing the staff members about the existing policies … and procedures” of the employer. As to the point in (c), if anything, the manner in which the WWU was presented to the employee in Goldman Sachs was significantly more compelling than here - the document was delivered with the letter of appointment and parts of it collected and counter signed by the employee.

Dr Gramotnev argues that the Manual states “in unambiguously contractual language – the contractual responsibility of all the Defendant’s staff to comply with the institutional policies, statutes and rules” and quotes from the Manual:

“The authority of QUT statutes and rules (see MOPP Appendix 1(b) and Appendix 1(c)) is derived from the QUT Act, and consequently, University officers are expected to comply with any applicable requirements.

Officers must also comply with the institutional policies published in the Manual of Policies and Procedures which derive their authority from decisions or delegations of QUT's governing body, Council”[27] (Dr Gramotnev’s underlining, my italics added).

[27]Dr Gramotnev provides this source: “QUT MOPP Policy B/8.1 ‘Code of Conduct’, Section B/8.1.4 ‘Respect for the law and system of government’”. The quote is taken from the policy in place from February 2005.

Dr Gramotnev then submits that “[t]his statement alone leaves no doubts (sic) in any reasonable person’s mind that the Defendant intended to include the MOPP as a whole document into the employment contracts of all staff (including the Plaintiff’s employment contract)”.[28] Again this submission is repeated in relation to nearly every policy and again I deal with it here.
[28]Para 73-74 of Dr Gramotnev’s primary submission

First, I note that the quote is from a 2005 version of the Manual. The previous policy was very different in its wording. Had Dr Gramotnev gone to the Manual in 2003[29] he would have found in the section on which he now places great emphasis – Section 8.1.4 – a statement of exhortation under the heading “Diligence”: “This obligation requires the University and its staff to seek to achieve high standards of public education and administration and carry out their duties in a professional and conscientious manner.” There is more along the same lines. If the words relied on by Dr Gramotnev have the connotation he asserts then their absence at the time of contract tends to strengthen the University’s point. Certainly the words in place in 2003 are not promissory but aspirational, impose no sanction or possibility of sanction for non compliance, and would never be taken by a reasonable and objective reader as contractual.
[29]The earliest version I have is dated 3 September 2003. I do not know whether that version reflects the version in place in late 1999 when Dr Gramotnev was advised by his letter of appointment of the existence of the Manual. Relevantly, there is no evidence that the 1999 version contained the words Dr Gramotnev relies on, words which are not there in 2003.

Secondly, with respect, the submission tends to overstate the natural meaning of the words “expected to comply” by elevating them to contractually binding effect and overlooks the qualification on the requirements to which the expectation applies – “any applicable requirements”. What may or may not be “applicable” is at least part of the question under consideration here. The command that Dr Gramotnev emphasises (“must also comply”) needs to be read in the light of what has gone immediately before.

The policies covered by the arguments in this case – they are the only aspects of the Manual that I have – include promotion, procedures, codes of conduct, Mission, “vision, goals and organisational values”, equal opportunity, compliance, disclosure of interests, governance guidelines, grievance procedures, whistleblower protection, performance planning, email policy, health and safety policy and bullying. Their diverse nature and manifestly differing purposes require that they be considered one by one to determine the essential question – would a reasonable employee reading these policies objectively and in context consider that they contain contractually binding obligations?

The University submitted that “[o]nly promissory obligations are capable of being contractually binding. In other words, ‘only those [statements] which impose obligations or confer entitlement [can] form part of the contract’”[30] but that “not all promissory obligations give rise to contractual entitlements”.[31] In approaching the question I earlier identified as the essential one I accept that submission. This distinction did not inform Dr Gramotnev’s approach. Thus many of the policies that Dr Gramotnev puts in issue contain statements that are capable of being promissory in effect, as he contends, but the crucial issue is whether because of subject matter, context or effect they give rise to contractual entitlements.
[30]Citing Goldman Sachs [2007] FCAFC 120 at [133] per Marshall J; [310] per Jessup J
[31]See the discussion by Jessup J in Goldman Sachs (supra) at [309] -[311]

As the University submits there are several comments in the reasons in Goldman Sachs which are apposite to any consideration of the Manual (with the University’s citations):

(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;[32]
[32][2007] FCAFC 120 at [37].

(b) Words which describe a policy's “aims” or “guiding principles” are more likely to be descriptive than promissory.[33]
[33][2007] FCAFC 120 at [38].

(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;[34]

(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. [35] 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.

[34][2007] FCAFC 120 at [298].

[35][2007] FCAFC 120 at [301].

I observe that in relation to many of the policies the arguments on each side did not rise above mere assertion as to the outcome. That was not helpful.

The University argued on a number of occasions that it was not in a position to control the activities of its staff. As Dr Gramotnev argues that submission is not relevant where what is in issue is whether the University had a contractual obligation to do or refrain from doing some activity. I agree. The University can only act through its staff members and if it has promised to do something or refrain from doing something then it has accepted responsibility for the acts or omissions of staff. The submission is only relevant to the extent that an inability to control would inform the reasonable prospective employee when reading the policy in question.

Before turning to the individual policies I note that the University submits that all the policies are essentially procedural, informative or aspirational and incapable of amounting in any sensible way to contractual terms. As to that, all depends on the wording and context but, generally speaking, the fact the statements in issue appear in a manual of policies is relevant. “Policies” are not by their very nature statements of contractual intent. They are statements of principle or of proposed courses of action.

Finally I note that Dr Gramotnev argues at various points that “the consideration of ‘entitlement to contractual damages’ is beyond the terms of reference for the separate trial” or that regard should not be had to his pleading of the term allegedly breached. I cannot agree. The separate questions are not to be determined in a vacuum. It is not simply whether a policy can possibly be contractual in nature that is in issue but whether the policy gives rise to the precise contractual obligation on which Dr Gramotnev relies to advance his claim for damages. If it might be possible to construe a policy as imposing an obligation but an obligation different in kind to the one he advances or breach of which cannot sound in damages then that is irrelevant to the proceedings and the conclusion must be that the policy does not result in a relevant contractual obligation.

I turn now to the policies in issue. My general approach has been to consider whether or not the language used in the policy under consideration involves the use of words having promissory effect. Absent that I consider then whether the claimed obligation, if I can identify it, meets the test for the implication of a term. I could not see that there was any evidence of custom on which I could act, nor that any claimed term was implied by operation of law. Byrne[36] is authority for the proposition that, in order to imply the term into an employment contract on the basis of the parties’ presumed or imputed intention, Dr Gramotnev must satisfy each of the following factors set down in BP Refinery (Westernport) Pty Ltd v Shire of Hastings[37]:
[36](1995) 185 CLR 410 at 422 and 441.
[37](1977) 180 CLR 266 at 283.

