Regulski v State of Victoria

FEDERAL COURT OF AUSTRALIA
Regulski v State of Victoria [2015] FCA 206

Citation: Regulski v State of Victoria [2015] FCA 206

Parties: PAUL REGULSKI v STATE OF VICTORIA, VICTORIAN COMMISSION FOR GAMBLING AND LIQUOR REGULATION, MARK WINDISCH and GABRIELLE LEVINE

File number: VID 760 of 2013

Judge: JESSUP J

Date of judgment: 13 March 2015

Catchwords:
INDUSTRIAL LAW – Adverse action – Whether taken against employee – If taken, whether taken because employee had or exercised workplace right in the nature of his entitlement to the benefit of a workplace law or his ability to make a complaint or inquiry in relation to his employment – Whether employee was so entitled or had made such a complaint or inquiry.

CONTRACT – Contract of employment – Implied terms – Duty of co-operation – Duty to act in good faith.

Legislation: Accident Compensation Act 1985 (Vic) ss 3, 105, 189, 194, 195, 196
Fair Work Act 2009 (Cth) ss 12, 340, 341, 342, 361, 550
Liquor Control Reform Act 1998 (Vic)
Long Service Leave Act 1992 (Vic) s 62
Occupational Health and Safety Act 2004 (Vic) s 21
Whistleblowers Protection Act 2001 (Vic) s 5

Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 549
Commonwealth Bank of Australia v Barker (2014) 312 ALR 356
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346

Date of hearing: 20-24, 27 October, 1 December 2014

Place: Melbourne

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 225

Counsel for the Applicant: Ms G Jardine

Solicitor for the Applicant: Bayside Solicitors

Counsel for the Respondents: Mr C O’Grady

Solicitor for the Respondents: Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 760 of 2013

BETWEEN:
PAUL REGULSKI
Applicant

AND:
STATE OF VICTORIA
First Respondent

VICTORIAN COMMISSION FOR GAMBLING AND LIQUOR REGULATION
Second Respondent

MARK WINDISCH
Third Respondent

GABRIELLE LEVINE
Fourth Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

13 MARCH 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 760 of 2013

BETWEEN:
PAUL REGULSKI
Applicant

AND:
STATE OF VICTORIA
First Respondent

VICTORIAN COMMISSION FOR GAMBLING AND LIQUOR REGULATION
Second Respondent

MARK WINDISCH
Third Respondent

GABRIELLE LEVINE
Fourth Respondent

JUDGE:

JESSUP J

DATE:

13 MARCH 2015

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

In this proceeding, the applicant, Paul Regulski, alleges that the first and second respondents, the State of Victoria and the Victorian Commission for Gambling and Liquor Regulation (“the Commission”) respectively, acted in contravention of certain provisions of Pt 3-1 of the Fair Work Act 2009 (Cth) (“the FW Act”) while he was employed by them over the period from March 2011 to March 2013. The applicant alleges that the third and fourth respondents, Mark Windisch and Gabrielle Levine respectively, were involved in those contraventions within the meaning of s 550 of the FW Act, and were, therefore, also liable in respect thereof under Pt 3-1. The applicant also alleges that the conduct of the first respondent and the Commission constituted breaches of implied terms of his contract of employment which required them to act in good faith towards him and to co-operate with him.
THE FACTS
The applicant commenced the employment which is relevant in this proceeding in July 2009. He was engaged by the first respondent as a Compliance Inspector within the Compliance Directorate of Responsible Alcohol Victoria (“RAV”). The department responsible for the applicant’s employment was the Department of Justice and, for convenience, I shall refer to the first respondent as “the Department”. The applicant remained so employed until 6 February 2012, when his employment was transferred, uncontroversially, to the Commission. Thereafter, the applicant remained in the employ of the Commission until his resignation on 12 March 2013.
The Compliance Directorate was principally concerned with enforcing compliance with the provisions of the Liquor Control Reform Act 1998 (Vic) (“the LCR Act”), including those under which liquor licences were subject to conditions. It was based in office premises in Prahran. Mr Windisch was the Manager of the Compliance Directorate. Compliance inspectors, such as the applicant, were organised in four “teams”, identified by the letters A, B, C and D. Each team was under a “team leader”. The applicant was a member of Team C, under the leadership of Lisa Jones. She had been appointed Acting Team Leader in May 2010, and secured the substantive position in July of that year.
Subject to certain background facts to which I shall refer as necessary, the presently controversial issues had their genesis in the way in which Ms Jones was treated, at least in her perception, by members of Team C in the period since she had first been made Acting Leader of that team. In her evidence, Ms Jones said that, after she was appointed as Acting Team Leader, she “experienced some hostility from some of the team members”, and that she thought that these members “were having difficulties in accepting [her] as an Acting Team Leader”. She said that she “would often be questioned on the decisions that [she] had made, and [she] felt that the questions were trying to hinder [her] from actually leading the team.” She said that, if she questioned these members on their work, “they would take it quite personally … and raise their voice.” The applicant was one of three of the team members who stood out in this regard. These “behaviours”, as Ms Jones described them, continued after she was appointed as Team Leader.
Ms Jones’ concerns about the way she was being treated by some members of her team came to a head over the weekend of 26-27 March 2011. On Friday 25 March, she was told by an inspector (not, so far as I can see, a member of her team) called Jeet Singh that he was uncomfortable with some comments that had been made by members of Team C while Ms Jones was out of the office. He told her that the comments were, as she put it in her evidence, “nasty”, and that the conversation had been led by the applicant and another inspector on the team, Rhys Harrison. Mr Singh told Ms Jones that Mr Harrison had said that she “was only getting married for a visa.” Mr Harrison gave evidence, in the course of which he said that it was his understanding that this related to a comment which he had made to Ms Jones directly in December 2010 when he became aware that she was engaged to be married. According to him, he then asked her whether her “Green Card was running out”. When this was put to Ms Jones under cross-examination, she could not recall it, but she denied that she “laughed” in response to any such comment. Mr Singh was not called, and Mr Harrison said that he did not “believe” that he had made the comment, or any like it, on 24 March 2011.
For present purposes, it is not necessary to resolve the primary factual questions of the content and timing of Mr Harrison’s comment. It is sufficient to hold, as I do, that, on 25 March 2011, it came to Ms Jones’ attention, from a source which she seems to have regarded as reliable, that some nasty comments had been made about her in a conversation led by the applicant and Mr Harrison, and that Mr Harrison had said, in the course of that conversation, that she was getting married only in order to secure a visa.
During the working day on 26 March 2011, Ms Jones was approached by one of the inspectors on Team C, Ben Considine. He said that he had spoken to the other team members regarding their behaviour towards Ms Jones. In a lengthy email which Ms Jones sent to Mr Windisch on the following day (to which I refer further below), she said that Mr Considine told her that he had told the inspectors that the way that she was being treated by them was “unacceptable”. According to the email, Mr Considine told Ms Jones that this comment of his was not taken well by the members of Team C. Two of them, Ben Swallow and Mr Harrison, became “quite animated”, and the applicant responded by “walking off”. In her evidence-in-chief, Ms Jones added that Mr Considine had told her that another member of the team, Cheryl McInerney, was also present, and that she and the applicant had not only “walked off”, but had added the observation that they did not see why they should be nice to Ms Jones. I am not prepared to make a finding about that observation: it was put neither to the applicant nor to Mr Harrison, and no other person present at the time was called. However, it is uncontroversial that, during the course of the shift on 26 March 2011, Mr Considine did have a conversation with other members of Team C, including the applicant, in which he criticised them for their behaviour towards Ms Jones.
After she had left work on 26 March 2011, Ms Jones received a phone call from Mr Swallow. He said that he had been shocked by what Mr Considine had told the Team C inspectors. This phone conversation lasted about 30 minutes. It was followed by another one between Ms Jones and Mr Considine, initiated by Ms McInerney contacting Ms Jones and asking her to call Mr Considine. When Ms Jones called Mr Considine, he was most upset. It seems that he had been called by Mr Swallow, seeking clarification as to what he had said to Ms Jones. Mr Considine told Ms Jones that he had been told by Mr Swallow that he and Mr Harrison had sent emails to Mr Windisch. The conversation between Mr Considine and Ms Jones lasted about an hour, during which, in Ms Jones’ words in her email to Mr Windisch of 27 March, she was trying to calm Mr Considine down.
According to Ms Jones’ evidence-in-chief, when she arrived at work on Sunday 27 March 2011, the members of her team would not speak to her: “…they avoided eye contact with me and generally ignored any instructions that I gave.” It became clear, however, that this was not to be understood as a reference to what happened over the course of that shift. All of the members of Team C, save for Ms Jones and the applicant, were occupied for much of the time on inspections and were not, therefore, in the office. In the applicant’s evidence-in-chief, he said that he spent the whole of the day working with Ms Jones. Ms Jones accepted that they were both in the office for the whole of the day, but she did not accept that they were working on the same matter. I do not need to resolve this minor difference: it is sufficient to note that Ms Jones was not challenged on her evidence as to the response which she received from the other team members upon her arrival at work.
It was against this background that Ms Jones sent her email to Mr Windisch on the evening of 27 March 2011. The subject line of the email was “Rhys Harrison”. Ms Jones laid out particulars of the conversations which she had had on 26 March, as referred to above, and said that she wanted to give Mr Windisch “some context” in which to read the emails which she had been told had been, or would be, sent to him by Mr Swallow and Mr Harrison.
Regarding Mr Considine’s most recent telephone conversation with her on 26 March, Ms Jones said in her email:
It [sic] think Ben tried to do the right thing here and that this is the peer regulation that we have been talking about but there were some personalities within the team that overreacted.
With respect to Mr Harrison specifically, Ms Jones said:
In addition to this, I am still having problems with Rhys Harrison. He is really bordering on bullying and harassment and to be honest I now want to put forward a formal complaint against him. Paul Murtagh approached me last Thursday and said that he has seen what some people have been doing and saying about me in the office and said that if I ever wanted to talk to him he was always available. I thought that this was strange so I approached Jeet today to see if anything occurred last Wednesday when I wasn’t in the office. Jeet stated that he felt very uncomfortable in the office that day as Rhys was making personal attacks against me in front of everyone. One comment made was that I was only getting married so that I can get residency.
In her email, Ms Jones proceeded to deal, in some detail, with the difficulties which she had encountered in her working relationship with Mr Harrison. She concluded by saying that she did not accept Mr Harrison’s “personal attacks about [her] in the office in front of the whole directorate”, and that those attacks were not deserved.
Mr Windisch was concerned about what Ms Jones had said in her email, and called her into his office on the morning of Monday 28 March 2011. She brought with her a letter tendering her resignation. Received into evidence without objection was a note which Mr Windisch made of the conversation which followed. According to the note, the meeting commenced at 9.30 am. The note continued:
[Spoke to] [Ms Jones] re email & conversation over weekend. [Ms Jones] was mainly upset about the personal attacks regarding a reference to her marriage being only to get a visa, this was made by [Mr Harrison] as he had mentioned this to another staff member. This was conveyed to [Ms Jones]. She ([Ms Jones]) also has had a number of staff come and offer her assistance. [Ms Jones] stated she had been told that [Mr Harrison] and [the applicant] and [Mr Swallow] were causing trouble behind the scenes and had been openly hostile and argumentative to her in front of office staff. According to [Ms Jones] this has resulted in a new staff member KB had been present when things had been said to [Ms Jones] and had approached [Mr Considine] stating words to the effect they don’t treat her very well. [Ms Jones] then handed me a letter which she told me was her resignation, as a result of the bullying she had been receiving in the recent weeks. [Ms Jones] stated she was sick of the constant battle and remarks that [the applicant] and [Mr Harrison] and, to a lesser extent, [Mr Swallow] had been directing to her. Things like “you couldn’t do an inspection any more” “all [team leaders] can’t admit that inspectors are right. They think they are always right”. Both [Mr Harrison] and [the applicant] argue and question [Ms Jones’] decisions and argue and question legislation and process, eg mixed business. I told [Ms Jones] I did not want to accept resignation.
Aside from what appeared to me to be a groundless suggestion put to Mr Windisch in cross‑examination (ultimately not reflected in the final submissions made on behalf of the applicant) that this note was not made contemporaneously with the meeting to which it related, it was not suggested on behalf of the applicant that the note did not constitute a generally accurate summary of the conversation between Mr Windisch and Ms Jones on the morning of 28 March 2011. According to Ms Jones’ evidence, Mr Windisch concluded the meeting by asking her to reconsider her decision to resign, and by telling her that he would speak to her team.
And Mr Windisch did indeed speak to the team. It is clear that he was angry, to say the least, about the treatment to which Team C had been subjecting their leader. After Ms Jones had left his office, Mr Windisch himself went out into the open-plan office area and said to the applicant, in a tone which the applicant described as aggressive, “You, get in my office now”. Mr Windisch then walked over to the desk where Mr Harrison was working, and said to him, “Don’t go anywhere. You’re fucking next”. Mr Windisch and the applicant then proceeded into the former’s office. Once he was inside the office, Mr Windisch slammed the door hard, an act which he admitted doing deliberately as indicative of the anger which he then felt in respect of the treatment of Ms Jones. It was the applicant’s evidence that the door was slammed as he was himself still in the course of entering the office, such that the door came into violent contact with his foot and jamming it between the door itself and the door jam. Mr Windisch denied this aspect of the events, stating that, by the time he slammed the door, the applicant was completely inside the office. Although I found, and still find, difficulty in perceiving how the facts as described by the applicant might have occurred, as a matter of mechanics, his recollection of those facts was manifestly a vivid one, and was supported by a contemporaneous note which he made and which was admitted into evidence without objection. I accept that his foot was contacted by the door in the course of it being slammed shut by Mr Windisch. But I would not find that this was intentional on Mr Windisch’s part. At the time, Mr Windisch was in such a state of anger that the applicant’s foot was the last thing on his mind.
What followed could not be described as a conversation. It was almost completely one-sided. The applicant was given little or no opportunity to say anything. He was subjected to such a vehement and vitriolic dressing down by Mr Windisch that it left him in no condition to return to his normal work. Both the applicant and Mr Windisch made contemporaneous notes of what was said by the latter on this occasion, and both sets of notes were admitted into evidence without objection. The applicant’s own evidence-in-chief, given without in-court reference to his notes, was comprehensive, and I shall refer to it below. Mr Windisch also gave evidence-in-chief on the subject, but it became clear that he had little or no actual recollection of the dressing-down which he administered to the applicant. In the circumstances, I consider it more reliable to set out below the terms of the note which he took. In so doing, I recognise that the note (which, unlike the applicant’s, was in handwriting) fairly clearly tended to sanitise the intemperate and inappropriate terms in which he addressed the applicant on this occasion. While under cross-examination, Mr Windisch accepted as much.
According to the applicant’s evidence-in-chief, as he walked into Mr Windisch’s office, Mr Windisch attempted to slam the door, but the applicant’s foot became caught between the door and the jam. The applicant attempted to tell Mr Windisch what he had done to his foot, but Mr Windisch shut him off, saying, “Get in my fucking office. Sit your fucking arse down.” The applicant then stepped into the office, and Mr Windisch slammed the door again, with extreme force. Once they were in the office with the door closed, Mr Windisch, as the applicant put it, “got up into my face”. Standing close to the applicant and pointing between his eyes, Mr Windisch said, “You’re fucking shit. You’re a useless piece of fucking shit.” The applicant put his hands up defensively, and took a step back to place some distance between himself and Mr Windisch. In this way, the applicant’s back came into contact with the wall, but Mr Windisch closed in on him and continued his invective in the same vein for some four or five minutes. He said, “Sit your fucking arse down”, “Sit the fuck down”, “You’re fucking shit” and similar terms of abuse. The applicant moved towards the door as though to leave, but Mr Windisch blocked his way. The applicant tried to say, “Calm down. I can see you’re out of control”, but Mr Windisch’s response was to say, “Don’t fucking answer back to me. You’re a fucking idiot”.

