FEDERAL COURT OF AUSTRALIA

 

Lever v Australian Nuclear Science and Technology Organisation

[2007] FCA 1251

WORKPLACE RELATIONS – purported breach of Part XA of the Workplace Relations Act 1996 (Cth)– applicant joined statutory corporation as employee – promoted to position at level below that sought – agitated for promotion to higher level – appointed by trade union as worksite delegate – deterioration in employment relationship though status quo maintained – whether employer’s conduct in declining promotion to higher level and conduct incidental to dispute involved dismissal or injury in employment or alteration of position to applicant’s prejudice or discrimination according to statutory provisions – whether operation of statutory presumption crystallised – whether applicant established operation of statutory presumption – series of fourteen instances of statutory breach propounded – extensive evidence and submissions made in course of lengthy proceedings – proceedings dismissed

Conciliation and Arbitration Act 1904 (Cth) s 5

Federal Court of Australia Act 1976 (Cth) s 50

Privacy Act 1988 (Cth) (generally)

Workplace Relations Act 1996 (Cth) Pt XA, ss 298K(1), 298L, 298T and 298V

Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (generally)

Workplace Surveillance Act 2005 (NSW) (generally)

Workplace Relation Regulations 2006 (Cth) Ch 7 reg 4.53

Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (No. 3) (1998) 195 CLR 1referred to

BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97 referred to

Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482referred to

Community and Public Sector Union v Telstra Corporation Ltd (2000) 99 IR 238 referred to

National Union of Workers v Qenos Pty Ltd (2001) 108 FCR 90 cited

Australian and International Pilots Association v Qantas Airways Ltd 160 IR 1referred to

Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326referred to

General Motors-Holden Pty Ltd v Bowling (1976) 51 ALJR 235referred to

Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 referred to

McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111referred to

Jones v Dunkel (1959) 101 CLR 298referred to

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

Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131referred to

Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 referred to

 

 

Lewis v Qantas Airways Ltd (1981) 54 FLR 101referred to

Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1 referred to

RONALD LEVER v AUSTRALIAN NUCLEAR SCIENCEAND TECHNOLOGY ORGANISATION

NSD 68 OF 2006

 

 

 

CONTI J

16 AUGUST 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 68 OF 2006

 

BETWEEN:	RONALD LEVER Applicant
AND:	AUSTRALIAN NUCLEAR SCIENCE AND TECHNOLOGY ORGANISATION Respondent

 

JUDGE:	CONTI  J
DATE OF ORDER:	16 AUGUST 2007
WHERE MADE:	SYDNEY

 

THE COURT ORDERS THAT:

 

1.                  The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 68  OF 2006

BETWEEN:	RONALD LEVER Applicant
AND:	AUSTRALIAN NUCLEAR SCIENCE AND TECHNOLOGY ORGANISATION Respondent

 

JUDGE:	CONTI  J
DATE:	16 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The context and nature of the employment disputation between the parties in outline

1                     The subject proceedings brought by the applicant Ronald Lever (‘Mr Lever’) against his present employer, the Australian Nuclear Science and Technology Organisation (‘ANSTO’), for relief under s 298U of the Workplace Relations Act 1996 (‘the Act’) were commenced by application filed on 7 February 2006.  The circumstantial origins the subject of Mr Lever’s complaints in the proceedings are referrable to what he asserts to have been the inadequacy of his promotion within the employment ranks of that well known organisation.  Mr Lever commenced his employment with ANSTO on 28 April 1999 as an IT System Administrator, initially on the basis of a two year fixed term; he has since continued in that employment to the present time, so far as my understanding extends.  The nature and extent of his complaints as to that inadequacy of promotion within ANSTO had their apparent origins in the following year 2000, and led ultimately to the commencement of the final hearing of the proceedings on 27 November 2006.  That hearing extended over ten hearing days and concluded with the addresses of counsel for both parties on 28 June 2007, being oral addresses which followed upon the earlier lodgment with the Court by the respective parties between them of 166 pages of written submissions settled by counsel, comprising Mr Lever’s submissions in chief of 93 pages furnished on 22 May 2007, followed by ANSTO’s response thereto of 57 pages more closely word processed (being therefore of at least similar length in reality), and ultimately Mr Lever’s submissions in reply of 16 pages. 

2                     The terms and conditions of Mr Lever’s employment were at all material times the subject of the ANSTO (General) Award 2000 and of a series of enterprise agreements made under the auspices of the Act during the years 1997, 2000 and 2002.  His claims for present relief arose from what were described broadly by his counsel as ‘numerous alleged contraventions of the Act’.  The present proceedings raises issues as to the liability of Mr Lever’s employer ANSTO for statutory breaches upon the footing that if any such liability should be established by the Court’s findings, relief by way of compensation, and also by way of injunction and the imposition of a penalty, would be subsequently sought by Mr Lever in the context of a continuation of the hearing of the proceedings by the Court. 

3                     Prior to commencement of his employment by ANSTO, Mr Lever had conducted his own business involving what he described as ‘three retail outlets and manufacturing premises, with approximately 16 staff’.  Also prior to his commencement of that employment and until 1999, he had undertaken an undergraduate degree in IT Computer Science at the University of Wollongong.  Upon commencing his employment by ANSTO on 28 April 1999, Mr Lever was graded as a ‘Technical Officer Grade 3’, that being the equivalent of the classification ‘Professional Officer Class One (PO1) Level 4’ as so described in the relevant ANSTO enterprise agreements.  The abbreviation ‘PO’ connoted ‘professional officer’.  At least between 28 April 1999 and June 2002, all ANSTO employees were classified by so-called ‘work level descriptors’ as contained within the following industrial documents so described by Mr Lever:

(i)                  the ANSTO (General) Award 2000;

(ii)                the ANSTO Enterprise Agreement 2000; and

(iii)               HRES P 4.1 Rev A from the ANSTO Enterprise Agreement 1997.

Such ‘work level descriptors’ were said to appear more specifically within documents bearing the headings ‘ANSTO Professional Officer Classification Standards’ and ‘ANSTO Classification Standards Senior Officer’.

4                     Under the terms of the ANSTO Enterprise Agreements 1997 and 2000, ANSTO was required to adopt an annual assessment system for its employees called the ‘Career Advancement System’ (‘CAS’).  Reference was made in that Enterprise Agreement 2000 to the said ‘HRES P4.1 Rev A’ instrument.  That latter instrument was said by Mr Lever however to have never been formally agreed to ‘on site’ as between ANSTO and the relevant Unions, for whatever relevance for present purposes so much may involve.  Reference to HRES P 4.1 Rev A appeared under the heading ‘44 Career Advancement System’, at par 44.1.3 of the said 2000 Agreement, and provided for ‘… procedures and processes for merit promotion and advancement…’.  The operation of those industrial structures was verified by Ms Hammerton, a longstanding senior union representative at ANSTO, and also by Mr McIntyre who held at all material times from the year 2002 the positions of President of the Australian Manufacturing Workers’ Union (‘AMWU’), the ANSTO Site Executive, and the Honorary State President of the Technical and Supervisory and Administrative Division of the AMWU, NSW.  Between 2 April 1998 and at least November 2000, ANSTO was said by Mr Lever to have failed to set objectives for him, pursuant either to the CAS or to clause 6.3.1 of HRES P 4.1 Rev A, and thus for the CAS assessment yearly periods commencing on 1 July 1999 and 1 July 2000.  There was produced by ANSTO to the Court by Mr Davies, an Industrial Relations Advisor in the employ of ANSTO, by way of exhibit to his affidavit evidence of 27 September 2006 (par 15), a document similarly styled as that in [3(iii)] above, being HRES P 4.1 Rev B, which he described as having taken effect on 21 May 2002 in the place of the so-called Rev A.  I should interpolate to record that it was the contention of ANSTO from the outset that ‘… procedures of [ANSTO] for determining employee grades and levels contained in [the] document known as HRES P 4.1 … are irrelevant to the case pleaded in the Points of Claim’, which case was said by ANSTO to make ‘no allegation of a breach of s 298K in respect of [ANSTO’s] reliance or non-reliance on these procedures’.  For that reason it was said by ANSTO to be ‘unnecessary for the Court to trouble itself with [that] ‘subjective and difficult task’. 

5                     Mr Lever tendered into evidence a document called ‘Objective Setting and Assessment Form’ relating to the period of time 1/1/1999-2000, which had been apparently prepared by him and in any event lodged by him with ANSTO in November 2000, and which related to his asserted achievements during the ANSTO assessment periods for 1999 and 2000.  In early December 2000, Mr Lever’s then Divisional Director of ANSTO, Dr Doherty, had returned that document to Mr Lever and had promoted him to ‘PO2 – bottom step’ (Professional Officer 2), that promotion apparently constituting an incremental increase in Mr Lever’s classification under the ANSTO Enterprise Agreement 2000 above Mr Lever’s prior status of PO1.  That promotion involved Mr Lever being granted two salary increments, by way of ‘skipping PO1, level 5,… and moving directly to the bottom level in the higher PO2 grade’, so ANSTO emphasised.  The extent of that promotion was said to have nevertheless disappointed Mr Lever, because he believed that he should have been promoted to Senior Professional Officer 1 (‘SPO1’). 

6                     Mr Lever did not sign (or perhaps more accurately, counter-sign) that Objective Setting and Assessment Form for the period of time from 1 January 1999 to 2000, as so returned to him in early December 2000 by Dr Doherty.  In early to mid February 2001, Dr Doherty approached Mr Lever in the ANSTO workplace and asked him why he had not ‘signed off’ on the form.  Mr Lever informed Dr Doherty in response that he had not done so because he considered that he ought to have been promoted at least to the level of SPO1.  Ultimately on or about 12 February 2001, Mr Lever did sign that Objective Setting and Assessment Form for the period from 1 January 1999 to 2000.  Subsequently, however, by letter dated 22 February 2001 to Mr Lever, Dr Doherty confirmed his promotion to the lower level of PO2, being lower than SPO1. 

7                     In May 2002, Mr Lever completed an employee assessment form provided by ANSTO in respect of the year from July 2000 to June 2001 and submitted the same to Dr Doherty.  In the following month of June 2002, so ANSTO further recorded, Mr Lever and other members of ANSTO staff were offered interviews by Ms Linda Houseman of its Human Resources Department for the purposes of a so-called role analysis, and Mr Lever’s interview with her took place on 21 June 2002.  Subsequently Ms Houseman provided to Mr Lever written material headed ‘Role Profile’, which purportedly, ANSTO submitted, explained to him ‘that he was working at a level above that of his substantive classification’.  In July 2002, Mr Lever completed an assessment form for the year July 2001 to June 2002 and in the following month of August 2002, he submitted to ANSTO the same together with the assessment form for the preceding year July 2000 to June 2001.  According to Mr Lever’s employment history which he presented to the Court, Mr Lever commenced in or about July or August 2002 to act as a delegate to the Community and Public Sector Union (‘CPSU’), that being an ‘industrial association’ for the purposes of the Act, but his evidence was imprecise as to when his joinder of the Union actually occurred.  He did not produce any documentary material relating to that joinder. 

8                     The consequence of Dr Doherty’s decision in response to Mr Lever’s completion of those forms, according to Mr Lever, was that he was thereby given ‘one increment for each assessment year only, which meant I… was not promoted’; that was said by him to be because he remained at the same substantive level or classification, that being ‘Band 5’ under the classifications that operated pursuant to the 2002 Enterprise Agreement.  ANSTO disagreed with that conclusion, pointing out that increments were not automatic, and each constituted a promotion.  Thereafter Mr Lever wrote directly to the then ANSTO Executive Director, Professor Garnett, and sought to resolve what he described as the classification dispute which had thus arisen, but apparently without receiving any response.  On 21 August 2002, Mr Lever met with Mr Crakanthorp (to whom, in the words of Mr Lever, he was ‘subordinate [in] line management’) and also Dr Doherty on the subject of his employment classification, or what ANSTO described as ‘his claim for bigger promotion’.  However, according to Mr Lever, Dr Doherty said to him ‘[i]t will take you 12 years also, Ron’, Dr Doherty thereby referring to Mr Crakanthorp’s promotion experience at ANSTO.  In January 2003, Mr Lever sought a so-called ‘peer review’ to assist in the resolution of his level or classification promotion dispute. 

9                     At least from about November 2002, Mr Lever asserted to ANSTO that his work in the assessment period 1999-2000, and continuing thereafter, should have been classified at a higher level than that of ‘PO2 – bottom step’, that higher level being (as I have earlier mentioned) SPO1.  Thereafter occurred, in the description of his counsel, ongoing dispute between Mr Lever and ANSTO as to the process followed in assessing and benchmarking his role pursuant to the CAS and clause 6.3.1 of HRES P4.1.  The parties disagreed apparently as to whether or not that classification to a higher level was in fact a promotion, Mr Lever maintaining the contrary, though his reasoning in that regard was somewhat unclear, for what that might ultimately matter. 

10                  On 10 January 2003 the ANSTO Enterprise Agreement 2002 was certified.  From that time, it appears that ANSTO formally commenced the operation of a new classification system whereby it ceased to apply ‘work level descriptors’ and commenced to apply ‘role characteristics’.  It was testified by Mr Lever that ‘… it was agreed and understood between ANSTO and the industrial associations on-site that the new classification system would not produce outcomes any less favourable to employees’. 

11                  A further employment controversy involving Mr Lever was that early in April 2003, Mr Lever met with Mr Cullen of ANSTO and requested that ANSTO approve the payment to him of overtime for additional hours of work said to have been performed by him; however that request was refused.  Mr Cullen provided comprehensive affidavit evidence in the proceedings.   For the years 2003 to 2005 (both inclusive), he was ANSTO’s General Manager of its Corporate Services Division.  Mr Lever lodged accordingly a form of classification grievance with ANSTO, purportedly pursuant to the ANSTO Enterprise Agreement 2002, for consideration by the ANSTO reference panel.  On 23 May 2003, Professor Garnett notified Mr Lever that ANSTO had decided to refuse to hold a reference panel for the purpose of resolving his grievance.  On 17 July 2003, Dr Doherty sent emails to Mr Lever on the issue of his ongoing grievance with ANSTO concerning his classification dispute. 

12                  Disputation between Mr Lever and ANSTO appeared to increase in September 2003.  Mr Lever outlined the following events which he asserted to have taken place at about that time:

(i)                  ANSTO offered ‘… to set [Mr Lever’s] objectives to the level of SPO1, if [Mr Lever] did not proceed with the reference panel’, upon the footing however that ‘the agreement was to take effect only from assessment year 2003 to 2004’; however Mr Lever ‘did not accept this offer’; and

(ii)                ANSTO then notified Mr Lever that ‘it intended to carry out a role analysis on [Mr Lever’s] position’ and asserted that such analysis was ‘within ANSTO’s managerial prerogative’.

13                  Subsequently in and from the year 2004, Mr Lever was elected by the CPSU as ‘site president for ANSTO’.  Prior to his election, and earlier in 2004, he had undertaken and was continuing to undertake, what were described by his counsel as, ‘… numerous union activities’.  In relation to all times during which Mr Lever performed those union activities, he appeared to acknowledge that he was remunerated by ANSTO in accordance with the ANSTO enterprise agreements. 

14                  At par 79 of his affidavit of 1 June 2006, Mr Lever asserted that during 2003 he ‘noticed a change in attitude and behaviour by particular members of ANSTO management towards [him]’, that is, for the worse. ANSTO considered that the deterioration in the relationship between Mr Lever and ANSTO had begun earlier, since ANSTO’s ‘conduct of refusing the promotions that [Mr Lever] considered he deserved’ commenced before 2003. ANSTO contended that ANSTO ‘cannot have acted for the reason that he had done, or was proposing to do things in his capacity as a union delegate, because he had not [by then] been appointed as a union delegate’.  By late October 2004 in any event, according to Mr Lever, ‘ANSTO accessed [Mr Lever’s] emails at work, which included emails received in his capacity as CPSU delegate and site president’.  Moreover from 3 November 2004 onwards, ANSTO was alleged to have subjected him to ‘a breach of duty process including an investigation and a threat to discipline’, being a process said by Mr Lever to be related ‘… inter alia, [to Mr Lever’s] work as a CPSU delegate and site president’.  Subsequently in or about February 2005, Mr Lever lodged a claim for workers compensation benefits purportedly related to ‘… psychological injury arising out of, inter alia, the circumstances relating to ANSTO accessing [Mr Lever’s] emails and the ongoing treatment of Mr Lever’.

15                  Mr Lever asserted that between February 2005 and March 2005, he had not been in receipt of any remuneration other than the payment of accrued sick leave ‘whilst Comcare was determining liability in respect of the applicant’s workers compensation claim’, and further that Mr Lever ‘has not received [otherwise] remuneration since, but remains in the employ of ANSTO’.  His counsel further asserted that Mr Lever had nevertheless ‘provided to ANSTO a medical certificate from his treating GP Dr Pead dated 2 February 2005 and a further letter of Dr Pead dated 12 March 2005 in respect of [his] capacity to return to work with ANSTO on restricted duties’, but that ANSTO made ‘no efforts to find employment [for him] consistent with either the medical certificate or letter of Dr Pead’. 

Relevant provisions of the statutory scheme

16                  The provisions of the Act here immediately relevant to Mr Lever’s application, directly or indirectly, were prospectively as follows:

‘298K      Dismissal etc. of members of industrial associations etc.

            (1)     An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

                     (a)     dismiss an employee;

(b)          injure an employee in his or her employment;

(c)           alter the position of an employee to the employee’s prejudice;

(d)          refuse to employ another person;

(e)           discriminate against another person in the terms or conditions on which the employer offers to employ the other person.

…

298L        Prohibited reasons

                (1)     Conduct referred to in subsection 298K(1) … is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:

(a)       is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or

…

(h)        is entitled to the benefit of an industrial instrument or an order of an industrial body; or

(i)         has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek:

                                   (i)        compliance with that law; or

                                   (ii)       the observance of a person’s rights under an industrial instrument; or

(j)        has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; or

(k)        has given or proposes to give evidence in a proceeding under an industrial law; or

(l)         in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions… is dissatisfied with his or her conditions; or

(m)       in the case of an employee or an independent contractor – has absented himself or herself from work without leave if:

                                   (i)         the absence was for the purpose of carrying out duties or exercising rights as an officer of an industrial association; and

           (ii)        the employee or independent contractor applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; or

(n)        as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:

                                   (i)        lawful; and

                                   (ii)       within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules; …

                (2)     If:

                          (a)     a threat is made to engage in conduct referred to in subsection 298K(1) or (2); and

                          (b)     one of the prohibited reasons in subsection (1) of this section refers to a person doing or proposing to do a particular act, or not doing or proposing not to do a particular act; and

                          (c)     the threat is made with the intent of dissuading or preventing the person from doing the act, or coercing the person to do the act, as the case requires;

                          the threat is taken to have been made for that prohibited reason.

298T        Applications to the Court

                 (1)     … an application may be made to the Court for orders under section 298U in respect of conduct in contravention of this Part.

…

298U        Orders that the Federal Court may make

                 In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:

(a)     an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than:

                        (i)         in the case of a body corporate – 300 penalty units; or

                        (ii)        in any other case – 60 penalty units;

(b)     an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor;

(c)     an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate;

(d)     an order requiring the person or industrial association not to carry out a threat made by the person or association, or not to make any further threat;

(e)     injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects;

(f)      any other consequential orders.’ 

 

17                  Counsel for Mr Lever asserted from the outset that in making findings as to Mr Lever’s conduct complained of, Mr Lever was not required to provide proof of the reasons for, nor of the intention of, the conduct of ANSTO complained of in the proceedings, by reason of the operation of s 298V of the Act, stipulated in that regard as follows:

‘298V      Proof not required of the reason for, or the intention of, conduct

                If:

                (a)     in an application under this Division relating to a person’s or an industrial association’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and

(b)     for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise.’

 

18                  Counsel for ANSTO made the following threshold observations concerning the structure of Mr Lever’s case as constituted by the proceedings.  The first was that although relief was purportedly sought by Mr Lever’s application under ss 298K, 298L, 298T and 298U of Part XA of the Act, and also ‘at general law’, the relief sought by Mr Lever’s amended application was only available under s 298U of the Act, and was required therefore to be made under s 298T.  Those sections appeared in Part XA prior to its amendment by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), which repealed the said Part XA.  However by reason of regulation 4.53 of Chapter 7 of the Workplace Relations Regulations 2006 (Cth), the present application, which was filed in this Court as I have earlier recorded on 7 February 2006, falls to be determined under and pursuant to s 298U of the Act as though the Act had not been amended by that later so-called ‘Work Choices’ legislation, so counsel further submitted. 

