Lewis v Australian National University
[2019] FCCA 1949
•30 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEWIS v AUSTRALIAN NATIONAL UNIVERSITY | [2019] FCCA 1949 |
| Catchwords: INDUSTRIAL LAW – Application for summary dismissal of originating application – applicant seeking to further agitate decision of Fair Work Commission given in 2015 – whether new evidence adduced by applicant is significant – application having no reasonable prospects of success – originating application dismissed. |
| Legislation: Fair Work Act 2009 (Cth) Federal Circuit Court Act 1999 (Cth) |
| Cases cited: Wats v InfosysTechnologies Limited Australia (2017) 319 FLR 96 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FLR 372 |
| Applicant: | CHRIS LEWIS |
| Respondent: | AUSTRALIAN NATIONAL UNIVERSITY |
| File Number: | MLG 337 of 2019 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 7 June 2019 |
| Date of Last Submission: | 7 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 30 July 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Burke, QC and Mr Howard of Counsel |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 337 of 2019
| CHRIS LEWIS |
Applicant
And
| AUSTRALIAN NATIONAL UNIVERSITY |
Respondent
REASONS FOR JUDGMENT
Introduction
The matter before the Court is an application in a case brought by the respondent, which seeks the summary dismissal of the application brought by Dr Lewis. The application is brought in the alternative under rule 13.10 of the Federal Circuit Court Rules, s 17A of the Federal Circuit Court Act, and/or dismissal is sought on the footing that the substantive application represents an abuse of process.
For the reasons that follow, I propose to grant the relief that the respondent seeks.
Relevant background
On 18 September 2014, Dr Lewis made an application under s 365 of the Fair Work Act 2009 alleging that he had been dismissed by the Australian National University in contravention of the general protections provisions of the Act. He asserted that he only became aware that his employment contract had been terminated after he had made a general protections application under s 372 of the Act on 21 July 2014. That application was the subject of a conference convened by the Fair Work Commission on 21 August 2014, which failed to resolve the dispute.
The respondent to that application, which is the respondent in this case, raised jurisdictional objections, and the matter was heard before Deputy President Kovacic on 23 October 2014, and a decision was given by the Deputy President on 25 March 2015.
It will be necessary to return to the terms of the Deputy President’s decision in more detail.
In the course of the proceeding before Deputy President Kovacic, it is sufficient to note for present purposes that the primary position contended for by the ANU was that Dr Lewis’ employment had ended in September 2013. The ANU also contended through the evidence of Melissa Yvonne Austin that on 16 July 2014, human resources staff in the college closed the relevant employment record in relation to Dr Lewis as part of an overall process of closing a large number of inactive employment records.
This latter assertion was consistent with email documentation from the ANU, which had been provided to Dr Lewis in 2014. It has subsequently transpired through freedom of information requests brought tenaciously by Dr Lewis that, in fact, the employee record was altered on 25 July 2014. This discrepancy stands at the heart of Dr Lewis’ concerns.
Dr Lewis did not appeal the decision of Deputy President Kovacic and took no formal action other than freedom of information applications to further agitate his concerns until he filed his application in this court on 11 February 2019. That application, which was accompanied by a statement of claim, gave rise to the application in a case which is presently before the Court.
Dr Lewis’ application and statement of claim
In his form 4 originating application, Dr Lewis characterised his claim under part G as:
1.The Applicant alleges misrepresentation under s 345 of the Fair Work Act 2009.
2.On 23 October 2014, the Respondent made false representations to the s 365 hearing (c 2014/6429) about the Applicant’s contract (18856) and employment status, namely:
(a)That the Applicant’s contract and employee rights ended in September 2013 when he was last paid; and
(b)That the Applicant’s contract record, which remained upon after his paid employment ended in September 2013, was terminated on 16 July 2014 after being “inactive for months”.
3.The Applicant relies on s 340 of the Fair Work Act as the Applicant had a workplace right to make a workplace complaint and lodge a general protections application with the Fair Work Commission and the Federal Circuit Court.
4.See attached statement of claim that accompanies for detailed pleadings and particulars.