At this point the applicant did sit down. When he was seated, Mr Windisch stood over him and said, “You’re fucking shit. I fucking know you. I’m going to fucking destroy you.” The applicant did not react. This went on for five or ten minutes, after which time Mr Windisch retreated to a position behind his desk, but continued this invective directed towards the applicant from that position. The applicant was shaking, on account of which he had to hold on to his knees. Mr Windisch said, “If this was Vic Pol … we would be out that door”, at the same time pointing to the rear door of the office leading to the car park outside. Mr Windisch continued to say things such as, “You are fucking shit. You are fucking useless. You are the worst person in this place. I know what the fuck you’ve done.” He mentioned the names of a number of people having positions of responsibility in the Department, including Ms Levine and the then Director of RAV, and said that he would speak to them and make sure that the applicant did not get a job anywhere else in the Department; and that the applicant would be sacked because he was “fucking useless” and had “no fucking idea about anything”. Mr Windisch also mentioned the names of people (unknown to the applicant) to whom he intended to speak to ensure that the applicant did not get a job with the Commission.
At about this stage, Mr Windisch asked the applicant where his tie was, and the applicant responded that it was in his locker. Mr Windisch told him to “go out there and fucking put it on.” The applicant then left Mr Windisch’s office and returned a moment or two later after putting on his tie. Mr Windisch’s tirade continued, concerned then with the subjects of respect and discipline. Leaning over his desk and pointing at the applicant, Mr Windisch said, “This is how you will sit all the fucking time. You will sit here with respect. You don’t respect anyone. You will show fucking discipline now, so sit up straight”. Mr Windisch then asked the applicant where he used to work, and he replied, as was the case, that he worked in the Sherriff’s Office. Mr Windisch responded by saying that that place was “shit” and that it explained everything, adding, “There’s no discipline in that place.”
Mr Windisch told the applicant that he had broken the code of conduct and, pointing to his computer, said, “It’s all recorded on there. I’m going to have you sacked.” Mr Windisch then said to the applicant, “Don’t go and speak to your fuckhead mate, Rhys, about what’s happening.” He told the applicant that he could destroy him, that he was going to destroy his career, that he had fried bigger fish than him. He said, “I will take you down. I’ve dealt with bigger fish than you. No-one is going to believe a piece of shit like you.” He said, “You’re useless. You’re fucking toxic. You’re fucking cancer”. At one point, Mr Windisch said that the applicant did not “even know what a fucking ERR is.” Mr Windisch asked the applicant to get his run sheets, which the applicant had, in the normal course, given to Ms Jones as his Team Leader. The applicant left Mr Windisch’s office and asked her for the sheets. The only one she could find was that which related to the previous day on which, as mentioned above, the applicant had been working in the office. He returned to Mr Windisch with this sheet. Sitting at his desk and pointing to various items on the sheet which the applicant was unable to see from his position, Mr Windisch said things such as, “What the fuck is this? What’s that? You don’t even know how to do this? And what’s this? And what the fuck is that?” With respect to the applicant’s inspection numbers, Mr Windisch said, “This shit about you only doing six or seven inspections a day stops now. You need to do fucking more than that. You’re fucked.”
Toward the end of the meeting, Mr Windisch said, “You’ve got a daughter, right?” The applicant nodded. Mr Windisch said that he would make sure that the applicant never saw his daughter again. He would make sure that the applicant was rostered every weekend on which he would otherwise have seen his daughter. He said that he would get one of the other inspectors (not on Team C) to monitor the applicant’s every move. He said that he would have Denise Pravakis (a former team leader who was no longer employed in the inspectorate) audit the applicant’s work from previous jobs and, as the applicant put it in his evidence, “basically, she was going to get [him] sacked”.
Mr Windisch then calmed down. He said to the applicant, “Right. Now, you need to get out there, and you need to get this team to work together. You need to get this team to get together and work for Lisa. That’s your responsibility. It’s now your time to shine. And if you fucking don’t, I will fucking get you.” At this point, Mr Windisch looked away, and the applicant took the opportunity to stand up. Moving towards the door, he said, “If you’ve got any issues with me, I would appreciate you speak to me with a bit of respect.” Mr Windisch’s response was, “That will never fucking happen because you will never fucking be in here again.” Then the applicant left the office.
Mr Windisch’s notes of the meeting with the applicant were as follows:
[Spoke to] [the applicant] re above issues. I explained in very clear terms that his behaviour was inappropriate and he was causing interference and disquiet in the team. I told him to put on his tie and get his running sheets for the weekend as I wanted to know what work he had been doing. I explained to him that I didn’t think he was up to the standard of being a [compliance inspector] and that as far as I was concerned he would need to improve or leave. I explained that he was … [illegible, even to Mr Windisch] hard and that I was aware of issues with his performance ie not knowing what an ERR was etc. I did not ask him for explanation. I repeated he is not to argue with [Ms Jones] or question her decision making. If he is told to do something he will do it unless it was something illegal which I was sure would not be requested of him. I told him that from now on I would be mentoring his work performance and ensuring he is working properly. I explained that we were and had been very fair to him with regards to his roster in relation to his children but that if he continued to question and argue and make inappropriate comments, I would have to review this as it impacted on us operationally. I explained I did not have confidence in his ability and that he would need to start again.
On a number of occasions, when taken to the detail of what the applicant had said in his evidence, Mr Windisch denied making the comments referred to. Such denials, however, were based on what he then believed he would not have said, rather than on any recollection of what he did in fact say. In the circumstances, I accept the applicant’s evidence to the extent that it refers to what Mr Windisch said, and to the general course of the meeting in his office that day.
According to the applicant’s evidence, after leaving Mr Windisch’s office, he sat at his desk, unable to concentrate on work. He saw Mr Harrison enter Mr Windisch’s office and the door close behind him. The applicant gathered up some files and left the office. He drove to Williamstown, where he believed there were some premises that would warrant his attention, but, at the time of giving evidence, he could not recall what he actually did when he got there. He was unable to speak to any licensees. He could not stop shaking, such was the emotional impact which Mr Windisch’s dressing-down had had upon him. He did not return to work. This evidence was, at least in the latter respects, directly inconsistent with that given by Ms Jones, who said that, after the applicant had had his meeting with Mr Windisch, he completed six or seven inspections that day, then returning to the office and completing all the necessary paperwork. She said that she did not recall the applicant “being particularly distressed”. Neither witness was cross-examined on the evidence to which I have referred. However, it is uncontroversial that the applicant did not return to work the following day, 29 March 2011, his absence subsequently being covered by a medical certificate. As events transpired, the applicant never returned to work.
Back at Prahran, Mr Harrison entered Mr Windisch’s office as summoned. While evidence of what passed between these two men is not directly relevant to the applicant’s case, to the extent that it throws light on Mr Windisch’s then thinking it may be indirectly so, and I allowed it to be led by the applicant. While Mr Harrison could not recall anything else said by Mr Windisch in this meeting, he did recall that “it was all about saying that we were trying to undermine [Ms Jones]”. As soon as Mr Harrison sat down, Mr Windisch said to him, “I want you gone. I want you out of this office. I want you out of this organisation.” He told Mr Harrison that, if he had it his way, he could take Harrison “out to the garage” and deal with the problem in another way. He showed Mr Harrison a statement which he, Harrison, had written, and on which (according to Harrison), “every third or second word was circled”, presumably indicating error. Mr Windisch waved that in Mr Harrison’s face, saying, “This is the problem”. He then criticised Mr Harrison for turning up late for work, saying that it was not acceptable. At some point, Mr Windisch told Mr Harrison that he “would never work at the Department of Justice ever again, that [his] career was finished”. According to Mr Harrison, Mr Windisch’s manner was aggressive. He was “moving forwards”, while Mr Harrison was “moving backwards”, a situation which deprived Mr Harrison of what he called his “personal space”.
Mr Windisch’s note of his conversation with Mr Harrison was as follows:
[Spoke to] [Mr Harrison]. [Mr Harrison] in office. At outset I explained that I wanted him to leave and that he shouldn’t be working here. I explained that he had for some time been making inappropriate and aggressive comments to [Ms Jones] in front of other staff. In particular his reference to [Ms Jones] only getting married to get a visa. I explained that other staff had been offended by this and had been concerned enough to raise this with [Ms Jones]. He stated I was a liar as he believed something this was in relation to my decision not to select him as the [Acting Team Leader]. I explained that it was inappropriate to say that your manager is a liar when he had no proof. I explained that I didn’t think he was engaged at the office, as I was aware that he had been trying for some time to get another job. I said as I wanted him out of the office I would make sure he was given that opportunity. I told him he would need to start again as I had no confidence in him, both as a team player and a leader. I stated on numerous occasions I did not want him in the office. However, I was aware that I could not get rid of him and as such he was told not to argue with [Ms Jones] and question her decisions, not to speak disparagingly about her and that the matter regarding the reference to the visa would be dealt with by others. I told him I would monitor his work performance as I believed he wasn’t at the standard of many others at the office. I told him not to question [Ms Jones] about mixed business [regulation] or about legislation and processes.
Mr Windisch also summoned Mr Considine and Mr Swallow into his office on the morning of 28 March 2011, and his notes of those conversations are in evidence. Neither of these inspectors gave evidence in the case, and I do not propose to enter upon the detail of what Mr Windisch said to them. It is sufficient to say that the subject of the conversations related broadly to the issue which had led to the earlier meetings with the applicant and Mr Harrison, namely, the relationship between Team C and their leader.
At this time, Ms Levine was the Regional Director for the Southern Metropolitan Region of the Department. Although not part of RAV, Ms Levine had responsibility for the Compliance Directorate, and Mr Windisch reported to her. At about 1 pm on 28 March 2011, she received a telephone call from him. He said that she might receive a complaint from a staff member, following a discussion which he had had earlier that morning. He said that he had been angry following various incidents involving Ms Jones and a number of the compliance inspectors on her team, namely Mr Harrison, the applicant, Mr Swallow and, to a lesser extent, Mr Considine. He said that the matters had been exacerbated by an email which Ms Jones sent him at the weekend, and the fact that, earlier that morning, Ms Jones had come in to see him very upset, and had handed him a letter of resignation. He said that Ms Jones had told him that she was not prepared to put up with the inspectors’ behaviours any further. Mr Windisch said that he was angry about what had happened, had left his office, had seen the various members of staff mentioned in their usual places, had pointed at the applicant saying “into my office now”, and had then said to Mr Harrison, “you’re next”. Mr Windisch told Ms Levine that he slammed the door to his office after the applicant had entered, to make the point to them that the matter was serious. He said that he knew that he should not have done this, but he was upset about the treatment of Ms Jones. He said that he had spoken with all of the inspectors, reminding them that their behaviours and attitudes were not acceptable, and that he would be expecting significant changes from them all. He had told them that he was drawing the line, and that today was the beginning of a new start. Ms Levine agreed with Mr Windisch that he should not have spoken to the compliance inspectors while angry, or slammed the door. She said that she would speak to him about this matter, and the content of his conversations with the inspectors, at another time. She reminded him not to say anything further about this to the inspectors concerned. They then discussed what should be done about Ms Jones and her allegations. Ms Levine suggested that Mr Windisch ring “employee relations” to progress this, and that Lisa Jones should be offered “EAP” and be informed that the Department was taking her allegations seriously.
Late in the afternoon on 28 March 2011, Ms Levine sent an email to Mr Windisch expressing strong concern about the behaviours of the compliance inspectors mentioned by Mr Windisch in his earlier telephone conversation with her. Her concerns at this point related to Ms Jones, and her position in a workplace that Ms Levine described, in her evidence, as dysfunctional.
Mr Windisch replied promptly to Ms Levine’s email. He said that he had spoken to Ms Jones, who was “happy for this to be dealt with formally”. What he meant, of course, was that Ms Jones’ complaint against the applicant and other inspectors would be so dealt with.
Ms Levine then (ie still on 28 March 2011) sent an email to Peter Ewer, Assistant Director, People and Culture, or “HR” as Ms Levine paraphrased it in her evidence. She said that there had been a “significant misconduct event at Prahran”, which resulted in one of the team leaders handing in her resignation. The focus of the email was on the behaviours of the inspectors about which Ms Jones had complained. Ms Levine said that there was a “real question” about the “integrity” of the inspectors concerned, and that they had brought the reputation of the Department into disrepute. She identified Ms Jones as the Team Leader, and the applicant and Mr Harrison as the inspectors concerned. She asked Dr Ewer to cause “an urgent investigation” to be undertaken. She asked him to discuss the matter with Mr Windisch, who would ensure that the people concerned were available for interview.
Separately, but still on the evening of 28 March 2011, Ms Levine sent a copy of her email to Dr Ewer to Mr Windisch, asking him to ring Dr Ewer the following morning, thanking him for his work and for being so supportive of Ms Jones, and adding, “These 2 have no place with us + the culture.” She also sent a copy of her earlier email to Mr Windisch to Chris Smyth, Director, People and Culture, and added her own thoughts in the following terms:
I am very upset by the behaviour of these 2 staff + don’t see a role for them going forward. The Team Leader has demonstrated her integrity, hard work and commitment to DoJ values + behaviours as well as to the Code of Conduct. She is the type of person we need to keep in the department.
The conduct of these 2 also go to their mistreatment of her because she is a woman.
There are a number of witnesses to this and Lisa is happy to pursue an investigation.
This is what I’ve rung about.
So much has been done in the dept to change behaviours and I believe there’s no room for misogyny.
I will need a lot of convincing to keep these 2 as part of a very high profile team, especially given the integration of the VCGR+RAV.
In both emails, the “these 2” referred to were, of course, Mr Harrison and the applicant.
On the following day, 29 March 2011, Dr Ewer forwarded Ms Levine’s correspondence to Alicia Dumais, Manager, Employee Investigations, People and Culture. In the covering email, Dr Ewer noted Ms Levine’s authorisation to commence a misconduct investigation against Mr Harrison and the applicant. On the same day, Ms Dumais spoke to Mr Windisch by telephone. He said that he was concerned that one of the inspectors in his area, Mr Harrison, had allegedly made a comment about another worker in the area, Ms Jones, that the only reason she was getting married was to get a visa to stay in Australia. He told her that a new inspector had expressed surprise at how some of the inspectors spoke to Ms Jones, in which context he mentioned Mr Swallow and the applicant. He made reference to there being some backbiting in the office. He referred to a previous issue that he had had with Mr Harrison, when he did not secure an Acting Team Leader position. They discussed whether it might be necessary to move Mr Harrison out of the area, but Mr Windisch said that he could “manage it”. Mr Windisch said that he wanted a formal investigation into the issues in the workplace. At the end of the conversation, Mr Windisch said that he had “lost it a bit”, and that there could be a complaint against himself.
Ms Dumais delegated the function of undertaking a preliminary investigation – having the purpose, effectively, of determining whether there was sufficient material to justify the conduct of a full investigation – to one of the investigators who reported to her, Rachael Marks. On the day upon which Ms Dumais spoke to Mr Windisch, 29 March 2011, he sent her a copy of Ms Jones’ email to him of 27 March 2011 (see paras 10-11 above), and this was made available to Ms Marks. On 31 March 2011, Ms Marks interviewed Ms Jones. On 5 April 2011, Ms Marks spoke to Ms Levine, and then sent her an email, in which she said that she had reservations about putting Ms Jones’ allegations “as is” (Ms Marks’ quotation marks) to the applicant. She said that she had just spoken again to Ms Jones, who would check her diary “for any specific instances we can include in an allegation letter”.
Ms Levine forwarded this email to Mr Windisch, referring to her conversation with Ms Marks. She said that it was Mr Harrison who had displayed “the most difficult [and] unacceptable behaviours over a period of time”, and, in relation to the applicant, it was “more about not accepting [Ms Jones’] authority etc”. In his response to Ms Levine, which was sent at 8.05 pm on 5 April 2011, Mr Windisch said that it was “good to hear that [he had not] misread the situation”. He said that Ms Jones had been “putting up with this for some time and just accepts it as normal behaviour”. He said that he did not think that “they will ever change”, but it was important to make sure that Ms Jones and anyone else at the office did not get treated in the way that she was. He admitted that he did not like “this part of the job”, and that it was “a shame that a few can cause so much trouble”. He said that he had tried to contact the applicant to let him know that the Department needed a medical certificate, but he “left a message and [the applicant] has not called back”.