19                  The second observation was that Mr Lever’s ‘promotion to a level lower than he considers he deserved is not an injury to him in his employment’, since ‘[a]xiomatically, his promotion is not an alternation of his position to his prejudice’.  It was emphasised by ANSTO in that regard that Mr Lever ‘does not allege a demotion or a reduction in pay that could fall within either of s 298K(1)(b) or (c)’.  It was further emphasised at the outset that ANSTO’s ‘promotions of [Mr Lever], which he claims were inadequate, occurred prior to him taking up the position of union delegate’, which as I have earlier recorded, commenced from about August 2002. 

The authorities to which counsel for the respective parties initially drew attention and in relation to which counsel made observations

20                  Counsel for the respective parties drew attention to authorities of this Court concerning the relevant operation of the Act.  First as to s 298K(1) (supra), attention was drawn by counsel for Mr Lever to the reasons for joint judgment of five members of the High Court in Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (No. 3) (1998) 195 CLR 1 (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ), where at [4], the following appears in relation to the operation of aspects of that subsection already extracted above in these reasons:

‘… Paragraph (a) covers termination of employment; par (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.  Proof of the reason for engaging in the prescribed conduct is the subject of s 298V….’

It was submitted on behalf of Mr Lever that it was within that legal framework that his case had been brought, and further that ‘[i]n the light of the [foregoing judicial] observations as to the onus applicable in proceedings under Part XA of the Act, it is envisaged that significant submissions will be required in reply to meet the evidentiary case presented by [ANSTO] in seeking to discharge its onus in the matter’. 

21                  Counsel for ANSTO drew attention to a number of authorities also relating to the relevant operation of the legislation.  Specifically in relation to s 298K, in the context of BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97 the Full Federal Court (Black CJ, Beaumont and Ryan JJ) at [35] said as follows:

‘It has to be borne in mind, in construing s 298K, that it proscribes conduct by “an employer” directed to “an employee” or “other person” (emphasis added). That use of the singular suggests that the alleged injury or alteration of position has to be examined in the light of the circumstances of each individual employee. (It is not the point that in the interpretation of statutes, the singular ordinarily includes the plural; here we are concerned with the indications of legislative intention to be discerned from the actual language used.) It is also significant that the conduct struck at by each paragraph of s 298K is expressed by an active verb: “dismiss”, “injure”, “alter the position”, “refuse to employ”, and “discriminate”. That implies that the proscription is essentially against an intentional act of the employer directed to an individual employee or prospective employee.’ 

22                  I should interpolate to point out that in relation to the subsequent single judge decision in BHP Iron Ore following upon the Full Court’s remitter of the proceedings to the trial judge, Kenny J of this Court decided in Australian Workers Union v BHP Iron Ore Pty Ltd (2001) 106 FCR 482, that ‘[b]efore s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer’s acts than before them; that the deterioration had been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur’ (see [54]).  Upon that footing, the case foreshadowed by ANSTO was that Mr Lever ‘… has not established, or even alleged, that he ceased to be entitled to the benefits of an industrial instrument by reason of conduct of [ANSTO]’, since ‘… there can have been no conduct of [ANSTO] that was for the reason prohibited by s 298L(1)(h)’. 

23                  Further as to the operation of s 298K(1), attention was drawn by ANSTO to Community and Public Sector Union v Telstra Corporation Ltd (2000) 99 IR 238, where at [19] Finkelstein J observed as follows:

‘In the context of this legislation, there will not be a threat of proscribed conduct unless the employer communicates to his employee that proscribed action will be taken. One meaning of the word “threaten” is to menace or warn beforehand of an intention to inflict harm. That is the meaning that should be given to the word in s 298K.’

That observation was adopted in National Union of Workers v Qenos Pty Ltd (2001) 108 FCR 90 at [119] (Weinberg J) and in Australian and International Pilots Association v Qantas Airways Ltd 160 IR 1 at [20] (Tracey J).

24                  Subsequently at [26] in Qantas,Tracey J added the following observation in relation to the operation of s 298K(1), to which ANSTO drew attention:

‘Counsel have not directed my attention to, nor have I found, any authority which supports the proposition that a mere announcement of an intention to act in a particular way at some time in the future can constitute conduct of the kind to which s 298K(1) is directed.  Each of the cases to which my attention was directed, in which a contravention of the section was found, involved the making of a decision by an employer which was immediately operative even though the consequences of the decision may not have had an immediate effect on particular employees ….  The approach to the construction of s 298K which is evident in these cases is explicable in part by reference to the language of the section.  The various paragraphs in s 298K(1) which identify proscribed conduct speak in the active voice (“dismiss”, “injure”, “alter the position”, etc).  The employer must do something to prejudice an employee not merely foreshadow some future action which might or might not prove to be prejudicial.’

25                  More recently in Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 Branson J had occasion to consider the operation of s 298V in the context of an alleged breach of s 298K(1) of the Act, in the course of which consideration was given to the operation or otherwise of the s 298V presumption.  Her Honour referred at [57] to the decision of the High Court in General Motors-Holden Pty Ltd v Bowling (1976) 51 ALJR 235, where in the judgment of Mason J (as he then was) at 241 (with whose reasons Stephen and Jacobs JJ agreed), the following appeared in relation to the precursor to s 298V, namely s 5(4) of the Conciliation and Arbitration Act 1904 (Cth):

‘Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge.  The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant.  The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant.  To hold that, despite the sub-section, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which in my view is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.’

Moreover in his dissenting reasons, Barwick CJ observed at 238 as follows:

‘In my opinion, before resort can be had to this onus provision, there must be before the Court evidence which reasonably warrants the conclusion that the circumstance that the employee had been placed in the appropriate office of his union was possibly a reason for his dismissal.  If, on the evidence, there is no basis for concluding that that circumstance might be or have been a reason for the dismissal, there is no room for requiring the employer to negative the proposition that that circumstance was such a reason.’

On the footing of the approach taken in General Motors and duly adopted by Branson J in Maritime Union at [57], ANSTO submitted that ‘[i]t is not sufficient for [Mr Lever] to arbitrarily allege any one of the 15 prohibited reasons listed in s 298L(1)’ and that ‘[t]he evidence must be consistent with the hypothesis that [ANSTO] was motivated by the reason alleged by [Mr Lever]’, and further that ‘there is no suggestion in the evidence or in the submissions of [Mr Lever] that his entitlement to the benefit of an industrial instrument was an issue, or even a topic of discussion at or about the time of the alleged conduct’.  It was pointed out that ‘[m]ost employees of [ANSTO] were entitled to the benefit of an industrial instrument’, and further that ‘[Mr Lever’s] hypothesis that this reason actuated [ANSTO] is arbitrary and fanciful’. 

26                  Apart from the fact that Mr Lever had not established or even alleged that he ceased to be entitled to the benefits of an industrial instrument by reason of ANSTO’s conduct, ANSTO emphasised that there could be no conduct on its part that was undertaken for any reason prohibited by s 298L(1)(h).  In any event, the evidence of Dr Doherty was that his conduct was motivated by a belief that he had correctly classified Mr Lever and that Mr Lever was not yet qualified for promotion to SPO1.  Dr Doherty denied that he was motivated by the reason thus alleged by Mr Lever and asserted moreover that even if there had been conduct of the kind described in s 298K(1), his testimony would preclude any presumption arising under s 298V to the effect that the reason therefore was that as alleged by Mr Lever. 

27                  As to the circumstantial operation of the components of pars (j) and (m) of s 298L(1), Branson J observed in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131, at [161]-[162] as follows, concerning what ANSTO contended Mr Lever was required to establish in relation to the factual components thereof:

‘In respect of the allegation that the respondent injured Mr Burford in his employment, or altered his position as an employee to his prejudice, for the reason, or for reasons that included the reason, that Mr Burford had participated in proceedings under an industrial law, I have concluded in [75] above, that Mr Burford did not relevantly participate in proceedings under an industrial law within the meaning of s 298L(1)(j).  Section 298V of the Act does not, in my view, allow the applicant to circumvent that finding.  Rather it is to be construed as an aid to proof of the intent or reason of the respondent which motivated, or formed part of the motivation for, the respondent's conduct. It may fairly be presumed that the section is intended to alleviate the difficulties of proof by one party of the state of mind or motivation of another.

For analogous reasons, I do not consider, so far as the circumstances proscribed in s 298L(1)(m) are concerned, that s 298V relieves the applicant from the obligation of establishing as a fact that the relevant employee absented himself from work without leave for the purpose of carrying out duties as an officer of an industrial association (s 298L(1)(m)(i)) and that the employee applied for leave before absenting himself and that leave was unreasonably refused or withheld (s 298L(1)(m)(ii)). The impact of s 298V, in my view, is simply to alleviate the evidentiary difficulty facing the applicant of providing proof of the intent or reason which motivated, or formed part of the motivation for, the respondent's conduct following the absence of the employee from work.’

28                  Mr Lever referred additionally to the recent decision of this Court in McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111, where the issue arose as to whether the refusal to employ certain persons, or more precisely to re-employ those persons, had been made inferentially for the prohibited reason of their membership of a trade union.  In the course of his Honour’s comprehensive reasons for judgment approximating 110 pages, Greenwood J found that the four persons the subject of the Employment Advocate’s application had been refused re-employment inferentially for the prohibited reasons the subject specifically of pars (a), (h), (j), (k) and (l) of s 298L(1) of the Act.  Counsel urged upon the Court a consideration of what he described as ‘the very detailed and careful recent reasoning’ of Greenwood J in McIlwain which followed upon his Honour’s acknowledgement that the onus of establishing the various causes of action propounded in that case was placed on the applicant according to the balance of probabilities, but that s 298V stipulated for the discharge of that onus by presumption, once conduct was relevantly established ‘unless the person or industrial association proves otherwise’ (to cite the concluding words of the section).  The following dictum of his Honour appears at 204:

‘The dismissal conduct is admitted. The refusal to employ conduct is established.  Having adduced evidence probative of the conduct, the assertion of the prohibited reasons gives rise to the operation of s 298V, thus enlivening the presumption which discharges the onus cast on the applicant to establish the causes of action on the balance of probabilities and casts an onus on the respondents to prove affirmatively that the prohibited reasons alleged were not a reason for the conduct.’ (Emphasis in original.)

29                  His Honour pointed out that there must be demonstrated ‘differential treatment’ by the employer of an individual employee or other person of the identified class, as against other employees, and the question arising in principle was whether the conduct, from the standpoint of the individual concerned, was carried out for the prohibited purpose.  Historical factors were found to give rise in the circumstances of that case to inferences duly open to be drawn by the Court to the effect that the prohibited reasons constituted a basis for the conduct of the refusal to employ, emphasis being placed upon the timing of evolving events as demonstrative of a requisite interconnection.  There had occurred in that regard a succession of offers of re-employment made to certain individuals, after the dismissal of the group of employees seeking re-engagement, such as to evidence a constructive refusal of the employer to employ the members of that group. 

Mr Lever’s submissions on liability

(i)        Introduction generally

30                  As I have foreshadowed, the issues presently arising for judgment are confined to liability, the further case of Mr Lever as to compensation and penalty having been stood over pending the outcome of the case on liability.  Mr Lever emphasised that his complaint related to the absence of his reclassification to a higher employment grade within the ranks of ANSTO, and not merely to incremental increases in salary within a grade, and that it was within that legal framework of what his counsel described, citing Patrick Stevedores as quoted above, as the ‘broad additional category that covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question’ that his present proceeding was said to have been brought.  Emphasis was further laid by Mr Lever upon the statutory expressions of ‘injure’ and ‘prejudice’ appearing in pars (b) and (c) of s 298K(1), and to enunciation of principles appearing in the authorities to which I have already referred, and in relation to which the Courts were said to have given ‘a broad and wide ranging operation’, and in particular by the High Court in Patrick Stevedores. 

(ii)       The credibility of the various witnesses

31                  It was next submitted by Mr Lever that the veracity of his testimony was ‘unshaken’, his recollection of events was not materially challenged by contemporaneous documentation, and moreover that the testimonies of his various witnesses were ‘unchallenged by cross-examination going to the substance of their factual assertions’.  On the other hand the testimony of Dr Smith, the Executive Director of ANSTO, was said by Mr Lever to have been ‘… ultimately unhelpful [as to what was] undertaken by [ANSTO] during his tenure’, and ‘cavalier’, and ‘of no or minimal assistance to the Court’.  The affidavit testimony of the industrial relations advisor to ANSTO, Mr Davies, was described by Mr Lever as largely ‘formulaic’, and that to the extent of ‘any inconsistency’ with Mr Lever’s testimony, the latter should be ‘with little hesitation … preferred’. 

32                  Of more significance to the resolution of the issues arising was said by Mr Lever to be the evidence of Dr Doherty, described by counsel for Mr Lever as ‘the de facto supervisor and director responsible for [Mr Lever’s] active employment with [ANSTO]’.  It was submitted by Mr Lever that the following five emails reflected adversely upon ANSTO’s case concerning Dr Doherty’s motivation: 

(i)                  the first email sent on 12 November 2002, in reference to Mr Lever’s work as a union delegate on the enterprise bargaining negotiations team, which contained the assertion that ‘… [t]he history of [Enterprise Bargaining] processes almost everywhere is that they usually contain a confrontational element, which does not endear the union reps to management, so taking part has the potential to be career limiting, without any conscious design on the part of management to make it so’;

(ii)                the second email sent on 12 December 2002, by way of ‘begging’ Mr Lever ‘for [his] own sake’ not to pursue his industrial entitlement to a peer review;

(iii)               the third email sent on 5 May 2003, to the effect that Mr Lever needed to get his classification dispute with ANSTO ‘out of the way quickly for [his] sake’;

(iv)              the fourth email sent on 17 July 2003, stating that ‘Ron, I heard that you had decided not to proceed to the final IRC process.  Is this true?  I hope so.  I would not like to see you destroy your career prospects here, unless you’re planning to leave anyway.  You still have goodwill amongst your ANSTO clients’;

(v)                the fifth email sent on 18 July 2003 wherein Dr Doherty asserted that ‘I am sorry to hear it [that Mr Lever was still trying to resolve his classification dispute] because I think it’s inevitable that it will affect your career here, but maybe you are not intending to stay in any case.  I’ll let it rest’. 

33                  It was further contended by Mr Lever that ‘Dr Doherty would have the Court believe that none of these communications evidenced any threat or negative action taken by [ANSTO] or [Dr Doherty] as against [Mr Lever] in respect of either [Mr Lever’s] union activities or his prosecution of his industrial entitlements’, but that ‘… on a bare reading of the emails, in the light of the history of [Mr Lever’s] dispute with [ANSTO], the Court would simply not accept this evidence of Dr Doherty’.  That contention and its ultimate significance falls to be weighed of course in the context of the totality of the evidence in the wide-ranging contextual circumstances of this case, which I will proceed of course to further record and review in detail. 

34                  Mr Lever addressed thereafter in sequence the testimony of Mr Cullen, ANSTO’s General Manager, Corporate Services, which he described as having ‘essentially dealt with the dispute between [Mr Lever] and ANSTO as to [Mr Lever’s] request for overtime’, Mr Lever’s ‘industrial representation of [Person X]’, and ‘the breach of duty process brought against [him]’, and further [ANSTO’s] ‘accessing of [Mr Lever’s] emails’ (Person X’s actual name has been suppressed by order of the Court made on 29 November 2006 pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth)).  It was submitted by Mr Lever that ‘… to the extent [his] evidence and that of Mr Cullen are in conflict, the Court would accept the evidence of [Mr Lever]’, for the reason that ‘[t]o the extent that Mr Cullen corroborated the evidence of [Mr Lever] as to his substantive role in terms of the Career Advancement Process, Mr Cullen’s evidence would be accepted as corroborating [Mr Lever’s] substantive position as being at least Band 6’.

35                  Mr Lever submitted, moreover, that testimony of Mr Crakanthorp, the Operations Manager (Desktop and Server) of ANSTO, ‘in large part’ corroborated his own testimony, and that to the extent Mr Crakanthorp’s evidence was nevertheless contradictory to that of Mr Lever.  It was contended that Mr Lever’s version should be ‘comfortably’ accepted by the Court.  Mr Lever additionally submitted that to the further extent that Mr Crakanthorp’s testimony adduced by ANSTO ‘… sought to limit the role and scope of [his] clearly quite detailed technical knowledge in rewriting the directory structures for the review of ANSTO’s IT infrastructure’, the same should be rejected, since ‘[i]n that regard Mr Crakanthorp did not present as a credible witness’.  No instance of any such lack of credibility was however seemingly provided in that context. 

36                  As to the testimonies respectively of Mr O’Shea, Dr Hall and Ms Risby, given also on behalf of ANSTO, and said to have been to the effect that his workers compensation case was ‘unusual’, Mr Lever submitted that ‘they were nevertheless unable to remember significant elements of [ANSTO’s] handling of his case’.  Mr Lever further submitted that ‘their [individual] evidence in part contradicted each others as to the responsibilities and conduct of each other in dealing with [Mr Lever’s] workers compensation claim… [and further that] to the extent these witnesses’ version of the relevant events differs from that of [Mr Lever], [Mr Lever’s] evidence, supported as it is by the contemporaneous documentation, would be preferred’. 

37                  I will take into account of course the foregoing submissions as to conflicting testimonies to the extent necessary to resolve critical or relevant aspects of the evidence.  It is not a simple task of course for the Court to address and pass judgment upon the credibility of five witnesses individually and to an extent relevantly in favour of the testimony of a single interested party to litigation, to the extent of any inconsistency, as the foregoing submissions of Mr Lever seemingly require.  It is appropriate to detail the fifteen series of breaches framed by way of presentation of Mr Lever’s case to the Court.  In so doing, I will cite below wherever appropriate the precise language or terms of the comprehensive written submissions of counsel for Mr Lever. 

The series of breaches and injury pleaded by Mr Lever to have been sustained

(i)        The first series of breaches

38                  As foreshadowed in these reasons, the primary statutory focus of the proceedings was upon s 298K of the pre-reform Act, headed ‘Dismissal etc. of members of industrial associations etc.’, and paragraphs (b) and (c) of subsection (1) thereof in particular.  The allegations principally advanced by Mr Lever, and in outline, as I have earlier foreshadowed, were that ‘… ANSTO injured [Mr Lever] in his employment or altered the position of [Mr Lever] to his prejudice in the circumstances where’:

‘(a)      ANSTO breached section 298K(1)(b) and (c) by inducing [Mr Lever] to sign off on the Objective Setting and Assessment Form for the period 1999-2000 in February 2001, which was to the injury or prejudice of [Mr Lever] by causing [Mr Lever] to not seek a review of Dr Doherty’s decision to promote him two increments only;

 

(b)       ANSTO breached section 298K(1)(b) and (c) by failing to inform [Mr Lever] of his rights to a review of Dr Doherty’s decision, which was to the injury or prejudice of [Mr Lever] by causing [Mr Lever] not to seek a review of Dr Doherty’s decision to promote him two increments only;

 

(c)        ANSTO breached section 298K(1)(b) and (c) by reason of Dr Doherty representing to [Mr Lever] that it was not possible for an ANSTO employee to be skipped an entire grade in a promotion, which was an untrue statement and which induced [Mr Lever] to not seek a review of Dr Doherty’s decision to promote him two increments only.’

 

39                  Thereafter it was pleaded by Mr Lever that ANSTO’s conduct the subject of such statutory breaches ‘… was carried out for prohibited reasons as proscribed by section 298L of the pre-reform WR Act’, in that by reference to s 298L(1)(h), ‘… Mr Lever was entitled to the benefit of an industrial instrument, that is, the ANSTO Enterprise Agreement 2000’, and further that ‘[t]he particular benefit or benefits under the ANSTO Enterprise Agreement 2000 included’:

‘(i)       the benefit or rights flowing from Clause 44.1.1;

 

(ii)        the benefit or right to undergo an annual assessment under Clause 44 in accordance with the process – the document known as “HRES P4.1”, including Clauses 6.3.2, 6.4.4 and 6.4.6 of HRES P4.1.’

