Lamont v University of Queensland (No 2)

[2020] FCA 720

FEDERAL COURT OF AUSTRALIA

Lamont v University of Queensland (No 2) [2020] FCA 720

File number:

QUD 263 of 2018

Judge:

RANGIAH J

Date of judgment:

28 May 2020

Catchwords:

INDUSTRIAL LAW – employment – whether adverse action taken by respondents within s 342(1) of the Fair Work Act 2009 (Cth) (FWA) – whether adverse action taken against applicant because applicant exercised workplace rights in contravention of s 340(1) of the FWA – whether University liable under s 793 of the FWA for adverse action engaged in by officials – allegations of contraventions of s 340(1) of the FWA upheld in part – compensation awarded under s 545 of the FWA

INDUSTRIAL LAW – employment – whether University breached enterprise agreements

CONTRACT – whether University breached implied terms of contract of employment

Legislation:

Evidence Act 1995 (Cth) ss 140

Fair Work Act 2009 (Cth) ss 50, 340, 340(1), 341, 342(1), 360, 361, 361(1), 545, 550, 570 and 793

Industrial Relations Act 1988 (Cth) s 170EE

Workplace Relations Act 1996 (Cth) s 298K(1)

Crime and Misconduct Act 2001 (Qld)

Industrial Arbitration Act 1940 (NSW) s 95

University of Queensland Act 1998 (Qld) ss 2(b), 4(2)(a), 9(1) and 27(1)

Whistleblowers Protection Act 1994 (Qld) ss 11(1) and 11(2)

Workplace Health and Safety Act 2011 (Qld)

Cases cited:

Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia — Western Australian Branch (1995) 63 IR 1

Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347

Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526

Barker v Commonwealth Bank of Australia (2012) 229 IR 249; [2012] FCA 942

Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2019] FCAFC 71

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Briginshaw v Briginshaw (1938) 60 CLR 336

Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144

Byrne v Australian AirlinesLtd (1995) 185 CLR 410

Childs v Metropolitan Transport Trust (1981) IAS Current Review 946

Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 285 IR 290; [2019] FCAFC 16

Commonwealth Bankof Australia v Barker (2014) 253 CLR 169

Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466

Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50

Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166; [2015] FCA 1014

Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131; [1999] FCA 1531

Dafallah v Fair Work Commission (2014) 225 FCR 559

Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263; [2011] FCA 803

Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456

Ferrcom Pty Ltd v Commercial Union Assurance Company of Australia Ltd (1993) 176 CLR 332

Finance Sector Union of Australia v Australian & New Zealand Banking Group Ltd (2002) 120 FCR 107

Foggo v O’SullivanPartners (Advisory) PtyLtd (2011) 206 IR 87; [2011] NSWSC 501

Gibbs v The Palmerston Town Council [1987] FCA 732

Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62

Gray v Sirtex Medical Ltd (2011) 276 ALR 267; [2011] FCAFC 40

Hammond v Department of Health (1983) 6 IR 371

Health Services Union of Australia v Tasmania (1996) 73 IR 140

Jones v Dunkel (1959) 101 CLR 298

Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22

Major v State of South Australia (1999) 140 IR 29; [1999] FCA 1684

Maritime Union of Australia v Fair Work Ombudsman (2016) 247 FCR 154

National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139; (2013) FCA 451

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1

PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15

Regulski v State of Victoria [2015] FCA 206

Riverwood InternationalPty Ltd vMcCormick (2000) 177 ALR 193; [2000] FCA 889

Romerov Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403

Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; [2014] FCA 271

Squires v Flight Stewards Association of Australia (1982) 2 IR 155

State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441; [2014] FCAFC 184

Stefanovski v Digital Central Australia (Assets) Pty Ltd (2018) 368 ALR 607; [2018] FCAFC 31

Tame v New South Wales (2002) 211 CLR 317

Tattsbet Ltd v Morrow (2015) 233 FCR 46

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

United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466; [2003] FCA 480

Yorke v Lucas (1985) 158 CLR 661

Yousif v Commonwealth Bank of Australia (2010) 193 IR 212; [2010] FCAFC 8

Date of hearing:

11–21 March, 25 and 26 July 2019

Date of last submissions:

10 October 2019 (Applicant)

Registry:

Queensland

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

748

Counsel for the Applicant:

Mr A Britt

Solicitor for the Applicant:

Susan Moriarty and Associates

Counsel for the Respondents:

Mr CJ Murdoch QC with Mr E Shorten

Counsel for the Respondents:

Minter Ellison

ORDERS

QUD 263 of 2018

BETWEEN:

JULIAN LAMONT

Applicant

AND:

UNIVERSITY OF QUEENSLAND

First Respondent

CLIVE MOORE

Second Respondent

RICHARD FOTHERINGHAM (and others named in the Schedule)

Third Respondent

JUDGE:	RANGIAH J
DATE OF ORDER:	28 MAY 2020

THE COURT ORDERS THAT:

1.The first respondent pay the applicant $15,000 by way of compensation for loss arising from the first respondent’s contraventions of s 340(1) of the Fair Work Act 2009 (Cth).

2.The applicant file and serve submissions (not exceeding 15 pages) and any affidavits on the questions of penalties, costs and any other relief by 4.30 pm on 15 June 2020.

3.The respondents file and serve submissions (not exceeding 15 pages) and any affidavits on the questions of penalties, costs and any other relief by 4.30 pm on 29 June 2020.

4.The applicant file and serve submissions (not exceeding five pages) and any affidavits in reply by 4.30 pm on 2 July 2020.

5.The hearing of the questions of penalties, costs and any other relief be listed for 8 July 2020 at 10.15 am.

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

REASONS FOR JUDGMENT

THE PARTIES AND THE WITNESSES	[9]
ASSESSMENT OF THE WITNESSES	[37]
THE LEGISLATION	[44]
THE PRINCIPLES	[52]
Section 340(1) of the FWA	[52]
Workplace rights	[54]
Adverse action taken against another person	[58]
Because the person has exercised a workplace right	[79]
Multiple decision-makers	[87]
Section 550 of the FWA	[92]
Section 140 of the Evidence Act 1995 (Cth)	[94]
THE ALLEGATIONS OF ADVERSE ACTION	[96]
Preliminary	[96]
The workplace rights alleged	[101]
Existence of workplace rights	[103]
Exercise of workplace rights	[111]
Witnesses who were not called	[135]
The first allegation	[141]
The evidence	[142]
Consideration	[159]
The second and third allegations	[178]
The evidence	[181]
Consideration	[203]
The fourth allegation	[218]
The fifth allegation	[238]
The seventh allegation	[253]
The ninth allegation	[260]
The evidence	[264]
Consideration	[293]
The tenth allegation	[301]
The thirteenth allegation	[318]
The fifteenth allegation	[336]
Telephone usage	[337]
Conference leave	[342]
Workload Assessment Policy	[354]
The twenty-second and twenty-third allegations	[356]
The evidence	[358]
Consideration	[386]
The twenty-fourth allegation	[410]
The twenty-fifth allegation	[418]
The twenty-sixth allegation	[432]
The twenty-seventh allegation	[454]
The thirty-first allegation	[473]
The evidence	[475]
Consideration	[481]
The thirty-second allegation	[500]
The thirty-fourth allegation	[518]
The evidence	[521]
Consideration	[542]
The thirty-fifth allegation	[554]
The thirty-seventh allegation	[569]
The thirty-eighth allegation	[595]
The thirty-ninth and forty-first allegations	[622]
ALLEGATIONS OF BREACH OF ENTERPRISE AGREEMENTS	[652]
The 2006 Enterprise Agreement	[653]
Clause 17	[653]
Clause 19	[656]
Clause 26	[660]
The 2010 Enterprise Agreement	[663]
Clause 44	[663]
Clause 62	[667]
Clause 63	[671]
The 2014 Enterprise Agreement	[675]
Clause 60	[675]
Clause 61	[681]
ALLEGATIONS OF BREACHES OF CONTRACT	[686]
Safe system of work	[689]
Implied duty of cooperation	[696]
The policies as implied terms	[699]
RELIEF	[706]
Compensation under s 545 of the FWA	[710]
Damages for breach of contract	[741]
SUMMARY	[743]

RANGIAH J:

1. The applicant, Dr Julian Lamont, is employed as a lecturer by the first respondent, University of Queensland (the University). In this proceeding, Dr Lamont alleges that the University:

   ·contravened s 340(1) of the Fair Work Act 2009 (Cth) (the FWA) by taking adverse action against him because he exercised workplace rights;

   ·contravened s 50 of the FWA by failing to comply with relevant enterprise agreements;

   ·breached the contract of employment.

2. Dr Lamont alleges that the second respondent, Professor Clive Moore, the third respondent, Professor Richard Fotheringham, the fourth respondent, Associate Professor Martin Crotty, and the fifth respondent, Professor Peter Høj, were accessories to the University’s contraventions of the FWA.

3. Dr Lamont made an initial complaint of harassment against Prof Moore in 2010. He subsequently made a cascading series of complaints of victimisation and misconduct against other employees of the University arising from their dealings with his complaints. Dr Lamont’s allegations are principally to the effect that the respondents engaged in adverse action against him because of the various complaints he made. The respondents deny each of the allegations.

4. The material before the Court reveals a multitude of disputes between Dr Lamont and the respondents ranging well beyond those that are pleaded. It must be emphasised that it is not the function of the Court to resolve all of these disputes, but only those raised for consideration on the pleadings.

5. I do not propose to list the allegations made in the pleadings, nor to describe the evidence of the witnesses in narrative form. That is because of the sheer number of allegations made and the scale of the evidence. There are over 6,000 pages of affidavit material, and over 8,000 pages of documents in total. The applicant’s written submissions alone exceed 500 pages, while those of the respondents exceed 300 pages. Many of the affidavits are prolix and replete with barely relevant, repetitive or superfluous material. There were many communications between the protagonists by email, and many of these were verbose and turgid, containing numerous acronyms and phrases decipherable only by academics. In particular, Dr Lamont’s emails tended to flow in a stream of consciousness that makes them difficult to read and understand.

6. The parties, particularly the applicant, have made what should have been a fairly straightforward case into one of almost labyrinthine complexity. To illustrate the point, after nine days of evidence, there were two days of closing oral addresses, almost all of which was spent trying to understand the complex structures of the written submissions, while the parties barely touched upon the particular allegations made and the evidence led. I recognise that the respondents were required to respond to the voluminous material filed by the applicant, but even so, the material filed by both parties was excessive.