(a) the implication must be reasonable and equitable;

(b) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;

(c) it must be so obvious that 'it goes without saying';

(d) it must be capable of clear expression; and

(e) it must not contradict any express term of the contract.

MOPP B/10.1 'Promotions for Academic Staff' (Promotions Policy)

Dr Gramotnev pleads breaches of the Promotion Policy B/10.1 and specifically:

a.section B/10.1.6 ‘Faculty Promotion Committee’ from the MOPP dated 2 June 2004; and
b.sections B/10.1.10 and B/10.1.7 both entitled ‘Promotion process’ from the MOPP dated 2 June 2004 and MOPP dated 23 March 2006, respectively; and
c.sections B/10.1.14(iii) and B/10.1.11(iii) both entitled ‘Promotion Committee procedures’ from the MOPP dated 2 June 2004 and MOPP dated 23 March 2006, respectively; and
d.section B/10.1.14(vi) ‘Appeals’ from the MOPP dated 2 June 2004.

The question is whether these provisions of the Promotion Policy are incorporated into Dr Gramotnev’s contract of employment.

Section B/10.1.6 details primarily the purpose and composition of the promotions committee. Sections B/10.1.10 (2 June 2004 version) and B/10.1.7 (23 March 2006 version) set out the process for making an application for promotion and how applications are scored. Sections B/10.1.14(iii) (2 June 2004 version) and B/10.1.11(iii) (23 March 2006 version) set out the procedures for the Promotions Committee. The “Appeals” section B/10.1.14(vi) outlines the process by which an appeal about a promotion application is lodged and then states that an Appeals Committee will review the process that was followed in the promotion application process. The parties have not suggested that any variation in wording between the various versions of the policy is relevant one way or the other.

The University submits that these provisions are not capable of creating contractual obligations as:

(a) there is nothing in the Promotions Policy which can be construed as promissory to any employee;

(b) No obligations are imposed on the University; and

(c) employees are not provided with any sort of entitlement which would sound in damages.

Dr Gramotnev argues[38]:
[38]Paraphrasing paras 86-88 of Dr Gramotnev’s primary submission somewhat

(a) The policy promised and enabled fair, transparent and equitable procedures for the adequate recognition of achievements, and progression, of academic careers of the University staff – without the policy the employee has no guarantee of fairness of process;

(b) A reasonable person would have expected the Defendant to provide its diligent staff members with proper recognition and promotion;

(c) Without that recognition and opportunity for promotion the employees would not enjoy the benefits of their contracts;

(d) An object of any contract is “at least potential mutual benefit by due performance”[39] - absent the policy the employment contract would lack essential procedures for career development and so not be efficacious in the academic context in fostering that mutual benefit.

[39]Soliman v University of Technology, Sydney (2008) FCA 1512 at [64]; McCormick v Riverwood International (Australia) Pty Ltd (1999) 167 ALR 689; [1999] FCA 1640 at [70] to [78]; Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193; [2000] FCA 889

Dr Gramotnev’s submissions that each side to the contract would expect there to be a fair, equitable and transparent promotions procedure and that such a procedure would be to the mutual benefit of both parties can be accepted. The relevant point that can be made is that incorporation of the policy into the contract would not be illogical or contrary to any policy imperative. But that is only the starting point. The issue is whether the language used, in context, suggests a contractual promise that the process is to be implemented or, if the language is ambiguous, there is other good reason shown to tip the scales in favour of a contractual obligation.

I have reached the view above that the language of the letter of appointment is sufficiently supportive, but not conclusive, of the policies in the Manual having contractual force so as to justify the study of the policy in question. The policy itself here does not advance the argument in terms of the language used. Parts of the policy, for example the policy statement in cl 10.1.1, seem entirely aspirational and the balance largely descriptive.

As the University contends the policy does not promise that any particular staff member will be promoted, only that a procedure is in place for that to be considered. It is clear that the whole process results in a recommendation, and only a recommendation, to the Vice Chancellor: see cl. 10.1.4 and the “terms of reference” in cl 10.1.6. There is thus no promise to an employee of a favourable outcome and no obligation on the University to provide one.

The real issue is how a member of staff can enforce the procedures if he or she feels the procedure was not followed. Dr Gramotnev’s answer is that the remedy must be contractual. If there were no procedures laid down for resolution of any dispute then Dr Gramotnev’s point would have great force as the laying down of the elaborate procedure would be mere hypocrisy.

But it is apparent that the parties have expressly provided for a mechanism for resolving disputes. It is evident that the EBA and the Manual were intended to be read together. Clause 10.1.1 of the promotions policy under discussion here provides inter alia: “Academic staff are guided and assisted in career development and opportunities for promotion through the University’s Performance Planning and Review for Academic Staff (PPR-AS)”. Reference is then made to “see B9.2”, presumably a reference to a part of the Manual. Clause 10.1.9 of the policy discusses the role of the “PPR-AS Supervisor”.

Clause 38 (October 2000) and cl. 31 (November 2005) of the Enterprise Bargaining Agreements deal with “Performance Planning and Review for Academic Staff” – the same term used in the policy under consideration. Clause 31 provides that “the management of performance will be in accordance with University’s policy on Performance Planning and Review for Academic Staff (PPR-AS)” and then outlines nine principles of that policy. Clause 38 in the earlier EBA provided to similar effect - that the parties were committed to “the management of performance in accordance with University’s policy on Performance Planning and Review for Academic Staff”. The final principle in each case deals with the situation where there is disagreement and provides for referral to the Head of School or Dean of Faculty, and then makes reference to the Manual and its dispute resolution procedures.

This cross referencing seems to me to be of some significance. Where the parties have agreed expressly on the procedures to be followed if there is a dispute about an internal matter such as the procedure for promotions it is difficult to accept that a reasonable objective reading of the policy would lead to a view that the parties intended there to be an adding of an extra layer of contractual remedies, remedies which largely, if not entirely, go one way – to the employee. A breach of the protocol in the policy was expressly intended to be dealt with internally and, if not dealt with in the manner provided for, could result in the application of the remedies consequent upon a breach of the EBA.