 

Those breaches, described in Mr Lever’s points of claim as the first series of breaches, were said to be ‘continuing’. 

40                  It was further pleaded by Mr Lever that as a consequence of what had been particularised by Mr Lever’s points of claim, he suffered and had continued to suffer injury loss and damage, particularised as follows:

‘(i)       [Mr Lever] lost the opportunity to seek and obtain a successful review in 2001 of Dr Doherty’s decision to promote the Applicant by two increments as recorded in the Objective Setting and Assessment Form for the period 1/1/1999-2000, thereby causing the Applicant to suffer a loss of career advancement and loss of potential earnings from 1 July 2000 (the award of 2 increments had retrospective effect from 1 July 2000 onwards);

 

(ii)        the Applicant lost the opportunity to be classified to his proper classification for his new role as benchmarked by the Work Level Descriptors with effect from the time the Applicant took on his new role around October/November 1999, or to be promoted to SPO 1 or above on some later date which would have meant that any subsequent promotions would have been made from the level of SPO 1 or above, thereby exacerbating the Applicant’s loss of career advancement and loss of potential earnings.’

 

41                  Counsel for Mr Lever explained that such series of alleged breaches related to the initial duration of Mr Lever’s employment with ANSTO, being the period from his engagement in late April 1999 to February 2001, and were constituted by the failure of Dr Doherty, as his then direct supervisor and assessor, ‘to inform [Mr Lever] of his rights to review a decision made by Dr Doherty’, being the decision ‘… to promote [Mr Lever] by only two increments within his existing substantive classification as a Professional Officer grade 2 as opposed to what [Mr Lever] had sought, which was to be classified in his new role according to the work level descriptors to no less than SPO 1’, and to do so notwithstanding what was described as the foregoing ‘relevant uncontested history’.  It was said further in that regard that up until January 2003, the ‘annual review of [Mr Lever’s] performance and career advancement was undertaken pursuant to the… CAS [as earlier abbreviated in these reasons] and the Objective Setting and Review Process that underlay that’, to be located within HRES P 4.1.  Mr Lever purportedly adopted in that context the ‘detailed history of the career advancement system to June 2002’, as summarised in pars 14 to 23 of Mr Lever’s first or principal affidavit of 1 June 2006 comprising 48 pages.  The HRES P 4.1 documentation was described as being in the nature of an industrial instrument, by reason of the fact that it was ‘developed pursuant to clause 44.1.1 of the ANSTO Enterprise Agreement 2000’. 

42                  It was pointed out by Mr Lever that such CAS process required ‘annual assessments of each employee’s past achievements and recommendations and goals’, to be ‘set to the employee’s upcoming year of work with [ANSTO]’.  It was said also to be ‘not contested by [ANSTO’s] witnesses that in the absence of the formal CAS documentation setting [Mr Lever’s] forthcoming objectives to a higher level than that on which he was currently working, that [ANSTO] would not be in a position to advance [Mr Lever] to a higher classification’. 

43                  It was next pointed out by Mr Lever moreover that relevantly for present purposes, clause 6.3.3 of HRES P 4.1, headed ‘Difficulties Establishing Agreed Objectives’, provided in clause (a) thereof that ‘the assessor is ultimately responsible for the timely completion of all stages of the CAS documentation’; so much was said to include ‘assessments in the years passed and goals for the forthcoming year’.  That clause 6.3.3 was described as consistent with the following clause 6.4.3 headed ‘Difficulties in Identifying Achievements’, which indicated in sub-clause (b) thereof that ‘[s]hould the staff member refuse to provide their achievements the direct supervisor(s), following discussions with the assessor, shall complete a list of achievements and meet with the staff member to discuss their conclusions’.  It was further said to have provided ‘… for the assessor, after due process, making a summary of recommendation, based on [the] comments [of the supervisor(s)] in circumstances where the staff member to be assessed does not agree with or co-operate with the process’.

44                  It was next said by Mr Lever to be not in dispute that he was ‘not explicitly informed of his rights to review Dr Doherty’s decision, nor was it in dispute that Dr Doherty advanced [Mr Lever] by two increments within a grade, contrary to [Mr Lever’s] understanding and expectation’.  What appeared to have been in dispute, so Mr Lever submitted, was that ‘Dr Doherty represented to [Mr Lever] that it was not possible to skip an entire grade’, and the Court was referred to annexure RL63 to Mr Lever’s 17 November 2006 affidavit, which was made subsequently to two earlier affidavits which he made in the proceedings.  To the extent there was any dispute between the evidence of Mr Lever and Dr Doherty, it was submitted by Mr Lever that the Court would accept Mr Lever’s evidence as contained in paragraph 33 of his affidavit of 1 June 2006 to the effect that on or about February 2001, a conversation occurred between him and Dr Doherty to the following effect:

Mr Lever:        ‘I haven’t signed off on the assessment form because I believe that the work I have been doing is at least Senior Professional Officer Level 1.’

 

Dr Doherty:     ‘It’s not possible for you to skip Professional Officer 2.  The system does not allow for this.  Don’t worry though, you will continue to be promoted.’

It was asserted by counsel for Mr Lever that none of the relevant industrial instruments in place at the material times supported the assertion of Dr Doherty that it was ‘not possible to skip an entire grade’.  Mr Lever asserted that such representation was made by Dr Doherty in order to prevent Mr Lever from accessing his entitlement to benefits under clause 44.1.1 of the ANSTO Enterprise Agreement 2000 and the ancillary documents referred to generally by the description ‘the objective setting and review process’. 

45                  The occurrence of prejudice adversely to Mr Lever was then said by him to be confirmed by Mr Davies, employed by ANSTO as an ‘Industrial Relations Advisor’, in a conversation between them held on 1 September 2002, which was recorded within par 48 of Mr Lever’s affidavit sworn 1 June 2006, as follows:

Mr Davies:       ‘You should have challenged Greg’s decision not to reclassify you back in 2001’.

 

Mr Lever:         ‘Greg indicated he could allow me to skip an entire classification’.

 

Mr Davies:       ‘There’s always been provision for staff to be reclassified.  There’s been a number of staff who have skipped an entire grade.’

There was said by Mr Lever to be a factual conflict between Mr Lever and Mr Davies as to whether or not that conversation occurred as so stated by Mr Lever, but once again, it was submitted on behalf of Mr Lever that his testimony should be preferred.  I was referred by Mr Lever in that regard to ‘[o]ne glaring example of the absence of credit of Mr Davies’, in circumstances where he referred to a document having been provided to him by a member of ANSTO’s ‘HR team’ (being Ms Ann Jenkins) at a time when, on the uncontradicted evidence of Mr Lever, she ‘was clearly not employed by [ANSTO]’.  I have encountered considerable difficulty with the purported basis and scope of viability relevantly of that submission. 

46                  In conclusion to that stage of the testimony of Mr Lever, his counsel contended that ‘in the absence of credible evidence to the contrary as to the motivations of Dr Doherty’, the first series of breaches had been established.

The second series of breaches

47                  The second series of breaches propounded by Mr Lever were formulated in pars 26 to 29 of Mr Lever’s points of claim as follows:

‘26.      On 21 August 2002, the Applicant met with Dr Doherty and Mr Crakanthorp to discuss his CAS Assessments for 2000-2001 and 2001-2002.  During the meeting, Dr Doherty made certain representations to the Applicant which were untrue and which constituted conduct in breach of section 298K(1)(b), (c) and (e) of the pre-reform WR Act.

 

Particulars of conduct

 

            (a)        Dr Doherty represented to the Applicant that ANSTO/ Dr Doherty was required to keep “some relativity” between ANSTO employees in relation to their advancement, thereby implying that ANSTO/Dr Doherty was entitled to not advance the Applicant for the sake of relativity with other employees, in circumstances where the Applicant ought to have been advanced on merit and in accordance with the classification processes;

 

(b)        That it would take the Applicant twelve years to be promoted to SPO 1;

 

(c)        That Professor Garnett would never agree to the Applicant being promoted to SPO 1; and

 

(d)        That ANSTO/Dr Doherty was not able to retrospectively address the issue of Mr Lever’s classification.

 

27.       The Applicant alleges that ANSTO injured the Applicant in his employment or altered the position of the Applicant to his prejudice in the circumstances particularised at paragraph 26 above in breach of s 298K(1)(b), (c) and (e) of the pre-reform WR Act.  It is alleged that the breaches are continuing.

 

Particulars of the Breaches

 

            (a)        ANSTO breached section 298K(1)(b) and (c) by seeking to discourage the Applicant from pursuing his classification dispute with ANSTO, which was to his detriment, by making false representations to the Applicant so as to induce or discourage the Applicant from seeking a review of Dr Doherty’s decision in relation to the assessment periods 2000-2001 and 2001-2002, including by the pursuance of any proceeding under an industrial law;

 

            (b)        ANSTO breached section 298K(1)(b) and/or (c) by threatening to injure the Applicant in his employment or alter the position of the Applicant to his prejudice with the intent of dissuading or preventing the Applicant from seeking a review of Dr Doherty’s decision, including by participating or proposing to participate in any proceeding under an industrial law; and

 

            (c)        ANSTO breached section 298K(1)(e) by discriminating against the Applicant by failing to afford the Applicant the same terms and conditions on which the Applicant was offered continuing employment compared to other ANSTO employees by refusing to address the Applicant’s classification in accordance with the classification processes applied to other ANSTO employees. 

 

28.       The Applicant alleges that ANSTO’s conduct in breach of section 298K(1)(b), (c) and (e) as alleged at paragraphs 25 to 27 above was carried out for prohibited reasons as proscribed by section 298L of the pre-reform WR Act. 

 

Particulars of Prohibited Reasons

 

            Section 298L(1)(h); namely, that Mr Lever was entitled to the benefit of an industrial instrument, that is, the ANSTO Enterprise Agreement 2000.  The particular benefit or benefits under the ANSTO Enterprise Agreement 2000 included:

 

            (i)         The benefit or rights flowing from Clause 44.1.1;

 

            (ii)        The benefit or right to undergo an annual assessment under Clause 44 in accordance with the process-document known as “HRES P4.1”, including Clauses 6.3.2, 6.4.4 and 6.4.6 of HRES P4.1.

 

29.       As a consequence of the matters particularised at paragraphs 25 to 28 above, the Applicant has suffered and continues to suffer injury, loss and damage.

 

Particulars of injury, loss and damage

 

            The Applicant suffered a loss of opportunity to obtain a successful review of his classification as at 21 August 2002 and to thereby obtain a promotion and to thereby increase his earnings.’  (Emphasis in original.)

 

48                  Those alleged breaches were said by Mr Lever to relate to the further representations made by Dr Doherty to Mr Lever as particularised above.  Mr Lever’s history of the negotiations leading up to the 21 August 2002 meeting has already been mentioned.  At that time Professor Garnett was the Executive Director of ANSTO.  Those further representations complained of were said to be detailed in conversational form in par 46 of Mr Lever’s affidavit of 1 June 2006.  Again it was contended that Mr Lever’s account of the history and recollection of those events should be accepted in preference to the testimony of Dr Doherty, and moreover that none of the relevant industrial instruments in place at the material time supported the assertions of Dr Doherty as to his reasons for not advancing Mr Lever to Senior Professional Office 1.  It was Mr Lever’s further case that those representations were made by Dr Doherty to prevent Mr Lever ‘from accessing his benefits under clause 44.1.1 of the ANSTO Enterprise Agreement 2000 and the ancillary documents referred to generally as Career Advancement System’.

49                  It was further submitted by Mr Lever that the representations of Dr Doherty had the effect of injuring Mr Lever’s employment, in that he was not able to obtain the benefits of that ‘Career Advancement System’, being benefits said to have been in place ‘for the other employees of [ANSTO]’. 

50                  It was therefore submitted that in the absence of credible evidence to the contrary as to the motivations of Dr Doherty, the second series of breaches had been made out by Mr Lever. 

The third series of breaches

51                  The third series of breaches asserted by Mr Lever said to be attributable to ANSTO were set out in pars 33 to 35 of Mr Lever’s points of claim which appeared, as follows:

‘33.      The Applicant alleges that ANSTO injured the Applicant in his employment or altered the position of the Applicant to his prejudice in the circumstances particularised at paragraphs 31 and 32 above in breach of section 298K(1)(b), (c) and (e) of the pre-reform WR Act.  It is alleged that the breaches are continuing.

 

Particulars of Breaches

 

            (a)        ANSTO breached Section 298K(1)(b) and (c) by blocking or frustrating the Applicant’s attempts to resolve his classification dispute with ANSTO, which was to the injury or prejudice of the Applicant;

 

            (b)        ANSTO breached Section 298K(1)(b) and (c) by threatening to injure the Applicant in his employment or alter the position of the Applicant to his prejudice if the Applicant continued to pursue the classification dispute;

 

            (c)        ANSTO breached Section 298K(1)(b) and (c) by reason of Dr Doherty representing to the Applicant that Professor Garnett would not agree to promote the Applicant into another band, which was done with the intent of persuading or preventing the Applicant from pursuing a resolution of his classification dispute, including by participating or proposing to participate in any proceeding under an industrial law;

 

            (d)        ANSTO breached Section 298K(1)(e) by discriminating against the Applicant by failing to afford the Applicant the same terms and conditions on which the Applicant was offered continuing employment compared to other ANSTO employees by refusing to address the Applicant’s classification in accordance with the classification processes applied to other ANSTO employees.

 

34.       The Applicant alleges that ANSTO’s conduct in breach of Section 298K(1)(b), (c) and (e) as alleged at paragraphs 31 to 33 above was carried out for prohibited reasons as proscribed by Section 298L of the pre-reform WR Act.

 

Particulars of Prohibited Reasons

 

The prohibited reasons alleged by the Applicant to have motivated the Respondent’s conduct were:

 

(a)        Section 298L(1)(h); since 2 December 2000, ANSTO’s conduct was motivated by the fact that the Applicant was entitled to the benefit of an industrial instrument, that is, the ANSTO Enterprise Agreement 2000.  The particular benefit or benefits under the ANSTO Enterprise Agreement 2000 were:

 

            (i)         The benefit or rights flowing from Clause 44.1.1;

 

            (ii)         The benefit or right to undergo an annual assessment under Clause 44 in accordance with the process-document known as “HRES P4.1”, including Clauses 6.3.2, 6.4.4 and 6.4.6 of HRES P4.1;

 

(b)       Section 298L(1)(i) and/or (j); since 23 September 2002, ANSTO’s conduct was motivated by the fact that the Applicant had sought a mediation session, a Peer Revenue and/or a Reference Panel to assist in the resolution of his classification dispute;

 

(c)        Section 298L(1)(a); since July or August 2002, ANSTO’s conduct was motivated by the fact that the Applicant was, at the relevant times, a member of an industrial association, that is, the CPSU;

 

(d)       [this subparagraph merely duplicated verbatim (b) above.] 

 

35.       As a consequence of the matters particularised at paragraphs 30 to 33 above, the Applicant has suffered and continues to suffer injury, loss and damage.

 

Particulars of injury, loss and damage

 

The Applicant suffered a loss of opportunity to obtain a successful review of his classification in late 2002 and to thereby obtain a promotion and to thereby increase his earnings.’

(The submissions did not in fact reproduce ‘paragraphs 30 to 33’ in the context of the so-called third series of breaches, but only the foregoing paragraphs 33 to 35.)

52                  Those breaches were said by Mr Lever to relate to actions taken by ANSTO, and in particular by Dr Doherty on its behalf, in the period of time between September 2002 and December 2002, being actions directed to dissuading Mr Lever from ‘progressing his classification dispute’.  In that period of time, Mr Lever was said to have taken a number of steps ‘to resolve his classification dispute, including a mediation session on 20 November 2002’.  I have some difficulty in appreciating why the pursuit of a mediation process would not have constituted ‘progressing his classification dispute’, for what that may ultimately matter. 

53                  Commencing from 1 July 2002, ANSTO was said by Mr Lever to have commenced the performance of a role analysis on each and every employee at ANSTO to reclassify him or her from the previous Senior Professional Officer and Professional Officer grades to new grades classified in Bands 1 to 10.  That new classification system was further said to have been ‘agreed between the unions and ANSTO to take effect from 1 July 2002’, being an agreement said to have been reached during the negotiations for the ANSTO Enterprise Agreement 2002.  Mr Lever asserted that whilst the new classifications commenced as a matter of fact from 1 July 2002, that 2002 Agreement was not ultimately certified and did not commence until January 2003, though he acknowledged that ‘[l]ittle turns on this in the present case’.

54                  Mr Lever next explained that the ANSTO role characteristics for the relevant positions from Bands 1 to 10 were contained in Exhibit D in the proceedings.  It was therefore said that on and from 1 July 2002, Mr Lever’s classification dispute with ANSTO centred around the role characterises set out in that document.  At all material times thereafter, ANSTO was further said to have ‘formally characterised [Mr Lever’s] role as band 5’, whilst Mr Lever and a number of ANSTO’s employees not seemingly identified, or at least not in his written submissions, were said to have ‘asserted that his role was appropriately classified [as] at least band 6’.  In that month of July 2002, Ms Linda Houseman of ANSTO’s Human Resources Department was said to have conducted a role analysis of Mr Lever’s then employment position at ANSTO, the outcome whereof being set out in par 41 of Mr Lever’s affidavit sworn on 1 June 2006, and in particular annexure RL 7 thereto.  It was asserted by Mr Lever to describe his role, or at least his band 6 role, under the new classification system.

55                  I have already made reference to the mediation session held on 20 November 2002.  Mr Lever and Dr Doherty were in attendance at that mediation session.  There were apparently two other parties at the session, namely Ms Lynne Blackbourn and Ms Linda Houseman, who were both associated with ANSTO’s Human Resources Department.  Neither testified for ANSTO in the proceedings, and it was submitted by Mr Lever that given those witnesses were ‘clearly [ANSTO’s] witnesses’, Mr Lever was able to rely on inferences open to be drawn against ANSTO, consistently with what was said by Kitto J in Jones v Dunkel (1959) 101 CLR 298 at 308 as to the evidentiary principle which applies where there is a failure to call a witness, as follows:

‘… any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.’

No authority was cited in support of the proposition that attendees at a mediation meeting are compellable or at least qualifiable witnesses as to what may have been asserted or acknowledged at that meeting.  Mr Lever contended in any event that his ‘detailed evidence as to Dr Doherty accepting [Mr Lever’s] analysis of [his] then role, being consistent with at least band 6, as opposed to band 5’ should be accepted, and I was referred in that regard generally to pars 29 to 33 of Mr Lever’s affidavit.

56                  On any view of the evidence, so Mr Lever further contended, his then role involved a significant degree of ‘specialisation’ as defined in the ‘Role Characteristics document’ that formed Exhibit D in the proceedings.  I was referred in that regard to ‘the enabling quadrant in the role analysis’ appearing in annexure ‘RL 15’ to Mr Lever’s affidavit sworn on 1 June 2006.  The so-called ‘lowest graded role’ that was referred to in the ‘enabling Quadrant’ section of that Exhibit D that required specialisation was said by Mr Lever to be ‘at least Band 6’.  Mr Lever contended that such analysis, and his evidence as to the outcome of the mediation session held on 20 November 2002, was ‘entirely consistent with any rational analysis of Exhibit A (being a colour photocopy of Exhibit RL 11)’.  That Exhibit A was described by him as ‘a combined role analysis document that contains the analysis of Mr Crakanthorp, [Mr Lever] and Dr Doherty’, and in that context ‘[t]he fact that it was an accurate portrayal of those individuals… was not seriously challenged in [Mr Lever’s] cross-examination’.  Mr Lever yet further contended that ‘[i]f the document being Exhibit A is accepted on face value, together with the evidence of [Mr Lever], a simple reading of the Role Characteristics document together with the inferences available against [ANSTO] referred to above … [demanded] the only viable factual finding open to the Court [to be] that, at least as at 20 November 2002, [Mr Lever’s] substantive role was the equivalent of at least band 6 and not the band 5 at which [ANSTO] was formally characterising him’. 