Ms Levine replied to Mr Windisch at 8.24 pm. Her email was the subject of some emphasis in the case being conducted on behalf of the applicant and, subject only to grammatical changes necessary to convert Ms Levine’s messaging jargon into ordinary English, I set it out in full below:
Hi Mark-this stuff is the pits! PR hasn’t made any formal complaints to HR and you know I support you completely in your discussion with them. Good that [Mr Harrison] has pulled his head in … but the others…
I’m surprised that [Ms Jones] thought their behaviour “was normal” … this experience hopefully has reminded of how a good organ should work. She needs to learn that line between when it’s right for her to manage and resolve issues and the importance of briefing up. Still, I’m sure that she’s got a much better understanding of this now. She has such ability.
No need to thank me – you’re doing a terrific job and you’re such a breath of fresh air and terrific to work with.
Now, what’s this suggestion to Jason that I mightn’t support you in further studies ….have to be careful here as sometimes get missed! You have my complete support. If you’re interested in the Masters course in regulation/compliance, let’s do it now so you are well positioned prior to the integration [and] we clearly have the [money].
There are references in the evidence from which it is apparent that, in about the first fortnight after the applicant’s encounter with Mr Windisch on 28 March 2011, both Mr Windisch and Ms Jones telephoned the applicant, but had not been able to speak to him. Their calls were not returned.
I turn next to a three-hour meeting between the applicant and Ms Levine on 14 April 2011. The meeting was initiated by the applicant contacting Ms Levine and, after some failed attempts, he eventually spoke to her by telephone at about 9.50 am on 13 April 2011. He said that he wanted to speak to her about an urgent matter. He said that he had received advice from his solicitors urging him not to speak to Ms Levine alone, but, as he trusted her, he was prepared to do so. A contemporaneous record of what the applicant said in that telephone conversation is provided by the following email which Ms Levine sent to Caitlin Huffer at 1:45 pm on 13 April 2011:
I had a phone call this [m]orning from Compliance Inspector Paul Regulski who has asked to meet with me to discuss a very serious matter.
He indicated that given our previous interactions, he trusts me. He has been advised (not sure by whom) to have another person at any such meeting. He and I agreed that this isn’t necessary.
So I am meeting with him tomorrow at 8am in the city. I have said that I intend to listen to him and understand the issues and where he wants to proceed. He is very angry, has medical certificates…has sought advice…
I think that he’s keen to do something formally…I will try to get him to the mediation route.
Ms Levine met with the applicant at about 8 am the following morning, 14 April 2011, at a café in Exhibition Street.
Both the applicant and Ms Levine gave evidence as to the course of the conversation which followed. The applicant did not take notes, either at the time or subsequently. Ms Levine did not take notes during the course of the meeting, but she did so soon afterwards. Her notes were admitted into evidence without objection. I propose to use them to provide structure to what follows, taking into account where necessary the applicant’s oral evidence as to the meeting, and the extent to which Ms Levine’s oral evidence under cross-examination departed from the notes. It was not put to her that the notes were not at least broadly accurate as an account of the course of the meeting, but she was, unsurprisingly in the light of the applicant’s evidence, challenged on particular aspects.
The meeting commenced with Ms Levine telling the applicant that she was very happy that he had made contact, as she was concerned, given that he had not responded to phone calls over the previous two weeks. She said it was good to see him. He reiterated that he had been advised by his solicitors not to meet with her alone, but he made the decision to meet as they had had a positive relationship in the days when she was the Sheriff, and he was a new recruit in that office. Ms Levine thanked him for this and said that he could talk to her. He asked her if she knew what had happened recently at Prahran. She said that she knew a little, but encouraged him to tell his story.
The applicant said that, on 28 March 2011 in the morning, he was at his desk (or, as Ms Levine’s notes put it, “in a pod”) talking with colleagues namely, Messrs Harrison, Swallow and Considine. Then Mr Windisch came out of his office, pointed at the applicant and said in a loud voice “you, I want you to come into my fucking office now.” He said that he followed Mr Windisch into the office and Mr Windisch slammed the door with his (the applicant’s) foot stuck in it. He said that Mr Windisch was angry and told him to sit down on the other side of the desk. He said that Mr Windisch was shouting at him, asked him where was his “fucking tie”, and told him to go out and get the tie and put it on. The applicant said that he left Mr Windisch’s office, got his tie, put it on, and returned to the office. Then, according to what the applicant told Ms Levine, Mr Windisch continued to shout at him so loudly that he was sure that those working at the other end of the floor could hear it. Mr Windisch kept yelling at the applicant, and pointing at him, while the applicant sat there, not saying anything. As a former military person, the applicant said nothing, but just clenched his fists. The applicant told Ms Levine, “I felt like decking him”. He said that Mr Windisch threatened him, saying that he would talk to various persons in authority (including Ms Levine) and would have him sacked. Mr Windisch said that he would not have a job in the new integrated entity (ie the Commission). Mr Windisch said he would make sure of this. The applicant then told Ms Levine that Mr Windisch made threats against his family, but he was not prepared to discuss those with her.
Ms Levine asked the applicant whether he understood why he had been called in to Mr Windisch’s office. The applicant’s response was, “no idea”. The applicant told Ms Levine that at the time, and for several days afterwards, he thought, “stuff it, I don’t need this job”, but he later decided that, although he could cope with issues to do with himself, when threats were made against his family, “that was a different issue”.
Ms Levine asked the applicant what outcome he wanted. He said that he would not work with Mr Windisch or at Prahran again. Ms Levine said that she would like him to return to work, such that his skills and experiences could be utilised, although not at Prahran. This led to a discussion of the positions, then potentially available within the Department, for which the applicant might be suitable. At this point the evidence of Ms Levine departed from that which had been given by the applicant himself. He said that Ms Levine referred to two other positions, which might be suitable for him. One was in the Department’s Loddon Mallee region, but Ms Levine said that he would not want to go there, because it was “a shit workplace”. The other was in the Barwon South West region, namely, the position of divisional operations manager role at the Sherriff’s Office at Geelong. The applicant “knocked [that offer] on the head straight away”, saying, “I’m not here to talk about a job offer. I’m here to tell you about what’s happening at Responsible Alcohol Victoria, and to disclose everything that was going on in that place, not just the Windisch incident.” He made it quite clear to Ms Levine that he was not interested in discussing return to work arrangements, but wanted to focus on the allegations which he made, particularly, but not exclusively, against Mr Windisch, in relation to what he considered was an unsafe working environment.
According to Ms Levine’s notes, she told the applicant that there was an “RM vacancy” in the Sheriff’s office at Loddon Mallee, and (according to her notes) “ultimately maybe at Barwon South West”. She said that she could negotiate with certain of her colleagues (who were named) and that there were “huge issues in prisons”. She said that, given that the applicant had worked in both private and public sector prisons, his skills would be very useful. Under cross-examination, Ms Levine denied that she had offered the applicant any position at all, and that she referred to a divisional operations manager position in Geelong. She said that the position in Barwon South-West was that of district supervisor. She was not pressed on those denials. Returning to her notes, Ms Levine made it clear that the applicant did not have to return to Prahran during that period but, understanding his “work ethic” as she did, she wanted him to return to work.
The applicant indicated that (as Ms Levine had it in her notes), “his head wasn’t in the right space to even think about work”. Ms Levine asked him what he meant by this. The applicant said that recently he had given up smoking. He had had a health check and all was well, but, after the incident involving Mr Windisch, he went to his general practitioner, and “suddenly” he was on a heart monitor as his blood pressure had gone through the roof, he was hooked up to an ECG machine and was referred to a psychologist. He had had an appointment with the psychologist the previous week, who had immediately referred him to solicitors who, in turn, had indicated that the applicant could “go for a large payout against the Department”. It had also been suggested to him that he could go to the media.
Ms Levine reminded the applicant of the department’s internal process, and suggested that he should make a formal written statement to her setting out his allegations, and then that process would be followed. The employee relations section would investigate any allegations made by him. According to the applicant’s evidence, Ms Levine said that she would not be getting involved in any potential investigation. According to Ms Levine’s notes, the applicant indicated that he did not know which way he would go. He said that he understood the internal process, but at this stage he was still considering his options. Ms Levine said that there was a process, and that she could not do anything unless he was prepared to make a statement setting out his allegations. The applicant indicated that he understood the process.
The applicant then raised a number of issues about RAV at Prahran, namely, that staff were frightened of Mr Windisch and not prepared to raise issues, and that his (the applicant’s) treatment by Mr Windisch “was a commonplace issue”. At this point Ms Levine’s notes record that the applicant “jumped all over the place … suggesting that other staff were prepared to support him”.
Although Ms Levine’s notes dealt only briefly with the subject just referred to, the applicant’s evidence-in-chief did so with more elaboration. He said that he told Ms Levine that Mr Considine, Mr Harrison, Mr Swallow, Ms McInerney and others had been subjected to what he described as “one form or another of occupational violence and workplace bullying”, mentioning as perpetrators Mr Windisch, Ms Jones and others. As he mentioned the names of those who had been the victims of such treatment, in some cases Ms Levine made “very derogatory comments about them”. These comments included what the applicant perceived to be references to confidential medical information about the people concerned. The applicant responded with the comment that he had concerns about these people: in one case, a concern about the person’s “safety and welfare”, and in another case, a concern that the person mentioned “was going to commit suicide”. In discussing these people, the applicant used the expression “self-harm”. The applicant told Ms Levine that the “occupational violence and workplace bullying” to which he was referring had been allowed to occur “long before the incident with [himself] and [Mr Windisch]” and that “it needed to stop that day”. Ms Levine’s response was to tell the applicant that the people concerned (ie those who, he alleged, had been the victims of the bullying) should not “be in the job”.
Although it is not clear from the applicant’s evidence in quite what order various subjects were raised in this conversation, at one point, apparently apropos his references to other inspectors, he told Ms Levine that he was seriously concerned that Mr Windisch was “still even at the office with this going on”. He said that he was “going to be taking this further”, and that the inspectors referred to would be his witnesses, “and they need to be protected in order to give me a fair and safe hearing on the evidence”. Under cross-examination, the applicant said that he told Ms Levine that Mr Windisch should be “held accountable” for what he had done, and that he had had legal advice, which was to the effect that he could sue for a lot of money in relation to what had been done to him. Ms Levine said that she was not going to get involved in any potential investigation. The applicant made it clear that there were people at the office who needed to be given an opportunity to talk about their experiences of occupational violence and bullying, because the applicant was not the only person suffering from it. At that point, he was the only person “brave enough to stand up to these people and say, ‘I’m not having this any more’.”
According to the applicant’s evidence, he raised with Ms Levine the subject of the professional integrity of some of the inspectors, specifically the way they were conducting inspections. In this context the applicant used the term “cowboy”. Ms Levine allowed him to speak at length on this subject. He said that he had been present on numerous occasions when “some of these cowboy approaches” had been taken by inspectors at licensed premises. He said that there had been times when he had had to leave the premises because he did not like what was going on, and did not want to be involved with it. He told her that he and others did not “act like that, and we were put on this list not to go across the merge, because we weren’t doing what we were told.” (The “merge” was the then proposed transfer of the inspectorate function to the Commission.) The applicant referred to an operation at the “White Charlie” night club – referred to further below – as “just one example of the heavy-handed cowboy approach we’re taking to this industry”. He said that, if the media were to get hold of what happened at that operation, the Department would be “very embarrassed”.
Returning to Ms Levine’s notes, she suggested that the applicant could finalise his Certificate IV in Investigations, and that she would pay for him to complete this program. The applicant responded by saying that he was not in the “space” to complete this program, adding that he had done much of the written work, but that he had been “logged out of his PC” and not able to gain access to this work. Ms Levine asked him if he was suggesting that Mr Windisch had done this, and he indicated that he really did not know. He said that he had given his password to other inspectors, and Ms Levine suggested that they might have logged him out of his computer. The applicant said that he wasn’t sure. Ms Levine said that Mr Windisch would not have the applicant’s password, and that there may be a different explanation. The applicant “was silent on this”.
The applicant asked Ms Levine if she was prepared to talk to his psychologist. Ms Levine agreed to do so, and rang the psychologist both on his landline and on his mobile phone, and left a message for him to return the call. The psychologist, Dr Paul Grech, returned Ms Levine’s call while she was still in conversation with the applicant. Both Ms Levine and Dr Grech gave evidence about the call, and I shall return to that below.
Ms Levine asked the applicant if he had spoken to the police. He said that he had spoken to the local police on the previous day, telling them that he was concerned about being stalked by his manager and asking what he should do. Ms Levine told the applicant, very clearly, that this was something which Mr Windisch would not do. She told the applicant that he was losing “perspective about all of this”.
Ms Levine reminded the applicant that there were things that she needed to do by way of informing relevant sections within the department. She told the applicant that, if he intended to go to the media, she would appreciate being told of this prior to it happening, “given that Ministers would be unhappy about surprises”. The applicant said that he understood that and that he would let her know first. The applicant also gave Ms Levine a number of medical certificates.
There is one aspect of the meeting between the applicant and Ms Levine on 14 April 2011 that has become more controversial than others. In his evidence, the applicant said that he asked Ms Levine about his return to work, adding, “Do I need to submit a WorkCover claim?” Ms Levine’s response was that he might consider the “detrimental effects” of making such a claim, specifically (as I understood the applicant to accept what was put to him under cross-examination) that he might then be kept out of the workplace for a longer period than might be the case if he were simply found another suitable position. The applicant said (in his evidence) that Ms Levine told him that he should consider himself “on full paid leave until the matter [is] resolved”, providing he could provide medical certificates to the Department.
According to the applicant, this assurance from Ms Levine meant that “there was no need for me to think about any return to work plan at that stage”. In her evidence-in-chief, Ms Levine denied having said that that the applicant should consider himself on full paid leave, but under cross-examination she put it rather differently: she had no recollection of saying that, and did not believe that she would have said it, but she was “not an expert in these matters about what happens in terms of pay”. Her notes said nothing about the subject.
The actual understanding which the applicant derived from what Ms Levine said on this subject was clarified elsewhere in the evidence. In answer to questions from the court, the applicant accepted that, if he were to be on leave and to be paid, the payment would have had to have been referable to some established heading of entitlement, whether it be recreational leave, or sick leave, or something else. On 11 May 2011, the applicant had an interview with Ms Dumais (to which I refer at para 71 below), the record of which is as follows (“PR” being the applicant and “AD” being Ms Dumais):
PRGabi said – when I spoke to her, I said at this stage I’ve got medical certificates to cover me all the way and I’ll continue to do that. I was unsure …
ADDo you have enough sick leave?
PRWell I was unsure of the – where it would got [sic]. I worked out roughly how [much] long leave I’ve got. I think I’ve used all my sick leave now. If I was taking my leave of now I’d be into my annual leave and accrued leave, which I’ve still got more of. Gabi assured me that that would at some point be reimbursed and to consider myself on full [going] leave, providing I can keep the medical certificates.
ADOn which leave, full …
PRJust on leave.
ADLeave?
PRYes, full paid leave.
ADFull paid leave. So she said that your – even though your sick leave’s run out?
PRWell I think it’s only – would have only just run out. It’s hard, I haven’t been on [kiosk] for a month.
ADOkay, and so …
PRIt’s my understanding that when all this is resolved that any leave that I’ve used, whether it be sick or annual leave, will be reimbursed.
ADSo that’s what Gabi had said to you?
PRYes, and that’s my understanding. They haven’t got back with anything formal on that.
This puts it rather differently from the terms of the applicant’s evidence in this case. In the latter, there was no suggestion that Ms Levine had said that the applicant would use all the sick leave and annual leave that he had, and then be reimbursed for having taken it.