7. In these circumstances, I propose to limit my description of the evidence to that which I consider is directly relevant to the allegations, and to do so as succinctly as I can.

8. I will proceed by:

   ·briefly describing the roles of the parties and the witnesses;

   ·summarising my assessment of their evidence;

   ·setting out the relevant provisions of the FWA and the case law interpreting those provisions;

   ·considering the allegations of contraventions of s 340(1) of the FWA;

   ·considering the allegations of breach of s 50 of the FWA;

   ·considering the allegations of breach of contract;

   ·considering the question of relief.

   THE PARTIES AND THE WITNESSES

9. Dr Lamont has been employed as a lecturer in philosophy by the University since 1998. His allegations concern events occurring between April 2010 and January 2016.

10. Dr Lamont is employed in the School of Historical and Philosophical Inquiry, which was previously known as the School of History, Philosophy, Religion and Classics (the School).

11. The School was created in 2001 when four previously separate departments were amalgamated. There appears to have been some residual tension between academics from the various disciplines, particularly those who had come from the philosophy department (such as Dr Lamont) and those who had come from the history department (such as Prof Moore).

12. The first Head of School was Professor Phillip Almond from 2001 to 2005. Prof Almond was succeeded by Associate Professor Richard Hutch from 2005 to 2008.

13. Prof Moore was appointed as Head of School on 1 September 2008, and remained in that position until his retirement on 30 June 2013.

14. A central event was that, on 12 April 2010, Dr Lamont made a complaint that Prof Moore had been harassing him over a period of six months. In his letter of complaint he also made certain allegations about the conduct of Prof Almond and Associate Prof Hutch. Prof Moore disclosed the complaint, in breach of the confidentiality requirement of the relevant policy, to Prof Almond and Associate Prof Hutch. That set off a chain of further complaints by Dr Lamont.

15. Prof Fotheringham was the Executive Dean of the Faculty of Arts from 2005 to 24 December 2010. Prof Moore reported to Prof Fotheringham. Prof Fotheringham’s management of the complaint against Prof Moore led to Dr Lamont making a complaint of victimisation and bullying against Prof Fotheringham on 3 December 2010.

16. Associate Prof Crotty commenced in the role of Head of School on 1 July 2013, replacing Prof Moore. He remained in that position until 30 June 2017. In that role, Associate Prof Crotty was designated as Dr Lamont’s supervisor. The allegations against Associate Prof Crotty principally concern the conduct of Dr Lamont’s annual performance reviews in 2014 and 2015 and disciplinary action taken against Dr Lamont in 2016.

17. Prof Høj has been the Vice-Chancellor and President of the University since October 2012. In that capacity, he is the Chief Executive Officer of the University and an official member of the University Senate, which is the University’s governing body. Prof Høj is alleged to have failed to properly manage certain complaints made by Dr Lamont and to have labelled him as “paranoid”.

18. Dr Lamont gave evidence and called Mr Phillip Procopis, Professor Kay Saunders, Dr Dominic Hyde, Associate Professor William Grey, Mr Roger Byrom, Professor Deborah Brown, Dr Aurelia Armstrong and Professor Warwick Middleton to give evidence.

19. Mr Procopis was employed by the University as its Director, Assurance and Risk Management Services (or in some similar position), from 1993 to 2 July 2012. In that capacity, he was the University’s chief internal auditor and investigator of fraud, corruption and public interest disclosure matters.

20. Prof Saunders was a professor of history at the University from 2003 to 2005 and was a member of the University Senate.

21. Dr Hyde was a senior lecturer within the School. Dr Hyde worked closely with Dr Lamont in teaching a philosophy course within the Science Faculty.

22. Associate Prof Grey was the Acting Deputy Head of School until his retirement in 2012.

23. Mr Byrom was asked by the University to investigate and report on Dr Lamont’s complaints made in December 2010 against Prof Moore and Prof Fotheringham. In June 2011, he prepared a report which made findings of misconduct against Prof Moore and Prof Fotheringham. The University declined to provide a copy of the report to Dr Lamont or to utilise it in the resolution of his complaints.

24. Prof Brown became the Deputy Head of School after Associate Prof Grey. She replaced Prof Moore as Dr Lamont’s supervisor. Although her title varied over the years, it is convenient to refer to her as Prof Brown throughout these reasons.

25. Dr Armstrong is an academic staff member in the School.

26. Prof Middleton is a psychiatrist who gave evidence about his diagnosis of Dr Lamont’s psychiatric condition and the causes of that condition.

27. The individual respondents gave evidence, and also called the following witnesses.

28. Professor Peter Cryle, Professor Frederick D’Agostino and Professor Thomas O’Regan were the members of a Committee that recommended against approval of Dr Lamont’s Special Studies Program (SSP) application in July 2010.

29. Professor Robert Elson was a professor of history at the School. Prof Elson carried out Dr Lamont’s performance appraisal in 2010.

30. Ms Shard Lorenzo was the University’s Director of Human Resources from 2008 until May 2012. Ms Lorenzo was involved in administering and attempting to resolve Dr Lamont’s complaints against Prof Moore and Prof Fotheringham.

31. Professor Michael Keniger was the Senior Deputy Vice-Chancellor from 2009 to 2011. He worked with Ms Lorenzo in dealing with Dr Lamont’s complaints against Prof Moore and Prof Fotheringham. He made the decision to not make use of Mr Byrom’s report in the grievance process. Dr Lamont made a complaint about Prof Keniger’s conduct in late 2011.

32. Mr Maurice McNarn was the Executive Director of Operations at the University between at least 2011 and 2016. Mr McNarn managed Dr Lamont’s complaint about Prof Keniger until Dr Lamont withdrew the complaint.

33. Mr John Story was the Chancellor of the University from 2009 to 2016. In 2011, Dr Lamont asked Mr Story to undertake an independent investigation of his case, but Mr Story refused to do so.

34. Professor Philip Dowe was the Deputy Head of School until 2015 and made decisions in 2012 concerning Dr Lamont’s workload. Dr Lamont complained that he had been harassed by the making of these decisions.

35. Professor Deborah Terry was the Acting Vice-Chancellor from December 2011 to October 2012 and then the Senior Deputy Vice-Chancellor until she left the University in January 2014. She dealt with a complaint made by Dr Lamont in 2012 and also responded to his correspondence with Prof Høj.

36. Professor Timothy Dunne became Executive Dean of the Faculty of Humanities and Social Sciences. In 2014, he dealt with concerns raised by Dr Lamont about Associate Prof Crotty and also threatened disciplinary proceedings against Dr Lamont if he failed to delete references to his grievances from his performance appraisal documentation.

    ASSESSMENT OF THE WITNESSES

1. My impression is that many of the issues arose from the confluence of three difficult personalities.

2. Dr Lamont’s evidence revealed dissatisfaction with many aspects of the way he was treated by the University and its staff, particularly Prof Moore and Prof Fotheringham. His tendency was to assume that any decision or proposal that did not give him exactly what he wanted revealed bias or an intention to victimise him, even when that could not be supported on any reasonable view of the circumstances. He lacked insight into flaws in his own conduct. In particular, he appeared not to understand the seriousness and unfairness of his implication that Prof Moore had engaged in conduct that had contributed to the suicide of another staff member (I will refer to that staff member as Dr XY). Further, he lacked insight into the difficulties that his conduct caused for many of the University’s staff in the performance of their duties.

3. I consider that Dr Lamont does have some justified concerns about his treatment by Prof Moore, Prof Fotheringham and Prof Keniger. However, his perception that he was treated badly and victimised at every step is not justified, and his subjective view of particular events and the reasons for them is often unreliable.

4. I am satisfied from the evidence of witnesses including Prof Saunders, Associate Prof Grey, Dr Hyde, Prof Brown and Dr Armstrong that Prof Moore was a belligerent and abrasive character, with a dictatorial leadership style. That is also apparent from some of Prof Moore’s own emails. As with Dr Lamont, he lacked insight into flaws in his own conduct, particularly his breach of the confidentiality of Dr Lamont’s complaint against him, and he tended to play down his role in the events that unfolded. Prof Moore clearly developed resentment and animosity towards Dr Lamont (these feelings were mutual). Despite these matters, I consider that much of his evidence was supported by contemporary documents or other evidence and that his evidence was generally reliable. However, I do not accept his evidence as to his reasons for breaching the confidentiality of Dr Lamont’s complaint.

5. Prof Fotheringham’s initial role was to attempt to resolve the dispute between Dr Lamont and Prof Moore. When Dr Lamont started making demands and criticisms of Prof Fotheringham, he seemed to resent the challenge to his authority. Prof Fotheringham made an unwarranted threat against Dr Lamont which exacerbated an already difficult situation. I consider that Prof Fotheringham’s evidence was generally reliable. However, as I will discuss, I reject his evidence about his motivation for making his threat.

6. Ms Lorenzo had the unenviable task of mediating between Dr Lamont, Prof Moore and Prof Fotheringham. I find that she was a reliable witness, except in respect of her evidence about why she recommended that Prof Keniger not utilise the report prepared by Mr Byrom. I have also found Prof Keniger’s evidence upon that issue unreliable.

7. I am satisfied that the evidence of the other respondents and their witnesses was generally reliable. I should add that while a number of Dr Lamont’s allegations seemed to be based upon the misconception that decisions he disagreed with were always made because of some bias or enmity against him, by and large, the relevant University officers performed their duties dispassionately and professionally and, in some instances, went out of their way to assist him.

   THE LEGISLATION

8. Part 3–1 of Ch 3 of the FWA is entitled “General protections”. Division 3 of Pt 3–1 is entitled “Workplace rights”.

9. Section 340 is within Div 3 and provides, relevantly:

   (1)      A person must not take adverse action against another person:

   (a)       because the other person:

   (i)        has a workplace right; or

   (ii)       has, or has not, exercised a workplace right; or

   (iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

   (b)       to prevent the exercise of a workplace right by the other person.

   Note:    This subsection is a civil remedy provision (see Part 4–1).