The statement of claim pleaded that the applicant was at all material times an employee within the meaning of the Act, and other formal matters going to the respondent’s capacity to be named as a respondent. In paragraph 3, the statement of claim pleads that the applicant’s last casual employment contract brought into play the terms and conditions of the Australian National University Enterprise Agreement. It pleaded that pursuant to that agreement, one hour’s notice was necessary to terminate the applicant’s contract of employment. The statement of claim at paragraph 6 pleaded that the applicant averaged over 30 hours paid work per week between October 2008 and September 2013. At paragraph 7, it was pleaded that on 12 September 2013, the applicant’s supervisor informed him that the respondent agreed that the applicant remained on contract while waiting for further funding.
In paragraph 8, the statement of claim pleads that the applicant on 14 April 2014 made a workplace complaint against a former supervisor and informed the respondent that he was a staff member conducting research while waiting for funding.
In paragraph 9, it is pleaded the respondent observed on 16 April 2016 that the applicant had an “active sessional record” before a senior staffer stated, “I can terminate this record to make it inactive.”
By paragraph 11, the statement of claim pleads that the respondent did not terminate the applicant’s active contract during his workplace complaint from 14 April to 21 July 2014, during which time the applicant continued to conduct research by using his status as an active staff member.
The statement of claim pleads at paragraph 13 that on 14 May 2014, the respondent confirmed the applicant’s decision to seek a review as per stage 2 of the staff agreements resolution procedure.
At paragraph 15, the statement of claim pleads that on or about 21 July 2014, the respondent dismissed the applicant’s work place complaint, and on the same date, the applicant commenced his s 372 general protections application.
The statement of claim then pleads at paragraph 17 that on 18 September 2014, the applicant commenced a s 365 general protections application after the respondent indicated to him on 2 September 2014 that he had to apply for re-employment for the first time since October 2008.
The statement of claim then goes on to plead misrepresentation. The misrepresentations are, effectively, in the same terms as those set in his form 4 application above.
It is pleaded at paragraph 19 that:
The Respondent made the representations at the FWC hearing
(c 2014/6429) in relation to the Applicant’s workplace rights and his contract status with regard to the Fair Work Act, with both the Applicant and the FWC expected to rely on them as true and factual statements.
In paragraph 20 the falsity of the statements is set out. There are four subparagraphs. The first asserts that the respondent had asserted that the applicant’s active contract record required one hour’s notice of termination and that the representation that the contract was terminated 2014 after being active for months was therefore untrue. The second falsity asserted is that the respondent knew that his contract was active at the time of dismissal on 21 July 2014, because he had been advised on both 16 April 2014 and 21 July 2014 that he could use the ANU employee services, a program only available to employees and their families. The third falsity asserted is that the respondent knew the applicant was conducting research while waiting for further funding, while retaining the right to use his active staff number to conduct research and receive emails, and, therefore, the contract was an active one under the terms of the enterprise agreement. This is then particularised that the respondent stopped the applicant from conducting research which the respondent knew he was undertaking, terminating his active contract record from 22 July 2014 in response to his s 372 general protections application.
The fourth falsity alleged is that the respondent terminated the active contract record from 22 July 2014 after learning that the applicant had commenced a s 372 general protections application on 21 July 2014 to end his employment, and dated the termination as 16 July without giving the required one hour’s notice pursuant to the enterprise agreement or recording details of his employment termination in accordance with the Fair Work regulations.
It will be readily apparent from these matters, which are no easier to paraphrase perhaps than they are to understand, that the articulation of the applicant’s complaints are far from easy to construe in terms of the legislation itself.
The statement of claim then goes on to plead ss 345 and 340 of the Act. At paragraph 24 the statement of claim pleads that the respondent breached employer obligations in relation to employee records on four occasions during 2014 and on occasions in subsequent years by refusing to record and provide details of the applicant’s termination to the applicant, because doing so would be an admission that the respondent terminated the applicant’s active contract/employment after 22 July 2014 in response to his s 372 general protections application.
Paragraph 25 is an assertion that the respondent has no intention of ever employing the applicant again, and goes on to plead matters relating to relief.
At this stage it is appropriate to return to the hearing before the Fair Work Commission.