Consideration of the “Appeal” process provided for in the policy adds to the force of that analysis. A staff member can only appeal on the grounds of process and the decision is left to an Appeals Committee. A successful appeal results in a recommendation to the Chair of the relevant promotion committee to address the breach process. There is no further promise. As the University submits the only obligation seems to be that the appellant will be advised of the outcome of the appeal process.

Neither the language nor purpose of the policy requires the incorporation of the policy in the contract, nor does consideration of the respective interests of the parties suggest such a result was intended. The contract is perfectly effective without construing the policy as forming part of it.

MOPP B/10.2 ‘Faculty Promotion Committee’

This policy defines the composition of faculty promotion committees albeit in fairly general terms. It details their terms of reference, their accountability, tenure and frequency of meetings.

Dr Gramotnev contends the policy has contractual force. Many of the arguments dealt with earlier are repeated here. In addition he submits:

(a) This policy is essential for the efficacious operation of staff employment contracts. Absent the policy there would be no guarantee of “fair promotion, career development, increased pay, and recognition of the due performance during operation of the contract”;

(b) The promised composition was an important promise to create fairly a group of people who would be responsible for, on a “fair and unbiased foundation free from unmanaged conflicts of interest”, access to fair promotion;

(c) Breach of the promise to form the Faculty of Science Promotion Committee in accordance with the established and publicly declared procedures opens the window for a sequential breach of the Defendant’s promise of fair promotion in accordance with the purpose and major principles of his employment contract;

Essentially the same arguments apply as previously and the argument founders on the same point as previously. It is true, as Dr Garmotenv contends, that this policy and that set out in B/10.1 “Promotions for Academic Staff” are interlinked but that has the effect that so are the remedies for breach.

MOPP B/8.1 Code of Conduct

Dr Gramotnev submits that the “Code of Conduct” set out in section B/8.1 of the Manual forms part of his contract of employment.

The 2003 version of the code commences with the heading “Guidelines for Ethical Conduct”. It then sets out aspirational values:

“Each member of the university has a responsibility to ensure the values we encourage and the reputation of the University as influenced by these values are of the very highest standard. The University undertakes to create an ethos and environment in which ethical conduct is expected, encouraged and supported. This code aims to support staff and officers of the University in the pursuit of this goal and assist them to identify and resolve ethical issue which arise in the performance of their duties.”[40]

[40]Volume 1 Tab 11 p 220 of the Bundle of Material for Separate Trial

A little further on the code reads “While the code’s purpose is educative, it also regulates staff behaviour and staff whose conduct falls below the standards outlined in the code will be counselled in accordance with the appropriate procedures for misconduct or serious misconduct, the grievance resolution processes or, where appropriate, the University’s performance management process.” There then follows a reference to the EBA for performance management and misconduct processes, a reference to various policies including the relevant policy for grievance resolution processes.

Clause 8.1.1 is headed “Respect for the law and system of government” and there is then a reference to an assumption that the system is based “on the principles of responsible parliamentary government and the rule of law”. There is a requirement that the University and its staff acknowledge the laws of the State and Commonwealth.

Clause 8.1.2 is headed “Respect for Persons.” There follows admonitions to treat other members of the University community fairly, to treat all persons justly, to avoid patronage or favouritism, to deal with differing opinions by rational debate rather than “vilification, coercion, bullying or any form of intimidatory behaviour”, and be “responsive, courteous and prompt” with requests.

Clause 8.1.3 is headed “Integrity”. Parts of it are expressly pleaded by Dr Gramotnev as having been breached and thereby giving rise to a contractual remedy in damages. Those parts include:

“A conflict of interests exists when either:

· relevant facts are such that the staff member's private interests are within the scope and ambit of the duties of the staff member; or
· a reasonable person, in possession of the relevant facts, would conclude that the staff member's private interests are likely to interfere with the proper performance of their official duties.

...
a) Many staff may be in a position of power over other staff and students and should use their official powers or position properly and honestly.
...
Staff should observe procedural fairness ("natural justice") in all decision making.
...
In dealing with staff and students actual or perceived bias should be avoided in all transactions”

Clause 8.1.4 is headed “Diligence”, clause 8.1.5 “Economy and Efficiency”, and clause 8.1.6 “Moral Rights”. They contain further exhortations within the areas the headings suggest.

Each of these statements, particularly when read in context, plainly set out the expectations that the University has for its staff. Indeed the very title “Code of Conduct” suggests that.[41]
[41]Cf. Goldman Sachs at [298] per Jessup J

As the University submits there are several comments in the reasons in Goldman Sachs which are apposite here:

(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;[42]
[42][2007] FCAFC 120 at [37].

(b) Words which describe a policy's “aims” or “guiding principles” are more likely to be descriptive than promissory.[43]
[43][2007] FCAFC 120 at [38].

(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;[44]

(d) Would a new employee have a reasonable basis for reading into a policy an implicit promise that certain conduct would not occur under any circumstances or is it more likely that, when read fairly and objectively, the document recognises that regrettable conduct might occur from time to time and accordingly provides a means through which such behaviour can be addressed.[45] The latter is less likely to give rise to a contractual promise.

[44][2007] FCAFC 120 at [298].

[45][2007] FCAFC 120 at [301].

In my view there would need to be very compelling words used to impose on an employer of many hundreds, if not thousands, of people a liability in damages to an individual employee under their employment contract for the possible misbehaviour of any one of their employees particularly in areas of propriety, honesty and diligence. I cannot accept that there are the necessary words here.

In my view the University’s submission which follows succinctly sets out the true effect of these various sections:

“Though the University has certain expectations of its staff, no reasonable person would read the above provisions of the Code of Conduct as a promise that breaches of the Code would not occur or that, if they did, aggrieved employees would have recourse in contract to sue for damages. So much is clear from the wording of the Code which states that staff are 'expected to' and 'should' behave in a certain way. This is unsurprising as the University, like any employer, cannot guarantee that its employees will or will not act in a particular way.