57                  The Court was informed by Mr Lever that the mediation session did not resolve Mr Lever’s substantive classification dispute, and that as a result he eventually sent to Dr Doherty an email advising him of his intention to progress the matter by way of a so-called ‘peer review process’.  Dr Doherty’s response to that stated intention was recorded in an email bearing date 12 December 2002 to Mr Lever stating ‘Ron, for your own sake, I beg you one last time not to pursue this’.  It was submitted by Mr Lever that such ANSTO conduct was directed to preventing Mr Lever ‘from accessing his entitlement to a benefit (namely an entitlement to access a peer review process) under an industrial instrument’, and that ANSTO’s conduct in refusing to acknowledge Mr Lever’s so-called ‘substantive position’ as at least band 6, and to then seek to deter the applicant from the peer review process, was ‘further evidence of conduct in breach of s 298K(1)(b), (c) and (e)’.  I have difficulty with the purported description of that outcome in terms of an attempt by ANSTO to prevent Mr Lever from ‘accessing’ any so-called ‘peer review’. 

58                  It was further said by Mr Lever to be not disputed in any event that on and from July 2002, Mr Lever had commenced work as an active union delegate for the CPSU (I was referred in that regard to par 44 of Mr Lever’s 1 June 2006 affidavit).  Mr Lever submitted that ANSTO’s foregoing conduct was ‘injurious to his employment’ and was ‘in part motivated by his active union involvement’.  It was contended by Mr Lever that ‘[t]he evidence supported a finding as to most of the alleged prohibited reasons for the above breaches even absent the reverse onus placed on [ANSTO]’, and further that when that evidence was to be considered ‘in light of the reverse onus … the Court would have little difficulty in finding the breaches proved’. 

The fourth series of breaches

59                  The fourth series of breaches alleged by Mr Lever are set out in pars 41 to 43 of Mr Lever’s points of claim, which are reproduced also below:

 

‘41.      The Applicant alleges that ANSTO injured the Applicant in his employment or altered the position of the Applicant to his prejudice in the circumstances particularised at paragraph 40 above in breach of Section 298K(1)(b), (c) and (e) of the pre-reform WR Act. It is alleged that the breach continued up until on or about 23 December 2004.

 

Particulars of Breaches

 

ANSTO breached Section 298K(1)(b) and (c) and (e) by denying the Applicant payment for overtime performed, in circumstances where ANSTO was aware that the Applicant was performing overtime, which was an injury to the Applicant in his employment or which altered the position of the Applicant to his prejudice and/or which discriminated against the Applicant in the terms or conditions on which ANSTO offered employment or continuing employment to the Applicant compared to other ANSTO employees.

 

42.       The Applicant alleges that ANSTO’s conduct in breach of Section 298K(1)(b), (c) and (e) as alleged at paragraphs 40 and 41 above was carried out for prohibited reasons as proscribed by Section 298L of the pre-reform WR Act.

 

Particulars of Prohibited Reasons

 

(a)        The Applicant repeats paragraph 34(a) to (d) above.

 

            (b)       Section 298L(1)(n): the Applicant, in his capacity as a member of, and as the ANSTO Site President of the CPSU, did, or proposed to do, a number of lawful acts or things with the authority expressly conferred upon him by the CPSU at various times in the period August 2002 to December 2002.

 

43.       As a consequence to the matters particularised at paragraphs 40 to 42 above, the Applicant has suffered and continues to suffer injury, loss and damage.

 

Particulars of Injuries, Loss and Damage

 

            The Applicant has suffered a loss of earnings from April 2003 to December 2004 as a consequence of a loss of opportunity to perform paid overtime, estimated in the amount of $7,000 gross per annum.’ (Emphasis in original.)

 

Consistently with Mr Lever’s written submissions, I have not reproduced the material thereby purportedly picked up by way of reference in the points of claim document.  Reference to the expression ‘… a number of lawful acts or things with the authority expressly conferred upon him by the CPSU …’ may be observed, the basis whereof not apparently being specifically identified.  I further observe the absence of a specific averment as to the extent of the payment for overtime which would otherwise have been made available to him, and upon what bases. 

60                  Mr Lever contended in any event that ‘[m]uch of the factual background in support of these alleged breaches is uncontested’, being breaches which ‘relate essentially to Mr Lever’s request for paid overtime, which request was denied by [ANSTO]’, and further that ‘[t]he request and denial are not disputed by [ANSTO]’.  Mr Lever further contended that ‘[t]his request and denial clearly amounts to injury to [Mr Lever] in his employment relations with [ANSTO] as defined by the High Court in Patrick Stevedores [195 CLR 1]’, though the submission was not amplified with specificity or exemplification by reference to the dicta cited earlier in these reasons from Patrick Stevedores concerning ‘adverse affection of, or deterioration in, the advantages enjoyed by the employee …’.  The Court was referred thereafter to the evidence of Dr Hammerton, a principal research scientist in ANSTO’s Institute for Environmental Research, to the effect that throughout the years 2002, 2003 and 2004, Mr Lever ‘was regularly engaged in his union activities’; the Court was referred in particular to pars 5, 6 and 7 of her affidavit evidence.

61                  I was next referred to the affidavit evidence of Mr Bloom, (who was employed by ANSTO as a Facilitative Technologist Band 6, and who was also a member of ANSTO’s Peak Council as a representative of the Australian Manufacturing Workers’ Union).  He was said to have provided affidavit evidence on behalf of Mr Lever to the effect that Mr Lever ‘had a major influence from 2002 to 2004 in various forums as a CPSU delegate in addressing ANSTO’s staff/management issues’ (I was referred in particular to paragraph 4 of Mr Bloom’s said affidavit of 9 November 2006).  Mr Bloom testified to the effect that Mr Lever was a key union negotiator in the pay scale dispute previously brought before the Australian Industrial Relations Commission, and that Mr Bloom had participated, along with Mr Lever, in a large number of classification disputes at reference panels as union advocates.  Mr Bloom further testified as to a conversation with Dr Smith, the then Executive Director of ANSTO, at which Mr Lever was present, and said to have occurred in about June or July 2004, being a conversation relating to ‘… a number of outstanding unresolved industrial issues, including the amount of time required to negotiate the forthcoming Enterprise Agreement and other union dealings with management’.  Mr Bloom’s unchallenged testimony was that Dr Smith then said as follows:

‘I would allow reasonable time for time spent on union activities. I would not put a percentage of time spent.’

 

‘I understand the nature of the work and at any one time the amount of work required to be done is relative to the nature and number of industrial disputes.’

 

62                  It was submitted by Mr Lever accordingly that such evidence as to ANSTO’s acceptance of Mr Lever’s role as an active union delegate, and later as site president for the CPSU, was ‘consistent with any reasonable reading of [Mr Lever’s] duties for [ANSTO]’, albeit in an earlier period during ‘the latter half of 2002 and the first half of 2003 as being devoted in part to his union activities and in part to his substantive role’.  It was further submitted that so much was also consistent with the evidence of Mr Cullen (as appearing at transcript page 551) as follows:

‘His Honour:           Was this doing union work in hours during employment hours or externally to employment hours? --- Well, I suppose that was part of the question.  It’s [sic] circumstances which suggested to me it was during hours.

 

Mr Shoebridge:       And it was acknowledged within ANSTO that union delegates were allowed to do union work in work hours.  That’s right? --- That’s correct.

 

I would take the opportunity to add that on the same page of the transcript the following appears:

His Honour:            Was there any particular view taken or practice adopted by ANSTO as to employees doing union work during working hours other than perhaps on urgent matters or matters of an exceptional nature? --- My understanding was that it was recognised that they could do union work during official hours up to approximately 10 per cent of the time.’

 

It was further submitted by Mr Lever in that context that ‘… it was as much in [ANSTO’s] interest as that of the employees’ unions, to effectively and efficiently resolve industrial disputes involving both individual employees and the enterprise bargaining agreements’; so much would be doubtless accepted by ANSTO, and I do not understand any submission having been advanced by ANSTO to the contrary, though the relevance of the observation to the issues might be debateable, for what that might ultimately matter. 

63                  It was said by Mr Lever to be ‘in the light of this history’ (as I have sought to record in these reasons in detail) ‘that [Mr Lever]approached Mr Cullen [formerly, I would record, the General Manager, Corporate Services, ANSTO] with a request as to [payment of] overtime; I was referred in that regard to Mr Lever’s evidence at paragraph 55 of his affidavit of 17 November 2006, where he deposed to his conversation with Mr Cullen in about April 2003, and his request thereby made for approval to be paid for overtime by reason of what counsel for Mr Lever described as Mr Lever’s ‘difficulty in finishing the directory structure and code required of him in his work for ANSTO’.  Mr Lever’s account of Mr Cullen’s response included the following:

[Mr Cullen]:          I am not sure if I can approve overtime while you are doing union work; why don’t you drop it?

 

[The Applicant]:    What the union work?  That won’t solve any problems, someone still has to do it.  I do not like the idea of leaving these matters unresolved.  I think I should at least follow it through to completion of the matters I have at hand.  I have spent over 6 months on [this] and you agreed that I was the one to control changes to the document.  We are close to agreement [for] the first time since 1998 and you want me to drop it now?

 

[Mr Cullen]:          No, that’s OK, I will have a talk to Ian [Crakanthorp] and get him to let you know.’

 

I was further referred in the foregoing context to Mr Lever’s affidavit of 1 June 2006, where in paragraph 61, he recorded the following conversation between himself and Mr Crakanthorp:

‘Mr Crakanthorp:Mr Cullen’s asked me to inform you that he cannot approve you working paid overtime.

 

[The Applicant]:            I’m very disappointed.  Does it have anything to do with my union activities?

 

Mr Crakanthorp:          Yes, I think so.’

 

64                  Mr Lever pointed thereafter to Mr Crakanthorp’s testimony (given under cross-examination at the hearing on 8 December 2006 and appearing on transcript page 596) concerning his conversation with Mr Cullen which occurred in about early to mid 2003, on the subject of Mr Lever working overtime, and where Mr Crakanthorp was said to have admitted that at the time he had thought that Mr Lever was devoting ‘approximately 80% of his working day to union related work’, though where Mr Crakanthorp went on to say that such assessment of 80% was arrived at by ‘[j]ust pluck[ing] a number out of the sky really’.  Nevertheless Mr Crakanthorp adhered to that estimate of 80% under cross-examination.  Moreover Mr Crakanthorp agreed that he was ‘sitting fairly close to [Mr Lever]’, and ‘… having day to day conversations with him’.  Mr Crakanthorp acknowledged in that context that Mr Lever ‘was the only one who could run his programming’ in relation to ‘directory structures’ in order to be able to ‘respond to requests to adapt and change [such structures]’ (transcript p 601).  Mr Crakanthorp was said to have admitted that the IT directory project, for which Mr Lever was primarily responsible, had fallen behind schedule.  It was submitted by Mr Lever that it was in those circumstances, albeit‘over a period of about 12 months’ (as acknowledged by Mr Crakanthorp during cross-examination) that Mr Lever had requested payment of overtime to work after hours and complete his work.

65                  Counsel for Mr Lever submitted that Mr Crakanthorp’s evidence was in direct contradiction to that of Mr Cullen concerning a conversation Mr Cullen said that he had with Mr Crakanthorp about Mr Lever’s overtime.  It was Mr Crakanthorp’s evidence that there was a need for some overtime due to the delay in the rollout of the IT directory structure, which was Mr Lever’s responsibility.  Mr Cullen testified in his affidavit evidence that in early 2003, Mr Crakanthorp had said to him words to the following effect:

‘There is nothing we really need to have [the Applicant] doing overtime for.’

 

Mr Crakanthorp denied saying that (at transcript page 606).  It was submitted by Mr Lever that Mr Cullen’s evidence, in denying his version of events, did not sit with Mr Crakanthorp’s testimony.  However a reading of the totality of the transcript of Mr Crakanthorp’s evidence and that of Mr Cullen does not seem to me to accommodate any such emphatic conclusion as to evidentiary inconsistency.  Mr Crakanthorp did adhere, in the course of his lengthy cross-examination, to the fact that Mr Lever was in his estimation spending about 80% of his working hours at ANSTO ‘on union work’.

66                  It was submitted by counsel for Mr Lever in any event that the Court would conclude that the evidence of Mr Cullen, as to the reasons for refusing Mr Lever’s request for overtime upon the footing there was no requirement for Mr Lever to undertake overtime work, should be rejected, and that a finding should be made that Mr Lever was refused overtime by reason of the extent of his attention to his role as a union delegate, and that accordingly the refusal was for a prohibited reason as asserted by Mr Lever.  It was further submitted that in light of ‘the reverse onus’, Mr Lever’s claim in respect of the alleged breaches above addressed ought to be accepted by the Court. 

The fifth series of breaches

67                  The fifth series of breaches advanced by Mr Lever were set out in pars 47 and 48 of the applicant’s points of claim as follows:

‘47.      The Applicant alleges that ANSTO injured the Applicant in his employment or altered the position of the Applicant to his prejudice in the circumstances particularised at paragraph 46 in breach of Section 298K(1)(b), (c) and (e) of the pre-reform WR Act. It is alleged that the breach is continuing.

Particulars of the Breaches

ANSTO breached Section 298K (1)(b), (c) and (e) by unreasonably refusing to prejudice by [sic] convene a Reference Panel to resolve the Applicant's classification dispute, which caused the Applicant injury in his employment or altered his position to his [sic] significantly delaying the resolution of his classification dispute and which constituted conduct that discriminated against the Applicant in the terms or conditions upon which the Applicant was offered continuing employment.

48.      The Applicant alleges that ANSTO’s conduct and breach of Section 298K(1)(b), (c) and (e) as alleged at paragraphs 46 and 47 above was [sic] carried out for prohibited reasons as proscribed by Section 298L of the pre-reform WR Act.

Particulars of Prohibited Reasons

(a)        The Applicant repeats paragraph 34 (a) to (d) above.

(b)      Section 298L(1)(n); the Applicant, in his capacity as a member of, and as the ANSTO Site President of the CPSU, did, or proposed to do, a number of lawful acts or things with the authority expressly conferred upon him by the CPSU at various times in the period August 2002 to April 2003.’ (Emphasis in original)

68                  It was said to be not disputed by ANSTO that on 23 May 2003, ANSTO’s then Executive Director, Professor Garnett, refused to hold a reference panel (Mr Lever’s request for a reference panel appears in annexure ‘RL 16’ to his 1 June 2006 affidavit).  Professor Garnett was not called to give evidence in the proceedings, and on that footing, Mr Lever contended that ANSTO was ‘unable to effectively meet the reverse onus’, being a circumstance said by Mr Lever to have been ‘further compounded by the inference available to be drawn against it from the failure to call Professor Garnett to give evidence pursuant to the authority of Jones v Dunkel [101 CLR 298]’.  It was submitted further by Mr Lever that the refusal to convene a reference panel ‘had the deleterious effect of preventing the applicant from having an effective resolution of his then classification dispute in mid 2003’, that being described as ‘a clear injury and/or alteration of the applicant’s position to his detriment’. 

69                  Hence the submission of Mr Lever’s case, based on those asserted breaches, was contended to be made out on the evidence placed before the Court, being a conclusion further said to be ‘comfortably assisted by the reverse onus’. 

The sixth series of breaches

70                  The sixth series of breaches propounded by Mr Lever were outlined in pars 51 and 52 of his points of claim, as follows:

‘51.      The Applicant alleges that ANSTO injured the Applicant in his employment or altered the position of the Applicant to his prejudice or discriminated against the Applicant in the terms or conditions on which ANSTO offered employment or continuing employment to the Applicant in breach of Section 298K(1)(b), (c) and (e) of the pre-reform WR Act.

 

Particulars of Breaches

 

            ANSTO breached Section 298K(1)(b), (c) and (e) by making a threat to the Applicant in relation to his employment with the intent of dissuading or preventing the Applicant from pursuing any industrial proceedings in resolution of his classification dispute.

 

52.       The Applicant alleges that ANSTO’s conduct in breach of Section 298K(1)(b), (c) and (e) as alleged at paragraphs 50 and 51 above was carried out for a prohibited reason as specified by Section 298L of the pre-reform Act.

 

Particulars of Prohibited Reasons

 

            (a)        The Applicant repeats paragraph 34(a) to (d) above.

 

            (b)        Section 298L(1)(n); the Applicant, in his capacity as a member of, and as the ANSTO Site President of the CPSU, did, or proposed to do, a number of lawful acts or things with the authority expressly conferred upon him by the CPSU at various times in the period August 2002 to July 2003.’  (Emphasis in original.)

 

71                  Those alleged breaches were said to relate ‘squarely to the two e-mails’ forwarded by Dr Doherty to Mr Lever on 17 and 18 July 2003 respectively.  In the first of those two emails Dr Doherty stated to Mr Lever, inter alia:

‘Ron, I heard that you had decided to not to [sic]proceed to the final IRC process.  Is this true?  I hope so.  I would not like to see you destroy your career prospects here unless you are planning to leave anyway.  You still have goodwill amongst your ANSTO clients.’

 

The second of those emails contained inter alia the following:

‘I am sorry to hear it [that the applicant is still trying to resolve this classification dispute], because I think it’s inevitable that it will affect your career here, but maybe you are not intending to stay in any case.  I’ll let it rest.’

 

72                  It was submitted by Mr Lever that viewed in light of the history relevantly as at July 2003, those emails ‘could only have been sent as a veiled threat by Dr Doherty, in his capacity as an agent, employee and/or officer of [ANSTO, both in relation to] his classification dispute with [ANSTO] and his active role as a union delegate and site president for the CPSU’.  Dr Doherty’s denials in cross-examination were submitted by Mr Lever to be not persuasive; the same were said to be ‘not personal missives as suggested by him, but rather [accurate] reflections of the views and attitude of [ANSTO] more generally.’  Those asserted threats and statements were alleged by Mr Lever to be seen as injurious to Mr Lever’s position, and ‘clearly made for prohibited reasons’.  In those circumstances, it was submitted by Mr Lever that his case as to the existence of those breaches had been ‘made out on the evidence before the Court’, being an outcome ‘again comfortably assisted by the reverse onus’. 

The seventh series of breaches

73                  The seventh series of breaches propounded by Mr Lever were framed as follows:

‘54.      In September 2003 ANSTO offered to set the Applicant's objectives to SPO1 if the Applicant did not proceed with the Reference Panel but with effect from the assessment year 2003-2004 only; the Applicant did not accept the offer, and then later in September 2003, ANSTO threatened the Applicant to carry out a Role Analysis on the Applicant's position, asserting that it was a managerial prerogative, which was made with the intent of dissuading or preventing the Applicant from pursuing a Reference Panel and for prohibited reasons proscribed by Section 298L of the pre-reform WR Act. It is not alleged that the breach is continuing.

 

Particulars of the Breaches

 

ANSTO breached Section 298K(1)(b), (c) and (e) by threatening the Applicant to undertake a Role Analysis of his position, which was made with the intent of dissuading or preventing the Applicant from pursuing a Reference Panel in pursuance of a resolution of the Applicant's classification dispute, and further, which constituted conduct that discriminated against the Applicant.

 

55.       The Applicant alleges that ANSTO’s conduct in breach of Section 298K(1)(b), (c) and (e) as alleged at paragraph 54 above was carried out for prohibited reasons as proscribed by Section 298L of the pre-reform WR Act.

 

Particulars of Prohibited Reasons

 

(a)        The Applicant repeats paragraph 34(a) to (d) above.

 

b)         Section 298L(1)(n); the Applicant, in his capacity as a member of, and as the ANSTO Site President of the CPSU, did, or proposed to do, a number of lawful acts or things with the authority expressly conferred upon him by the CPSU at various times in the period August 2002 to September 2003.’ (Emphasis in original.)

 

74                  In considering that series of breaches, Mr Lever pointed out that up until January 2003, the annual review of his performance and career advancement was undertaken pursuant to CAS and the ‘Objective Setting and Review Process’ that underlay the same, as set out in HRES P 4.1. ANSTO was said to have accepted that the so-called ‘Career Advancement Process’ under the CAS and HRES P 4.1 industrial instruments placed the obligation upon it to ensure the timely and thorough completion of the documentation setting out Mr Lever’s past achievement and future goals, being an obligation which ‘lay squarely with [ANSTO’s] management’, and in particular his ‘direct supervisor and assessor’. 