The Proceedings in the Fair Work Commission
The entirety of the Fair Work Commission file is exhibited to the affidavit of Stewart Matthew Pill affirmed on 16 April 2019. The respondent relied upon a witness statement of Melissa Austin. She stated that the applicant had been employed for various occasions from 2008 until 2013. It is clear from annexure B (page 49 of the annexures) that the employment was, in effect, subject to the applicable enterprise agreement. The employment was described at page 48 of the annexures as being “Casual (non-ongoing) General Staff commencing on 21 November 2011.” It was expressly terminable on one hour’s notice or payment in lieu. Ms Austin also annexed as annexure C emails passing between Dr Lewis and his supervisor Professor Dowding. At page 51 of the annexures on 13 September 2013, Dr Lewis wrote to Professor Dowding stating “Keith, just wondering if I will kept on having access to ANU databases, as this will be the first time since late 2008 that I am not currently working for ANU.” Professor Dowding’s response, also dated 13 September 2013, stated, relevantly:
You are still on contract with me so I think so.
All new contracts for professional staff, which includes casual RAs like yourself are frozen – ie have to get special permission. For that reason, I have argued that you should stay on contract (even though not actually working) since I hope to give you new work in the future.
I am not sure when I can bring you back. It turns out I have exceeded my budgets quite considerably! so need to cover those, but will endeavour to get some more and give you some more work. I do want to follow up on the date of the state level ministers and those who have moved from state to federal level.
Ms Austin also stated (page 10 of the annexures, paragraph 7):
On 16 July 2014 human resources staff in the College closed employment record number 6 of Dr Lewis as part of an overall process of closing a large number (approximately 800) of inactive employment records. The College regularly reviews the number of inactive records and closes them as part of a standard review process.
She went on to state that she had sent a number of emails to Dr Lewis between July and September 2014 and they are annexure D.
I note that in one of those emails (annexure page 72) on 7 August 2014 Dr Lewis told Ms Austin“I have noticed my employment with Dowding was terminated 16 July 2014.
I was not given any notice, so I am now making a complaint about that.”
I note that at annexure page 125, Ms Austin emailed Mr Lewis on 2 September 2014 stating unequivocally:
The employee record for position of 18856 (reporting to Professor Dowding) was closed on 16 July 2014. You were last paid against your non-ongoing casual contract as a Research Assistant in September 2013, and the record of this employment remained in the system until it was closed by the college HR team as an inactive record during a data clean up. It provides no barrier to future employment of any sort at ANU, including as a casual employee.
Although no doubt the parties might wish to wallow in the other materials before the Commission, it is appropriate, in my view, to turn now to the decision of Deputy President Kovacic, which is at annexure page 233 and following.
Deputy President Kovacic noted that the application was filed under s 365 of the Act on 18 September 2014. In paragraph 1 the Deputy President noted that it was Dr Lewis’ contention that he only became aware that his contract had been terminated after he had made a general protections application under s 372 of the Act on 21 July 2014. Having traversed the procedural history, the Deputy President at paragraph 6 noted that he found that Dr Lewis’ employment ceased on 11 September 2013 and, accordingly, the application was lodged 351 days outside the 21 day statutory timeframe. The Deputy President did not think it was appropriate to extend that time limit. There were not, to his satisfaction, exceptional circumstances warranting the grant of a further period for making of the application.
At paragraph 8, the Deputy President noted the requirement for one hour’s notice of termination, and at paragraphs 9 and 10 the Commissioner set out the email exchange between Dr Lewis and Professor Dowding to which I have referred above. At paragraph 11, the Deputy President noted that in April 2014 Dr Lewis lodged a complaint against another staff member, Professor Wanna. The Deputy President noted the progress of that matter. The Deputy President noted at paragraph 14:
On 16 July 2014, the ANU terminated Dr Lewis’ employment record on its human resources management system (HRMS) as part of a clean up of staff records. Dr Lewis’ record was terminated on the basis that it had been inactive since September 2013. The implications of that record being terminated were that Dr Lewis subsequently lost access to the ANUs systems and databases for the first time since he was employed by the ANU in 2008.
The decision noted the outcome of the review in relation to the complaint about Professor Wanna on 21 July 2014 and subsequent emails between Dr Lewis and the university and its representatives.