The fact that the University cannot guarantee that its employees will or will not act in a particular way is highlighted by reference to comments in the Code of Conduct that where staff behave in ways which fall below the standard outlined in the Code, they will be counselled in accordance with the processes outlined in the MOPP and the EBA. There is no contractual promise that University employees will not breach the Code of Conduct in any respect. It anticipates that breaches may happen and, if they do, that counselling of the party alleged to have breached the Code (not an entitlement to contractual damages to a third party) will follow.”[46]

[46]Para 68 -69 of the University’s written submission

Dr Gramotnev submits that “the code of conduct uses unambiguously contractual and promissory language to clearly identify itself as part of an employment contact of any staff member” and he then proffers the following as “characteristic examples” (with Dr Gramotnev’s underlining and citations)[47]:
[47]Para 105 of Dr Gramotnev’s primary submission

a.“The QUT Code of Conduct applies to members of the University community …
Additionally, individuals who are associated with QUT related entities or who have been granted access to QUT property, services or infrastructure are expected to comply with any applicable provisions of this code, as are consultants and independent contractors undertaking services for QUT.
Where the provisions of this code apply to all members of the University community, the general term “officer” is used. Officers are bound by this code …”;[48]
[48]QUT MOPP Policy B/8.1 ‘Code of Conduct’, Section B/8.1.1 ‘Application’
b.“The code of conduct regulates the behaviour of University officers, and forms part of each staff member's conditions of employment.
A staff member whose conduct falls below the standards outlined in the code will be dealt with in accordance with relevant University procedures. An alleged breach of this code by a staff member may be dealt with under the processes outlined … for managing misconduct or serious misconduct (see MOPP B/8.5 and the relevant enterprise bargaining agreement clause, – QUT Enterprise Bargaining Agreement (Academic Staff), clause 44 …)”;[49]
[49]QUT MOPP Policy B/8.1 ‘Code of Conduct’, Section B/8.1.3 ‘Consequences for non-compliance with this code’
c.“The authority of QUT statutes and rules … is derived from the QUT Act, and consequently, University officers are expected to comply with any applicable requirements.
Officers must also comply with the institutional policies published in the Manual of Policies and Procedures which derive their authority from decisions or delegations of QUT's governing body, Council.”[50]
[50]QUT MOPP Policy B/8.1 ‘Code of Conduct’, Section B/8.1.4 ‘Respect for the law and system of government’, Sub-section (b) ‘Complying with QUT statutes, rules, policies and decisions’
d.“… officers are expected to treat others fairly, honestly and responsively, and with proper regard for their rights and obligations.”[51]
[51]QUT MOPP Policy B/8.1 ‘Code of Conduct’, Section B/8.1.5 ‘Respect for person’
e.“University officers must treat all persons with whom they come in contact equitably and fairly. …
University officers must not engage in behaviours which may be unwelcome or which may be distressing, offensive or humiliating to others, as such behaviour may amount to harassment.
The University's equity policies (MOPP A/8) provide a framework of expectations for equitable treatment of others.”[52]
[52]QUT MOPP Policy B/8.1 ‘Code of Conduct’, Section B/8.1.5 ‘Respect for person’, Sub-section (b) ‘Avoiding discriminatory or harassing treatment of others’
f.“University staff or committee members should observe procedural fairness ("natural justice") in their decision-making by:
·giving an affected individual (whether a staff member or a student) the opportunity to understand the “case to be met” if a decision may be made which will adversely affect their interests, and to respond to it before a decision is made;
·making decisions which are unbiased or uninfluenced by patronage or favouritism (see also section B/8.1.6 on conflicts of interest);
·making decisions which take into account relevant considerations, not irrelevant ones.”[53]
[53]QUT MOPP Policy B/8.1 ‘Code of Conduct’, Section B/8.1.5 ‘Respect for person’, Sub-section (d) ‘Making fair decisions’

g.“University officers should deal with differing opinion by rational debate, rather than by vilification, coercion, bullying or any form of intimidatory, offensive or humiliating behaviour.
University officers should give fair consideration to the views and contributions of others irrespective of their status or position within the University.
Grievances or disputes … must not result in victimisation or intimidation.”[54]
[54]QUT MOPP Policy B/8.1 ‘Code of Conduct’, Section B/8.1.5 ‘Respect for person’, Sub-section (e) ‘Respecting the opinions of others’
h.“A staff member with supervisory responsibilities has an important role in creating a fair and just working environment, and supervisors have a particular onus to maintain the standards of respect for others. Supervisors need to:
·act equitably and consistently in their dealings with all of their subordinate staff;

…
·avoid interactions which may reasonably be perceived as bullying of subordinate staff;
·ensure workplace health and safety obligations are met, so that their staff work in a safe environment;
·provide equitable access to appropriate development opportunities; …”[55]

i.“It is important that staff and the University are able to recognise, declare and manage conflicts of interest and situations where there is a potential or perceived conflict of interest. …
University officers must ensure that there is no actual or perceived conflict between their personal interests and their University duties or responsibilities. The expectation is that officers must recognise, declare and manage conflicts of interest. …
It is important that conflict of interest situations, once recognised, are declared and resolved in a way which promotes propriety and integrity. …
Merely declaring the conflict situation without taking further steps to resolve the situation will almost always be insufficient. It may be necessary to remove the staff member from any involvement in the matter giving rise to the conflict situation.”[56]
j.“A position of power must not be abused and staff must use their official position properly and honestly.”[57]
k.“All staff have an obligation to follow safe work practices, to avoid actions which may harm themselves or others and to report hazards in the work environment (for greater detail on health and safety requirements, see the University's health and safety policies at MOPP A/9). In addition, managers and supervisors are responsible, within the limits of their authority, for ensuring that activities within their area are undertaken with the exercise of proper diligence for the health and safety of staff, students and others.”[58]

[55]QUT MOPP Policy B/8.1 ‘Code of Conduct’, Section B/8.1.5 ‘Respect for person’, Sub-section (f) ‘Supervisory behaviour’

[56]QUT MOPP Policy B/8.1 ‘Code of Conduct’, Section B/8.1.6 ‘Integrity’, Sub-section (a) ‘Identifying and managing conflicts of interest’

[57]QUT MOPP Policy B/8.1 ‘Code of Conduct’, Section B/8.1.6 ‘Integrity’, Sub-section (b) ‘Avoiding improper use of position’

[58]QUT MOPP Policy B/8.1 ‘Code of Conduct’, Section B/8.1.7 ‘Diligence’, Sub-section (c) ‘Creating a safe working environment’

Contrary to Dr Gramotnev’s submission the language throughout is not “unambiguously contractual”. Dr Gramotnev rightly stresses the two passages that he has underlined – in paragraphs (b) and (c) above. The express statement that the code of conduct “forms part of each staff member's conditions of employment”, which is the stronger statement of the two, is quite capable of resulting in a contractual commitment but the difficulty is the context.

The statements immediately before and after suggest strongly that the code is not a contractually enforceable one. The statement immediately preceding is that “University officers are expected to comply with any applicable requirements…”. That is very far from a promise to other employees that officers will comply. And the statement of remedies that the University contemplates will be available that immediately follows is also against a contractual commitment:

“A staff member whose conduct falls below the standards outlined in the code will be dealt with in accordance with relevant University procedures. An alleged breach of this code by a staff member may be dealt with under the processes outlined … for managing misconduct or serious misconduct (see MOPP B/8.5 and the relevant enterprise bargaining agreement clause, – QUT Enterprise Bargaining Agreement (Academic Staff), clause 44 …)”.