75                  Moreover Mr Cullen was said by Mr Lever to have further ‘agreed that as at September 2003, [Mr Lever’s] objectives for the 2003-2004 period had still not been set’; that alleged ‘failure’ was described as ‘relevantly a failure of [ANSTO] and not [Mr Lever]’.  Moreover Mr Cullen was said to have ‘further agreed that in the meeting with Mr Davies [held] on or about 1 or 2 September 2003’, he said the following:

‘[Mr Cullen]:    But [the applicant] still hasn’t done his 2003/04 objectives.  We need to get that done too.  Maybe we could agree [to] some objectives at the Band 6(1) level.  If he achieved them, then he could get promoted come July next year.  You could work with him to set the objectives in a way where he should be able to achieve them.’

 

It was submitted to be ‘ultimately not for [Mr Lever], but for his supervisor and assessor to set such objectives’, and that ‘[a]bsent such objectives being set, [Mr Lever] simply could not advance to any level outside his current band.’  The submission appears to come sufficiently to issue with what Mr Cullen was reported to have stated at the meeting. 

76                  The evidence was said by Mr Lever to be ‘clear’ that as at this time Mr Cullen, the director then said to be responsible for Mr Lever, ‘had determined that the appropriate way to move the matter forward was for [Mr Lever] to have his objectives for the forthcoming year set at Band 6 and for [Mr Lever] to work to those objectives in order to get his promotion’.  So much was submitted to be made clear in the following cross-examination of Mr Cullen (at transcript page 548):

‘Well then, perhaps I could put this to you.  Putting to one side the past and the reference panel issue, dealing with the past ---? --- Yes.

 

--- you thought, as at 1 September or 2 September 2003 that moving forward the appropriate thing to do was for management to instigate a role analysis setting or otherwise at Band 6 that my client could work to in order to get his promotion, if it set it at Band 6? That’s right.

 

…

 

You thought that was the appropriate process moving forward --- That was my preferred approach.’ 

 

77                  Notwithstanding that it was claimed to be appropriate to classify Mr Lever’s position at Band 6, Mr Lever claimed that Mr Cullen ‘determined to only offer this proposition’ to Mr Lever if he agreed not to proceed with a reference panel, as was ‘his industrial entitlement under the Enterprise Agreement’.  Put another way by Mr Lever, it was asserted that ‘Mr Cullen would only agree to [ANSTO] doing the right thing by [Mr Lever] going forward, if [Mr Lever] ceased to agitate for his industrial rights for the past’.  That much was asserted by Mr Lever to have been ultimately agreed by Mr Cullen, in the course of his cross-examination at page 549 of the transcript, by his acceptance of ‘the essential truth of the email from the applicant of 8 September 2003’, that email comprising annexure ‘IAC 6’ to Mr Cullen’s affidavit, where the following was recorded (inter alia):

‘Ian,

 

I am not able to accept your offer put to me by Rod Davies 4^th September 2003,

 

“In return for not proceeding with a Reference Panel, you will agree to set my objectives for band 6 for the 2003-2004 assessment year”.’

 

That testimony of Mr Cullen was said to have ‘clearly demonstrate[d] that [ANSTO] was intent on actively injuring [Mr Lever] in his position, by not setting the appropriate future objectives enabling him to obtain a promotion, unless and until he agreed to cease to agitate for his industrial entitlements in relation to his past classification dispute’.

78                  Such conduct of ANSTO so complained of by Mr Lever was asserted to have ‘clearly establishe[d] even absent the benefit of the reverse onus under s 298V of the Act, a breach of s 298K(1) in [ANSTO] both injuring [Mr Lever] in his employment and in altering [Mr Lever’s] employment position to his detriment’.  That series of breaches as pleaded were therefore contended to have been ‘clearly made out on the evidence before the Court’. 

The eighth series of breaches

79                  The eighth series of breaches alleged were asserted to be those set out in pars 57 to 61 of the applicant’s points of claim as follows:

‘57.      Between August 2002 and December 2004, the Applicant, in his role as CPSU Delegate and from 2004 as CPSU Site President, undertook a number of Union activities, refer to paragraphs 78 to 119 of the Applicant’s Affidavit; the Applicant was paid by ANSTO during periods in which the Applicant performed union activities as envisaged by the ANSTO Enterprise Agreements. The Applicant alleges that ANSTO sought to undermine the Applicant in his employment as a consequence of the Applicant undertaking union activities, where such union activities were permitted to be undertaken by the Applicant on a paid basis by ANSTO pursuant to the ANSTO Enterprise Agreement 2000 and the ANSTO Enterprise Agreement 2002. It is alleged that this conduct occurred over the period from about the middle [of] 2003 onwards.

Particulars of conduct

 

(a)     On 21 April 2004, Mr Davies sought to limit the proportion of work time that union delegates, including the Applicant, spent on union work to no more than 10%: see the Applicant’s Affidavit at paragraph 85;

(b)     ANSTO sought to undermine the Applicant's union activities by blocking his endeavours to represent [Person X], an ANSTO employee: see paragraphs 97, 111, 112, 117, 119 and 137 inclusive, of the Applicant’s Affidavit;

(c)     ANSTO, by certain of its officers, sought to undermine the Applicant’s union activities and his relationship with the CPSU by writing complaints to the CPSU about the Applicant which lacked substance: see paragraphs 125, 126, 129 and 130; and

 

(d)     ANSTO unlawfully accessed the Applicant’s emails which included emails received, forwarded and sent in his capacity as CPSU President, and which caused the Applicant injury: see paragraphs 139 to 144 inclusive of the Applicant's Affidavit.

 

58.       In or about late October 2004, ANSTO unlawfully accessed the Applicant’s emails at work which included emails received, sent and forwarded in his capacity as CPSU President, which caused the Applicant injury: see paragraphs 139 to 144 inclusive of the Applicant's Affidavit sworn 1 June 2006.

 

59.       The Applicant alleges that ANSTO injured the Applicant in his employment in the circumstances particularised at paragraph 57 and 58 in breach of Section 298K(1)(b) and (c) of the pre-reform WR Act. It is not alleged that the breach is continuing.

 

Particulars of the Breaches

 

ANSTO injured the Applicant in his employment and altered the Applicant's position to his detriment by breaching the Applicant’s right to privacy in relation to the use of emails in the ANSTO workplace, including in the Applicant's capacity as a member of and Site President of an industrial organisation, namely the CPSU.

60.       The Applicant alleges that ANSTO’s conduct in breach of Section 298K(1)(b) as alleged at paragraphs 57 and 58 was carried out for prohibited reasons as proscribed by Section 298L of the pre-reform WR Act.

 

Particulars of Prohibited Reasons

 

(a)        The Applicant repeats paragraph 34(a) to (d) above [which I have earlier reproduced in these reasons in the context of ‘the third series of breaches];

 

(b)        Section 298L(1)(n); the Applicant, in his capacity as a member of, and as the ANSTO Site President of the CPSU, did, or proposed to do, a number of lawful acts or things with the authority expressly conferred upon him by the CPSU at various times in the period August 2002 to December 2004; refer also to paragraphs 78 to 119 of the Applicant’s Affidavit sworn 1 June 2006 [which paragraphs appear in such affidavit under the heading ‘My union activities’]. 

 

61.       As a consequence to the matters particularised at paragraphs 57 to 60 above, the Applicant has suffered and continues to suffer injury, loss and damage.

 

Particulars of Injuries, Loss and Damage

 

(a)        ANSTO caused the Applicant to suffer psychological injury upon the Applicant discovering that his emails had been unlawfully accessed by ANSTO officers, including Mr Davies, ANSTO's IR Adviser;

 

(b)        As a consequence of the psychological injury suffered by the Applicant, the Applicant has suffered and continues to suffer a loss of earnings at the rate of $1205.00 per week from 23 December 2004 to date and continuing;

 

(c)        As a consequence of the psychological injury suffered by the Applicant, the Applicant has suffered a loss of future earning capacity and damage to his career advancement, including within ANSTO.’  (Emphasis in original.)

 

80                  Mr Lever contended that the evidence established an active and continuing union role undertaken by Mr Lever during the foregoing period between August 2002 and December 2004, said to have been already ‘set out in some detail’ in the written submissions of his counsel, and further, that Mr Lever and Person X (who made an affidavit in the proceedings on 17 November 2006) testified that during the course of 2004, Person X had sought the assistance of Mr Lever in his role as a delegate of the CPSU; by that time the position was asserted to have been reached that both Dr Smith, the Executive Director of ANSTO, and Mr Cullen considered that it was ‘entirely appropriate for union delegates to spend flexible proportions of their time at work performing union functions’. 

81                  Mr Lever further asserted that notwithstanding the foregoing circumstances, during that time, ‘Mr Davies was undertaking direct and intrusive surveillance of [Mr Lever] in the course of [his] employment’, and that it could be seen from the subsequent analysis in the submissions that covert surveillance of Mr Lever was ‘on any view of the material, designed to be, and was, intimidatory and oppressive of [Mr Lever] and directed to injure him in his employment.  I was referred to what Mr Davies deposed in his affidavit of 27 September 2006 as to his ‘quite detailed surveillance of [Mr Lever] with Mr Davies recording specific times that various employees attended on [Mr Lever’s] offices and workstation’.  It was yet asserted that Mr Davies in that affidavit ‘admits to detailed, persistent and close observation of [Mr Lever] undertaking union activities on the 7^th July 2004’, Mr Lever pointing thereby to Mr Davies having given ‘detailed observations of the exact times at which other employees enter and exit [ANSTO’s] building’.  Mr Davies was said to have also testified as to ‘contacting the applicant and expressing his concern about the amount of “non-ANSTO work” (ie union related activities) that the applicant was undertaking’. 

82                  The Court’s attention was drawn in the foregoing context to Mr Davies’ so-called admission made within the course of his cross-examination (commencing at transcript page 704):

‘You weren’t my client’s direct supervisor in any way, shape or form? --- No.

 

But you took upon yourself to sit in your office and look over at the IT building where – that you could see from your office; correct? --- Correct.

 

To keep an eye on who was coming and going to the IT building to see Mr Lever, didn’t you? --- I take it on myself.  My office has got big windows and I can see people coming and going from the computer centre.

 

You did, it? --- I did.

 

Of your own volition? --- I see people walking past, yes.

 

And you were looking with a critical eye to work out whether they were going there for union activities to see Mr Lever weren’t you? --- At some point I did do that, yes.

 

And indeed you went to the point of timing.  Did you do it with a stopwatch or --- ? --- I just looked at my watch and made a note in my diary.

 

And could you see my client’s office from your office? --- No.

 

My client’s desk? So if you were watching my client talk with someone, you would have to be in the IT building? --- Correct.

 

So you got out of your desk, went over to the IT building? --- On a couple of occasions, yes.

 

Specifically to, what, do some covert surveillance on my client? --- No, just to confirm what was happening.

 

You had no role in supervising him at all? – No.

 

You just thought you would go and pay close attention to his union duties? --- No, no.  I wanted to understand what he was doing, some of the work he was doing was of interest to the corporate division generally, as is all the work in the corporate division and I’m the manager in the corporate division.

 

Sir, you had no role in the organisation to supervise my client’s work? – Absolutely not.

 

But you took it upon yourself nevertheless to go and so some covert surveillance of him because of his union duties? --- I merely logged the times that people were going over there on a particular day, I saw them coming and going and I confirmed my understanding one day by going over to the computer centre.

 

Well, you went more than once, didn’t you? --- A few times.’

 

83                  Mr Lever submitted, in the context of the foregoing evidentiary material, that ‘[g]iven Dr Smith’s unambiguous statement as to the reasonableness of time being spent on union activities, Mr Davies’ actions can have had only one intended consequence, to intimidate and ultimately injure the applicant in his employment solely due to the applicant’s union activities’.  Mr Lever further submitted that if, ‘as is set out above [in the submissions], it is accepted that [Mr Lever’s] role as an active and involved union delegate and site president for the CPSU, was an understood part of [Mr Lever’s] duties for [ANSTO] then it must be accepted that to the extent [ANSTO], through Mr Davies, sought to injure or damage [Mr Lever’s] role and standing as a union delegate and site president, [ANSTO] was injuring and/or altering [Mr Lever’s] employment with [ANSTO] to [Mr Lever’s] detriment’. 

84                  Mr Lever drew attention in the foregoing context to the correspondence said to be ‘directed by Mr Davies to the CPSU negative of [Mr Lever] (as deposed … in paragraph 85 of Mr Lever’s 1 June 2006 affidavit)’ and contended that the same could ‘only be categorized as being relevantly injurious conduct for a prohibited reasons [sic]’; he further contended that ‘[t]he same construction applies to the correspondence from Mr Cullen to [Ms] Lorin Booth of the CPSU of 8 November 2004’, being correspondence comprising annexure ‘RL 43’ to Mr Lever’s affidavit made on 1 June 2006 reading as follows (to the extent extracted by Mr Lever):

‘Re Mr Ron Lever – Complaint from ANSTO Human Resources

 

…

 

I refer to the attached formal complaint from Mr Patrick Blades, Associate Director, People and Development at ANSTO.  Mr Blades has responsibility for the Human Resources function at ANSTO and reports to myself as Director, Corporate Services.  Of particular concern are the comments made by Mr Lever regarding the actions of Human Resources in relation to the [Person X] case as “vexatious and only serving to inflame the situation”.

 

…

 

Under the circumstances, it is not appropriate that Mr Lever, acting as a local union delegate, should make disparaging remarks, which are considered to be insulting to HR staff, some of whom are CPSU members.  This is a misuse of his role which, I believe, reflects poorly on your organisation.

 

I request that you formally raise this with Mr Lever and direct that he desist from making such statements.’

 

85                  That communication was described by Mr Lever as having the effect of ‘injuring [him] in his role as a delegate and site president for the CPSU’, having been ‘clearly sent by Mr Davies as an attempt by Mr Davies to have [Mr Lever] cease representing [Person X] in his role as a delegate for the industrial association, the CPSU’.  So much was therefore submitted to constitute a ‘breach of section 298K as pleaded’. 

86                  The same analysis was submitted by Mr Lever to be applicable to the correspondence dated 9 November 2004 sent by Mr Davies to Ms Booth and comprising annexure ‘RL 47’ to Mr Lever’s affidavit made on 1 June 2006; by that correspondence it was further submitted that Mr Davies was ‘directly critical of [Mr Lever’s] union activities’; the following aspects thereof were cited to the Court:

‘General Concern – alleging that the applicant did not understand his role as a union delegate, and complaining that he, inter alia, “actively solicits work from members of all unions”. 

 

Representation – complaining that the applicant represented employees who are not CPSU members.

 

Advice – complaining that the applicant’s advice in some cases, for example, in relation to [Person X], “[has] not assisted resolution but rather has inflamed the dispute” (a rather remarkable proposition to put in light of Mr Davies specific complaint of the applicant using such language in respect of the respondents’ HR department in his correspondence of 8 November 2004). 

 

…

 

Union activities – Complaining in detail as to the applicant’s attendance on various employees in his capacity as a union delegate, based upon the detailed covert surveillance of Mr Davies set out above [in the submissions].

 

Employment issues – Mr Davies complained that: “Ron is currently the subject of breach of duty provisions concerning [an] alleged breach of security.  Ron has not attended to his [OSRP] documentation in a timely manner.  Other issues relating to Ron’s performance as an employee are currently receiving consideration.”’  (Emphasis in original.)

That communication was asserted by Mr Lever to again constitute ‘evidence of systematic and continued harassment of [Mr Lever] in his employment with [ANSTO] by reason of his ongoing dispute as to classification and his union activities’.  He testified in his affidavit of 1 June 2006 moreover as to ‘the injury and [hurt]’ which he said he experienced on reviewing that communication, yet was said by his counsel not to have been ‘relevantly cross-examined on this material’. 

87                  It was next contended on behalf of Mr Lever that Dr Hammerton’s evidence ‘supported the practice at ANSTO of union representatives, such as Mr Lever, representing employees from unions other than that to which the union representative belonged’, thereby citing her affidavit evidence of 20 November 2006.  She was said ‘not [to have been] seriously pressed on this in cross-examination’, reference being made to page 317 of the transcript.

88                  Upon the basis of the foregoing material I have relevantly cited above, Mr Lever contended that ‘[t]he evidence supports the breach, as pleaded in paragraph 57(c) of the points of claim’.

89                  Mr Lever contended that the evidence of Person X was that on 24 September 2004, ‘she sent an e-mail to Mr Davies advising him that [Mr Lever] would be representing her’, and requested ‘for Mr Davies not to contact her at home [and] asked that all correspondence from ANSTO go through [Mr Lever]’; I was referred in that context to paragraph 69 of Person X’s affidavit of 17 November 2006 and annexure ‘JJ 22’ thereto.  Mr Lever further referred the Court to the statement said to have been made by Mr Cullen to Person X, in the course of a telephone conversation on 25 November 2004, that ‘[y]ou should drop Ron if you intend to get anything resolved’.  That statement was further contended to have been intended to injure Mr Lever in the course of his ‘work-related union activities’, and to therefore have constituted breach of section 298K as pleaded by Mr Lever. 

90                  Mr Lever was next said to have testified to the effect that late in the afternoon of 21 December 2004, ‘he discovered, through Mr Crakanthorp, that [ANSTO], at the request of Mr Davies, had accessed all of his work e-mails’, including ‘all of his union related e-mails’; the Court was referred to pars 139 to 144 inclusive of Mr Lever’s principal affidavit.  It was contended that the fact that Mr Lever’s e-mails were accessed was not disputed by ANSTO, and they were so accessed ‘due to his involvement with [Person X] as her union delegate’.  It was therefore submitted that ‘[w]ithout more, and in light of the reverse onus, this proves the breach of section 298K by [ANSTO] as pleaded in [paragraph] 57(d) of the points of claim’.  It was further submitted in that context that ‘a close review of the assorted and changing reasons given by [ANSTO] for accessing [Mr Lever’s] e-mails makes it more than abundantly clear that the intent and reason behind accessing [his] e-mails was [sic] not for a fair and impartial investigation of an alleged breach of duty by [Person X] (as Mr Davies contends) but rather solely to injure [Mr Lever] by reason of his union activities and his ongoing attempts to seek to resolve his classification dispute’.

91                  I was further referred in that context to Mr Davies’ affidavit evidence at pars 119 to 121 to the asserted effect that he sought to obtain Mr Lever’s emails for the purpose of investigating the so-called ‘20 October 2004 incident’; it was submitted that ‘[a]t its highest therefore, the accessing of the emails was to prosecute a malicious breach of duty process’,  but that ‘the evidence does not support even this post-facto reason as the real motivation in [ANSTO’s] accessing [of] Mr Lever’s emails’.  In his 11 January 2005 response to the CPSU’s written complaint of 22 December 2004, ANSTO’s Dr Smith was said to have ‘simply signed the correspondence which was in fact drafted by Mr Davies’, and that he notified the CPSU that ‘the reason for accessing Mr Lever’s emails’ was not the 20 October 2004 security incident but rather:

‘During the course of September and October of 2004, ANSTO became aware of the apparent loss of certain documents under the control of a particular employee linked to Mr Lever.  The accessing of e-mails was actioned as part of the investigation into this matter.  Limitations on retrieving emails meant that all of Mr Lever’s e-mails had to be accessed – no filtering could be done by the accessor.’ 

 

92                  That asserted ‘link’ to Mr Lever was contended to be Mr Lever’s representation of Person X in his capacity as a union delegate; it was said however that ‘[e]ven on this explanation, the injurious accessing of [Mr Lever’s] emails was for the prohibited reason of [sic] [Mr Lever’s] position as a delegate for the CPSU’, and further that such ‘fresh explanation by [ANSTO], on its face, evidences a relevant breach’.  Mr Lever thereafter addressed Mr Cullen’s affidavit evidence at pars 75 to 76, asserted to be thereby to the effect that ‘the reason for accessing [Mr Lever’s] emails was, not in respect of the “apparent loss of certain documents” by [Person X]’, but rather undertaken ‘[a]s part of the investigation into the alleged breach of duty of Mr Lever …’.  Asking rhetorically ‘[w]hat is to be made of these inconsistent explanations by [ANSTO] for accessing [Mr Lever’s] emails?’ Mr Lever contended that ‘… the Court would not accept that [ANSTO] has discharged its onus of disproving the prohibited reasons alleged by [Mr Lever] in accessing [his] emails and the Court would comfortably find the alleged breaches in this regard proven’. 