At paragraph 25 the Deputy President noted that Dr Lewis had submitted that his employment was terminated on 16 July 2014 as a result of the complaint he had made against Professor Wanna, this constituting a contravention of s 341 of the Act dealing with workplace rights. The decision noted at paragraph 26 Dr Lewis’ submission that he had been terminated without being provided the one hour period of notice required. He further submitted that he was only advised by Ms Austin that his employment was ended on 2 September 2014 or, alternatively, at the earliest, 7 August 2014.
The decision understandably traversed the evidence of both Dr Lewis and Ms Austin and at paragraphs 41-42 Deputy President observed:
What can be adduced from the evidence before the Commission is:
·the last time Dr Lewis worked for the ANU was in September 2013;
·the ANU has not provided Dr Lewis with one hour’s notice of termination or payment in lieu of notice as per his employment contract;
·Dr Lewis acknowledged that at the time he sent his email of 13 September 2013 to Professor Dowding, he knew that he would not be getting any paid work “Because I’d already discussed it with Keith and it had happened before in previous contracts” and that there was no agreement about the provision of further work;
·in his response to that email, Professor Dowding indicated that he would “endeavour to get some more money” and that he hoped “…to give you new work in the future” (emphasis added);
·Dr Lewis did not contact the ANU or Professor Dowding inquiring about his employment status between 13 September 2013 and 3 July 2014;
·custom and practice regarding ANU non-ongoing contracts was that they automatically terminated when the associated funding ran out;
·Dr Lewis’ email of 2 September 2014…in which he states “In any case, the ANUs position, in line with what Dowding told me last September, effectively removed me from casual pool” (underlining added) reinforces such a view; and
·The ANUs termination of employment policy stated that the termination of a staff member’s employment will occur automatically at the end of a casual period of employment unless there was mutual agreement to enter into another contract.
In short, the evidence supports the finding that Dr Lewis’ employment ceased on 11 September 2013.
The Deputy President went on to conclude at paragraph 44:
Based on the material before the Commission, I find that the termination of Dr Lewis’ employment record in the ANUs HRMS did not equate to a termination of its employment.
The Deputy President went on to look at the significance, if any, of the ANUs failure to provide notice of termination. He said at paragraph 45:
While the failure to do so may constitute a breach of contract, it does not of itself alter the situation. The evidence in this matter indicates that in September 2013, the funding which supported Dr Lewis’ work had been fully expended. Further, in the absence of further funding, there was no work for Dr Lewis to do. In other words, his employment had ceased in September 2013.
The Deputy President went on to conclude that the application was well outside the 21-day statutory timeframe.
The Deputy President then considered whether an extension of time should be granted.
The Deputy President found, favourably to Dr Lewis (paragraph 52) that he was unable to conclude with any confidence that Dr Lewis was aware in September 2013 that his employment with the ANU ended at that time. However, the force of this explanation of the delay was militated against (paragraph 53) by the absence of any contact between Dr Lewis and the ANU regarding his employment status from 13 September 2013 until 3 July 2014.
The Deputy President regarded the criteria of action taken by the person to dispute the dismissal and prejudice to the employer as being essentially neutral. His Honour found the merits of the application to be less than compelling (paragraph 64) because the employment ceased on 11 September 2013, some seven months before Dr Lewis submitted his complaint about Professor Wanna to the ANU Vice-Chancellor. Having balanced all the competing considerations, his Honour declined to extend time.
The new evidence relied on by Dr Lewis
In part, the new evidence is contained in annexure MYA9 to the affidavit of Ms Austin filed on 24 April 2019 (Affidavit page 346). This shows that on 24 July 2014, Ms Mary O’Kane thanks Mohammad (surname not indicated) for adding a term row in respect of Dr Lewis, and Mohammad confirming he has done this on Friday, 25 July. Redacted versions of these materials are contained in the applicant’s affidavit material. The applicant, however, has also annexed to his affidavit filed 23 April 2019 annexure K, being an email exchange from 22 July 2014 to 24 July 2014. The first is an email from Professor Dowding to Karen Ford seeking advice from the university, and on the same date, 22 July, Ms Ford forwards the matter to Nadine White, stating, relevantly:
This is the information that came through from Keith Dowding. I advised him that I will be forwarding this to you.
I thought we had terminated the casual record but it is still active and I think we looked into this and he hadn’t been paid since last year, so I will terminate the casual record.