There is no suggestion here of any contractual remedies being available. In context the evident meaning is to the contrary. The internal procedures and the EBA are engaged.

When it is recognised that the debate is whether, on the one hand, the code governs the employment relationship or whether, on the other, it forms a term of the employment contract the remedies allowed for support the former characterisation. Resolution of that question is not assisted by pointing out, as Dr Gramotnev does, that there are words of compulsion used - ‘must not’, ‘need to’, ‘have an obligation to follow’, ‘must ensure’, ‘must recognise, declare and manage’, ‘must treat’, ‘must not engage’. Their use is consistent with either argument.

Nowhere in the code is there a promise by the University to its employees that no employee will breach this code, or that if any employee does breach the code another employee will obtain a right in damages against the University, nor is there a statement by the University that it will take any step to enforce the code other than by the application of the stated procedures. Nor is this commitment toothless. The EBA, as I have discussed earlier, provides for its own enforcement mechanisms.

Reference to other decided cases on different facts is not really of much assistance. None are so similar as to command the same result. As the University points out the lack of a promissory commitment here can be contrasted with the situation in Goldman Sachs, where the employer was held to have bound itself contractually to each employee when it used the phrase “JB Were will take every practicable step to provide and maintain a safe and healthy work environment for all people”.[59] Obviously there the introduction of the practicability of remedial measures significantly moderates the obligation and provides some standard against which performance can be judged. Here there is no promise and, if there was, there is no moderating standard – on Dr Gramotnev’s argument absolute liability is introduced for any breach of the code, by any employee, any time.
[59][2007] FCAFC 120 at [24] per Black CJ.

That is a formidable level of support albeit that none of the judges endeavoured to explore the jurisprudential underpinnings of the implied terms or their necessary scope and content.

Nonetheless the general view has been that there is no definitive statement by the High Court on the issue. On several occasions appellate courts have not needed to decide the issue: the Court of Appeal in New South Wales in Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559 at 567 [32]–[37]; the Full Court of South Australia in South Australia v McDonald (2009) 104 SASR 344 at [206]-[237]; the Full Court of the Federal Court in Walker v Citigroup Global Markets Australia Pty Ltd (2006) 233 ALR 687 at 708 [86]; Yousif v Commonwealth Bank of Australia (2010) 193 IR 212 at 238 [105]. Nor did the Industrial Court of Australia in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 – noting that in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 that Court accepted that such a term was implied. Burazin is of interest in that the Court denied the availability of a remedy in damages for breach of the term albeit “during the currency of the employment relationship”. That impediment does not exist here.

The most comprehensive and it has been said, accurately with respect, “perceptive analysis of the origins and legal foundations”[155] of the implication into employment contracts of the term proposed by Dr Gramotnev was carried out by the Full Court of South Australia (Doyle CJ, White and Kelly JJ) in State of South Australia v McDonald.[156] There Mr McDonald was an officer in the State’s teaching service employed under a statute. The Court declined to determine whether the term of mutual trust and confidence was implied generally in contracts of employment but held that it was not implied in Mr McDonald’s contract. That was so because of the “statutory and regulatory context in which Mr McDonald’s contract of employment operated”.[157] Many of the considerations relevant to that determination are relevant here. I will return to that point.
[155]Dye v Commonwealth Securities Ltd [2012] FCA 242 at [606]-[607] per Buchanan J
[156](2009) 104 SASR 344; [2009] SASC 219
[157]Ibid at [270] - special leave to appeal the decision in McDonald was refused: [2010] HCA Trans 25.

At the level of single judges there has been a mixed response. As the reasons in McDonald pointed out there have been numerous decisions at trial level where “[t]he implication of a term of mutual trust and confidence has been either endorsed or acknowledged”.[158] Relevant to my jurisdiction those decisions include that of Moynihan J in Taske v Occupational and Medical Innovations Ltd[159] where his Honour relied on the first instance decision in Russell v Trustees of the Roman Catholic Church, Archdiocese of Sydney[160] of Rothman J whose reasoning on this point was not, in the final result, examined on appeal: (2008) 72 NSWLR 559 at 567 [1] per Giles JA, [32]–[37] per Basten JA, [73] per Campbell JA.
[158]At [223]
[159][2007] QSC 147
[160][2007] NSWSC 104

More recently Peter Lyons J has grappled with the problem concluding that the law is “unsettled” and finding that if there was such a term implied it had not been breached: Wright v Groves .[161]
[161][2011] QSC 66 at [53].

On the other hand, Buchanan J has expressed reservations about whether there is an implied term of mutual trust and confidence: McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375; Dye v Commonwealth Securities Ltd [2012] FCA 242. So has Tracey J in Van Efferen v CMA Corporation Ltd [2009] FCA 597. Kenny J has found that no such term is implied: Walker v Citigroup Global Markets Pty Ltd (2005) 226 ALR 114 at 156–157 where her Honour held that, in Australia, a term of good faith “does not apply to employment contracts.” As mentioned on appeal the Full Court did not need to express a view on her Honour’s finding: see Walker (2006) 233 ALR 687 at 708 [86].

I share the concerns expressed. However given the views expressed in the High Court, the absence of any appellate authority definitively stating that the terms of trust and confidence and good faith are not implied in contracts of employment, and the decision in McDonald where special leave was refused I take the correct position to be that arrived at in McDonald.

I perceive that position to be that while a term of good faith or mutual trust and confidence may be implied by law in contracts of employment it will not be implied where there is no necessity to do so to enable the contract to work effectively. In McDonald relevant matters were said to include the applicable statutory and regulatory context. Here the equivalent matters are the applicable certified EBA and its statutory context.

The University isolates four reasons why the Court in McDonald refused to imply the term of mutual trust and confidence:

(a) the duty of good faith, trust and confidence which Mr McDonald sought to imply would essentially duplicate remedies available to him under statute (for example, unfair dismissal remedies);

(b) Mr McDonald's employment was heavily regulated by statute, regulation and binding industrial instruments;

(c) formal rights of appeal existed for Mr McDonald to challenge matters of which he was aggrieved; and

(d) Mr McDonald's employment was subject to well developed dispute resolution and grievance procedures.