   …

10. Section 341 of the FWA defines “workplace right” as follows:

    Meaning of workplace right

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

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

    (b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

    (c)is able to make a complaint or inquiry:

    (i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

    (ii)if the person is an employee—in relation to his or her employment.

    Meaning of process or proceedings under a workplace law or workplace instrument

    (2)Each of the following is a process or proceedings under a workplace law or workplace instrument:

    …

    (k)any other process or proceedings under a workplace law or workplace instrument.

    …

11. Section 342(1) of the FWA sets out a table that describes when a person takes “adverse action against another person”. Under Item 1, adverse action is taken by an employer against an employee if the employer:

    (a)       dismisses the employee; or

    (b)      injures the employee in his or her employment; or

    (c)       alters the position of the employee to the employee’s prejudice; or

    (d)      discriminates between the employee and other employees of the employer.

12. Section 360 of the FWA provides:

    360     Multiple reasons for action

    For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

13. Section 361 of the FWA provides, relevantly:

    361     Reason for action to be presumed unless proved otherwise

    (1)      If:

    (a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

    (b)taking that action for that reason or with that intent would constitute a contravention of this Part;

    it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

14. Section 550 of the FWA provides:

    550     Involvement in contravention treated in same way as actual contravention

    (1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

    …

    (2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:

    (a)has aided, abetted, counselled or procured the contravention; or

    (b)has induced the contravention, whether by threats or promises or otherwise; or

    (c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

    (d)has conspired with others to effect the contravention.

15. Section 793 of the FWA provides, relevantly:

    793     Liability of bodies corporate

    Conduct of a body corporate

    (1)      Any conduct engaged in on behalf of a body corporate:

    (a)by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

    …

    is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

    State of mind of a body corporate

    (2)If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

    (a)that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

    (b)that the person had that state of mind.

    THE PRINCIPLES

    Section 340(1) of the FWA

16. Under s 340(1) of the FWA, a person must not take adverse action against another person because the other person, relevantly, exercised a workplace right. The applicant bears the onus of proving that:

    (1)the conduct alleged by the applicant occurred;

    (2)that conduct constitutes “adverse action taken against another person” for the purposes of s 342(1);

    (3)the right alleged was a “workplace right”; and

    (4)the applicant exercised (or had not exercised), or proposed to exercise (or proposed not to exercise), the “workplace right”.

    (See Tattsbet Ltd v Morrow (2015) 233 FCR 46 at [119]; Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at [76].)

17. If s 361 of the FWA is engaged, the onus is on the respondent to prove that the adverse action was not taken because the applicant exercised (or did not exercise), or proposed to exercise (or proposed not to exercise), the workplace right.

    Workplace rights

18. Dr Lamont pleads that he exercised “workplace rights” within the meaning of that expression in s 341(1) of the FWA.

19. The workplace rights alleged by Dr Lamont include his right to make complaints within s 341(1)(c) under various enterprise agreements and policies. In Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; [2014] FCA 271, Dodds-Streeton J said at [29], in relation to a “complaint”:

    (a)a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;

    (b)the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;

    (c)the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;

    (d)the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);

    (e)a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;

    (f)a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and

    (g)a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.

20. Justice Dodds-Streeton added at [625], in a passage approved in Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 285 IR 290; [2019] FCAFC 16 at [28] and PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 at [12]:

    In my opinion, the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.

21. Dr Lamont also relies on certain clauses of enterprise agreements as providing “workplace rights” on the basis that they confer a “benefit” under a workplace instrument within s 341(1)(a) of the FWA. The Macquarie Dictionary defines “benefit” to include, “anything that is for the good of a person”. There is no reason, in my opinion, to read down the width of the expression.

    Adverse action taken against another person

22. Under s 342(1) of the FWA, taking “adverse action against another person”, relevantly, consists of an employer:

    (a)dismissing the employee;

    (b)injuring the employee in his or her employment;

    (c)altering the position of the employee to the employee’s prejudice; or

    (d)discriminating between the employee and other employees of the employer.

23. The Further Amended Statement of Claim (FASOC) alleges only that the adverse action injured Dr Lamont in his employment. Unusually, it does not also plead that Dr Lamont’s position was altered to his prejudice. That has led to considerable argument about the width of the phrase, “injures the employee in his or her employment”.

24. The respondents submit that the phrase is narrower than, “alters the position of the employee to the employee’s prejudice”, relying on Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 18. They submit that what is required is that the employee be in a worse position in his or her employment after the action than before it. They submit that it involves deprivation of one of the more practical incidents of employment or the singling out and substantially different treatment of an employee: see Childs v Metropolitan Transport Trust (1981) IAS Current Review 946 at 948; Health Services Union of Australia v Tasmania (1996) 73 IR 140 at 145. They submit that it does not encompass mere embarrassment or upset on the part of an employee, or a denial of natural justice, or a breach of the contract of employment itself.

25. The applicant submits that the approach in Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at 164 requires that the words “injures the employee in his or her employment” extend to any circumstances where an employee is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen as injurious or prejudicial.

26. In Patrick Stevedores, the High Court considered s 298K(1) of the Workplace Relations Act 1996 (Cth) (the WR Act), a provision in very similar terms to Item 1 of the table in s 342(1) of the FWA. The majority held at 18:

    Paragraph (a) covers termination of employment; par (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.

27. The respondents submit that the majority construed the phrase, “injures the employee in his or her employment” narrowly, deciding that it only covers compensable injury. The respondents contrast this with the majority’s construction of “alters the position of the employee to the employee’s prejudice” as a “broad additional category”. That interpretation is arguable, but is answered by the opinion expressed by the Full Court in Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 at [139] that the majority in Patrick Stevedores implicitly approved the approach adopted in Squires.

28. In Squires, Ellicott J considered the words “injure in his employment” at 164:

    The words ‘injure in his employment’ are in the context of s.5 words of wide import. I do not regard them as referring only to financial injury or injury involving the deprivation of rights which the employee has under a contract of service. They are, in my view, applicable to any circumstance where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial.

29. The phrase “injures the employee in his or her employment” in Item 1 of s 342(1) of the FWA is not relevantly distinguishable. Therefore, the narrow construction contended for by the respondents must be rejected. However, there are limitations inherent within the phrase. The employer must “injure” an employee. The injury must be to the employee “in his or her employment”.

30. The Macquarie Dictionary defines “injure” as:

    1.        to do or cause harm of any kind to; damage; hurt; impair...

    2.        to do wrong or injustice to.

    The authorities seem to have regarded s 342(1) (and its equivalent under s 298K(1)(b) of the WR Act) as taking the first of these meanings, not the second. They have focussed upon whether there is some practical detriment or harm to the employee in his or her employment, and mere unfairness or injustice has not been regarded as enough. That was, for example, the approach in Squires at 164 which required that the treatment must be injurious or prejudicial. In Major v State of South Australia (1999) 140 IR 29; [1999] FCA 1684, where the employer refused an employee who had been seconded to a union a further period of unpaid leave as the employer was entitled to do, Marshall J held that the employee was not injured. In Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 (Jones v QTAC), Collier J held at [121]–[122] that a failure by an employer to accord natural justice is not of itself an injury in employment.

31. That approach is, in my respectful opinion, correct. Under Item 1(b) of s 342(1), what is required is that the employer injures the employee. The provision contemplates that the employer takes an action which has a consequence, namely injuring an employee. It is the consequence of the action, not the action itself, which is the injury. Therefore, it is not enough that an action by an employer is itself wrong or unjust—it must cause some kind of material harm or detriment to the employee.

32. The question of whether an omission is an “action” within s 342(1) can be left aside for present purposes. While, in a number of instances, Dr Lamont pleaded injury caused by omissions, the respondents did not argue that s 342(1) requires only actions and not omissions. That may have been for the practical reason that the allegations might have simply been recast as actions.

33. In the present case, a question arises as to whether an employee is injured by being given a formal warning following a disciplinary process. In Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93, the Full Court considered the phrase, “alters the position of an employee to the employee’s prejudice” in s 298K(1)(c) of the WR Act (see now Item 1(c) of s 342(1) of the FWA). The Full Court held at [17]–[18] that the imposition of terms that reduce the security of employment may alter the position of an employee to the employee’s prejudice, provided that the alteration is real and substantial, rather than merely possible or hypothetical. In Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131; [1999] FCA 1531, Branson J at [95] rejected a submission that a formal warning to an employee did not alter his position to his prejudice, finding the warning had made his position less secure: see also Finance Sector Union of Australia v Australian & New Zealand Banking Group Ltd (2002) 120 FCR 107, per Wilcox J. These cases demonstrate that a formal warning may cause a practical detriment to an employee. In my opinion, a practical detriment of that kind may also amount to injury to an employee.

34. There is also an issue in the present case as to whether distress, falling short of a psychiatric injury, can be an injury to an employee in his or her employment within Item 1(b) of s 342(1) of the FWA. One of the contexts in which the issue arises is whether a threat of disciplinary action causes, or can cause, injury.

35. As the Macquarie Dictionary definition demonstrates, the ordinary conception of “injure” is to cause harm of any kind, damage, hurt or impair. A recognisable psychiatric illness clearly comes within the conception of an injury under s 342(1). Subject to qualifications which I will come to, I do not think that psychological or emotional distress falling short of a recognisable psychiatric illness is necessarily excluded. A situation can readily be imagined where an employee is bullied and harassed by a supervisor to the point where the employee experiences great distress at work on a daily basis, but that distress does not rise as high as a psychiatric injury. In my opinion, distress falling short of a recognisable psychiatric illness may be regarded as an injury if it causes sufficient harm, damage, hurt or impairment to the employee’s emotional state.

1. However, in the context of s 342(1), not all harm, damage, hurt or impairment to an employee’s feelings can necessarily be regarded as an injury. In my opinion, the word “injury” implies that a minimal level of harm is insufficient. For example, I do not think that a person who experiences physical pain that is slight and fleeting could be said to be injured. In the day to day conduct of any employment relationship, an employer may make decisions and take actions which result in disappointment, upset or reduction in job satisfaction. Some examples include asking an employee to improve their punctuality or performance, requiring an employee to do new or different duties, or requiring an employee to work reasonable overtime. In such a circumstance, it could not necessarily be said that the “employer…injures the employee in his or her employment”. To be described as an “injury”, there must be a sufficient level of harm, damage, hurt or impairment to the employee’s emotional or psychological welfare. A qualitative judgment must be made as to whether the level of emotional distress demonstrated by the evidence amounts to an injury.