The ninth series of breaches

93                  The ninth series of breaches alleged are found in paragraphs 63 to 65 of Mr Lever’s points of claim as follows:

‘63.      In the period 3 November 2004 onwards, ANSTO subjected the Applicant to a breach of duty process, including an investigation and a threat to discipline the Applicant in circumstances where ANSTO was aware that the alleged breach of duty had no basis in fact; see paragraphs 93 to 124 and 135 to 138 inclusive of the Applicant’s Affidavit sworn 1 June 2006, in breach of Section 298K(1)(a), (b), (c) and (e) of the pre-reform Act. It is alleged that the breaches are continuing.

Particulars of Breaches

ANSTO sought to take steps to terminate or threaten to terminate or take disciplinary action against the Applicant in pursuance of the termination or threatened termination of the Applicant’s employment and to thereby injure the Applicant in his employment or alter the position of the Applicant to his prejudice by making an adverse finding against the Applicant in relation to his performance. Furthermore, ANSTO discriminated against the Applicant by subjecting the Applicant to disciplinary action and not [Person X].

64.       The Applicant alleges that ANSTO's conduct in breach of Section 298K(1)(a), (b), (c) and (e) as alleged at paragraph 63 was carried out for prohibited reasons as specified by Section 298L of the pre-reform Act.

 

Particulars of Prohibited Reasons

The Applicant repeats the particulars at paragraph 60 above.

 

65.       As a consequence to the matters particularised at paragraphs 63 and 64 above, the Applicant has suffered and continues to suffer injury, loss and damage.

 

Particulars of Injuries, Loss and Damage

 

            (a)        ANSTO caused the Applicant to suffer psychological injury as a consequence of being subject to the breach of duty process alleged in paragraph 61 above;

 

            (b)        As a consequence of the psychological injury suffered by the Applicant, the Applicant has suffered and continues to suffer a loss of earnings at the rate of $1,205.00 per week from 23 December 2004 to date and continuing;

 

            (c)        As a consequence of the psychological injury suffered by the Applicant, the Applicant has suffered a loss of future earning capacity and damage to his career advancement, including within ANSTO.’

 

94                  That breach of duty process was said to have ‘officially commenced’ with formal advice being given to Mr Lever on 3 November 2004 as to the commencement of the ANSTO investigation as set out in annexure ‘RL 40’ to Mr Lever’s affidavit sworn on 1 June 2004.  It was asserted to have been a ‘process envisaged under an industrial instrument, namely the ANSTO Enterprise Agreement 2002’.  The communication of that formal advice was said to have included the following statements made by Mr Cullen of ANSTO, on the advice of Mr Davies and Mr Tuckwell, both being of course ANSTO officers:

‘You are formally advised that as a result of a security incident, which involves your failure to follow ANSTO procedure, an investigation into the matter has been carried out by your manager Mr Russell Tuckwell, arising from a report from the Australian Federal Police.

 

…

 

At this stage I have received a report on the matter from Mr Tuckwell, which includes the security report from the Australian Federal Police.  This action has proceeded under subclauses 36.2 and 36.3.  That section also provides that you (the employee) be provided with an initial report along with a verbal explanation of the nature of the extent of the supervisor’s preliminary investigation.’

 

I would add for completeness that the intervening paragraph between the foregoing read as follows:

‘That investigation has been conducted in accordance with the provisions of Clause 36, Breach of Employees Duty, of the ANSTO Enterprise Agreement 2002 …’. (Emphasis in original.)

 

95                  It was contended by Mr Lever that ‘[a] breach of duty process is a serious matter and can lead to serious detrimental action being taken against the applicant including dismissal and demotion’, and further that it was ‘clearly a process designed to injure and alter [Mr Lever] in his employment to his detriment’; whether that latter inference may justifiably be drawn is of course a more controversial matter.  That breach of duty process was said to have been ‘commenced by Mr Davies and Mr Cullen [of ANSTO] immediately following Mr Davies’ engage[ment] in correspondence critical of [Mr Lever] as to allegedly excessive time spent by [Mr Lever] in assisting [Person X] as [a] union delegate’; the Court was referred in that regard to Mr Davies’ affidavit at pars 114 to 117 and to annexures ‘RPD-26’ and ‘RPD-27’ thereto.

96                  It was pointed out by Mr Lever that ‘the relevant security incident report from the Australian Federal Police related to an incident on the 20^th October of 2004 at 5:45 pm when [Person X] drove through the main entrance to the ANSTO site (which entrance is a gate staffed by the Australian Federal Police) in the company [of Mr Lever]’.  What was said to be the uncontested evidence placed before the Court was that ‘earlier that afternoon, [Person X] had driven onto the ANSTO site (having negotiated the Australian Federal Police entry gate) and had picked up [Mr Lever] from within the [ANSTO] car park’, at a time when Mr Lever ‘was attending on [Person X], in his capacity as a union delegate’.  Mr Cullen testified in paragraph 61 of his affidavit made on 27 September 2006 that:

‘I was concerned that Mr Lever had accompanied [Person X] onto the ANSTO site, potentially in circumstances where he knew that [Person X] was not supposed to access the ANSTO site.  In my view, Mr Lever should not have accompanied [Person X] onto the ANSTO site if he knew that [Person X’s] security access was restricted.’

 

97                  It was submitted by Mr Lever however that ‘even a cursory analysis of the events would make it clear that nobody in Mr Lever’s position could think other than, as at 20 October 2004, [Person X]was entitled to be on site’; so much was said to be ‘apparent from the cross-examination of Mr Davies on and from transcript page 714 [onwards]’.  In the course of that cross-examination, Mr Davies was said by Mr Lever to have ‘affirmed that he, together with Mr Cullen, had made the decision to prosecute the breach of duty allegation against [Mr Lever] arising from the security incident report produced by the Australian Federal Police’. I would interpolate to observe nevertheless that the foregoing passage speaks of Mr Cullen’s expression of concern, rather than of decision-making.  The transcript of Mr Davies’ cross-examination cited by Mr Lever read in any event as follows (at page 714):

‘And it was essentially a decision that you made together, the two of you made together? --- That’s correct.

 

And you did so, you say, because you were provided with a protection incident report; is that right? --- Correct.

 

And that is the document [to be] found at tab 25, is it? --- Can I have a look?

 

Yes, by all means. --- Yes, that’s it.

 

And you decided on receipt of this report to commence an investigation in relation to Mr Lever’s conduct on that day; is that right? --- Yes, and also [Person X’s].  That was a previous matter.

 

But, yes? --- Yes.

 

The answer is yes.  And that was because you say that this report somehow identifies my client knowingly breaching site access controls; is that right? --- Correct.

 

You know now, don't you, that [Person X] came on site at 2 o'clock that day? --- I know now.

 

And [Person X] passed through the Australian Federal Police barrier and came to the car park at 2 o'clock, do you know that?  Was that yes? --- Yes.

 

Picked up my client at 2 o'clock? --- I know that now, yes.

 

And then exited through the Australian Federal Police? --- Yes.

And then returned my client back to the site at a quarter to six? --- Yes.

And then exited again through the Federal Police? --- Yes.

 

That is the basic chronology isn’t it, on the day? --- Yes.

And the Australian Federal Police have the obligation to control site access? ---Correct.

And they are the gatekeepers? --- Correct.

And if you are entitled to be on site they let you on? --- Yes.

And if you are not entitled to be on site, they stop you? --- That’s how it is supposed to work, yes.

 

…

 

You would expect the Australian Federal Police to allow only people on site who are entitled to be there? --- Correct.

 

Therefore if they had been allowed on site by Australian Federal Police you would presume they were entitled to be there; correct? --- Correct.

 

And indeed that was the situation that confronted my client at 2 o’clock, wasn’t it, you now know? --- Yes.

 

Indeed the – at quarter to six, 5:45, when [Person X] returns to the site nothing material had changed in relation to [Person X’s] site access entitlements had it, from 2 o’clock? --- [Person X] had been advised that [Person X] shouldn’t accessed [sic] site, yes.

 

Had anything material changed between 2 pm in the afternoon and a quarter to 6 at night about [Person X’s] site access? --- What do you mean by material?

 

Had there been any change in relation to [Person X’s] entitlement to be on site between 2 pm in the afternoon and a quarter to 6 in the --- ? --- [Person X] wasn’t entitled to be on site, so nothing had changed.

 

There had been no change? --- [Person X] wasn’t entitled to be on site, so nothing had changed.

 

And [Person X] had been allowed on site by the people whose obligation it is to control site access at 2 o’clock? --- Correct.

 

…’

 

98                  Clearly therefore, ‘on this analysis’, so counsel for Mr Lever submitted:

‘if [Mr Lever]had seen [Person X] on the site, having necessarily negotiated the Australian Federal Police to gain access at 2 pm that afternoon, he could have only had a reasonably held view that given the Australian Federal Police had allowed [Person X] [to be] on site, [Person X] was entitled to be on site.  Therefore, to treat his actions in arriving with [Person X] on site, at 5.45 pm, that very afternoon as being sufficient to commence a breach of duty investigation, can only be seen as a malicious, vindictive and wholly insupportable action by [ANSTO]’.

 

I have encountered difficulty with the terms of that submission, which may be thought to have been predicated upon the proposition that the Federal Police ‘gatekeepers’ must necessarily or implicitly have made a particular inquiry of Mr Lever and/or [Person X]and had received a particular response from either or both of them to those persons then on duty, in both instances consistently with Mr Lever’s complaint. 

99                  It was submitted by Mr Lever in any event that ‘an analysis of the security report provided by the Australian Federal Police does not show that they had even the slightest concern as to [Mr Lever’s] activities on that day’.  That incident report is annexure ‘IAC-7’ to Mr Cullen’s affidavit, and as counsel for Mr Lever indicated, it stated under the heading ‘Background’ that:

‘[Person X]’s building access has been suspended by ANSTO during this period until [Person X] complies with [Person X’s] Management requirements.’ (Emphasis added by counsel for Mr Lever, though I am unclear as to his reason for so doing.) 

 

It was said by counsel for Mr Lever, in the context of that submission, on his part, that ‘[n]otably, the report does not suggest that [Person X’s]site access was restricted’, and further that ‘[i]ndeed the Australian Federal Police specifically reviewed the matter and let [Person X] enter … the site’, that much being said to be ‘… clear from the report under the heading “Issue/Event” in the following terms’:

‘On Wednesday 20^th October 2004 at 1745 hrs [Person X] entered the site through the Main Gate, in [Person X’s] vehicle in the company of Mr Ron Lever (passenger seat).  AFP PS stopped the vehicle at the gate while inquiries were made as to whether [Person X] was permitted to enter.  [Person X] asked the officer, “is there a problem?  Whey aren’t I allowed on site?”.  The officer informed [Person X] that they were just doing their job and checking on some paperwork.  At this point in time after checking with the Duty Sergeant, [Person X] was permitted to pass and enter the site …’.

 

Moreover under the heading ‘Intended Action/Outcome’, there was further recorded the following, to which counsel for Mr Lever also drew attention:

‘During the period of [Person X’s] presence on site, the SCC did not identify any forced doors, alarms or entry to any building by either of the above named staff members.  It appears from the movement of the vehicle onto the site that [Person X] was dropping Mr Lever off at his vehicle parked behind Building 51.  The AFP PS searched [Person X’s] vehicle on its departure from the site with negative results.’ 

 

What the report indicated perhaps more precisely was that when questioned somewhat rhetorically by Person X, as the text of the report suggested, the Federal Police Officers accepted her reason for entry.  Whether it was an appropriate reason was seemingly another issue which arose in the proceedings. 

100               It was submitted by counsel for Mr Lever that there was ‘nothing in the report from the Australian Federal Police that in any way supported the commencement of a breach of duty investigation against [Mr Lever]’, and that ‘[t]he attempted explanations of Mr Cullen and Mr Davies seeking to give legitimate reasons for the commencement of the breach of duty process against [Mr Lever] must be seen for what they are, convenient post-facto fabrications, which do not reflect the reality of their decisions’.  It was further submitted by counsel that ‘[i]ndeed the initial investigation from Mr Tuckwell which is dated 1 November 2004 [and to be found at annexure ‘IAC-10’ to Mr Cullen’s affidavit tendered in the proceedings] confirms Mr Lever’s position has at all material times been consistent: that is, he believed that due to the AFP allowing [Person X] on site, that [Person X] was entitled to be on site’.  In any event, so the submission of counsel for Mr Lever continued, ‘despite this clear and consistent position from Mr Lever, Mr Davies and Mr Cullen commenced and continued the breach of duty process’. 

101               On the basis of that analysis on his part, so the submissions of counsel for Mr Lever continued, ‘it can readily be accepted that the real reason for the commencement of the breach of duty process against [Mr Lever] was not for a legitimate purpose related to any perceived failure to follow procedure by [Mr Lever], but rather was motivated entirely by [Mr Lever’s] representation of [Person X]as a union delegate, and his ongoing union activities together with his ongoing classification dispute’.  Notwithstanding all that, so the submissions of Mr Lever continued, by his correspondence of 20 December 2004 (annexure ‘RL 60’ to Mr Lever’s affidavit of 1 June 2006), Mr Cullen ‘… found a breach of duty against [Mr Lever] and determined to verbally counsel him for the breach’. 

102               Further according to Mr Lever’s case, he had given that ‘general explanation as to the unreasonableness of the breach of duty process and the unreasonable findings made against him to Dr Smith in a meeting at which he tabled his written response to the breach of duty allegations made against him’; that written response comprised annexure ‘RL 60’ to Mr Lever’s affidavit of 1 June 2006.  ‘Notwithstanding this representation’, so Mr Lever’s submissions continued, ‘Dr Smith determined to take no action at all in response to the unreasonable breach of duty process and conclusions drawn against [Mr Lever]’.  It was therefore contended by Mr Lever that ‘[such] failure by Dr Smith to investigate the complaints of Mr Lever [was] consistent with the evidence of [Dr] Hammerton as to the attitude of the executive director towards [Mr Lever]’.  The Court was referred in that regard to par 26 (although the appropriate paragraph is par 27) of Dr Hammerton’s affidavit, where she referred to a meeting on 16 March 2005 at ANSTO, and which Dr Smith, Mr Davies, Ms Gallagher, Mr Bloom and Mr Muffatti attended, and to her testimony that the issue of Mr Lever’s classification dispute arose at the meeting, in the course whereof Dr Smith said words to the following effect:

‘Ron is just a troublemaker’.

 

Dr Hammerton was not cross-examined on that evidence.  Mr Bloom recalled Dr Smith’s statement to the meeting being to the effect that: ‘Ron is a troublemaker’ (pars 31 and 32 of his 11 November 2006 affidavit).

103               In all those circumstances, so Mr Lever’s case concluded upon the present context of events, and with emphasis as to the operation of what his counsel described as ‘the reverse onus as to the imputing of prohibited reasons in respect of the conduct’, and with the submission accordingly that ‘the Court would comfortably find the relevant breaches as pleaded proved’. 

The tenth series of breaches

104               The tenth series of breaches, for which counsel for Mr Lever contended, were set out in pars 69 to 71 of Mr Lever’s points of claim, as follows:

‘69.      The Applicant alleges that ANSTO injured the Applicant in his employment in the circumstances particularised at paragraph 68 in breach of Section 298K(1)(a), (b), (c) and (e) of the pre-reform WR Act. It is not alleged that the breach is continuing.

 

Particulars of the Breaches

 

ANSTO attempted to induce the Applicant to terminate his employment and/or to injure the Applicant in his employment and/or to alter the Applicant’s position to his prejudice by seeking to deprive the Applicant of any remuneration whilst Comcare was determining whether or not to accept liability for the Applicant’s workers compensation claim. Furthermore, ANSTO discriminated against the Applicant by refusing to extend the benefit of a customary term or an established practice of paying the ordinary remuneration to an employee until such time as liability for their workers compensation claim had been determined by Comcare.

 

70.       The Applicant alleges that ANSTO’s conduct in breach of Section 298K(1)(a), (b), (c) and (e) as alleged at paragraph 68 was carried out for prohibited reasons as specified by Section 298L of the pre-reform Act.

 

Particulars of Prohibited Reasons

 

The Applicant repeats the particulars at paragraph 60 above.

 

71.       As a consequence to the matters particularised at paragraphs 67 to 69 above, the Applicant has suffered and continues to suffer injury, loss and damage.

 

Particulars of Injuries, Loss and Damage

 

(a)        The Applicant suffered a loss of remuneration in the period 2 February 2005 to 13 May 2005 (being the date that Comcare declined liability for the Applicant’s workers compensation claim) at the rate of $1205.00 per week; and

 

(b)        The Applicant has suffered serious financial hardship in the period since 2 February 2005 and has required to fund the cost of living for himself and his family on credit, thereby incurring an extraordinary interest liability, further particulars to be provided.’  (Emphasis in original.)

 

105         It was said by Mr Lever to be not in dispute that between February 2005 and March 2005, ANSTO did not pay Mr Lever any remuneration, other than his sick leave entitlements, whilst Comcare was determining liability in respect of the claim he made upon Comcare.  Mr Lever asserted in the course of his submissions that it was his evidence, and ‘a fair reading of [ANSTO’s] evidence as ultimately before the court, that it was the custom and practice of ANSTO to make payments by way of remuneration to their employees whilst worker’s compensation claims were awaiting determination by Comcare’.  Comcare ultimately made its decision on 9 August 2005 adversely to Mr Lever’s said claims by denying liability in respect thereof.  

106               Mr O’Shea, who was employed by ANSTO as a ‘Human Resources Consultant, and who provided extensive affidavit evidence for ANSTO, testified to the effect that he had recourse to the Comcare documentation (comprising in all 38 pages) issued in September 2001 headed ‘all about Workers Compensation’ for determining ‘the way that ANSTO dealt with such cases’, and accordingly decided that ANSTO would not make payment of benefits in the nature of workers’ compensation, once Mr Lever’s ‘sick leave ran out’, pending the determination of his claim in the nature of workers’ compensation by Comcare as to payment of workers compensation type benefits.  It was submitted that Mr O’Shea ‘inexplicably failed to refer to the very same document when he failed to develop a return to work plan for the applicant’, and I was referred in that regard to Mr O’Shea’s cross-examination at pages 346 to 347 of the transcript.  It was further submitted on behalf of Mr Lever that ‘[i]n light of these inconsistencies in [ANSTO’s] evidence it is open to the Court to conclude that indeed ANSTO did determine not to pay [Mr Lever] wages whilst his claim was being assessed for the prohibited reasons alleged’, but seemingly without developing the argument in further detail. 

The eleventh series of breaches

107               The eleventh series of breaches alleged by Mr Lever were set out in pars 73 to 76 of his points of claim in length as follows:

‘73.      In the period February 2005 to date, the Applicant has made a number of attempts to return to work on suitable duties in periods where he has been certified fit for suitable duties by Dr Pead; during this period, ANSTO and certain of its officers sought to and did block or interfere with the Applicant's attempts to return to work (“the conduct”).

 

Particulars of the conduct

 

(a)        failing to respond to Dr Pead’s Medical Certificate dated 2 February 2005;

 

(b)        failing to respond to and act upon Dr Pead’s letter of 12 March 2005 to Dr Ian Smith proposing a return to work;

 

(c)        by failing to follow the provisions of the ANSTO policy Medical Services S-MED-P-001, Section 2.4;

 

(d)        by failing to follow the provisions of the ANSTO policy Workers Compensation and Rehabilitation S-MED-P-002, Section 2.4;

 

(e)        by failing to follow the “Rehabilitation Guidelines for Employers” issued by Comcare by failing to implement a Return to Work Plan in accordance with its terms;

 

(f)         by providing misleading information to Comcare in relation to the Applicant’s workers compensation claim in 2005;

 

(g)      by seeking to compel the Applicant to attend a Fitness for Duty medical appointment or appointments pursuant to Clause 27.9 of the ANSTO Enterprise Agreement 2002 for the stated purpose of formulating a Return to Work Plan when this was not the lawful purpose of Clause 27.9, including in 2005 and in 2006;

 

(h)        by failing to agree to the Applicant’s request made to Dr Ian Smith on 17 January 2005 to investigate the ANSTO officers responsible for the Applicant’s injury;

 

            (i)         by failing to act upon approaches by the CPSU on behalf of Mr Lever to formulate a return to work assessment, including the approach made by the CPSU in its letter of 21 September 2005 to Mr Davies; and

 

(j)         by advising Dr Pead by telephone on 5 July 2006 that Mr Lever would never work at ANSTO again.