The University argues that precisely the same situation applies here. That is not completely accurate. In McDonald the matters that rendered the implication of the term unnecessary were the employment conditions, conditions that were not contractual but set out in statutes and which could not be varied by the employer. The equivalent matters here do not have quite that status. I have found that the EBA, which contains extensive dispute resolution clauses, and the policies setting out the University’s internal appeal and grievance procedures are not terms of the contract. Changes to the EBA were not at the whim of the University but the policies could be varied unilaterally by the University and they were varied.

While that is relevant I have come to the view that it is not a significant point of distinction.

While the policies on my findings do not have contractual force they did provide for dispute resolution and in some cases appeals.

More significantly, as mentioned earlier, the EBA exists within a statutory framework and is enforceable at the instigation of the employee. Penalties can be recovered. Dispute resolution is provided for. The EBA reflects the presumably careful balancing out of various factors of significance to both sides. If disputes were not able to be resolved, either party could refer matters to the Australian Industrial Relations Commission (and after 1 July 2009 to Fair Work Australia); an employee had standing to bring proceedings for alleged breaches of terms of the applicable enterprise agreements under the Workplace Relations Act 1996 (Cth).

Quite apart from the certified agreement regime the University was subject to the Whistleblowers Protection Act 1994 (Qld) as a public sector employer; complaints were able to be made to the Queensland Ombudsman about conduct at the University; and the University was subject to the Crime and Misconduct Act 2001 (Qld). In short the University is in a very different position to a private sector employer.

In this context the need for the implication of the term is not so apparent. While the case is not as strong as the situation in McDonald the essential point is the same. The employee has access to a wide range of remedies that are enforceable against the employer without the need for the implication of the terms proposed. In these circumstances concern that the University would be able to take unfair advantage of an employee without the implication of such a term or terms is very much reduced. That does not preclude the possibility that in defined circumstances the need for the implication might become apparent. But the state of the pleadings makes it impossible to find any such need here.

The effect of the pleadings is that Dr Gramotnev wishes to argue every complaint that he has over the length of his employment under the guise of a breach of an all encompassing duty.

For present purposes the concluding remarks of the Court in McDonald on the issue of implied terms of this type are pertinent:

“[275] We add the following. The Judge’s finding that the Minister owed a duty not to act so as to impair mutual trust and confidence led the Judge to examine in considerable detail a series of matters which occurred in the course of Mr McDonald’s employment at Brighton. That, in turn, led the Judge to consider whether certain events along the way, and certain courses of conduct, amounted to unfair or harsh treatment of Mr McDonald, or amounted to poor management by the School Managers. We consider that this highlights the unsatisfactory consequence of giving a wide scope to a term requiring the maintenance of mutual trust and confidence, if such a term is to be implied. It leads to the court becoming the forum for a detailed review of routine management decisions. There is no ready way of putting a limit to the range of matters which can be brought within the scope of the implied term and be said to be suitable for examination by a court.”

That “wide scope” is precisely what Dr Gramotnev argues for here. He wants this Court to become “the forum for a detailed review of routine management decisions”. Neither Dr Gramotnev’s pleadings nor submissions address the crucial issue of the scope and practical content of the general term he seeks to have implied into the contract. In Dye v Commonwealth Securities Ltd [2012] FCA 242 Buchanan J dismissed the claims for damages based on breach of the same alleged implied terms there with this comment:

“…with respect to the allegations of breach of an implied term of trust and confidence, that material facts were not pleaded and proved such as could be satisfactorily linked with sufficiently identified content of such a term (thus generally expressed) if it exists. The same may be said of the alleged breach of a suggested implied term of “good faith and mutual co-operation”.[162]

[162]At [600]

While Dr Gramotnev is yet to supply his proofs there is a necessary antecedent step and that is to plead material facts “such as could be satisfactorily linked with sufficiently identified content of such a term”.

Thus the proposition that Dr Gramotnev is seeking to advance by his present pleadings is that a general term of trust and confidence and good faith ought to be implied into his employment contract, undefined in scope and content, but giving a right to claim damages for breach.

I do not accept that the law allows that.

The University argues that if there were to be such a term implied and whatever its content the only breaches that could sound in damages would be those that satisfied the test postulated by Besanko J in Barker v Commonwealth Bank of Australia [2012] FCA 942 at [330], that is actions “where a party does not have reasonable and proper cause for his or her conduct and the conduct is likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.” His Honour was there dealing with a policy of the Bank that was expressed not to be a contractual promise – the situation that seems to apply here. I say “seems” as I am not sure what Dr Gramotnev seeks to argue. To the extent that he relies on a breach of policy then he is in that same position.

Allsop J (as his Honour then was) in Thomson v Orica Australia Pty Ltd[163] commented that there was “ample authority” for the proposition that Besanko J later advanced in Barker and on which the University relies. That is so. The University’s submission is right – if there is a term of the kind that Dr Gramotnev seeks to imply then breach of it can only sound in damages in the limited circumstances identified.
[163](2002) 116 IR 186 at [141]

At the present time the state of the pleadings makes it impossible to know whether Dr Gramotnev can identify a breach that can arguably have that characterisation.

Dr Gramotnev argues that the present proceedings are an unsuitable vehicle for the determination of the question of whether the terms he proposes are implied into his contract of employment. Certainly the state of his pleadings makes any rational examination of the issue extremely difficult. But it is entirely unsatisfactory that the parties be forced to go to trial to canvas every decision taken over several years and about which Dr Gramotnev complains on the basis of pleading that fails to define with precision what actions are characterised as being taken in bad faith or in breach of a term of trust and confidence and without providing particulars of relevant facts which, if established, would show the breach alleged.

My conclusion is that I am not prepared to hold that there is implied in the employment contract terms of good faith and trust and confidence having the character and effect alleged by Dr Gramotnev – that is, terms so broad in their width that they permit the examination of every decision about which he complains.

Did Dr Gramotnev's employment contract contain a term that the University would provide a healthy and safe workplace?

The term pleaded is that the University was under a duty to “create, maintain and not breach healthy and safe workplace environment for the plaintiff” (sic). I have already mentioned the University’s objection that whatever be the contract the alleged breaches have nothing to do with safe work practices and my acceptance of that complaint.[164] Those observations are equally relevant here.
[164]See [236] above

The University responds that so far as its contractual obligations went it was under a well recognised obligation, implied in Dr Gramotnev’s employment contract as in every employment contract, which does not correspond with the term pleaded. There are no facts shown here which would justify the implication of some term different to that ordinarily implied into every employment contract. Further, the University points out that Dr Gramotnev seeks damages for a breach of this implied term which include damages for personal injury. As mentioned[165] he is precluded from pursuing those damages as he has not complied with the legislative pre-requisites permitting him to pursue such damages against an employer: see Chapter 5 of the Workers Compensation & Rehabilitation Act 2003 (Qld).
[165]Paras [249]-[250] above

In my view these arguments are unanswerable.