2. In Hammond v Department of Health (1983) 6 IR 371, the Industrial Commission of New South Wales in Court Session, considered an allegation that the respondent contravened s 95 of the Industrial Arbitration Act 1940 (NSW) by injuring an employee in her employment or altering her position to her prejudice by reason of her membership of an industrial union. The Commission held at 375:

   We are of the view that, when determining whether a prima facie case has been made out that an employer has injured a person in his employment, or altered that person's position to his prejudice, an objective view must be taken. We can understand and, indeed, sympathise with an employee when a change in position results, in the employee's view, in less job satisfaction than he was formerly experiencing. But if that were the only "injury" or "prejudice" which the employee suffers, it would be insufficient, in our view, to bring the employer within the purview of s. 95 of the Act.

3. Accordingly, when determining whether an injury has occurred, it is necessary to take an objective view: the employee’s subjective view alone is insufficient to make out an injury.

4. In United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466; [2003] FCA 480, Goldberg J, in the course of deciding whether a prima facie case existed, said at [89]:

   I do not accept that a person charged is not affected in his or her employment until the charge has been proven. The expressions found in s 298K(1)(b) and (c) encompass a wide range of conduct both direct and indirect. The laying of the charges exposes an employee of the Board to a potential disadvantage in his or her employment if the charges are ultimately proven.

5. I accept that the taking of disciplinary proceedings can cause injury to an employee because the employee is exposed to the potential of adverse consequences for his or her employment. The employee’s employment may be less secure. Further, a threat to take disciplinary proceedings may amount to an injury because, if the threat is carried out, the employee is exposed to potential adverse consequences. In my opinion, the emotional consequences of such a threat being made or proceedings being taken may also amount to an injury.

6. Under Item 1(b) of s 342(1) of the FWA, any emotional distress amounting to injury to an employee must be “in his or her employment”. In Maritime Union of Australia v Fair Work Ombudsman (2016) 247 FCR 154, Bromberg J held at [59]:

   The word “in” has a different purpose. It requires that the effect be located in the person’s employment. It identifies that there must be a nexus between the effect and an advantage enjoyed by the person which that effect has prejudicially altered. The advantage affected must be an advantage enjoyed in the person’s employment. The word “in” connotes that the advantage must derive from the employment. If a mere relation, as distinct from a derivational relation, between the employment and the advantage had been intended, the familiar statutory phrase “in or in connection with”, or perhaps just “in connection with”, would likely have been utilised. The preposition “in” operates by way of limitation.

   (Emphasis in original.)

7. I respectfully agree with his Honour’s analysis. I would add that the phrase “in his or her employment” may be contrasted with “in relation to his or her employment” (used in the definition of “workplace right” in s 341(1)(c)(ii) of the FWA). The former requires a closer connection between the injury and the employment than would be required if the latter were used. Not every injury that has a relationship with employment is necessarily an injury “in employment”.

   Because the person has exercised a workplace right

8. Section 361(1) of the FWA provides, relevantly, that if the applicant has alleged that a person has taken action for a particular reason or with a particular intent, and taking that action for that reason or with that intent would constitute a contravention of Pt 3, it is presumed that the action was taken for that reason or with that intent, unless the person proves otherwise.

9. In order to take advantage of s 361(1), an applicant must precisely and distinctly plead the alleged reason for the contravening conduct and all the material facts concerning the contraventions alleged against the respondent: Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 at [18]–[19].

10. A mental state, such as the reasons for the doing of an act, can only be attributed to a corporation by attributing it to one or more of the corporation’s officers or employees. Section s 793(2) of the FWA provides that if it is necessary to establish the state of mind of a body corporate, it is enough to show that the relevant conduct was engaged in by a person specified in s 793(1), and that the person had the required state of mind. The persons specified in s 793(1) are, relevantly, an officer, employee or agent (an “official”) engaged in conduct on behalf of the body corporate within the scope of his or her actual or apparent authority. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 (CFMEU v BHP) at [62], the Full Court held that an applicant must plead or particularise the identity of the officials whose state of mind is relied upon. The Full Court found it unnecessary to decide whether the identity of the relevant officials is a material fact that must be pleaded, or merely evidence by which a material fact (the knowledge of the company) is to be proved and which must be particularised.

11. In my opinion, in order to engage s 793, it is necessary to plead that each individual whose state of mind is relied upon had the required state of mind, was an official of the company and engaged in the conduct on behalf of the body corporate within the scope of his or her actual or apparent authority. That suggests that the identity of the relevant individual or individuals should be pleaded and not merely particularised.

12. In State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441; [2014] FCAFC 184, Tracey and Buchanan JJ described at [32] the principles from Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (BHP Coal) as follows:

    •The central question to be determined is one of fact. It is: “Why was the adverse action taken?”

    •That question is to be answered having regard to all the facts established in the proceeding.

    •The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.

    •It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”

    •Even if the decision-maker gives evidence that he or she acted solely for non proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.

    •If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.

13. In Hall, the Full Court held at [100]:

    The orthodox approach to dealing with allegations of adverse action said to be engaged in “because” of a particular circumstance requires the party making such an allegation to establish the existence of the circumstance as an objective fact. If an applicant, on the whole of the evidence, establishes, to the Briginshaw standard, that the elements of a particular contravention (other than the reasons for the respondent taking action) exist and if the respondent wishes to avoid an adverse finding in respect of the alleged contravention the respondent will bear the onus to establish, on the balance of probabilities, that he or she had not acted for any proscribed reason. As has already been noted above, s 360 contemplates that there might be multiple reasons for a respondent taking action to the prejudice of the applicant. A reason will not be proscribed unless it is “a substantial and operative factor” in the respondents’ reasons for taking the adverse action.

    (Citations omitted.)

14. In Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd, Jessup J (with whom I agreed) observed at [32] that while a party’s failure to lead particular evidence may tip the scales in favour of drawing an inference adverse to that party, the inference must still be fairly open on the evidence which has been called.

15. In the same case, I held at [132] that a mere causal nexus between the exercise of a workplace right and the adverse action is not enough. In Barclay at [104], Gummow and Hayne JJ considered that the word “because” in s 340(1) requires an enquiry as to the “substantial and operative” reason or reasons for the relevant action. In BHP Coal, Gageler J described the enquiry as being into the “operative and immediate” reason or reasons. The mere application of a “but for” test is insufficient. Otherwise, the outcomes in Barclay and BHP Coal would have been different. The closeness of the connection between the exercise of the workplace right and the adverse action must be examined. A qualitative judgment must be made as to whether the adverse action was taken because the employee exercised a workplace right.

    Multiple decision-makers

16. In some cases, a decision that is alleged to constitute adverse action may have been made by more than one decision-maker, or may be contributed to by advice given by another person to the decision-maker.

17. In Gibbs v The Palmerston Town Council [1987] FCA 732, Gray J observed at 84–85:

    …[T]here is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advanced by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.

18. In National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139; (2013) FCA 451, Gray J said:

    [26] It is often the task of a court to make a finding as to the minds of which natural person or persons constitute the directing mind and will of a corporate body, for the purpose of determining the state of mind of that corporate body. Sometimes, the question is as to the knowledge of the corporate body. As Brennan, Deane, Gaudron and McHugh JJ said in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 583:

    A division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them.

    The same can be said of states of mind other than knowledge, such as reason or intent…

19. In Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166; [2015] FCA 1014, Reeves J, having reviewed the authorities, concluded:

    [121]…[W]here the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry…focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision…

    [122]I therefore consider the focus and scope of the inquiry in this matter should proceed in two parts. First, an inquiry to ascertain whose reasons had a material effect on the reasoning process that preceded Mr Pretorius’ ultimate decision to dismiss Mr Scott. And, secondly, an inquiry to examine the reasoning employed by those persons to ascertain whether it was affected by a prohibited reason or, to put it in the terms of s 360 of the FWA, whether Clermont Coal has established to the requisite standard that none of the alleged “particular reasons “was a substantial and operative reason” for the decision to dismiss Mr Scott…

20. The effect of the judgment in CFMEU v BHP at [62] is that the identity of each official of a body corporate whose state of mind is relied upon must be pleaded or particularised. Further, the presumption under s 361(1) will not be engaged unless the identity of the persons who took the relevant action for a particular reason is pleaded, or at least particularised: cf Hall at [18]–[19].

    Section 550 of the FWA

21. Under s 550(1) of the FWA, a person who is involved in a contravention of a civil remedy provision is treated as having contravened that provision. Section 550(2) identifies when a person is taken to be involved in such a contravention, including when a person is knowingly involved in a contravention.

22. In Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456, White J summarised a number of principles relevant to the question of whether a party has been knowingly concerned in a contravention. His Honour said:

    227In order to be knowingly concerned in, or party to, a contravention, a person must have engaged in some conduct which “implicates or involves” him or her in the contravention, so that there is a “practical connection” between the person and the contravention: Qantas Airways Ltd v Transports Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503 at [324]–[325]. See also Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]. In Trade Practice Commission v Australian Meat Holdings Pty Ltd (1988) 83 ALR 299, Wilcox J at 357 quoted with approval the following passage from the judgment of the Full Court of the Supreme Court of Western Australia in Ashbury v Reid (1961) WAR 49:

    The question which a Court should ask itself in determining whether an act or omission on the part of an individual comes within the terms of section 54 is whether on the facts it can reasonably be said that the act or omission shown to have been done or neglected to be done by the defendant does in truth implicate or involve him in the offence, whether it does show a practical connection between him and the offence.

    The statement in Ashbury v Reid was also approved in R v Nifadopoulos (1988) 36 A Crim R 137 at 140 with the Court (Kirby ACJ, Maxwell and Carruthers JJ agreeing) saying that “a person cannot become criminally involved in an act made unlawful by mere knowledge or inaction on his part—some act or conduct on his part is necessary”.

    228In Yorke v Lucas (1983) 49 ALR 672 at 681, the Full Court of this Court approved the following statement of Pennycuick V-C in Re Maidstone Buildings Provisions Ltd [1971] 1 WLR 1085 at 1092–3:

    [T]he expression “party to” must on its natural meaning indicate no more than “participates in” or “concurs in”. And that, it seems to me, involves some positive steps of some nature.