In the light of the evidence to which I have referred, I consider it most probable that, at the meeting on 14 April 2011, Ms Levine said something from which the applicant reasonably understood that, provided he supplied the Department with medical certificates, his pay (she may have said “full pay”) would continue as normal. I do not accept that she said anything that would have reasonably given him to understand that his full pay would continue under such an arrangement, regardless of the applicant’s entitlements, until the resolution of the issues which he had with Mr Windisch, whatever that might have entailed. Neither do I accept that she made any reference to the reimbursement of sick or recreational leave. That may have been the applicant’s understanding, but Ms Levine did not state it.
At about 11:00 am, Ms Levine told the applicant that she had to leave, as she had a meeting to attend. The applicant reminded Ms Levine that, according to the Department’s website, all incidents needed to be recorded within 30 days. She responded that, should he send something to her, she was happy to record it on the register. The applicant suggested that he would do so immediately, and that he could send her his medical certificates.
According to Ms Levine, she and the applicant left on good terms. She reminded him of the availability of the Department’s employee assistance service, and said that she could not do anything unless he was prepared to send in a formal complaint. He said that he would get back to her prior to seeing the psychologist “etc …”, and thanked her for listening to him.
I turn next to the telephone conversation between Ms Levine and Dr Grech on 14 April 2011 to which I first referred in para 51 above. According to Ms Levine’s evidence, she answered Dr Grech’s call, and he immediately said aggressively to her, “This is the worst case of workplace bullying I’ve seen – that I’ve seen in my 20 years of clinical practice. Mr Regulski could sue the department for a lot of money. And if this isn’t investigated at the highest levels, then I will be going to the ministers and the media.” For a while, Ms Levine was just listening to Dr Grech. Then she asked him how many times he had seen the applicant, to which the answer was once. She said that, on the basis of a single consultation, he had only heard the applicant’s “version of this, and not anyone else’s.” She said that, if he wanted to help the applicant, the best thing he could do was to convince him to put in a formal complaint, without which she was unable to do anything. She concluded by saying that he (Dr Grech) would not be dealing with her any more: he would be hearing from someone in the employee relations team in the Department.
Ms Levine included the details of her conversation with Dr Grech in her notes of her meeting with the applicant on 14 April 2011. What I have said in the previous paragraph is, however, based on her oral evidence. Save for some variations in order and emphasis, it is consistent with her notes, the only important departure from them being the absence in the notes of any reference to Dr Grech threatening to take the applicant’s case to the media. Under cross-examination, Ms Levine adhered, credibly and convincingly, to her evidence-in-chief. She was not cross-examined on the single respect in which that evidence departed from the terms of her notes.
Dr Grech gave evidence, but he said nothing in chief about his telephone conversation with Ms Levine on 14 April 2011. He produced no note of that conversation. When asked an open question under cross-examination as to what he had said to Ms Levine, Dr Grech said that he –
… expressed concerns about my patient’s mental and emotional state and simply inquired whether his current mental and emotional state could be considered in the circumstances and that he was wishing to express concerns to her as somebody who oversees different aspects of the department in which he worked. He felt unsafe and insecure, very vulnerable, and I felt it was in everyone’s best interest if he confided in somebody who he understood or hoped that he could trust to listen to his situation and his circumstances. … And I expressed concern that in terms of my initial observations of him, he presented as a very vulnerable and anxious patient. And he had given me his consent to discuss those types of matters with who I understood to be his – his manager at the time. … I indicated to Gabby that, at that point, I was effectively his psychologist – or treating psychologist – and if there was anything I could possibly do to assist, if she wanted to touch base with me in the future in terms of how Paul was functioning and travelling, then the door would always be open and I could be contacted, and Paul had given his consent for that to occur.
Dr Grech denied that he was aggressive in the course of his conversation with Ms Levine, he denied that he had described the applicant’s case as the worst case of bullying that he had encountered in years of clinical practice, and he denied that he told Ms Levine that he wanted the matter to be investigated at the highest level, adding “that’s not my role”. Dr Grech did accept, however, that Ms Levine said something along the lines that, if the applicant wanted matters to be processed, he would need to put in a formal complaint.
From what the court has before it, it would seem that Dr Grech’s evidence about his telephone conversation with Ms Levine was based wholly on his recollection over a period of more than three and a half years. Nothing about the conversation was mentioned in his professional report, which was admitted as part of the applicant’s case. When he was answering questions under cross-examination, I had the impression that he was doing so by reference to what he thought he would, or would not, have said, rather than by reference to a clear recollection of the conversation. By contrast, Ms Levine had the benefit of her notes of the conversation, which had been made contemporaneously. They were, of course, more than merely the notes jotted down by one party to an electronic communication: Ms Levine was, at the time, acting in the course of her employment as a manager in the Department. Her notes were on departmental notepaper and were, in my view, a business record. Furthermore, this was, I consider, a clear instance of the listener in a non-routine conversation having a stronger, and more reliable, actual recollection of what the speaker said. It was apparent when Ms Levine gave her evidence on this subject that, despite the passage of time, she retained such a recollection of what Dr Grech said to her on 14 April 2011. I accept her evidence in preference to that of Dr Grech, including her reference to him having made a comment about the media (with respect to the latter aspect, substantially because she was not cross-examined about it).
After her meeting with the applicant on 14 April 2011, Ms Levine attended a meeting with Ms Dumais and another manager with human resources responsibilities in the Department, Caitlin Huffer. Ms Levine did not take a note of what was discussed at that meeting, and gave no evidence about it. According to Ms Dumais’ evidence, Ms Levine related to herself and Ms Huffer what the applicant had told her in the meeting that morning. Ms Levine said that she did not believe that Mr Windisch would have done the things of which he had been accused by the applicant. However, Ms Dumais received the news of the applicant’s allegations against Mr Windisch as something which required investigation on her part.
At the same meeting, Ms Dumais reported on the state of her, and Ms Marks’, consideration of Ms Jones’ allegations against the applicant. She said that, as a result of Ms Marks’ preliminary investigation, it had been determined that there were not sufficient details to warrant a formal investigation into those allegations. Although not directly relevant to the applicant’s circumstances, I mention here that there was, in due course, a formal investigation of Ms Jones’ allegations against Mr Harrison, the result being that some disciplinary action was taken against him.
Ms Levine spoke to the applicant (presumably by telephone) for eight or nine minutes on the morning of 18 April 2011. According to an email which she sent to her superior, with a copy to Dr Ewer, the applicant sounded “much brighter and calmer” than he had on 14 April; and he told her that he was feeling “much better”. He was pleased that there was to be an investigation into his allegations. He said that he was going to get advice the following day, but would not be consulting solicitors. Ms Levine told the applicant that she was very keen to get him back to work, given his work ethic. She reminded him that he would be found a job which used his experience, and that the offer which she had made in that regard remained in place.
On 19 April 2011, the applicant sent an email to Ms Levine in terms which included the following:
I am writing to you to make a formal complaint about the conduct of Responsible Alcohol Victoria compliance manager Mark Windisch.
On Monday 28^th March 2011, I was ordered into Mark Windisch’s office. I could see he was angry and behaving very aggressively towards me. I attempted to communicate with Mark on several occasions to which he stated “sit the fuck down”. I suggested that we can discuss this matter at another time when he has calmed down to which he again said “sit the fuck down, if this was vic pol we would be out that door” as he pointed towards the rear car park. I took this as a physical threat. Mark ignored my requests and continued to abuse me verbally. I felt physically threatened as his voice was at shouting level and his positioning was in close proximity. He demanded that I was seated and he stood over me to ensure I complied. He was gesturing extremely aggressively towards my face. I was unable to leave the room as I feared for my safety.
Throughout the incident, I was threatened, undermined, humiliated and constantly abused with profound language. The threats were made in relation to my professional career with the Department of Justice at present and in the future when we merge with Gaming. Mark threatened that I would be place under another acting team leader who would “ride me into the ground” and “not give an inch”. Mark put me on show in front of other colleagues demeaning my professional integrity. Mark also made threats about the relationship with my daughter. In addition he made unfounded accusations towards all aspects of my professional conduct whilst working within the Department of Justice. He threatened that “I will speak to Murray Smith, Gabby, Raj and Brendan Facey to get you fired”. At no stage during the ordeal, was I made aware of the reason for Mark’s actions, despite my attempts to ask what I had done wrong.
This is a brief overview of the incident and does not detail the content of what Mark said or his overall behaviour towards me.
Since the incident, I have been medically unfit to return to work and remain in a fragile state. I am accessing professional services to deal with my ongoing physical and psychological issues as a direct result of Mark’s actions. I have not attended work since this incident, therefore have been unable to report my injuries or illnesses in the OH&S incidents reporting register, as per protocol according to Work Safe Victoria.
On the same day, the applicant told Ms Levine that his health care professionals had recommended that he distance himself from “the current situation”, that he would be travelling overseas for 10 days, and would not be contactable.
On 20 April 2011, Ms Levine emailed Mr Windisch, with a copy to Ms Huffer, enclosing a medical certificate operative until 5 May 2011 which the applicant had provided, and noting that he was “close to or has run out of sick leave”. She was not sure of the “correct process” from there, and queried whether the applicant’s absences might be set against his recreation leave entitlements without his consent.
On 6 May 2011, the applicant first sought the advice of his solicitors.
On 10 May 2011, Ms Levine emailed Ms Dumais, inquiring whether she had had any further contact with the applicant. She said that the applicant had run out of sick leave, and was not being paid by the Department. She added that she had not been contacted by the applicant since before Easter (which was, that year, over the period 22-25 April). In reply, Ms Dumais said that the applicant was to be interviewed at 9:30 am the following day. In her evidence, Ms Dumais said that this was to be an element of her preliminary investigation for the purpose of deciding whether to proceed to a formal investigation of the applicant’s allegations against Mr Windisch.
The interview between Ms Dumais and the applicant proceeded as arranged on 11 May 2011. Afterwards, Ms Dumais emailed Ms Levine informing her that the applicant’s understanding was that he would be paid for his time away from work, and that any sick leave or recreation leave used for the purpose would be “reimbursed”, as he considered that the absence was “a direct consequence” of Mr Windisch’s conduct. She asked Ms Levine to “confirm” (ie to clarify) what she (Ms Levine) had told the applicant regarding his leave.
On the following day, 12 May 2011, the applicant sent an email to Ms Levine, in which he noted that he had been advised by Ms Dumais that he had used his sick leave entitlement, and that, if he wanted to be paid, he would have to take recreational leave. He asked to be given that leave. He inquired of the position that he would be in once he had used up all of his leave entitlements but remained unfit to return to work. He noted that he had not received any salary since 20 April 2011.
Ms Levine replied on 13 May. She approved his request to take recreational leave. She said that an employee who had exhausted his or her sick and recreational leave entitlements but remained unfit to return to work would normally be placed on “unpaid sick leave”. In her email, Ms Levine continued:
I note that as soon as you are medically fit for work, given that you have indicated that you do not want to return to Prahran, you and I have had some discussions regarding some alternative options, at your current pay level, within the Department. I hope that you are able to re-engage in work as soon as possible as I think that this will be a positive step forward for you and the Department. I am happy to talk with you about this further when you
In the course of the applicant’s cross-examination, counsel for the respondents noted that this email may have been “cut off”, but he secured the applicant’s agreement to the proposition that he understood this passage in the email as amounting to an invitation to him have a further discussion with Ms Levine about alternative employment options within the Department.
There followed an exchange of emails as between the applicant and Ms Levine on the subject of his pay entitlements, and some issues which he had with the Department’s payroll processing arrangements. I do not need to refer to these, but they culminated in an email from Ms Levine to the applicant on 14 May 2011, in which she confirmed that, taking account of all of the applicant’s available leave, and some “time in lieu”, his entitlement to pay would be exhausted on 29 May 2011. She continued:
Should you be unable to return to your original duties at this time I would be happy to further discuss options with you, and I am keen to assist you with a plan for return to work in alternative location and role.
I look forward to hearing to hearing [sic] from you prior to the 29 May.
On 15 May 2011, the applicant responded in the following terms:
I understand and appreciate you wanting to assist me to return to work and will be more than willing to discuss a potential return to work plan. However, at this point in time, it is unlikely that I will return to work before there is a conclusion/outcome to the complaint. As you may be aware, the details of the complaint involves threats made by Mark Windisch against my continued employment and career within the Department of Justice. I hope you are able to understand the difficulty this puts me in, in terms of returning to work. I am in regular consultation with my GP and Clinical Psychologist around these issues and they are in support of my recovery and general wellbeing.
On 17 May 2011, Ms Dumais sent an email to Ms Levine asking why, given the nature of the allegations made against Mr Windisch, there was no recommendation that he be suspended or placed on alternative duties pending the investigation. She asked Ms Levine confirm what she understood to be her view that Mr Windisch did not represent an occupational health and safety risk at Prahran. Replying, Ms Levine said that she did not believe that Mr Windisch was a risk, adding, “I also question the veracity of the strength of claims made against him”.
On 20 May 2011, Ms Levine replied to the applicant’s email of 15 May 2011. She said:
As indicated in my previous email, after the 29 May you will have exhausted all paid leave options, however, if you were to work with me to develop a suitable return to work plan in another region, which usually takes approximately 10 working days, it would not be necessary for you to report for work during this time. I strongly believe this is a productive way forward, and I ask you to give it serious consideration. Should you not see your way clear to do this, then you would be on Sick Leave Without Pay.
As you and I had previously discussed, working in another metropolitan region would give you the opportunity to work completely outside of the RAV space, and given your experience, your skills would assist in another area of justice. And, you would maintain salary at level.
Ms Levine added that she would be happy to make time to work with him face to face the following week to commence the process for his return to work. This would achieve, she said, both a different role for the applicant and the continued payment of his salary. Under cross-examination, the applicant agreed with counsel’s proposition that, at this time, Ms Levine was “really trying very hard to engage with [him] on [his] coming back to work in an environment where [he] wouldn’t have to deal with Mr Windisch”.
On 23 May 2011, the applicant said in an email to Ms Levine that he would be “more than happy” to meet with her to work through a suitable return to work plan, adding that he believed that this would be “a productive way forward”. Such a meeting was arranged, and took place at 8:15 am on 25 May. Both the applicant and Ms Levine made a note of what had been discussed at this meeting, and both notes were received into evidence without objection. Both also gave evidence about the meeting.
According to the applicant’s note, he told Ms Levine of his concern for the staff in RAV, and that he feared that some of them may “self-harm”. He told her that he held Mr Windisch accountable for his actions. She responded that it was his (the applicant’s) word against Mr Windisch’s. At this point, in what was apparently an editorial addition by the applicant, his note continued:
I cannot believe she said that – that is what [Mr Windisch] threaten[ed] to me. Why is she supporting him.
Returning to the narrative of the meeting, according to the applicant’s note, he told Ms Levine that he could not believe that Mr Windisch was still at [something indecipherable] “bullying my witnesses”. He said that it had been over a month to that point. He said that it was a joke that Mr Harrison was put through a disciplinary hearing after he also was exposed to Mr Windisch’s aggression, and was terrified. He reminded Ms Levine that he had made her aware of this a month previously. He asked her why Mr Harrison was being put through that. Ms Levine was silent. The applicant told Ms Levine that he was unable to be paid, and what were the effects of that. She suggested Centrelink, which prompted the applicant to insert what I read as another editorial addition, as follows:
What a joke. I am the one who is being bullied here. I have no support from [the Department] or [Ms Levine].