Ms White replies on 23 July to Ms Ford stating that the matter has been referred to legal, and asking Ms Ford to advise Professor Dowding that the matter is in hand. There is a further email from Ms Ford to Nadine White on 24 July indicating to Ms White that Ms Ford has informed Professor Dowding.
It is these materials that in substance Dr Lewis says constitute the misleading conduct on the part of the university, namely that alleging that his employment record was ordered on 16 July 2014, rather than 25 July 2014, and inferring that this change was because of his complaint to Professor Dowding.
The Test to be Applied
The respondent’s written submissions point at paragraph 7 to 8 to the test to be applied in dealing with applications pursuant to r.13.10 or s 17A(2) of the Federal Circuit Court Act 1999 (Cth). They refer to the judgment of Jones in Wats v InfosysTechnologies Limited Australia (2017) 319 FLR 96 at [15]-[19]. I have regard to that extract (without setting it out) which in my respectful view, provides very helpful guidance. I would emphasise the position propounded by Gordon J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FLR 372 at [132], that the court is required in applying the test under s 17A only to draw reasonable inferences, rather than merely plausible inferences, in favour of the non-moving party.
The respondent’s first point – is s 345 engaged by legal submissions?
The first submission made by the respondent is that s 345 cannot operate in the circumstances of this case, because s 345 cannot operate on legal submissions made in a case before the Industrial Commission. It was conceded that there is no authority directly on point.
Self-evidently, it is undesirable that a point of general application be determined for the first time in a trial court such as this. It would be eminently preferable for such a decision to be made by a superior court of record. Nonetheless, given that the matter has been agitated, I will offer such views as I can.
Section 345 is in Chapter 3, part 3.1, Division 3 - Workplace Rights of the Act. Section 340 provides protection against adverse action because a person has a workplace right, has or has not exercised a workplace right, or proposes or proposes not to exercise a workplace right, or to prevent the exercise of a workplace right by the other person. Workplace right itself is defined in s 341 and s 342 sets out circumstances in which a person takes adverse action. In respect of an employer against an employee, an employer takes adverse action if the employer dismisses the employee, injures the employee in his or her employment, alters the position of the employee to the employee’s prejudice or discriminates between an employee and other employees.
Section 343 prohibits coercion and s 344 prohibits undue influence. Section 345 provides:
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person;
(b) the exercise or the effect of the exercise, of a workplace right by another person.
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
In Communications Electrical and Electronic Energy Information Postal, Plumbing and Allied Services Union of Australia v Australian Post [2017] FCA 1091, Mortimer J said, relevantly, albeit in a different context at [250]:
In my opinion there is not the requisite kind of connection between the alleged representations and the identified workplace rights themselves. The FW Act is, through s 345, intending to protect the rights the FW Act itself gives to workers, and ensure that no person (whether employer or anyone else) misleads workers about what rights they have under the FW Act.
Her Honour went on to say at [254]:
In this context, the word “about” in s 345 means “in relation to” or “concerning”: that is, it contemplates some degree of connection or relationship between the representation (and relevantly) the exercise of a workplace right… (authority admitted). The connection must be sufficient for the operative force or misleading conduct to occur. That is not to say that there must be a causal connection: rather it is to recognise that the core purpose of the prohibition is to protect the exercise of the identified workplace rights in the FW Act from conduct which could undermine, frustrate or otherwise adversely affect the exercise of those rights.
Whether s 345 could ever operate in the context of proceedings taken before the Fair Work Commission or in court is too broad a matter for me to say. Section 345 is not limited after all as to whom a representation should be made. Nonetheless, as a matter of first principles, in the context of this particular case, even if one were to accept Dr Lewis’ assertions that the representations are as false as he believes them to be, s 345 just is not engaged.
What he is complaining about, in substance, is that the respondent misled the Commission by saying things to the Commission that it knew were not true. Even if they were untrue, however, they were not statements made about Mr Lewis’ workplace rights or about his exercise of those rights. At most, they would have been false statements operating to endeavour to pervert the outcome of a proceeding in which he might have been seeking to assert a workplace right.