    See also Sent v Jet Corporation of Australia (1984) 2 FCR 201 at 208-9.

    229In order for a person to have been knowingly concerned in a statutory contravention, that person must have been an intentional participant, with knowledge of the essential elements constituting the contravention: Yorke v Lucas (1985) 158 CLR 661 at 670. However, it is not necessary that a person with knowledge of the essential elements making up the contravention also know that those elements do amount to a contravention: Yorke v Lucas at 667; Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 at [48]. An accessory does not have to appreciate that the conduct involved is unlawful: Australian Competition and Consumer Commissioner v Giraffe World Australia Pty Ltd (No 2) [1999] FCA 1161; (1999) 95 FCR 302 at [186].

    230Actual knowledge of the essential elements constituting the contravention is required. Imputed or constructive knowledge is insufficient: Young Investments Group Pty Ltd v Mann [2012] FCAFC 107 at [11]; (2012) 293 ALR 537 at 541.

    Section 140 of the Evidence Act 1995 (Cth)

23. Section 140 of the Evidence Act 1995 (Cth) provides:

    (1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

    (2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

    (a)       the nature of the cause of action or defence; and

    (b)       the nature of the subject-matter of the proceeding; and

    (c)       the gravity of the matters alleged.

24. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [31], the Full Court held that Dixon J’s discussion in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–363 of the operation of the civil standard of proof, “appositely expresses the considerations which s 140(2) of the Evidence Act require a court to take into account”. The relevant considerations include that s 340 of the FWA is a civil remedy provision, contravention of which exposes the respondents to pecuniary penalties.

    THE ALLEGATIONS OF ADVERSE ACTION

    Preliminary

25. Dr Lamont’s allegations of contravention of s 340(1) of the FWA evolved over the course of the hearing. In his written submissions in reply, a table entitled “Applicant’s Table of Adverse Action and Workplace Rights” was produced, and a revised version was subsequently filed (the Table). I understand Dr Lamont’s ultimate case to be encapsulated in the Table, although supplemented by his written and oral submissions. I approach the identification of the allegations and the issues primarily by reference to the Table and the FASOC.

26. There were a number of topics addressed extensively in the written material and cross-examination, but which were not pleaded as contraventions of the FWA or breaches of contract. Some examples are the allegations of harassment made by Dr Lamont against Prof Moore in his initial complaint, an allegation that Prof Moore breached the confidentiality of that complaint and further allegations of victimisation made against Prof Moore in 2012. I only propose to refer to such issues to the extent necessary to give context to the allegations that are specifically pleaded. I will not determine any allegations that have not been pleaded as breaches of the FWA or the contract of employment.

1. I will consider each allegation set out in the Table in order. The allegations are broadly chronological. The gaps in the numbering reflect the fact that some of the allegations pleaded in the FASOC were not ultimately pursued.

2. In respect of each allegation of contravention of s 340(1) of the FWA, it will be necessary to consider:

   (1)whether the event pleaded happened, and whether it happened as alleged;

   (2)whether the event involved “adverse action taken by an employer against the employee” within s 342(1);

   (3)who took the action that is attributed to the employer;

   (4)whether the rights alleged were “workplace rights” within s 341(1);

   (5)whether the alleged workplace rights were exercised;

   (6)whether the adverse action was taken against the applicant because the applicant exercised the workplace rights.

3. I will not necessarily address each of these issues in respect of each allegation. In some instances, for example, if it is clear that the alleged action was not taken at all, or if the action was not taken because Dr Lamont exercised any workplace right, it may be too artificial to determine whether there was “adverse action” taken against him.

   The workplace rights alleged

4. I propose to address the existence and exercise of the workplace rights pleaded by Dr Lamont at this stage. That is because many of the workplace rights relied upon are common to many of the allegations and dealing with them now will avoid repetition.

5. The Table and the FASOC allege that Dr Lamont relevantly exercised the following workplace rights:

   (a) to notify a dispute about the matter under the Agreement pursuant to clause 35 of the Agreement which is an entitlement to the benefit of, or a role or responsibility under a workplace instrument and/or the ability to initiate, or participate in, a process or proceedings under a workplace instrument;

   (b) to have that dispute processed pursuant to clause 35 of the Agreement which is an entitlement to the benefit of a workplace instrument and/or the ability to initiate, or participate in, a process or proceedings under a workplace instrument;

   …

   (d) to request the nomination of an alternative supervisor in accordance with clause 19 of the Agreement which is an entitlement to the benefit of a workplace instrument;

   …

   (o) to have a grievance with another staff member dealt with in accordance with clause 44.1 of the First Agreement which is an entitlement to the benefit of a workplace instrument;

   (p) to be appraised annually in accordance with clause 62 of the First Agreement which is an entitlement to the benefit of a workplace instrument;

   …

   (r) to notify a dispute in respect to any matter arising under the Second Agreement pursuant to clause 15 of the Second Agreement which is an entitlement to the benefit of, or a role or responsibility under a workplace instrument and/or the ability to initiate, or participate in, a process or proceedings under a workplace instrument;

   …

   (z) to be appraised annually in accordance with clause 60 of the Second Agreement which is an entitlement to the benefit of a workplace instrument;

   (aa) to be provided with academic and administrative leadership by a nominated supervisor in accordance with clause 61 of the Second Agreement which is an entitlement to the benefit of a workplace instrument;

   (bb) to be provided with a workplace by the First Respondent in accordance with section 19 of the Work Health and Safety Act 2011 (Qld) from 1 January 2012 which is an entitlement to the benefit of a workplace law;

   (cc) to be provided with a workplace by the First Respondent in accordance with sections 28 and 30 of the Workplace Health and Safety Act 1995 (Qld) from 1 April 2010 until 31 December 2011 which is an entitlement to the benefit of a workplace law;

   (dd) to make a complaint or inquiry in relation to his employment;

   (ee) the responsibility pursuant to s28 of the Work Health and Safety Act 2011 (Qld) from 1 January 2012 to take reasonable care of his own health and safety which is a role or responsibility under, a workplace law; and

   (ff) the responsibility pursuant to s36 of the Workplace Health and Safety Act 1995 (Qld) from 1 April 2010 until 31 December 2011 to not wilfully place at risk the workplace health and safety of any person which is a role or responsibility under, a workplace law.

   Existence of workplace rights

6. The respondents admit that the workplace rights alleged, other than those numbered (p), (z), (aa) and (dd), are “workplace rights” within s 341 of the FWA.

7. As to (p) and (z), Dr Lamont relies upon cl 62 of the University of Queensland Enterprise Agreement 2010–2013 (the 2010 Enterprise Agreement) and cl 60 of the University of Queensland Enterprise Agreement 2014–2017 (the 2014 Enterprise Agreement) respectively. These clauses are substantially in the same terms, and state:

   This clause is designed to provide a mechanism to assess the performance of academic staff. The main objectives of academic staff supervision and appraisal are to:

   (a)       Implement developmental/growth opportunities for Academic staff; and

   (b)Provide assistance to any academic staff member whose performance is assessed as requiring improvement.

   Each academic staff member will meet annually with his/her supervisor to conduct a formal review. An Achievements and Objectives Form will be provided to the supervisor by the staff member.

8. The respondents accept that the 2010 and 2014 Enterprise Agreements are “workplace instruments” for the purposes of s 341(1)(a) of the FWA. However, they submit that the relevant clauses only require academic staff members to meet annually with their supervisor, and do not give them a “benefit” within s 341(1)(a) of the FWA.

9. I do not accept the respondents’ submission. The clauses provide a mechanism for assessment of the performance of academic staff. The clauses indicate that the objectives are to implement developmental and growth opportunities for academic staff and provide assistance to academic staff members whose performance is assessed as requiring improvement. The clauses envisage that the annual review will identify strengths and areas for development and thereby assist academic staff to develop and improve. That provides a benefit to employees, as well as to the University. I find that employees are entitled to an annual performance review, and that this is a workplace right within s 341(1)(a) of the FWA.

10. The workplace right pleaded at (aa) relies upon cl 61 of the 2014 Enterprise Agreement. Clause 61 states:

    Each Academic staff member shall have a nominated supervisor, and shall be advised in writing of the name and position of the nominated supervisor. Academic staff may request the nomination of an alternative supervisor.

    Supervisors shall provide academic and administrative leadership and are responsible for monitoring the performance of academics and for providing assistance to Academic staff whose performance is assessed as requiring improvement. Wherever possible supervisors shall be competent in the broad areas of expertise of the Academic staff for whom they are responsible.

11. The respondents submit that this clause does not give academic staff members a benefit for the purposes of s 341(1)(a) of the FWA. They submit that the clause merely places an obligation on the University to nominate a supervisor. They submit that even if the clause does provide a benefit, that benefit is only to have a supervisor nominated and nothing more.

12. Clause 61 of the 2014 Enterprise Agreement requires the University to nominate a supervisor. The role of a supervisor includes providing academic and administrative leadership and providing assistance to staff whose performance is assessed as requiring improvement. In my opinion, leadership and assistance are benefits. Dr Lamont had, pursuant to s 341(1)(a) of the FWA, an entitlement to be provided with the benefit of academic and administrative leadership by a nominated supervisor in accordance with cl 61 of the 2014 Enterprise Agreement.

13. The workplace right alleged at (dd) is a right, “to make a complaint or inquiry in relation to his employment”. This allegation follows the words of s 341(1)(c)(ii) of the FWA, which provides that, “A person has a workplace right if the person…is able to make a complaint or inquiry…in relation to his or her employment”. However, as Shea at [29] and PIA Mortgage Services at [12]–[14] make clear, the ability must be underpinned by an entitlement or right, and there must be an identifiable source of that entitlement or right. The provision does not contemplate a freestanding right to make a complaint or inquiry in relation to employment of the type pleaded. I find that Dr Lamont had no workplace right, “to make a complaint or inquiry in relation to his employment”.

    Exercise of workplace rights

14. The respondents deny that Dr Lamont exercised any of the workplace rights pleaded.

15. Dr Lamont’s employment was covered by the University of Queensland Enterprise Agreement (Academic Staff) 2006 (the 2006 Enterprise Agreement). The allegation at (a), that Dr Lamont exercised his right “to notify a dispute about the matter under the Agreement pursuant to clause 35 of the [2006 Enterprise] Agreement”, is central to much of his case. It is necessary to consider whether he in fact notified a dispute under that clause.