The applicant’s next claim under s 340 of the FW Act relates to the period when he was in the employ of the Commission. The adverse action alleged is the Commission’s failure to provide a return to work plan or, as it was put in the applicant’s outline, “to facilitate his return to work”. As it was explained by the applicant’s counsel in closing, the reasons proscribed by s 340 were twofold: first, that the applicant had complained to the Department on 14 and 19 April 2011 – effectively the same claim as that with which I have dealt in the previous section of these reasons, but made against the Commission as employer – and secondly, that the applicant had a right to return to work under the AC Act.
Commencing with the adverse action, much of what I would say here has already been said in the previous section. Both sides conducted their cases as though the transfer of the Department’s relevant obligations under the AC Act was seamless, and I am content to travel with that assumption.
It was submitted on behalf of the respondents that this aspect of the case was given a temporal limitation by s 194(1) of the AC Act, which limited to a period of 52 weeks after 30 May 2011 (ie to 28 May 2012) the Commission’s obligation to provide suitable employment, subject to the applicant’s capacity, under s 194(2). That seems to be tolerably clear, but the respondents went further and submitted that the obligations to plan a return to work, and to consult, under s 195 were also so limited. Section 195 is not, at least in terms, so limited: the date referred to in subss (1) and (4) appears to be a commencing date only. The submissions of the respondents were put as though the construction for which they implicitly contended was self-evident.
I do not think it was or is. The obligation under s 195(1) was, in point of time, open-ended. The deeming provision in s 195(4) operated by reference to the commencement of the “employment obligation period”. The respondents seem to take the view that s 195 should be read harmoniously with s 194, and that the obligation to plan for an employee’s return to work could only have been linked to the “employment” which the employer was obliged to provide under s 194(2). This may indeed be the construction which s 195 has received in Victorian courts, but I was referred to no relevant judgments. Neither, regrettably, were the submissions of the applicant at all helpful on this point. In the circumstances, I consider that I have no option but to take the conservative approach, which also accords with the natural grammatical construction of the relevant provisions, and hold that the Commission’s obligations under ss 195 and 196 did not come to an end on 28 May 2012.
The content of those obligations was much influenced by the certificates which the applicant provided as to his capacity to work. Even before the applicant’s employment was transferred to the Commission, Mr Foxton had suggested that he accept a role as a probity officer in the employ of the Commission. The Department’s insurer’s case manager had a lengthy discussion about this proposal with the applicant’s doctor at some time before 30 January 2012. The doctor would not endorse the proposal. That provided the background to the doctor’s letter of 5 March 2012 which formally rejected the proposal on the very ground that, involving employment by the Commission as it did, it would have had the potential to bring the applicant into contact with those with whom he had crossed swords at RAV. By then, the applicant was employed by the Commission, and the discussion with the case manager, and the letter of 5 March 2012, boded ill for any attempts that Mr Veale and his staff might make to find a role for the applicant that was within the restrictions to which his doctor would certify. Consistently, all the certificates which the applicant’s doctor issued stated that he was unfit for any duties (although one of them, signed on 20 November 2012, added the rather unhelpful endorsement that the applicant “is not able to go back to his previous role”).
If, as appears to be the applicant’s case, this left the Commission in the position of being obliged to plan his return to work in the employ of some other public department or authority, I would hold that no such obligation arose under the AC Act. If there is one thing which was absolutely clear from the provisions of Div 2 of Pt VIIB of that Act, it is that the bundle of return to work obligations imposed by that division applied to the employer by whom the worker in question had been employed at the time of his or her injury. The result is that, insofar as statutory obligations are concerned, Mr Veale and Ms Lai were limited to jobs within the Commission. While I do not suggest that this made it impossible for them to find a job that would be consistent with the applicant’s refusal to contemplate any work with those with whom he had worked in RAV, it must be accepted that it significantly complicated their task.
Taking those riders into account, did the Commission fall down on its statutory obligation to plan the applicant’s return to work, and to consult with him in that regard? I consider that it was entitled to regard itself as receiving the baton from the Department, as distinct from starting again. It knew of the insurer’s case manager’s discussion with the applicant’s doctor in January 2012. It had the latter’s letter of 5 March 2012. What happened next may be viewed as less than ideal, but the continuing flow of medical certificates effectively informed the Commission that the applicant could not work anywhere. The doctor’s intimation that he might certify the applicant to work away from his old work area and the people with whom he was involved there was more in the nature of an unofficial sidebar to the legal situation which confronted the Commission. Even so, Mr Veale spoke to the applicant on 16 and 22 May 2012. As it seems to me, there followed a kind of a moratorium on return to work discussions, brought about by the cessation of the applicant’s weekly payments after 16 July 2012, the applicant’s appeal against that, and the conciliation of 18 September 2012. It was after what appeared to be a successful resolution to that conciliation that, on 24 October 2012, the applicant, Mr Veale and Ms Lai engaged in what was, in my view, a consultation that would have satisfied the requirements of the AC Act. It was not until nearly a month later that the applicant supplied the CV requested by Ms Lai, and it was not long after that that the applicant started talking about litigation.
In a landscape which was in many respects murky, the one thing which stands out is the continued supply of medical certificates which stated that the applicant was unfit for all duties. In the result, as was the case when the applicant was employed in the Department, it cannot be said that the Commission failed to comply with the provisions of the AC Act insofar as they required it to plan the applicant’s return to work under s 195(3) as often as was necessary to enable him to return to work in an employment which was consistent with his capacity for work. There was, therefore, no adverse action taken against him in this sense.
That would be enough to dispose of this aspect of the applicant’s case. However, again for the sake of completeness, there are two further matters with which I should deal. The first is that, in this part of his case, in addition to relying on his ability to make a complaint under s 341(1)(c) of the FW Act, the applicant submitted that he had a workplace right constituted by his right “to seek a return to work plan” under the AC Act, and that the adverse action described above was taken against him because he exercised that right. Since the adverse action – assuming, contrary to my conclusion most recently expressed above, that there was adverse action – was the Commission’s failure to plan for the applicant’s return to work and to consult in that regard, there is an obvious circularity in this proposition. Perhaps that would not be fatal, but it would make the applicant’s contention that the Commission acted for the reason that he exercised the right referred to inherently improbable, even given the terms of s 361 of the FW Act. I shall return to that aspect briefly below. For the moment, I shall consider so much of the applicant’s submission as involves matters which are part of his primary case.
Although this was not made entirely clear in the submissions presented on behalf of the applicant, it would seem that he here relies on s 341(1)(a) of the FW Act: the AC Act was relevantly a “workplace law”, and he was entitled to the benefit of it. Putting aside presently irrelevant situations, such a law was one which “regulat[ed] the relationships between employers and employees (including by dealing with occupational health and safety matters)”. The respondents submitted that the AC Act was not such a law. That submission, in my view, approached the question at too high a level of generality. A “law” may be a single provision of an Act, it may be a group of provisions, or it may be an Act as a whole. It may be (although I do not hold) that, at the high level, the AC Act did not have the purpose of regulating the relationships between employers and employees. But the question is whether, in pursuit of the objects referred to in paras (b) and (c) of s 3 –
(b)to make provision for the effective occupational rehabilitation of injured workers and their early return to work; [and]
(c)to increase the provision of suitable employment to workers who are injured to enable their early return to work;
– the AC Act operated in a way which effected such a regulation.
Section 189 of the AC Act set out the purpose of Pt VIIB as follows:
Purpose
The purpose of this Part is to provide—
(a)that employers, workers and other persons involved in the return to work process cooperate to ensure that workers successfully return to work;
(b)that employers are responsible for providing pre-injury employment or suitable employment to enable workers to return to work;
(c)that workers are responsible for participating in the return to work process consistently with their capacity for work;
(d)for workers to be represented, assisted and supported in the return to work process;
(e)for effective occupational rehabilitation for workers to facilitate their early and sustainable return to work.
Divisions 2 and 3 of Pt VIIB dealt with the “obligations” of employers and employees respectively (see s 190). Those obligations included the ones arising under ss 195 and 196 which I have set out at paras 178-179 above.
These provisions required employers to act in certain ways, and in that sense were regulatory. The field in which they were required to act was that of the relationships which they had with their relevant employees. Most relevantly to the present case, they were required to plan the return to work of injured employees, and to consult with them. The result presumptively achieved by obedience to these provisions was that employees would perform work, in the service of their employers, which they would, or at least might, not otherwise have performed. In my view, ss 195 and 196 of the AC Act were workplace laws within the meaning of the FW Act.
The second matter is the Commission’s reasons for managing the applicant’s situation under the AC Act, specifically under Div 2 of Pt VIIB, in the way that it did. Because of the conclusions I have reached above on the adverse action aspect of the case, it may be thought that this is a highly theoretical subject, but it involves questions of fact, and findings should be made. The Commission put Mr Veale forward as the individual whose reasons should be held up to light in this regard, and I did not understand the applicant to take issue with that approach. In his evidence-in-chief, Mr Veale said that none of the steps taken in the management of the applicant’s WorkCover claim was influenced by the fact that he had made a complaint against the Department. The closest counsel for the applicant came to cross-examining Mr Veale on that evidence was in the following exchange:
And you made no effort to find him a job because you had been told by Ms Levine that he was not to be employed in the Department of Justice; that’s correct, isn’t it?---No, that’s totally – that is – that’s – that’s not true at all.
When this allegation was put to Ms Levine, she too denied it. There is nothing in the evidence otherwise that would give any contextual sustenance to the allegation. I cannot discern any legitimate basis for the allegation to have been put to either witness.
On all of the evidence, I find that no act or omission of the Commission or its staff in relation to planning, or failing to plan, for the applicant’s return to work, or consulting, or failing to consult, with him in that regard was to any extent influenced by the circumstance that he complained to the Department about his treatment by Mr Windisch on 28 March 2011 or about bullying etc at RAV generally. The latter was not the reason, or a reason, for the former.
The only other matter to be dealt with here is whether the circumstance that the applicant was entitled to the benefit of the return to work provisions of the AC Act was the reason, or a reason, why he was not accorded that very benefit, that is, as was put on his behalf, why the Commission did not plan for his return to work conformably with ss 195 and 196 of that Act. As mentioned above, the applicant’s case in this area proposes a state of affairs which is inherently improbable. In the Further Amended Statement of Claim, it was not alleged that the Commission acted for this reason, with the result that the requirement in s 361(1)(a) of the FW Act was not satisfied. The applicant himself, therefore, bore the onus of proof in relation to the Commission’s reasons. That onus was not discharged. Indeed, the evidence was quite devoid of anything that would support this very strange allegation.
CESSATION OF WEEKLY WORKCOVER PAYMENTS
The applicant next says that the Commission contravened s 340 of the FW Act when it removed his weekly WorkCover payments after he complained to it about its failure to offer him any return to work. The removal of the payments was said to be adverse action within the meaning of s 342(1), and the complaint was said to come within the terms of s 341(1)(c)(ii).
What the applicant describes as the “removal” of his weekly payments was the step taken by Ms Lai, communicated to the applicant on 18 December 2012, to recalculate his entitlements by reference to the view that it had been a mistake for his weekly payments to have been resumed after the conciliation of 18 September 2012 (see para 122 above). It was no part of the applicant’s case to contend that he was, as a matter of law, entitled to weekly payments as a result of the conciliated outcome. It will be recalled that the very point of the conciliation was to deal with the insurer’s decision of 12 June 2012 that weekly payments would cease on 16 July 2012. I accept the respondents’ submission that the reinstatement of weekly payments after the conciliation was a mistake, and did not reflect any entitlement which the applicant then had.
In these circumstances, the respondents submit that the discontinuation of the payments was merely the correction of that mistake, and did not amount to adverse action. I accept that submission. The applicant was not injured in his employment when that correction was effected. Neither was his position altered to his prejudice. In this part of the case, therefore, there was no adverse action.
For the sake of completeness, I shall consider the other aspects of the applicant’s case on the discontinuation of weekly payments. As pleaded, it was the sending of the correspondence to which I have referred in para 125 above on or about 11 December 2012 which provided the reason for the discontinuation. As mentioned, that correspondence was not in evidence, but the allegation drew a limited admission. Neither the allegation nor the Commission’s response to it establishes that the correspondence, or the court documents which accompanied it, raised a complaint about the Commission’s failure to offer the applicant a return to work. I hold, therefore, that the applicant has not established the objective existence of the circumstance which is alleged to have been the reason, or a reason, why the Commission acted. There is, therefore, no starting point by reference to which to measure the consistency of its reasons with Pt 3-1 of the FW Act.
For the above reasons, this aspect of the applicant’s case must be rejected.
THE APPLICANT’S CASE IN CONTRACT
The applicant’s case in contract is based upon what are alleged to be two implied terms expressed as follows:
(c)the Applicant and First Respondent would ensure that they cooperated with each other to enable the continuity of employment with the First Respondent (the “Co-operation Term”);
(d)During the Applicant’s employment with the First Respondent, the Applicant an the First Respondent would act in Good Faith towards each other (the “Good Faith Term”).
In the context of other admitted facts, references to the Department in these allegations included also, for the appropriate period, references to the Commission.
The case has been conducted on the basis that it was only the applicant’s contract which provided the legal framework for the parties’ relations, whether the employer was the Department or the Commission. The applicant’s allegation that he was employed pursuant to the contract was admitted. In the evidence, occasional reference was made to the industrial agreement which, apparently, existed, but it was not in evidence and the respondents placed no reliance on it. Further, as a public sector employment, one might suppose that some form of statutory regulation had a role to play, but none was referred to.
As 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. Neither is the implied term properly expressed in the applicant’s pleading as set out in para 209 above. Aside from the imprecision of the notion of “continuity of employment”, there are many commonly-occurring situations in which employment, for one reason or another, may not be continuous – such as those referred to, for example, in s 62(2) of the Long Service Leave Act 1992 (Vic) – without, so far as I am aware, it ever being suggested that the implied duty of co-operation is necessarily brought into play.
So I would reject the applicant’s allegation that his contract contained the term which he pleaded. But, following the way the respondents conducted their case, I propose to consider the applicant’s case in the light of the implied duty of co-operation as properly understood.
It 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.