Dr Gramotnev misunderstands the University’s submission. He assumes that the University’s concession that there is a well recognised term implied into every employment contract[166] is a concession that the term he asserts is accepted. The provision of a “healthy and safe workplace environment” is far more onerous than the contractual obligation acknowledged in numerous cases to be imposed on an employer, namely to take reasonable care for the safety of employees.[167] The duty has been described in various ways but what is clear is that it is not one of strict liability for any lack of safety or for adverse effects on health.[168] No doubt many workplaces are unhealthy and unsafe to some degree and to the extent that they are the employer’s duty under the recognised implied term is to not “unreasonably [fail to] take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the [worker] from the dangers of his task without unduly impeding its accomplishment”: Vozza v Tooth & Co Ltd.[169]
[166]Nelson v BHP Coal Pty Ltd [2000] QCA 505 at [6]
[167]See for example Wylie v ANI Corporation Ltd [2002] 1 Qd R 320 at [19] and [50]
[168]See Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at [10] per Mason, Wilson and Dawson JJ
[169](1964) 112 CLR 316 at 319 per Windeyer J

Thus Dr Gramotnev by his pleading, and perhaps inadvertently, seeks to go beyond the accepted term and claims that the term he asserts should be implied as a matter of law. To do so he must demonstrate “necessity” as explained by McHugh and Gummow JJ in Byrne, that is, that without the term “the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined.”[170]
[170](1995) 185 CLR 410 at 450

Dr Gramotnev did not demonstrate that his contract would be rendered “nugatory, worthless, or, perhaps, be seriously undermined” if the term he contends for is not implied as claimed. His submission that the term he argues for is implied by law into the employment contract is not supported by principle or authority. It must be rejected.

Apart from contract, the University had obligations imposed on it at the relevant time by the Workplace Health and Safety Act 1995 (Qld) (now repealed).

Dr Gramotnev’s Claim and Statement of Claim make no reference to seeking damages for a breach of the statutory obligations imposed on the University. In every instance the claim made is for damages for breach of contract.

Dr Gramotnev submits: “…the Plaintiff’s pleadings made express references to the University’s obligations and breaches of those obligations under the Workplace Health and Safety Act 1995 – see paragraphs 382, 383, 387, 390 to 393, 408, 411, 412 and 414 of Particulars 1 containing the express references the Workplace Health and Safety Act 1995”.[171] The particulars do make reference to the provisions of the Workplace Health and Safety Act 1995, but without any antecedent pleading of a breach of statutory duty then the particulars are simply irrelevant to the issues.
[171]Para 300 of Dr Gramotnev’s primary submission

If Dr Gramotnev wishes to assert a breach of a statutory duty then it is necessary that the duty be specifically pleaded, the relevant provision of the statute said to give rise to the duty identified, and the facts amounting to breach also identified. That then provides the opportunity for the University to respond, if it is so advised, by asserting a defence, for example under s 26 or s 37 of the Workplace Health and Safety Act 1995. But even if the action be pleaded and any defence overcome, that still does not result in an entitlement to contractual damages in the event of any breach by the University of those statutory health and safety obligations. Any right to damages derives from the statute not the contract.[172] And there is no necessity to import the statutory obligations in to the contract to enable a party aggrieved by a breach to obtain a remedy.
[172]Schiliro v Peppercorn Childcare Centres Pty Ltd (No 2) [2001] Qd R 518

Finally the observations made earlier about the impact of the failure to comply with the pre litigation requirements of the Workers Compensation & Rehabilitation Act 2003 (Qld) are relevant. The same result would follow, and for the same reason, even if Dr Gramotnev were to amend his pleading to assert a breach of the well recognised implied term to take reasonable care of the safety of employees, or to appropriately plead a breach of the statute.

The term as pleaded does not form part of the contract.

Did Dr Gramotnev's employment contract contain a term that the University would not breach his civil and legal rights?

Dr Gramotnev pleads that a term was implied by law into his employment agreement that the University would not breach his “civil and legal rights, including by a reprisal, retaliation and/or recrimination conduct (sic)”.

The University submits: “This pleading is misconceived; no such term is implied into employment contracts by law. The term is devoid of content as to what ‘civil and legal rights’ are referred to. In any event, if Dr Gramotnev did have any such ‘rights’ they would by definition be enforceable as such. The term also cannot pass the BP Refinery test for implication on the basis of some presumed or imputed intention of the particular parties.”[173]
[173]Para 189 of the University’s primary submission

Dr Gramotnev responds that “paragraphs 339 to 360 of Particulars 1 provide the detailed description of the alleged breaches of specific rights of the Plaintiff by the conduct and actions of the Defendant”.[174] The “civil and legal rights” that Dr Gramotnev contends for, he submits, are set out in Articles 14, 16, 17 and 19 of the International Covenant on Civil and Political Rights (ICCPR), adopted by the General Assembly resolution 2200A (XXI) of 16 December 1966.
[174]Para 310a of Dr Gramotnev’s primary submission

Article 14 deals, inter alia, with equality before the law, the right to a fair and public hearing “by a competent, independent and impartial tribunal”, the presumption of innocence, minimum safeguards surrounding the determination of criminal charges, and the double jeopardy rule.

Article 16 provides: “Everyone shall have the right to recognition everywhere as a person before the law”.

Article 17 provides: “1. No one shall be subjected to arbitrary or unlawful interference with is privacy, family, home, or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attack.”

Article 19 provides:

“1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.”