Dr Lewis was plainly, as he saw it, seeking to exercise a workplace right. But what is not clear is what workplace right he was really seeking to assert. His original claim before the Commission is at page 537 of the annexures to the FWC file. He asserts that his employment “was terminated after I had utilised my workplace right to make a complaint in relation to my employment at the ANU against another employee about events in 2010 and 2013." He complained that his contract was terminated during the lawful complaint process. He went on to complain that he had been required in September 2014 to reapply in order to be considered for future work, and that he also believed that his contract termination followed an adverse action through coercional pressure by Professor Dowding to give up his complaint during May 2014. He asserted that “the ANU has deliberately represented myself with regard to the manner my contract was terminated”, which impeded his ability to quickly lodge an unlawful termination application.
To the extent that this complaint can be construed, it seems clear that some of the matters complained of can be characterised as misrepresentations about a workplace right or its exercise.
Is the Application Doomed to Fail or Has it No Reasonable Prospects of Success and/or is it an Abuse of Process?
In my opinion, the application cannot succeed even on the most favourable view of matters from Dr Lewis’ perspective. The reason he lost his case before Deputy President Kovacic was because the Deputy President came to the conclusion that he was actually dismissed in September 2013. There was ample evidence to support that conclusion, and indeed it is the one to which I would have come on the same materials.
It is, of course, true that it would now appear that Ms Austin’s original evidence that the contract was formally altered to reflect a termination in July 2014 took place on 25 July and not 16 July. On the face of it, Ms Austin’s explanation for the error in this regard is, in my view, telling.
More to the point, the new evidence upon which Dr Lewis relies only goes to suggest that the university was of the view that Mr Lewis’ contract was no longer active in July 2014 and the sequence of events disclosed in the emails does no more, in my view, when looked at objectively and reasonably, than suggest the university moved formally to do something it already thought it had done. I appreciate that Dr Lewis’ sinister characterisation of the university’s conduct leads him to a different conclusion honestly held, but I do not share it.
Furthermore, the conduct proscribed by s 345 must be knowingly or recklessly undertaken. Although his Honour did not form a definitive conclusion, in Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985 Wheelahan J observed at [44] “My preferred view is that what is arguably required is proof of subjective recklessness consistent with criminal law principles,” although his Honour conceded that an objective element might be imputed.
The material filed from time to time by Ms Austin would militate in the strongest terms against any suggestion that she knowingly or recklessly provided false information to the Commission in any event.
In my opinion, had the material now available been before Deputy President Kovacic, there is no reason to suppose that the outcome would have been any different.
Abuse of process
Finally, there is the question of abuse of process. Dr Lewis did not appeal the decision of the Deputy President, but he says this is because he did not have the new additional information he now has. It would, of course, have been open to him to apply for leave to appeal out of time, bearing in mind the provision of new information. He did not do so. This may well reflect his lack of legal representation and experience. Whether in these circumstances the present application represents an abuse of process might be open to question. Nonetheless, this sorry saga plainly must come to an end. The fact is that Deputy President Kovacic did not permit Mr Lewis to pursue an application that was, as I hope I have indicated, poorly thought out and difficult to construe. It is regrettable that the university’s records were in part not fully provided to the Deputy President, but I cannot see that the additional information now available does anything more than show that the application had no reasonable prospects of success. In truth, it did not ever really engage in a meaningful way with the Act, but rather sought to draw scattered themes into a coherent complaint. It failed to achieve that end.
Breach regarding employer records
Finally, I should deal with the alleged breach of the workplace regulations concerning employment records. As Deputy President Kovacic observed, the applicant was never paid the one hour in lieu of notice to which his contract of employment entitled him. In circumstances where the applicant’s employment had simply petered out and come to an end, it is questionable whether a dismissal in the sense ordinarily contemplated ever took place. The employment contract involved this nominal position whereby he ceased doing all work, and well knew it, and was not paid for a substantial number of months, but was still on the employer’s payroll record. In my opinion, the record system used by the university was sufficient to comply with the regulations. Even if I am wrong in that regard, however, I would entirely accept the submission by counsel for the ANU that this was a matter of the most minor import. If ever the doctrine of de minimis matters had application, then this, in my view, was it. The regulations are designed to ensure that employees whose employment comes to an end know why and how this has occurred. Dr Lewis well knew all the salient components of the end of his employment despite his numerous protestations to the contrary. This aspect of his claim adds nothing in the scheme of things and the application should be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 30 July 2019
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