The particular passage in the Department’s policies upon which the applicant relied was to be found in the “Anti Bullying and Workplace Conflict Policy”. The introductory paragraph to that policy was as follows:
The Department of Justice values and respects the diversity of its workforce, and is committed to providing a workplace that is free of bullying and workplace violence for all employees, customers, and visitors to the workplace.
The policy commenced with the following principle:
This policy clearly supports the Department of Justice value of “Respect Other People”. As such it requires Employees to treat all people – employees and clients – with respect.
There was a section which gave content to the concept of “bullying”, opening as follows:
The department is committed to providing a working environment that is free from bullying and occupational violence. The department expects all employees to treat each other fairly, and with respect, courtesy and sensitivity.
The “behaviours” that would constitute workplace bullying were set out, commencing with “verbal abuse whether orally or in writing”. Then:
By definition, a single incidence of bullying behaviour does not constitute workplace bullying. Workplace bullying is repeated unreasonable behaviour: not necessarily the same type of behaviour each time, but behaviour that is consistently bullying.
Any single incident of bullying behaviour or other mistreatment must however be appropriately dealt with. Managers have a general duty of care to provide a safe workplace and safe system of work in accordance with the Occupational Health and Safety Act 2004.
The “responsibilities” of employees, managers and supervisors, and “Human Resources” were set out. Amongst the responsibilities of managers and supervisors was the following requirement to –
Respond promptly and sensitively to all situations where inappropriate behaviour has occurred or alleged to have occurred. These include ensuring the alleged victim of bullying or violence is not subjected to further victimisation, or reprisals, for having reported the bullying or violence.
It was submitted on behalf of the applicant that, “in failing to fully investigate the allegations by [the applicant] in relation to the Windisch incident, and in failing to provide a proper return to work for [the applicant], the RAV has breached this policy, and in turn breached its duty to co-operate”; and that “in failing to offer a return to work and in removing [the applicant’s] weekly payments, the [Commission] has breached its own policy and in turn breached its duty to co-operate”.
This submission is problematic at both the legal and the factual levels. Legally, it posits the existence of a co-operation obligation unrelated to any term of the applicant’s contract, and is thus inconsistent with the submission, which I have accepted, referred to at the start of para 213 above. Factually, because of the applicant’s certificated illness, the Department was never in a position to consider the compliance by local management with this aspect of its policy. In the result, the applicant was not subjected to further victimisation or reprisals for the simple reason that he was not at work. I would also hold that, so far as it could (short of suspending or transferring Mr Windisch in advance of any disciplinary proceeding against him), the Department did respond promptly and positively to the applicant’s complaint. In the initial period, Ms Levine proposed alternative work suggestions which were rejected not because of their unsuitability but because the applicant had professional advice, in effect, that he was incapable of returning to work anywhere.
As to the allegation against the Commission, there was nothing in the provision of the policy upon which the applicant relied which would have given rise to a positive obligation upon the Commission to find the applicant a position. It continued to be the case that the applicant would not countenance any return to work proposal that would have put him in contact with Mr Windisch, and the Commission too was prepared to accept that restriction. If anything, that approach was conspicuously conformable with the policy. Finally in this area, I regard the submission that it was a breach of the policy for the Commission to have removed the applicant’s weekly payments as quite without merit: indeed, with respect to those involved, the submission borders on the disingenuous. The removal was done in June 2012 at the direction of the insurer, that direction being based upon the report of the independent medical examiner.
For the above reasons, I reject so much of the applicant’s case as is based on the implied duty of co-operation.
Turning to the second implied term relied on by the applicant, the “good faith term”, his counsel was unable to refer me to any decided case in which it had been held that there was, in contracts of employment as a class, a term expressed as the applicant did in this case (see para 209 above). Much has been written, of course, about the requirement of good faith in the exercise of powers and discretions under commercial contracts, and the application of analogous principles in an employment context was discussed by Mr Irving in The Contract of Employment, 2012, at para 8.29. But I do not believe that the existence of a term expressed as the applicant has done in this case – that the parties “would act in good faith towards each other” – has ever been suggested. As counsel for the applicant acknowledged, in Commonwealth Bank of Australia v Barker (2014) 312 ALR 356 French CJ, Bell and Keane JJ left open the question whether “there is a general obligation of good faith in the performance of contracts” (312 ALR at 371 [42]). In the present case, this very large question received scant attention in the submissions made on behalf of the applicant. Neither should it have. For reasons which follow, the facts of the case do not approach the point at which concepts of good faith, however expressed, might come into play.
There were three areas in which, in the submission of the applicant, the Department acted in bad faith towards him. The first concerned the conduct of Mr Windisch himself on 28 March 2011. That submission must be rejected. Whatever else might be said about Mr Windisch’s conduct, he did not act in bad faith towards the applicant. Indeed, his actions were almost the polar opposite of what might be regarded as acting in bad faith. There was nothing underhand, opportunistic, expedient, self-interested or calculated about his conduct. Neither did he harbour some ulterior purpose, or exercise powers for purposes for which they were not intended. Rather, albeit that his actions were unreasonable, and in some respects irrational, they were on any view spontaneous, and genuinely reflective of his then state of mind. They involved what must be regarded as the paradigm case of straight talking. There are several strong criticisms which might be directed to Mr Windisch for the way he treated the applicant, but acting in bad faith is not one of them.
The second area of alleged bad faith concerned Ms Levine’s early reaction to the applicant’s complaint about Mr Windisch’s conduct. It was submitted that she “immediately accepted that [Mr Windisch] had done nothing wrong”. That submission was based on the email correspondence to which I have referred at paras 34-35 above. At least as submitted, this point differs from the first one in that it alleges, in effect, duplicity on Ms Levine’s part: she was soothing the applicant in her meetings with him, while at the same time reassuring Mr Windisch that she supported him and she doubted the accuracy of the applicant’s complaint. Here I would make a distinction between the period before Ms Levine was first contacted by the applicant on 13 April 2011 and the period which came after that contact. In the earlier period, it was only Mr Windisch’s mea culpa itself, in his phone call to Ms Levine at about 1 pm on 28 March 2011 that alerted her to the possibility that there might be a complaint from the applicant about his (Mr Windisch’s) conduct. In that period, particularly in the first few days, what was most visible on Ms Levine’s radar was the issue reported by Ms Jones. Clearly, she felt very strongly about that, but she was not, then, in a position in which she had to consider behavioural issues and complaints coming from both sides – both by and against the applicant.
With respect to the later period, I accept the underlying factual basis of the applicant’s case, but I do not accept that Ms Levine was engaged in any duplicity. I accept that her communications with Mr Windisch and Ms Dumais, and possibly others, conveyed doubt, at least, on her part as to the more extravagant claims which the applicant made about Mr Windisch’s conduct. She was also giving the applicant to believe that she sympathised with his position. But the two lines of communication were not incompatible. She made it clear to the applicant that she could do nothing about his troubles with Mr Windisch unless he put in a formal complaint, and he knew, as was the case, that Ms Levine would have no part in any investigation arising from such a complaint, save possibly being a witness herself. In the meantime, Ms Levine, as the relevant line manager, turned her mind, quite promptly in my view, to the prospect of the applicant being found suitable employment elsewhere in the Department. She accepted without demur his position that he should never be required to work with Mr Windisch again. As for Mr Windisch himself, Ms Levine’s general support for him did not compromise the discharge of her responsibilities in relation to the future employment of the applicant. As I have said, she was a manager, not a judge or an arbitrator. In my view, there was nothing in the position adopted by, or in the acts or omissions of, Ms Levine in this period that had the quality of bad faith about it.
The third area of alleged bad faith was raised in an submission that “there was no investigation (and in particular by [Ms Dumais]) as to the reason why [Mr] Windisch had acted in such a manner, that is whether there were any allegations against [the applicant] which could have justified [Mr] Windisch taking any action against [the applicant] on 28 March 2011”. I must confess to being mystified by this submission. There was an investigation into Mr Windisch’s conduct and, in some respects, the applicant’s complaint was upheld. Consideration was given to whether the applicant’s conduct needed to be investigated, and it was decided that it did not. What the Department did, or did not do, is so unclear in this written submission, which was not the subject of oral clarification, that I have found it impossible to measure it against the standards of good and bad faith.
In the written outline filed on behalf of the applicant, there was, additionally to the matters already referred to, a desultory paragraph alleging bad faith on the part of the Commission. This paragraph, which was not developed orally, was quite inadequate for the purpose intended, and nothing further needs to be said about it.
DISPOSITION OF THE PROCEEDING
For the above reasons, the application must be dismissed.