16. On 12 April 2010, Dr Lamont made a complaint to Prof Fotheringham alleging that Prof Moore had engaged in behaviour that constituted harassment over the previous six months. The complaint was expressed to be made in accordance with cl 4, Step One of the University’s Staff Grievance Resolution Policy. The complaint made no reference to the 2006 Enterprise Agreement.

17. There were, relevantly, three potential sources of an entitlement for Dr Lamont to raise a grievance or make a complaint.

18. First, cl 24.1 of the 2006 Enterprise Agreement provided that where, relevantly, a supervisor receives a complaint of misconduct or serious misconduct against an academic, the supervisor may conduct or commission an investigation. The remainder of cl 24 dealt with the conduct of the investigation, notification to the academic under investigation, review of the decision made and procedural and other matters.

19. Second, cl 35.2 provided that “any dispute as to the application of the Agreement” was, in the first instance, to be raised and discussed by an academic staff member with the relevant senior manager. Under cl 35.3, where a dispute was not resolved, it was required to be referred to the relevant Senior Executive, who was to arrange a conference to discuss the matter. Clause 35.4 provided that the University would make a decision and inform all those involved within five working days.

20. Third, the Staff Grievance Resolution Policy allowed a grievance to be raised or a complaint to be made. Schedule 1B of the 2006 Enterprise Agreement listed a number of policies, including the Staff Grievance Resolution Policy. Clauses 10.2 and 10.3 provided that the policies listed in Schedule 1B did not form part of the 2006 Enterprise Agreement, but were designed to give effect to and detailed support for the matters covered by the Agreement and should be read in conjunction with the Agreement.

21. Clause 4.1 of the Staff Grievance Resolution Policy provided that before initiating grievance procedures, the complainant should try to resolve the problem directly with the person concerned if at all possible. The Policy provided for three steps. Under cl 4.4, Step One required that the complainant seek resolution of the problem at the earliest time and at the lowest organisational level wherever possible, which might take the form of a direct approach. Under cl 4.5, once notified of a grievance, a supervisor was required to: initiate discussions with the staff member as soon as practicable, with a view to determining whether a genuine grievance existed; gather information required to assist with the resolution of the grievance; and determine the appropriate course of action to resolve the grievance. Clause 4.7 provided that if the complainant felt that the matter had not been resolved at Step One, they could initiate formal proceedings under Step Two.  

22. Under cl 4.8, Step Two required that the complainant state the nature of the grievance in writing to the appropriate University officer in the area to which the grievance related and outline details of the grievance, the efforts to resolve the grievance and the desired outcome/resolution. Clause 4.10 provided that the University officer responsible should ensure that each party and other relevant persons were interviewed separately in the first instance and, where appropriate, further meetings with both parties could be arranged. Clause 4.11 provided for, inter alia, the exploration of alternatives for resolution of grievances, including mediation. Under cl 4.12, at the conclusion of the investigation, the parties were to be advised of the University officer’s findings and proposal to resolve the issue and that any proposals for resolution would be implemented only with the agreement of the parties. I will describe Step Three later in these reasons.

23. The question is whether, as the FASOC alleges, the grievance against Prof Moore was made under cl 35 of the 2006 Enterprise Agreement. Under cl 35, “any dispute as to the application of the Agreement” could be raised and dealt with. However, Dr Lamont’s complaint of harassment cannot be described as a dispute as to the application of the 2006 Enterprise Agreement. The complaint was not expressed to be made, and was not made, under cl 35. Therefore, the workplace right pleaded at (a) was not exercised.

24. Further, the complaint was not expressed to be made under the 2006 Enterprise Agreement at all. Therefore, there is no question of a mere typographical error being made by referring to cl 35 instead of cl 24.

25. Dr Lamont’s grievance was expressed to be made under Step One of the Staff Grievance Resolution Policy. If Dr Lamont had made his complaint under cl 24 of the 2006 Enterprise Agreement, under cl 10.3, the Staff Grievance Resolution Policy would have been used to give detailed support for the investigation. However, he made his complaint directly under the Staff Grievance Resolution Policy. That course was open to him. In my opinion, the Staff Grievance Resolution Policy provided an entitlement, independently of the 2006 Enterprise Agreement, to lodge a grievance against another staff member. Dr Lamont was, within s 341(1)(c)(ii) of the FWA, able to make a complaint in relation to his employment under the Staff Grievance Resolution Policy.

26. It is a fundamental characteristic of the adversarial system that trials are conducted on the basis of the issues the parties agitate in the pleadings and, as a general rule, relief is confined to that claimed or available on those pleadings: Stefanovski v Digital Central Australia (Assets) Pty Ltd (2018) 368 ALR 607; [2018] FCAFC 31 at [63]; Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2019] FCAFC 71 at [249]. However, that general rule may be departed from where the trial has been conducted on a basis that is inconsistent with a particularised allegation. A practical assessment must be made to determine whether or not a case has proceeded in a manner that is fair to the parties: Bauer at [251]. In Stefanovski, the Full Court observed:

    65.That is not to say that a judgment needs to be precisely within the scope of the “particulars” alleged in a pleading so long as judgment is given on the causes of action pleaded. A fair amount of tolerance can be justified so long as the circumstances are such that all parties to the action have had fair notice of what will be determined. Experience shows that it is not infrequently the case that the evidence adduced at trial diverges from the pleaded particulars to some degree. That is not unexpected given that pleadings are prepared well in advance of all of the relevant information becoming known. In this respect, in Water Board v Moustakas (1988) 180 CLR 491, 497, the majority of the High Court (Mason CJ, Wilson, Brennan and Dawson JJ) indicated that particulars are less confining than material facts…

27. In this case, the FASOC pleads that the University contravened s 340(1) of the FWA by taking adverse action against Dr Lamont because he exercised workplace rights which included making his complaint of harassment against Prof Moore. He wrongly particularised the source of his ability to make that complaint as being cl 35 of the 2006 Enterprise Agreement instead of the Staff Grievance Resolution Policy. That made no practical difference to the conduct of the trial. The respondents did not dispute that Dr Lamont had made his complaint of harassment against Prof Moore. The respondents’ witnesses understood the complaint was made under the Staff Grievance Resolution Policy, as their relevant emails show. The contention raised by the respondents was merely that the complaint was not made under cl 35 of the 2006 Enterprise Agreement.

28. In these circumstances, it is not unfair to proceed on the basis that Dr Lamont alleges that he had a workplace right to make his complaint against Prof Moore under the Staff Grievance Resolution Policy and exercised that right. I find that he had such a workplace right within s 341(1)(c) of the FWA. I find that he exercised that right by making his complaint about Prof Moore on 12 April 2010. It is appropriate to mention that this issue provides one of many examples of sloppiness in the presentation of Dr Lamont’s case that has resulted in wastage of time and effort.

29. The same position applies to a complaint made by Dr Lamont against Prof Fotheringham on 3 December 2010, a further complaint against Prof Moore made on 8 December 2010 and a complaint against Prof Keniger on 21 November 2011. Each of those complaints was made under the Staff Grievance Resolution Policy and was the exercise of a workplace right within s 341(1)(c) of the FWA.

30. Dr Lamont made a complaint against Prof Dowe and Prof Moore on 25 July 2012. The letter of complaint referred to retaliation in contravention of the University’s Whistleblowers’ Protection Management Policy (the Whistleblowers Policy) and also made more general complaints which I take to have been made under the Misconduct — Serious Misconduct Policy. I will regard Dr Lamont as having exercised a workplace right to make complaints under those policies.

31. I do not accept that Dr Lamont exercised the workplace right as pleaded at (o), which was to have a grievance dealt with in accordance with cl 44.1 of the 2010 Enterprise Agreement, or (r), which was to notify a dispute pursuant to cl 15 of the 2014 Enterprise Agreement. However, I accept that the complaints against Prof Keniger on 21 November 2011 and against Prof Dowe and Prof Moore on 25 July 2012 were made under the Staff Grievance Resolution Policy. I will treat the allegations at (o) and (r) as referring to grievances notified under the Staff Grievance Resolution Policy.

32. The Table and FASOC allege at (b) that Dr Lamont had the right to have his dispute processed pursuant to cl 35 of the 2006 Enterprise Agreement. I will proceed on the basis that this allegation should also refer to the Staff Grievance Resolution Policy. I accept that he had that right, and that he exercised his right to require that his complaint be processed under the procedures provided in the Staff Grievance Resolution Policy.

33. Dr Lamont requested the nomination of an alternative supervisor under cl 19 of the 2006 Enterprise Agreement. I accept that he exercised the workplace right pleaded at (d).

34. The workplace rights pleaded at (bb), (cc), (ee) and (ff) all relate to responsibilities upon the University for the health and safety of employees under the Workplace Health and Safety Act 2011 (Qld) (the WHS Act). I accept that Dr Lamont had a benefit under the WHS Act: cf Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [55]. The allegation seems to be that he exercised his entitlement to that benefit by making his complaint about harassment by Prof Moore and requesting a change of supervisor so that he would be protected from psychological injury. I am prepared to accept that Dr Lamont exercised the rights under the WHS Act he has identified, although it seems to add nothing to the other workplace rights.

1. I have found that Prof Moore did offer to stand down as Dr Lamont’s supervisor, but Dr Lamont refused the offer. Further, Prof Moore was relieved of one of his principal duties as Dr Lamont’s supervisor, namely conducting the annual performance review. I have already rejected Dr Lamont’s submissions that Prof Moore took adverse action against him in respect of his SSP application and approval for annual and conference leave. I find that Prof Moore acted reasonably and in good faith in his involvement with Dr Lamont’s SSP and other leave processes. I also consider that Prof Fotheringham agreed to Dr Lamont’s request for a change of supervisor, and acted reasonably and in good faith in maintaining Prof Moore’s involvement in Dr Lamont’s SSP and other leave processes. It has not been demonstrated that this conduct of Prof Moore and Prof Fotheringham exposed Dr Lamont to a risk of psychiatric injury.