No submission was made that the law implies into employment contracts generally, or those applicable to university lecturers in particular, such terms. Dr Gramotnev argues for implication on the basis of the parties’ presumed or imputed intention. He must therefore satisfy the BP Refinery tests or show, assuming the contract to be an informal one incomplete on its face, that “the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case”: Hawkins v Clayton.[175]
[175](1988) 164 CLR 539 at 573 per Deane J

Dr Gramotnev argues that the civil rights he contends for are “reasonable, equitable, and reflecting the widely accepted legal principles and norms in Australia and overseas”.[176] Assuming that to be so – and to a large extent the submission is plainly right - then the fact that they are widely accepted is the difficulty. To the extent these rights exist in this country they are capable of enforcement by Dr Gramotnev – should they be breached - irrespective of contract. Every citizen, whether they be employee or not, has these rights. Hence there is no need for their implication.
[176]Para 311a of Dr Gramotnev’s primary submission

By way of example Dr Gramotnev is exercising his right to be heard by “a competent, independent and impartial tribunal” without any prior need to establish an implied term in his contract. The minimum safeguards surrounding criminal trials provided for in Article 14 are irrelevant to this case. Article 16 is likewise irrelevant. To an extent the rights spoken of in Article 17 – “arbitrary or unlawful interference with his privacy, family, home, or correspondence, nor to unlawful attacks on his honour and reputation” – are protected by causes of action available in tort or equity. Actions for trespass, defamation, breach of confidence, and, perhaps more controversially, invasion of privacy,[177] are available. The rights dealt with in Article 19 are available in this country except to the extent the law limits the exercise of those rights, much to the effect of paragraph 3 of the article and its reminder of the responsibilities that accompany the exercise of “rights”.
[177]Grosse v Purvis [2003] QDC 151; ABC v Lenah Game Meats (2001) 208 CLR 199 at 255 per Gummow and Hayne JJ

Conversely if the rights do not exist in this country then Dr Gramotnev has the insuperable difficulty of establishing that although unspoken by the parties they must be taken to have intended that rights unrecognised in this country should form part of the contract of employment between a University and a lecturer. There is the improbability of the University even contemplating importing rights into a contract that the community does not recognise. And there is no demonstrated need for the implication of the terms for the reasonable or effective operation of this contract. The only apparent need is that Dr Gramotnev wishes to seek damages for their alleged breach. That is, of course, not the test: Byrne at p 423.

There is no demonstrated need for the implication of the term pleaded.

Conclusion

My answer to each of the separate questions is “no”.

I direct that the defendant make any such submission as it may be advised as to any further order that it seeks on or before 4pm on 26 June 2013. I direct that the plaintiff make any such submission as he may be advised as to any further order that he seeks on or before 4pm on 3 July 2013.

[60](2010) FCA 1225

CITATION:	Gramotnev v Queensland University of Technology [2013] QSC 158
PARTIES:	DMITRI GRAMOTNEV Plaintiff And QUEENSLAND UNIVERSITY OF TECHNOLOGY Defendant
FILE NO/S:	S6286/2010
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Brisbane
DELIVERED ON:	19 June 2013
DELIVERED AT:	Supreme Court Rockhampton
HEARING DATE:	26-27 March 2013
JUDGE:	McMeekin J
ORDER:	1. My answer to each of the separate questions is “no”; 2. I direct that the defendant make any such submission as it may be advised as to any further order that it seeks on or before 4pm on 26 June 2013. I direct that the plaintiff make any such submission as he may be advised as to any further order that he seeks on or before 4pm on 3 July 2013.
CATCHWORDS:	CONTRACT – BREACH OF CONTRACT - EXPRESS AND IMPLIED TERMS –whether the provisions of the defendant’s enterprise bargaining agreements and/or manual of policies and procedures and/or the defendant’s statutes and policies constituted a term or terms of the employment contract - whether the employment contract contained the additional terms which are alleged to have been implied by law Crime and Misconduct Act 2001 (Qld) International Covenant on Civil and Political Rights adopted by General Assembly resolution 2200A (XXI) of 16 December 1966 Uniform Civil Procedure Rules 1999 Whistleblowers Protection Act 1994 (Qld) Workers’ Compensation and Rehabilitation Act 2003 Workplace Health and Safety Act 1995 (Qld) Workplace Relations Act 1996 (Cth) ABC v Lenah Game Meats (2001) 208 CLR 199 ACTEW Corp Ltd v Pangallo (2002) 127 FCR 1 Addis v Gramaphone Co [1909] AC 488 Australasian Meat Industry Employees' Union v Frugalis Pty Ltd (1987) 14 FCR 535 Australian Industry Group v Fair Work Australia [2012] FCAFC 108 AWU v BHP Iron Ore [2001] FCA 3 Baltic Shipping Co v Dillon (1993) 156 CLR 344 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Barker v Commonwealth Bank of Australia [2012] FCA 942 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Burazin v Blacktown City Guardian (1996) 142 ALR 144 Byrne & Frew v Australian Airlines (1995) 185 CLR 410 Concut Pty Ltd v Worrell [2000] HCA 64 Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Ltd (1997) 78 FCR 347 Deatons Pty Ltd v Flew (1949) 79 CLR 370 Dye v Commonwealth Securities Ltd [2012] FCA 242 Eastwood v Magnox Electric plc [2005] 1 AC 503 Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 Grosse v Purvis [2003] QDC 151 Hamling v Australia Meat Holdings Pty Ltd [2005] QCA 415 Hawkins v Clayton (1988) 164 CLR 539 Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 Lau v WorkCover Queensland [2003] 2 Qd R 53 McCormick v Riverwood International (Australia) Pty Ltd (1999) 167 ALR 689 McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375 Moama Bowling Club Ltd v Armstrong (No 1) (1995) 64 IR 238 Nelson v BHP Coal Pty Ltd [2000] QCA 505 New South Wales v Lepore (2003) 212 CLR 511 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 RiverwoodInternational Australia Pty Ltd v McCormick [2000] FCA 889 Russell v Trustees of the Roman Catholic Church Arch Diocese of Sydney (2008) 72 NSWLR 559 Schiliro v Peppercorn Childcare Centres Pty Ltd (No 2) [2001] Qd R 518 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 Soliman v University of Technology, Sydney [2008] FCA 1512 South Australia v McDonald (2009) 104 SASR 344 Taske v Occupational and Medical Innovations Ltd [2007] QSC 147 Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Transport Workers’ Union of Australia v K&S Freighters Pty Ltd (2010) FCA 1225 Van Efferen v CMA Corporation Ltd [2009] FCA 597 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 Walker v Citigroup Global Markets Australia Pty Ltd (2006) 233 ALR 687 Wattyl Ltd and Others v Australian Liquor, Hospitality and Miscellaneous Workers Union (1995) 134 ALR 203 Wright v Groves [2011] QSC 66 Wylie v ANI Corporation Ltd [2002] 1 Qd R 320 Yousif v Commonwealth Bank of Australia (2010) 193 IR 212
COUNSEL:	Dr D Gramotnev is self-represented as plaintiff D Kelly SC and D de Jersey for the Defendant
SOLICITORS:	Minter Ellison Lawyers for the Defendant