I certify that the preceding two hundred and twenty-five (225) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.
Associate:
Dated: 13 March 2015

[2015] FCA 206

13 March 2015

Key Legal Topics

Areas of Law

Employment & Labour Law

Legal Concepts

Adverse Action

Implied Terms

Duty of Co-operation

Duty to Act in Good Faith

Citation:	Regulski v State of Victoria [2015] FCA 206
Parties:	PAUL REGULSKI v STATE OF VICTORIA, VICTORIAN COMMISSION FOR GAMBLING AND LIQUOR REGULATION, MARK WINDISCH and GABRIELLE LEVINE
File number:	VID 760 of 2013
Judge:	JESSUP J
Date of judgment:	13 March 2015
Catchwords:	INDUSTRIAL LAW – Adverse action – Whether taken against employee – If taken, whether taken because employee had or exercised workplace right in the nature of his entitlement to the benefit of a workplace law or his ability to make a complaint or inquiry in relation to his employment – Whether employee was so entitled or had made such a complaint or inquiry. CONTRACT – Contract of employment – Implied terms – Duty of co-operation – Duty to act in good faith.
Legislation:	Accident Compensation Act 1985 (Vic) ss 3, 105, 189, 194, 195, 196 Fair Work Act 2009 (Cth) ss 12, 340, 341, 342, 361, 550 Liquor Control Reform Act 1998 (Vic) Long Service Leave Act 1992 (Vic) s 62 Occupational Health and Safety Act 2004 (Vic) s 21 Whistleblowers Protection Act 2001 (Vic) s 5
Cases cited:	Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 549 Commonwealth Bank of Australia v Barker (2014) 312 ALR 356 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346
Date of hearing:	20-24, 27 October, 1 December 2014
Place:	Melbourne
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	225
Counsel for the Applicant:	Ms G Jardine
Solicitor for the Applicant:	Bayside Solicitors
Counsel for the Respondents:	Mr C O’Grady
Solicitor for the Respondents:	Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 760 of 2013

JUDGE:	JESSUP J
DATE OF ORDER:	13 MARCH 2015
WHERE MADE:	MELBOURNE

JUDGE:	JESSUP J
DATE:	13 MARCH 2015
PLACE:	MELBOURNE