2. I have found that Prof Fotheringham threatened to investigate Dr Lamont for misconduct in his email of 8 July 2010 and that this threat was a breach of s 340(1) of the FWA. As I will discuss later in these reasons, this conduct aggravated Dr Lamont’s existing psychiatric illness to a minor extent. The conduct occurred in circumstances where Prof Fotheringham knew or believed that Dr Lamont’s mental health was fragile, having expressed his concern for Dr Lamont’s state of health in an email sent on 20 April 2010. I accept that Prof Fotheringham’s conduct exposed Dr Lamont to unnecessary risk of psychiatric injury. This was a breach of the implied term requiring the University to take reasonable care for Dr Lamont’s safety.

3. I have found that the University’s refusal to provide a copy of the Byrom Report to Dr Lamont and setting aside the report for the purposes of the grievance process contravened s 340(1) of the FWA. Where the University represented that Dr Lamont’s grievances would be dealt with by obtaining and using an independent report and then reneged on that representation, there was a foreseeable risk of psychiatric injury. Again, the conduct aggravated Dr Lamont’s psychiatric illness. The conduct unreasonably exposed Dr Lamont to a foreseeable risk of psychiatric injury. This was also a breach of the implied term requiring the University to take reasonable care for Dr Lamont’s safety.

4. I find that Prof Dunne’s direction that Dr Lamont delete references to grievances in his performance appraisal documentation and his threat of disciplinary action if he refused to do so was a reasonable direction. It has not been demonstrated that this conduct exposed Dr Lamont to a risk of psychiatric injury.

   Implied duty of cooperation

5. There is an implied duty to cooperate in the doing of acts necessary to performance of, or to enable the other party to secure a benefit provided by, the contract: Commonwealth Bankof Australiav Barker (2014) 253 CLR 169 at [37] and [61].

6. In Regulski v State of Victoria [2015] FCA 206 at [211]–[213], Jessup J held:

   211As to the first implied term relied on, there is, of course, a duty of co-operation which is implied into employment contracts, as within the class of contracts in which the derivation of the benefit of the contract by one party is dependent upon some co-operative action by the other party: see Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596. But, properly understood, the duty to co-operate is a specific one. It is not as though there is a term in contracts of employment that the parties must co-operate with each other, in the broad as it were. An employee who declines an invitation to act in a supervisory position to cover a temporary absence may be viewed by his or her employer as being distinctly unco-operative, but this would not give rise to a breach of contract…

   213It was submitted on behalf of the applicant that “the scope of the required co-operation between the parties to a contract must be defined by what has been promised under the particular contract.” I accept that. It was then submitted that the policies of each of the respondents in the present case had been agreed as between the relevant respondent and the applicant, such that “both the employer and the employee would comply with their respective policies in the workplace”. I do not accept that. It was not pleaded that the policies had been agreed as terms of the applicant’s contract of employment: indeed, it was alleged that the Department required the applicant to comply with its policies. Consistently with this allegation, I would hold that, in presently relevant respects, the respondents’ policies were internal rules, procedures, etc with which their employees were required to comply. They were issued pursuant to an employer’s common law power to direct. They were not contractual.

7. Dr Lamont has not identified some particular failure of the University to cooperate in the doing of acts necessary to performance of the contract, or to enable him to secure a benefit provided by the contract. The allegation that the University breached such a term cannot be accepted.

   The policies as implied terms

8. Dr Lamont alleges that the University’s policies are incorporated into the terms of the employment contract.

9. An employer’s policies or procedures can only be incorporated into an employment contract by express or implied agreement. Whether or not the terms of policies or procedures have been incorporated depends upon the parties’ intentions, which are to be determined objectively. The Court is required to consider whether or not the language used by the parties, in the context in which those words were used, would have led a reasonable person to believe that the policy or procedure had been incorporated: Romerov Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403 at [34]–[35]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40].

10. The factors that are relevant include the wording of the contract; the wording of the policy or procedure in question (and whether or not the terms are contractual or promissory in nature); the subject matter of the policy or procedure and the circumstances surrounding the making of the contract; and whether or not the contract has an express clause that states the policy or procedure is not incorporated: see generally Romero at [33]–[63].

11. A term will not be implied if to do so would contradict any express term of the contract: Byrne v Australian AirlinesLtd (1995) 185 CLR 410 at 422. Accordingly, terms of a policy or procedure will not be incorporated if to do so would be inconsistent with an express term of the contrary.

12. Employment contracts have been found to incorporate an employer’s policies and procedures in circumstances where the employee was required in the employment contract to “abide by” the policies and procedures and the policies and procedures used promissory language: see Riverwood InternationalPty Ltd vMcCormick (2000) 177 ALR 193; [2000] FCA 889; Foggo v O’SullivanPartners (Advisory) PtyLtd (2011) 206 IR 87; [2011] NSWSC 501 at [116]–[119]. A policy or procedure will not be incorporated if it is intended to operate as a guideline only and is not intended to have contractual force, or the employment contract expressly provides that the policy or procedure does not form part of the employment contract: Yousif v Commonwealth Bank of Australia (2010) 193 IR 212; [2010] FCAFC 8 at [95]–[96]; Barker v Commonwealth Bank of Australia (2012) 229 IR 249; [2012] FCA 942 at [315]–[320]; Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62 at [37]–[38], [41], [298], [308]–[309]; Regulski at [213].

13. Clause D of the employment contract is headed “Additional (Non-Contractual) Information” and states, “What follows is for your information. It does not form part of your contractual conditions”. It is then followed by a reference to the University’s Code of Conduct, relevant awards and enterprise agreements and the Handbook of University Policies and Procedures.

14. It is plain that there was no intention by the parties to be contractually bound by the University’s policies and procedures. To incorporate the policies and procedures into the employment contract would be inconsistent with the express terms of the contract. For these reasons, the terms of the employment contract did not incorporate the University’s policies.

    RELIEF

15. I have found that the University contravened s 340(1) of the FWA as alleged in part of the First Allegation (Prof Moore disclosing Dr Lamont’s letter of complaint); the Tenth Allegation (Prof Fotheringham threatening to initiate an investigation into Dr Lamont’s conduct); the Twenty-Second and Twenty-Third Allegations (the University setting aside and refusing to provide Dr Lamont with the Byrom Report); and part of the Twenty-Fifth Allegation (Prof Keniger failing to act impartially, fairly and expeditiously).

16. The FASOC seeks, relevantly:

    (1)The imposition of penalties for the contraventions of s 340(1) of the FWA.

    (2)Compensation and damages.

17. I will hear the parties as to penalties on a later date, but will consider the question of compensation and damages at this stage.

18. Dr Lamont seeks compensation or damages for legal costs; loss of opportunity for career advancement; damage to his career prospects generally; damage to his professional and personal reputation; pain, suffering, stress, anxiety, humiliation and dislocation of life; and mental harm.

    Compensation under s 545 of the FWA

19. Section 545 of the FWA provides, relevantly:

    (1)The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

    ...

    Note 2: For limitations on orders in relation to costs, see section 570.

    …

    (2)Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:

    (a)an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

    (b)an order awarding compensation for loss that a person has suffered because of the contravention;

    (c)an order for reinstatement of a person.

20. In Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526, Barker J observed at [423] that if compensation is to be awarded, one of the principal tasks is to ensure that there is the appropriate causal connection between the contravention and the loss claimed: see also Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 at 155.

21. In Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia — Western Australian Branch (1995) 63 IR 1, Lee J, considering s 170EE of the Industrial Relations Act 1988 (Cth), said at 9, that the Court will:

    …have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened … The Court will consider the detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.

22. Compensation may be awarded for non-economic loss such as hurt and humiliation, as well as for economic loss: Dafallah v Fair Work Commission (2014) 225 FCR 559 at [178]–[179]; Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd at [442]–[450].

23. It may be said immediately that it is not appropriate to make any order under s 545(1) that the respondents pay Dr Lamont’s legal costs. As Note 2 to s 545(1) indicates, s 570 contains limitations in relation to costs. Section 570 provides:

    (1)A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

    …

    (2)      The party may be ordered to pay the costs only if:

    (a)the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

    (b)the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

    (c)the court is satisfied of both of the following:

    (i)the party unreasonably refused to participate in a matter before the FWC;

    (ii)the matter arose from the same facts as the proceedings.

24. The broad power under s 545 of the FWA to make any order the Court considers appropriate is confined by the specific limitation in s 570 upon the Court’s power to order a party to pay costs. In my opinion, the Court has no power to award costs as part of the compensation ordered under s 545. The power to award costs arises only in the circumstances provided for in s 570. This view is consistent with the distinction drawn in Gray v Sirtex Medical Ltd (2011) 276 ALR 267; [2011] FCAFC 40 at [15] between damages and legal costs, such that a successful applicant cannot recover its costs of the proceedings from the respondent as damages, even though the respondent’s wrongful act caused the plaintiff to incur those costs.

25. Dr Lamont may be awarded compensation for those contraventions of s 340(1) of the FWA which I have found, namely contraventions arising from the First, Tenth, Twenty-Second, Twenty–Third and the Twenty-Fifth allegations. He may not be awarded compensation in respect of the remainder of his allegations. It is therefore necessary to identify the consequences of the proven contraventions.

26. Prof Moore provided Dr Lamont’s confidential complaint to Prof Almond and Associate Prof Hutch. Dr Lamont deposes that he was afraid of Prof Almond’s threat of legal action, resulting in Dr Lamont writing to Prof Almond and withdrawing his allegations against him. He deposes that from that point he tended to avoid Faculty and School functions, such as Faculty Board meetings, School celebrations and University Graduations, which he believed Prof Almond may attend. This meant that he had more restricted contact with his colleagues than in the past. I accept that Dr Lamont must have experienced substantial fear and distress upon receiving the threat of legal action. I accept that he was also distressed by the breach of confidentiality of his complaint itself.

27. The respondents submit that the compensation that might otherwise be awarded to Dr Lamont should be reduced because of his own unreasonable conduct in making unfounded allegations that the two past Heads of School had been sued for harassment and that Prof Moore’s harassment had contributed to the suicide of a member of the academic staff. While those allegations should not have been made, the compensation is to be awarded for consequences of the University’s and Prof Moore’s conduct in contravening s 340(1) of the FWA. To reduce the amount of compensation awarded would suggest that Dr Lamont contributed to the contravention. However egregious Dr Lamont’s allegations may have been, they provided no justification for the contravention. I do not consider it to be appropriate to reduce the compensation to be awarded.