 

74.       The Applicant alleges that ANSTO injured the Applicant in his employment in the circumstances particularised at paragraph 73 above in breach of Section 298K (1)(a), (b), (c) and (e) of the pre-reform WR Act. It is alleged that the breach is continuing.

 

Particulars of breaches

 

ANSTO attempted to induce the Applicant to terminate his employment and/or to injure the Applicant in his employment and/or to alter the Applicant’s position to his prejudice by seeking to deprive the Applicant of the opportunity to return to work.

 

75.       The Applicant alleges that ANSTO's conduct in breach of Section 298K(1)(a), (b), (c) and (e) as alleged at paragraphs 73 and 74 above was carried out for prohibited reasons as specified by Section 298L of the pre-reform Act.

 

Particulars of Prohibited Reasons

 

The Applicant repeats the particulars at paragraph 60 above.

 

76.       As a consequence to the matters particularised at paragraphs 73 to 75 above, the Applicant has suffered and continues to suffer injury, loss and damage.

 

Particulars of Injuries, Loss and Damage

 

(a)        The Applicant suffered a loss of opportunity to earn remuneration at various times since the Applicant has been certified fit for suitable duties in the period February 2005 to date; and

 

(b)        The Applicant has suffered serious financial hardship in the period since 2 February 2005 and has required to fund the cost of living for himself and his family on credit, thereby incurring an extraordinary interest liability, further particulars to be provided.’  (Emphasis in original.)

 

108               It was contended by Mr Lever that the evidence showed a number of efforts made by Mr Lever to return to work with ANSTO ‘on light duties on and from February 2005’. Those efforts were further said to be supported by a medical certificate and a report produced by Dr Pead.  The Court was thereupon referred by Mr Lever to Exhibit H in the proceedings, that being a guide for employees which had been produced by Comcare, and was said to be applicable at the relevant time.  It was said that Mr O’Shea made reference to it in the course of performance of his duties undertaken for ANSTO (see above [106]).  It purportedly set out the respective roles and obligations in respect of employees and employers in relation to return to work when that course was sought for injured employees.  Mr Lever asserted that his relevant injury was essentially stress-related anxiety and depression from his ongoing dispute with ANSTO. 

109               Section 7 of Exhibit H set out, on pages 17-20, the return to work process to be followed by ANSTO, according to Mr Lever, in circumstances such as ‘in the current case’. Step 1 of Section 7 provided that ANSTO was to appoint a case manager, inter alia, to ‘[consult] with you and your treating medical practitioner’, and to ‘negotiat[e] with you and your managers on suitable duties for your return to work.’

110               Moreover Step 2 of Section 7 provided, inter alia, that:

‘Your treating medical practitioner may then make the Case Manager aware of any restrictions, to help prevent any worsening of your condition.’

 

Step 4 of Section 7 provided, inter alia, that:

‘After your capabilities have been assessed, a return-to-work plan (RTWP) will generally be drawn up. The plan will outline:

 

·        the steps to be taken to get you back to suitable work;

·        who is to be responsible for the various steps; and

·        a timetable for completion of the plan.

 

In designing the RTWP, the Case Manager or the rehabilitation provider will speak with you, your supervisor and your treating medical practitioner.’

 

111               Thereafter the Court’s attention was drawn to Mr O’Shea’s affidavit of 27 September 2006 and in particular the attached medical certificate provided by Dr Pead on 2 February 2005 to ANSTO, which recorded that the injury suffered by Mr Lever was ‘workplace stress syndrome’ caused by ‘interpersonal conflict with harassment, denigration and false accusations’, and that Mr Lever should be referred to a clinical psychologist and ‘be transferred from the hostile environment to another department pending resolution of the matter’.  It was contended by Mr Lever in that context that ‘[n]otwithstanding the provision of this certificate, it was the evidence of each of Mr O’Shea, Ms Zlata Risby (a nurse employed by ANSTO to deal with such matters) and Dr Hall (a contracting medical officer who gave evidence that he would have seen the certificate) that no steps at all were taken to find an appropriate position for [Mr Lever] with [ANSTO] that would remove him from the “hostile environment”, referred to in Dr Pead’s certificate.’  It was further contended by Mr Lever in that regard that ‘[i]ndeed, it was the evidence of each of those individuals that none of them had contacted Dr Pead to investigate a returned [sic] to work on these restrictions’.

112               It was next pointed out by Mr Lever that there was no evidence of any of ANSTO’s officers having taken any action on receipt of a further report from Dr Pead of 12 March 2005, which was described as having confirmed his preceding recommendation by the statement that ‘Ron [should] be removed from the “hostile environment” and appointment of an independent arbitrator would seem appropriate’. Mr O’Shea did not recall seeing the same, though he acknowledged that a report of that nature ‘would ordinarily find its way to the medical centre’ where Dr Hall and Ms Zlata Risby were based. 

113               That asserted ‘failure’ by ANSTO’s workers’ compensation and medical officers was described by Mr Lever as contrary to accepted Comcare practice, and also contrary to the usual practice of Dr Hall, given his testimony at page 769 of the transcript:

‘It would be fair to say that you would have had an obligation to investigate a possible return to work consistent with that [the 2 February 2005 medical certificate]; that would have been an obligation that you would have had if you had got that document? --- Yes. My usual response would be to then refer to human resources to see whether there would be some alternative position available.

 

But you have no recollection at all of doing it in relation to Mr Lever? --- No, but that would be on my usual response.’

 

114               It was thereafter pointed out by Mr Lever that it was the evidence of Mr O’Shea that he referred such matters back to the medical centre, but that Dr Hall nevertheless did not recall taking any such action.  It was testified by Mr Lever in that context that although ANSTO sought comfort from a medical certificate of Dr Pead of 11 February 2005 that was said to have purportedly shown that he was totally unfit to work as at that date, that document, bearing the footnote ‘Comcare Certificate 11-02-05’, was not provided to ANSTO until correspondence ‘under cover of a letter dated 10 June 2005’ (forming Exhibit Q in the proceedings). Mr Lever said (at transcript page 778) that he put that footnote onto that document around May/June 2005.  It was therefore asserted that ANSTO could not therefore rely upon that certificate in the context of its failure to take the action said to have been required of it by Comcare, being action asserted by Mr Lever to be ‘the usual action in seeking to rehabilitate an injured worker’.  Mr Lever further testified that ANSTO’s Executive Officer Dr Smith failed to investigate the circumstance on 17 January 2005 that it was the ANSTO officers who were said by Mr Lever ‘to be responsible for [his] injury’.  

115               In the circumstances thus postulated by Mr Lever as I have above recorded, Mr Lever recorded once more that ‘the reverse onus as to the imputing of prohibited reasons in respect of the conduct’ operated in favour of Mr Lever, and that accordingly the Court would ‘comfortably find [the] relevant breaches as pleaded proved’.

The twelfth series of breaches

116         The twelfth series of breaches for which Mr Lever contended appear in paragraphs 78 to 79 of his points of claim, as follows:

‘78.      On 22 September 2005, Mr Rod Davies IR Adviser, in a conversation with Mr Richard Muffatti, CPSU Organiser, threatened to dismiss or injure the Applicant or alter the Applicant’s position to his prejudice. The substance of the conversation was that Mr Davies would seek legal advice on the termination of the Applicant’s employment (“the threat”). On 28 September 2005, Mr Davies wrote a letter to Mr Muffatti confirming the threat.

Particulars of threat

 

The threat was express and implied. To the extent that it was express, it was verbal (refer to the conversation above), and to the extent that it was in writing, it consisted of the letter of 28 September 2005. To the extent that it was implied, the threat can be inferred from the content of the conversation and the letter referred to above.

 

79.       The Applicant alleges that ANSTO’s conduct in breach of Section298K(1)(a), (b) and (c) as alleged at paragraph 78 was carried out for prohibited reasons as proscribed by Section 298L of the pre-reform Act.

 

Particulars of Prohibited Reasons

 

The Applicant repeats the particulars at paragraph 60 above.’  (Emphasis in original.)

 

117         It was submitted by Mr Lever that the aforementioned letter ‘speaks for itself’.

The thirteenth series of breaches

118               The thirteenth series of breaches alleged by Mr Lever were contained in paragraphs 81 to 83 of his points of claim as follows:

‘81.    It is alleged that at all times since 2 December 2000, the Respondent has failed to correctly classify the Applicant’s position in accordance with the ANSTO Enterprise Agreement 2000 and the ANSTO Enterprise Agreement 2002 and the processes that support the aforementioned Enterprise Agreements.

 

Particulars of conduct

 

(a)      In February 2001, Dr Doherty falsely represented to the Applicant or misled the Applicant into believing that the Applicant would be promoted to Senior Professional Officer Level provided the Applicant signed off on his 1999/2000 objective setting and assessment form and did not take any steps to challenge Dr Doherty’s decision to award the Applicant a double increment with respect to his achievements in the assessment period of July 1999 to June 2000: refer to paragraphs 31 to 33 inclusive and paragraph 45 of the Applicant’s Affidavit;

 

(b)        On 2 August 2002, Dr Doherty failed to correctly determine the Applicant's classification: refer to paragraph 45 of the Applicant's Affidavit;

 

(c)      On 21 August 2002, Dr Doherty and Mr Ian Crakanthorp met with the Applicant, at which time Dr Doherty declined to reconsider his decision with respect to the Applicant's classification for the periods 2000/2001 and 2001/2002: refer to paragraph 46 of the Applicant’s Affidavit;

 

(d)        ANSTO discriminated against the Applicant in relation to the correct determination of the classification in that it refused to skip the Applicant a grade on the basis that it was not permissible, which was a false statement as other employees had in fact been skipped an entire grade in being re-classified in the past: refer to paragraph 48 of the Applicant’s Affidavit;

 

(e)        ANSTO discriminated against the Applicant in its classification of him in that, following an introduction of a new classification system in June 2002, the Respondent failed to re-classify the Applicant correctly as a consequence of the Role Analysis process, whereas the Respondent did reclassify approximately 20 other staff, including Mr Davies: see paragraph 47 of the Applicant’s Affidavit; and

 

(f)         At all times since 2 December 2000, ANSTO has failed to or refused to take steps to correctly reclassify the Applicant’s position in accordance with the Role Analysis or role anomaly process.

 

82.       The Applicant alleges that ANSTO injured the Applicant in his employment in the circumstances particularised at paragraph 81 above in breach of Section 298K(1)(a), (b), (c) and (e) of the pre-reform WR Act. It is alleged that the breach is continuing.

 

Particulars of breaches

 

ANSTO attempted to induce the Applicant to terminate his employment and/or to injure the Applicant in his employment and/or to alter the Applicant’s position to his prejudice by failing and refusing to properly classify the Applicant’s position and to thereby put pressure on the Applicant to:

 

(a)      not pursue his classification dispute;

 

(b)        remain in a low classification to the detriment of the Applicant in his position at ANSTO and to the injury of the [his] employment at ANSTO; and

 

(c)        not to continue in his employment with ANSTO.

 

83.       The Applicant alleges that ANSTO’s conduct in breach of Section 298K(1)(a), (b), (c) and (e) as alleged at paragraph[s] 81 and 82 above was carried out for prohibited reasons as proscribed by Section 298L of the pre-reform Act.

 

Particulars of Prohibited Reasons

 

The Applicant repeats the particulars at paragraph 60 above.’  (Emphasis in original)

 

119               Those breaches were acknowledged by counsel for Mr Lever to have been addressed in the course of his submissions I have already cited or otherwise recorded above.  Nevertheless counsel for Mr Lever added that ‘the applicant reserves his right, as with all breaches alleged, to make further submissions orally and where appropriate in reply in this regard’. 

The fourteenth series of breaches

120               The fourteenth series of breaches alleged by Mr Lever were contained in paragraphs 85 to 88 of his points of claim as follows:

‘85.      From February 2001 onwards, ANSTO has blocked or interfered with the Applicant’s attempts to resolve his classification dispute with ANSTO.

 

Particulars of conduct

 

(a)      In February 2001, Dr Doherty falsely represented to the Applicant or misled the Applicant into believing that the Applicant would be promoted to Senior Professional Officer Level 1 provided the Applicant signed off on his 1999/2000 objective setting and assessment form and did not take any steps to challenge Dr Doherty’s decision to award the Applicant a double increment with respect to [his] achievements in the assessment period of July 1999 to June 2000: refer to paragraphs 31 to 33 inclusive and paragraph 45 of the Applicant’s Affidavit;

 

(b)        On 2 August 2002, Dr Doherty failed to correctly determine the Applicant's classification: refer to paragraph 45 of the Applicant’s Affidavit;

 

(c)        ANSTO discriminated against the Applicant in relation to the correct determination of the classification in that it refused to skip the Applicant a grade on the basis that it was not permissible, which was a false statement as other employees had in fact been skipped an entire grade in being re-classified: refer to paragraph 48 of the Applicant’s Affidavit;

 

(d)        ANSTO discriminated against the Applicant in its classification of him in that, following an introduction of a new classification system in June 2002, ANSTO failed to re-classify the Applicant as a consequence of the Role Analysis process, whereas ANSTO did re-classify approximately 20 other staff, including Mr Davies: see paragraph 47 of the Applicant’s Affidavit;

 

(e)        On 21 August 2002, Dr Doherty and Mr Ian Crakanthorp met with the Applicant, at which time Dr Doherty declined to reconsider his decision with respect to the Applicant's classification for the periods 2000/2001 and 2001/2002: refer to paragraph 46 of the Applicant’s Affidavit;

 

(f)         On 20 November 2002, Dr Doherty attended a mediation session with the Applicant. Dr Doherty adjourned the mediation and refused to permit it to be reconvened at any later time: refer to paragraph 54 of the Applicant’s Affidavit;

 

(g)        In December 2002, Dr Doherty sought to discourage the Applicant from pursuing the classification dispute and sought to unduly pressure the Applicant not to pursue the classification dispute: see paragraphs 55 and 56 of the Applicant’s Affidavit;

 

(h)        On 23 December 2002, the Applicant wrote a letter to Professor Garnett, the Executive Director, in an effort to resolve his classification dispute.  Professor Garnett failed to respond at any time to the Applicant’s letter: refer to paragraph 58 of the Applicant’s Affidavit;

 

(i)         In April 2003, the Applicant lodged a grievance under the ANSTO Enterprise Agreement 2002 in relation to his classification dispute and seeking a Reference Panel, however Professor Garnett refused to permit the convening of a Reference Panel: refer to paragraphs 63 and 65 of the Applicant’s Affidavit;

 

(j)         On 1 July 2003, the Applicant sent a minute to Mr Cullen, who was his then division director concerning the classification dispute. Mr Cullen did not respond to the issues raised by the Applicant: see paragraph 66 of the Applicant’s Affidavit;

 

(k)     On 17 July 2003, Dr Doherty sent an email to the Applicant seeking to discourage the Applicant from pursuing his classification dispute: see paragraph 67 of the Applicant's Affidavit;

 

(l)         On 11 September 2003, Mr Davies sought to pressure the Applicant into not pursuing his classification dispute and a Reference Panel by threatening to have a Role Analysis performed on the Applicant by management: refer to paragraphs 71 and 72 of the Applicant’s Affidavit;

 

(m)     On 12 September 2003, Mr Davies sent a letter to the Applicant advising the Applicant that ANSTO management intended to undertake a current Role Analysis of the Applicant, which was intended to pressure the Applicant into not pursuing a Reference Panel in order to resolve his classification dispute;

 

(n)      In December 2003, ANSTO refused to release anomaly information to the Applicant in relation to the Applicant's pending Reference Panel: see the Applicant’s Affidavit, Annexure RL26;

 

(o)     17 January 2005, the Applicant met with Dr Ian Smith, Executive Director, at which time Dr Smith advised the Applicant that he would take advice on the proposal by the CPSU to resolve the outstanding classification disputes, however ANSTO subsequently failed to advance the resolution of the outstanding classification disputes, including that of the Applicant; and

 

(p)     In August 2005, Mr Muffatti, CPSU Organiser, raised the issue of the Applicant's classification dispute with Mr Davies, in an effort to advance a resolution of the Applicant’s classification dispute. However, Mr Davies said that ANSTO was not interested in doing anything to fix his problem (i.e. Mr Lever’s classification dispute).

 

86.       The Applicant alleges that ANSTO injured the Applicant in his employment in the circumstances particularised at paragraph 85 above in breach of Section 298K(1)(a), (b), (c) and (e) of the pre-reform WR Act. It is alleged that the breach is continuing.

 

Particulars of breaches

 

ANSTO attempted to induce the Applicant to terminate his employment and/or to injure the Applicant in his employment and/or to alter the Applicant’s position to his prejudice by blocking the Applicant's attempts to resolve his classification dispute and to thereby put pressure on the Applicant to:

 

(a)      not pursue his classification dispute;

 

(b)     remain in a low classification to the detriment of the Applicant in his position at ANSTO and to the injury of the employment at ANSTO; and

 

          [(c)]       not to continue in his employment with ANSTO.

 

87.       The Applicant alleges that ANSTO's conduct in breach of Section 298K(1)(a), (b), (c) and (e) as alleged at paragraph 85 was carried out for prohibited reasons as proscribed by Section 298L of the pre-reform Act.

 

Particulars of Prohibited Reasons

 

The Applicant repeats the particulars at paragraph 60 above.

 

88.       As a consequence of the matters particularised at paragraphs 85 to 87 above, the Applicant has suffered and continues to suffer injury, loss and damage.

 

Particulars of injury, loss and damage

 

The Applicant suffered a loss of opportunity to obtain a successful review of his classification in late 2002 and at all times subsequently and to thereby obtain a promotion and to thereby increase his earnings.’  (Emphasis in original)

 

121               Mr Lever acknowledged that ‘… the specifics establishing these individual breaches have been dealt with in the course of the submissions’ which I have already recorded or summarised, but he submitted that ‘taken together, the individual breaches show a course of conduct establishing that at least on and from February 2001 ANSTO has blocked or interfered with the Applicant’s attempts to resolve his classification dispute with ANSTO for prohibited reasons as alleged’.  

The fifteenth series of breaches

122               There were a so-called fifteenth series of breaches originally pleaded by Mr Lever as set out in pars 90 to 92 of his points of claim, but the same were not ultimately pressed by the time of presentation of submissions.

ANSTO’s submissions in response to Mr Lever’s case and Mr Lever’s replies thereto by way of rejoinder

123               ANSTO’s submissions in reply to Mr Lever’s case addressed sequentially the fourteen consecutive series of statutory breaches pleaded by Mr Lever which I have outlined or recorded above.  It was confirmed by ANSTO at the outset that Mr Lever’s amended application filed in the proceedings fell for determination under s 298U of the Act (that is of course the 1996 legislation) whereby the relief specifically sought by Mr Lever is presently available, and that such application might only be made under s 298T of the Act.  Although the Workplace Relations Amendment (Work Choices) Act 2005 repealed Part XA of the Act, inclusive of ss 298K, 298L, 298T and 298U, nevertheless as ANSTO acknowledged, Mr Lever’s application continued for determination by the Court under s 298U as if the Act had not been so amended in 2005.  Accordingly in my account of ANSTO’s ensuing submissions, references to ‘the Act’ are made by reference to the text thereof prior to the 2005 amendments.

124               ANSTO pointed out that Mr Lever’s comprehensive points of claim referred to ‘a multitude of relatively unremarkable actions by his supervisors’, and further that such actions were forbidden by s 298K of the Act, principally subs (1)(b) and (c) thereof, but that the essence of Mr Lever’s complaint was that ANSTO ‘insufficiently promoted him in late 2000 and in 2002’.  ANSTO therefore contended at the outset that Mr Lever’s promotion to a level in ANSTO’s employment hierarchy, albeit to a level lower than what he considered he deserved, did not constitute an injury to him in his employment under the Act.  ANSTO pointed out by way of contrast that Mr Lever did not allege a demotion or a reduction in pay that could fall within either pars (b) or (c) of s 298K(1).