28. Prof Fotheringham threatened on 8 July 2010 to investigate Dr Lamont for misconduct or serious misconduct. Prof Fotheringham did not withdraw the threat. I accept that Dr Lamont was caused significant distress by Prof Fotheringham’s conduct.

29. On 14 July 2011, Prof Keniger wrote to Dr Lamont saying that the University was not able to use the Byrom Report for the purpose for which it was intended. The University declined to provide a copy of the Byrom Report to him or to use that report in the grievance process. Prof Keniger did not act fairly and impartially. Further, he did not deal with the complaints expeditiously. I accept that Dr Lamont must have been caused substantial frustration and distress by that conduct.

30. Dr Lamont submits that he developed a psychiatric illness as a result of his mistreatment by the University. He relies upon two reports of a psychiatrist, Prof Middleton.

31. In his first report, dated 8 January 2018, Prof Middleton noted that he had first seen Dr Lamont on 23 May 2011. He diagnosed Dr Lamont with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Prof Middleton attributed that condition to the workplace matters mentioned in his report. Dr Lamont had described his “essential difficulty” as harassment by his Head of School, who had acted in a petty, controlling and harassing manner. Dr Lamont had referred to the disclosure of his complaint by Prof Fotheringham and the disclosure by Prof Moore to Prof Almond, who threatened to sue him. Dr Lamont had said he was stunned by what seemed like a coordinated retaliatory response. Other matters mentioned by Dr Lamont included that Prof Fotheringham had decided that there was no harassment, the lack of proper investigation of his complaints, a scandal involving Prof Keniger and Prof Greenfield and the treatment of Mr Procopis. Prof Middleton’s report refers to Dr Lamont’s, “own ongoing and evolving matters involving the University’s administration, which had been the subject of a legal report commissioned by the University and never released”. That appears to be a reference to the Byrom Report.

32. Prof Middleton provided a second report dated 5 March 2019. Prof Middleton had been provided with a copy of the Byrom Report and was asked to comment upon what might have been the state of Dr Lamont’s mental health if it had been disclosed instead of being concealed and its recommendations had been acted upon. Prof Middleton said that Dr Lamont’s emotional response to receiving the Byrom Report reflected his realisation that so much distress and struggle would not have been necessary had it been released and acted upon in June 2011. Prof Middleton did not directly answer the questions he was asked.

33. In his oral evidence, Prof Middleton placed greater emphasis on the role of the non-release of the Byrom Report, saying:

    Well, the…biggest issue of a continuation was…the lack of release…of the commissioned report that…had been sitting…with the university for years. And of all of the things that most weighed on Dr Lamont’s mind, I would say, that over subsequent years was…the non-release of that report. And that’s…the Byrom report.

34. Prof Middleton was asked about the lack of detailed reference in his report of 8 January 2018 to the Byrom Report. His answer was to the effect that he could have mentioned a whole range of things but was limited by time and space, and that the substance of what was in his report related to the sorts of issues that the Byrom Report covered.

35. I did not find Prof Middleton’s answers persuasive. In his report of 8 January 2018, the Byrom Report was listed as just one amongst the many issues that Dr Lamont had reported. Much greater emphasis was given to matters such as harassment by his Head of School, the internal investigation of that harassment and the scandal affecting the University. Even in his report of 5 March 2019, there was no clear indication that the non-release of the Byrom Report was the single biggest factor in the continuation of Dr Lamont’s condition.

36. The absence of emphasis on the Byrom Report in Prof Middleton’s first report compared to his great emphasis on that issue in his oral evidence is striking. My impression is that Prof Middleton engaged in an exercise of reconstruction in which he attributed greater importance to the issue than he did at the time when Dr Lamont had first raised the issue. That may have been because of the great emphasis placed on the issue by Dr Lamont and his lawyers after the report was disclosed. I consider that Prof Middleton’s first impression is more likely to be accurate, so that the Byrom Report was merely one of the many matters that affected Dr Lamont’s psyche, rather than the most important factor in its continuance.

1. Prof Middleton described Dr Lamont’s “essential difficulty” as being the harassment by Prof Moore, including some emphasis on the photocopying incident. That seems consistent with Dr Lamont’s florid description of the incident, which seemed quite out of proportion to its apparently minor nature. For example, Dr Lamont deposed, “I had not, in my 20 years of professional life seen an academic act in such an aggressive and unreasonable way towards another academic over such an issue.” Prof Middleton said that, as Dr Lamont relayed it, this incident, “was…at the end of a chain of…other difficulties”. Dr Lamont had reported that the incident had precipitated him becoming depressed and anxious. The content and nature of Dr Lamont’s emails before making his complaint about Prof Moore on 12 April 2010 suggest an already disturbed mind. The evidence demonstrates the conduct constituting the contraventions of s 340(1) of the FWA did not cause Dr Lamont’s psychiatric condition, but I accept that each of these stressors aggravated his existing condition.

2. I consider that the aggravations were minor and of temporary effect. The evidence does not establish that the aggravations caused by the contraventions were permanent. By far, the greater contributions to his condition were made by the numerous workplace events which have either been found not to constitute any breach of the FWA or did not form part of the pleaded allegations.

3. I consider that Dr Lamont should be awarded a total of $15,000 for the mental and emotional distress he experienced as a result of the contraventions of s 340(1) of the FWA.

4. Dr Lamont submits that his career has not progressed because of the workplace events and his reputation has suffered and that he should be awarded compensation for that loss

5. It is necessary to consider whether the contraventions have made any contribution to the lack of progression of Dr Lamont’s career.

6. Dr Lamont has been continuously employed with the University on a full-time basis since February 1998. He has remained at the level of Lecturer (Level B) since he was appointed. He applied for promotion to Senior Lecturer (Level C) once in early 2000 and was unsuccessful.

7. Dr Lamont’s evidence is that his philosophy colleagues who started at the same time as him have been appointed to Senior Lecturer (Level C) and Associate Professor (Level D) respectively. He states that he expected to complete one of his books in 2011 and to have followed his colleagues with promotion in 2012 to Senior Lecturer and then to Associate Professor by now.

8. It may be accepted that Dr Lamont’s career has stalled. The reason for that is that he has not applied for promotion. His failure to apply seems to recognise that promotion would not be warranted upon the present state of his academic accomplishments. The issue is why he does not have the accomplishments necessary to achieve promotion.

9. I accept that Dr Lamont’s psychiatric condition has played some part in the lack of progression of his career. For example, since 2010, Dr Lamont seems to have been obsessed with and focussed upon his complaints, and now this litigation. Some of his correspondence reveals an extraordinary amount of time dedicated to composing submissions to support his complaints and composing lengthy emails to make a point, at the expense of the time available for research. He declined to take the SSP leave he was granted in 2013, when that might have helped him to improve his research record.

10. It may be noted that Dr Lamont’s career was already at a standstill before he made his initial complaint about Prof Moore on 12 April 2010, since he had been employed by the University as a lecturer for about eleven years without being promoted.

11. Dr Lamont’s FASOC and his submissions attribute his lack of career progress to the many breaches of the FWA and the contract that he has alleged. I have only accepted several such contraventions. I consider that the minor contributions these contraventions made to his psychiatric condition have made no material contribution to Dr Lamont’s lack of career progress. I am not satisfied that the contraventions have contributed to the stalling of his career or affected his reputation in any other way.

12. In making this assessment, I do not wish to sound harsh.  The evidence shows that Dr Lamont is highly regarded as a teacher by his students.  I would have thought that the ability to teach and impart knowledge is by far the most valuable quality an academic could bring to a university.  Unfortunately, it appears that the University is much more impressed by the quantity of publications in obscure journals read only by other academics.

13. Dr Lamont claims compensation for anti-depressant medication and psychiatric counselling. I am not satisfied that the minor contributions the contraventions have made to Dr Lamont’s psychiatric condition have made any difference to his need for medication and counselling.

    Damages for breach of contract

14. The general principle is that where a party sustains a loss by reason of a breach of contract, they are, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed: Ferrcom Pty Ltd v Commercial Union Assurance Company of Australia Ltd (1993) 176 CLR 332 at 340.

15. Dr Lamont would not have suffered the temporary aggravations of his psychiatric illness that I have found if the University had performed the contract. On the basis of the facts I have found, the award of damages for breach of contract would be the same as the award of compensation for the University’s contraventions of s 340(1) of the FWA. As I have indicated, I will award Dr Lamont $15,000 for those contraventions.

    SUMMARY

16. I have found that the University committed the following contraventions of s 340(1) of the FWA:

    (1)The University, through Prof Moore, took adverse action against Dr Lamont by notifying Prof Almond and Associate Prof Hutch of the contents of Dr Lamont’s letter of complaint against Prof Moore dated 12 April 2010 (part of the First Allegation).

    (2)The University, through Prof Fotheringham, took adverse action against Dr Lamont by threatening to initiate an investigation into his conduct on 8 July 2010 (the Tenth Allegation).

    (3)The University took adverse action against Dr Lamont by setting aside the findings of the Byrom Report (the Twenty-Second Allegation).

    (4)The University took adverse action against Dr Lamont by refusing to provide the Byrom Report to him (the Twenty-Third allegation).

    (5)The University, through Prof Keniger, took adverse action against Dr Lamont by failing to comply with the Staff Grievance Resolution Policy by not acting in a way that was impartial and fair and failing to act as expeditiously as possible (part of the Twenty-Fifth Allegation).

17. I have found that Prof Moore also contravened s 340(1) in respect of the First Allegation and that Prof Fotheringham contravened s 340(1) in respect of the Tenth Allegation.

18. I have also found that the conduct described at (2)–(4) of para 742 above breached the implied term of the employment contract to take reasonable care for Dr Lamont’s safety.

19. I have found that the University did not contravene s 50 of the FWA.

20. I have decided that Dr Lamont should be awarded compensation of $15,000 for the mental and emotional distress he experienced as a result of the contraventions of s 340(1) of the FWA. I have decided that Dr Lamont should not be awarded compensation or damages for any economic loss.

21. I will hear the parties as to penalties, costs and any further orders.

I certify that the preceding seven hundred and forty-eight (748) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

Associate:       

Dated:       28 May 2020

SCHEDULE OF PARTIES

QUD 263 of 2018
Respondents
Fourth Respondent:	MARTIN CROTTY
Fifth Respondent:	PETER HØJ