125               ANSTO’s next submission was that ANSTO’s promotions of him, whereof he claimed to have been inadequate, occurred prior to his taking up the position of union delegate, being a factor seemingly material to the structure of Mr Lever’s case.  Thus ANSTO referred at the outset of the presentation of its case in reply to the following sequence of events which occurred prior to Mr Lever’s commencement of the role of delegate of the ANSTO members of the CPSU, as set out in his principal affidavit of 1 June 2006:

(i)                  in October 2000, he spoke to Mr Davies, ANSTO’s Industrial Relations Advisor, upon the subject of his reclassification;

(ii)                in November 2000, he submitted to Mr Doherty an assessment form in which he recorded his asserted professional achievements in the financial year from July 1999 to June 2000; thereafter Dr Doherty recommended his promotion from Professional Officer 1 (which I have earlier summarised as ‘PO1’) to Professional Officer 2 (which I have earlier summarised as ‘PO2’), being the more limited promotion which Dr Doherty confirmed to Mr Lever by letter of 22 February 2001;

(iii)               Mr Lever took no apparent action about that limited reclassification ‘for many months’, that is, until May 2002, at which time he completed an assessment form in respect of the year from July 2000 to June 2001 and submitted the same to Dr Doherty;

(iv)              in June 2002, Mr Lever and other members of ANSTO staff were offered interviews by Ms Houseman (of course an employee of ANSTO) for the purpose of so-called ‘role analysis’; Mr Lever was interviewed by her on 21 June 2002, and thereafter she provided him with a ‘Role Profile’ document, which he appeared to have understood as confirming that he was working at a level in ANSTO above that of his so-called ‘substantive classification’;

(v)                in July 2002, Mr Lever completed an assessment form for the year July 2001 to June 2002; in August 2002 Dr Doherty returned to Mr Lever his assessment forms, whereby according to Mr Lever, he was given ‘one increment for each assessment year only, which meant [he] was not promoted’, or so he maintained; I would here interpolate ANSTO’s contrary observation that such comment on Mr Lever’s part ‘could only be correct if increments were automatic, which they were not’, and instead that ‘[b]oth increments constituted promotions’, seemingly I would think to be reasonable propositions on ANSTO’s part;

(vi)              in August 2002, Mr Lever met with Dr Doherty and Mr Crakanthorp about his claim for what ANSTO described as ‘a bigger promotion’; the responses attributed to Dr Doherty by Mr Lever were described by ANSTO as not encouraging;

(vii)             according to Mr Lever, he commenced acting as a delegate of the members of the CPSU employed by ANSTO, Mr Lever identifying that time of commencement to ‘around August 2002’; by that time he had been unsuccessfully seeking a higher or more prominent appointment for nearly two years, in the context of ANSTO having ‘already declined to promote him further on at least two occasions when his work performance had been assessed’.

I should record for completeness that Mr Lever rejoined in relation to subpar (v) above by emphasising that Mr Lever ‘was agitating… his reclassification to a high grade’ whereas ‘[i]ncremental increases within a grade are not reclassifications’. 

126               Mr Lever attributed the major difficulties he encountered in the course of his employment at ANSTO to a deterioration in his relationship with ANSTO which began in 2003, so ANSTO sought to describe the threshold of Mr Lever’s case for statutory breaches on its part.  ANSTO’s response was that such estimated time of deterioration was thus ‘… later than [ANSTO’s] conduct of refusing the promotions that [Mr Lever] considered he deserved’, and accordingly that ‘[i]n declining to promote [Mr Lever], [ANSTO] cannot have acted for the reason that he had done, or was proposing to do, things in his capacity as a union delegate, because he had not yet been appointed as a union delegate’. 

127               ANSTO summarised its defence to the present proceedings to the effect that ‘[i]n seeking to contrive allegations that [ANSTO] engaged in conduct forbidden by s 298K, [Mr Lever] has adopted the “scattergun” approach’ of alleging ‘at least 57 separate contraventions of s 298K(1) in respect of most steps taken by [ANSTO] in response to his complaints about his classification, and in respect of a multitude of other disappointments as well’.  As has been already seen in the course of my summary of Mr Lever’s case by reference to the fourteen so-called series of breaches framed by him, ANSTO submitted that it was necessary for the Court to consider the allegations enumerated by Mr Lever in the sequence in which they appear in Mr Lever’s pleaded points of claim, being a course which I will seek hereafter to follow by way of recording ANSTO’s detailed responses, and additionally Mr Lever’s rejoinders to those responses.  Given the factual detail provided by Mr Lever in his case in purported support of those series of alleged breaches, I have been unable to implement any other comprehensive course. 

ANSTO’s response to the first series of breaches pleaded by Mr Lever

128               Addressing what Mr Lever’s case categorised as the first series of breaches pleaded by Mr Lever’s points of claim (which of course I have earlier outlined), ANSTO emphasised that Dr Doherty’s ‘promotion’ decision reflected the feature that Mr Lever ‘… [did] not challenge Dr Doherty’s discretion as [Mr Lever’s] supervisor to determine whether, and to what extent, to promote [Mr Lever], or the procedure adopted by Dr Doherty in his exercise of that discretion’, but rather ‘… relate[d] to the possibility of a review of Dr Doherty’s determination’.  ANSTO contended that for Mr Lever to assert the existence of any assurance as to his future promotion to SPO1 ‘was an overly optimistic and untenable interpretation of the words attributed to Dr Doherty’, ANSTO describing the words attributed by Mr Lever to Dr Doherty as ‘innocuous’ and such as not to have ‘preclude[d] [Mr Lever] from pursuing any available avenue for a review of his December 2000 promotion’ to SPO2, yet which Mr Lever did not seek to do.  Attention was drawn then by ANSTO specifically to what Mr Lever alleged to have constituted breach of s 298K(1)(b) and (c) on account of Dr Doherty’s failure merely ‘… to inform [Mr Lever] of his rights to a review of Dr Doherty’s decision’, and to the irrelevance of Mr Lever’s ignorance of the availability of review, if such ignorance had been in fact a reality.  Attention was further drawn by ANSTO to the presence of the words ‘do or threaten to do’ contained in each of the two subsections of s 298K, being words described by ANSTO as inapt to include any mere failure to do something, comprising as that statutory expression did the connotation of a proscription ‘… essentially against an intentional act of the employer directed to an individual employee or prospective employee’ (see again in that regard dicta earlier cited from BHP Iron Ore v AWU). 

129               On that footing, ANSTO’s case was that Mr Lever ‘… has not established that any conduct of [ANSTO] caused him to miss an opportunity to seek a review of Dr Doherty’s decision to promote him’, and further that Mr Lever did not express any intention ‘… to seek a review at the time of the relevant discussions with Dr Doherty’, nor did he establish ‘that the conduct of [ANSTO] was the reason for his failure to seek such a review’.  ANSTO emphasised that Mr Lever did not allege for instance that Dr Doherty ‘took any direct action to prevent a review in the knowledge that [Mr Lever] was seeking one’, nor was there evidence of any action to such effect.  It could not be said therefore, so the ANSTO submission continued, that for instance ‘Dr Doherty intended his conduct to frustrate a course of action proposed by [Mr Lever] of which Dr Doherty was ignorant’.  There is clear force in that ANSTO response to the first series of breaches alleged by Mr Lever.

130               It was pointed out moreover by ANSTO that if a failure to seek a review did involve an injury to Mr Lever ‘in his… employment’or an alteration of his ‘position’ to his ‘prejudice’ within the meaning of pars (b) or (c) of s 298K(1), then any such failure was attributable in any event to ‘… the actions or inaction of [Mr Lever] subsequent to the conduct of Dr Doherty’.  Since Mr Lever knew of the availability of review, so ANSTO maintained, ‘… it was his own decision to forbear from pursuing one’; and further that since Mr Lever had not proved the so-called ‘forbidden conduct’ the subject of present consideration, it was unnecessary for ANSTO to prove the reason for it.  Moreover it was ANSTO’s case that there was an absence of evidence as to Dr Doherty harbouring any prohibited reason, he being the person whose conduct was sought to be impugned and the only person whose reasons could be ultimately relevant. 

131               As to any adverse operation of s 298V in relation to Dr Doherty’s decision sought to be impugned in the context of the first series of breaches, it was the further threshold case of ANSTO that ‘s 298V does not allow the presumption of a fanciful or arbitrary reason’, the onus being placed on Mr Lever to establish ‘some rational basis for a particular prohibited reason to be alleged’.  The dicta I have earlier cited from General Motors-Holden in the context of the High Court appeal proceedings lends support in principle to that ANSTO assertion.  It would not be sufficient for an applicant for relief merely to allege in an arbitrary way any one or more of the fifteen prohibited reasons appearing under s 298L, most of which reasons I have earlier exemplified specifically by reference to the text of that comprehensive statutory provision. 

132               As I think rightly articulated by ANSTO, ‘[t]he evidence must be consistent with the hypothesis that [ANSTO] was motivated by the reason alleged by [Mr Lever]’, yet there was ‘no suggestion in the evidence or in [his] submissions… that his entitlement to the benefit of an industrial instrument was an issue, or even a topic of discussion, at or about the time of the alleged conduct’, or that Mr Lever ‘… ceased to be entitled to the benefits of an industrial instrument by reason of conduct of [ANSTO]’, within or pursuant to s 298L(1)(h).  I was referred again to what was subsequently decided on remitter in Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482as appears at [67] and [210] of the comprehensive reasons for judgment of Kenny J, with the explanation by ANSTO that ‘… the fact that the relevant employees continued to be entitled to the benefits of the same industrial instruments after the employer’s conduct allegedly forbidden by s 298K(1) was sufficient to satisfy Kenny J that the employer had not engaged in that conduct for the reason that the employees were entitled to the benefit of that instrument as prohibited by s 298L(1)(h)’.  Accordingly ANSTO relied on the circumstance that Mr Lever had not established, or even alleged, that he ceased to be entitled to the benefit of an industrial instrument by reason of the conduct of ANSTO.  Reference was made moreover to Dr Doherty’s testimony to the effect that his conduct on behalf of ANSTO sought to be impugned was motivated by his belief that he had in fact correctly classified Mr Lever as not being qualified for promotion to the ranking or level of SPO1, and it was submitted that such testimony of Dr Doherty should be accepted by the Court.  It was testimony which I would find to have been genuinely expressed on grounds reasonably open objectively for Dr Doherty to have based his decision-making. 

133               I should add that in reply, counsel for Mr Lever rejoined that whilst ‘[i]t is true that subject to s 298L(2), s 298K(1) is directed to the doing of an act … this does not preclude the making of a decision not to do something from falling within the compass of the statutory prohibition [such as] … a decision not to pay an employee because the employee was a union member…’, and further that ‘… if a decision is made that injures the applicant by any adverse affection to his employment (such as not advising him of his review rights or inducing him not to access his review rights) then, presuming the absence [of] evidence to the contrary as to the presumed prohibited reason, a breach of s 298K(1)(b) is made out’.  Counsel for Mr Lever submitted in that regard that ‘[t]he fact that not doing, or proposing to not do an act, clearly falls within the ambit of prohibited conduct is made clear from even a cursory review of the legislation [and] [n]otably s 298L(2)…’, and further that ‘[ANSTO’s] contention that it is only a positive action [that] can amount to prohibited conduct for the purposes of the pre-reform Act cannot be sustained and ought to be rejected’, and yet further that ‘[t]he threat of action or conduct is sufficient, [and] [v]iewed in this light [BHP Iron Ore v AWU] is no bar to [Mr Lever’s] claim under this head’.  However there is a distinction relevantly between engagement in conduct or threatening to engage in conduct on the one hand, and withholding or proposing to withhold from engagement in conduct, for whatever reason in either case, on the other hand.  Hence the making of a decision not to promote an employee may well occasion disappointment, but so much would not relevantly ‘injure’ that employee, nor would such conduct constitute ‘a threat’ to injure, within either subsection of s 298K. 

134               Further as to Mr Lever’s case in relation to the first series of alleged breaches, as pleaded by pars 20 and 21 of Mr Lever’s points of claim concerning procedures of ANSTO for determining employee grades and levels contained in HRES P 4.1, it was contended by ANSTO, as I have earlier foreshadowed, that such procedures were irrelevant to the case pleaded in Mr Lever’s points of claim.  For that reason it was said to be ‘… unnecessary for the Court to trouble itself with the subjective and difficult task of determining whether the grades and levels at which [ANSTO] classified [Mr Lever] from time to time were appropriate for a person with his skills, qualifications, responsibilities and experience, and having regard to the operational objectives of [ANSTO] at the relevant time’.  That assertion must surely be correct.  It would be surprising if the legislation was intended to require the Court’s adjudication of such a conceptually non-juridical issue. 

135               ANSTO agreed with Mr Lever’s contention that ‘[i]t is not in dispute that [Mr Lever] was not explicitly informed of his rights to review Dr Doherty’s decision’, but pointed out that ‘… it is also not in dispute that [Mr Lever] never applied for a review of Dr Doherty’s decision, never asked Dr Doherty or any other supervisor for advice about seeking a review, and never communicated … an interest in seeking a review’.  Instead Mr Lever’s affidavit evidence was merely that ‘I was considering either challenging the decision or leaving ANSTO’, thereby revealing Mr Lever’s awareness of the possibility of some form or avenue of review being open to him to pursue.  Mr Lever explained that ‘[a]s I was still quite a new employee at ANSTO, I decided that it would be in my best interests to accept the promotion Dr Doherty had awarded me as a compromise’.  In the light of that explanation, it was submitted by ANSTO, that it was unreasonable for Mr Lever ‘… to now complain about the inadequacy of the promotion, or that he was ignorant of the possibility of a review’, being a submission having reasonable force. 

136               Contrary to Mr Lever’s submission, ANSTO claimed that there is a dispute that Dr Doherty’s promotion of Mr Lever, to the extent that it was put in place by ANSTO, was ‘contrary to [Mr Lever’s] understanding and expectation’, there being no evidence to the effect that Mr Lever informed anyone in authority at ANSTO beforehand that he had any higher expectations.  ANSTO did not dispute that Dr Doherty told Mr Lever that it was not possible for him ‘to skip a grade’, as was recorded in the affidavit testimonies of each of them.  ANSTO emphasised however that Mr Lever had failed to articulate why Dr Doherty’s testimony relevantly to his motivation was not credible, there not having been any basis advanced by Mr Lever upon which to undermine the credibility of that testimony, that being an emphasis having inherent force. 

137               Further as to pars 20 to 22 of Mr Lever’s points of claim the subject of the first series of breaches, ANSTO submitted that Mr Lever ‘has not established that any conduct of [ANSTO] caused him to miss an opportunity to seek a review of Dr Doherty’s decision to promote him’, maintaining that Mr Lever had produced ‘no evidence that he intended to seek a review at the time of the relevant discussions with Dr Doherty’, and accordingly that Mr Lever ‘has not established that the conduct of [ANSTO] was the reason for his failure to seek such a review’.  It was further submitted by ANSTO in that regard that ‘[i]f [Mr Lever’s] failure to seek a review could constitute an injury to him in his employment or an alteration of his position to his prejudice, it was caused by the actions or inactions of [Mr Lever] subsequent to the conduct of Dr Doherty’, and furthermore that ‘[i]f [Mr Lever] knew of the availability of a review, it was his own decision to forebear from pursuing one’.  It was contended by ANSTO also that ‘[e]xcept in the circumstances described in s 298L(2), attempting to induce or discourage an employee from a course of action cannot be conduct of the kind described in s 298K(1)(b) or (c)’, and moreover ‘[i]f the attempt succeeds and the employee is discouraged’, so the ANSTO submission continued, ‘the status quo is preserved, [but if] the attempt fails, the employer’s conduct has not affected the employee’s exercise of his free will, [and] [i]n either case, the conduct has not injured the employee in his employment or altered the employee’s position to his prejudice’.  Reference was made by ANSTO in that context to Finance Sector Union of Australia v Australia & New Zealand Banking Group Ltd (2002) 120 FCR 107 where at [195] in relation to a s 298M claim by a union for an imposition of penalties, Wilcox J found as follows:

‘Ms Howell argued her s 289M [sic] claim by reference to conduct by Mr Inglis which, she contended, had the effect of putting pressure on Ms Buckland to choose between her job and her position in the FSU. Mr Inglis may have applied such pressure and, perhaps, this might be described as an attempt to induce Ms Buckland to resign. But s 298M does not cover attempts.’

It must be said at once that there is force in those further submissions as to relevant statutory operation.

138               ANSTO emphasised that ‘[n]one of the four [foregoing] representations menaced or warned of an intention to inflict harm’, and asserted that the same ‘… were simply not threats at all’.  For that reason and also because the prohibited reason alleged by Mr Lever in relation to this conduct of Dr Doherty was contended to be not a reason of the kind described in s 298L(2)(b), ANSTO submitted that s 298L(2) was inapplicable.  ANSTO further argued in any event that ‘[t]he evidence shows that [ANSTO] did address [Mr Lever’s] complaints about his classification over a lengthy period’, but that ANSTO ‘was never persuaded that the decisions of Dr Doherty were wrong’.  ANSTO postulated that Mr Lever ‘seems to believe that [ANSTO’s] failure to capitulate to his claims means that the issue was not “addressed” by [ANSTO]’, and hence he ‘refuses to acknowledge [ANSTO’s] decision that he was correctly classified’, being a postulation having reasonable justification.  As to Mr Lever’s allegation that the conduct of Dr Doherty was prohibited by s 298L(1)(h), ANSTO rejoined by asserting the need, as I have already indicated, for Mr Lever to have established some rational basis for the imputation of a prohibited reason to ANSTO. 

139               Mr Lever raised in reply the proposition that ‘[c]ontrary to [ANSTO’s] submissions, to gain the benefit of the presumption in s 298V does not require [Mr Lever] to establish a “hypothesis” to support the allegation’ advanced by him, and the Court was referred to the reasons for judgment in McIlwain at [371]-[374], where ‘the dismissal conduct [was] admitted’ and ‘[t]he refusal to employ conduct [was] established’, and in particular at [374] where the following appeared:

‘The Act recognises that the field of reasons motivating a decision-maker within an employer to dismiss an employee or refuse to employ a person lies uniquely within the mind of that person and although evidence of secondary facts might give rise to inferences probative of the ultimate facts in issue concerning the reasons for conduct, the burden of proving reasons other than the allege [sic] prohibited reasons falls to the respondents.  That onus has not been discharged.’

Upon that purported footing, Mr Lever submitted in reply that ‘… it is not difficult to create a viable hypothesis that [ANSTO], aware of the potential benefits to [Mr Lever] in progressing the review application, determined to thwart any review to prevent [Mr Lever] accessing his industrial remedies’.  Mr Lever laid emphasis in that regard on Dr Doherty’s ‘global denials’, but without coming comprehensively or at least adequately to issue by any such purported reply with the essence of ANSTO’s contentions upon the first series of breaches.

ANSTO’s response to the second series of breaches pleaded by Mr Lever

140               ANSTO next addressed Mr Lever’s contention, within the context of the second series of breaches framed by him, as to untrue representations on the part of ANSTO, per medium of Dr Doherty, made to him in the presence of Mr Crakanthorp in the course of Mr Lever’s discussion of his CAS assessments for the years 2000-2001 and 2001-2002 respectively.  It will be recalled that the subject arose in the context of Dr Doherty’s decision made on or about 2 August 2002 to grant Mr Lever one salary increment within PO2, with retrospective effect from 1 July 2001, and a further salary increment within PO2 with effect from 1 July 2002, with the consequence that Mr Lever’s employment level at ANSTO remained within Band 5.  ANSTO purportedly contrasted the complaint of Mr Lever in that regard as to manifest inadequacy, where appearing in par 25 of the points of claim, with Mr Lever’s evidence, contained in par 45 of his affidavit, as to being ‘disappointed’ and having ‘… felt it was contrary to the representations that he had made to me in February 2001 to the effect that I would continue to be promoted’.  ANSTO referred in any event to the meeting on 21 August 2002 between Mr Lever, Dr Doherty and Mr Crakanthorp, and to the four representations, particularised by Mr Lever in relation to paragraph 26 of the points of claim, as having been allegedly made on that occasion by Dr Doherty, which four representations are reproduced below for ease of reference:

‘Particulars of conduct

 

(a)        Dr Doherty represented to the Applicant that ANSTO/Dr Doherty was required to keep “some relativity” between ANSTO employees in relation to their advancement, thereby implying that ANSTO/ Dr Doherty was entitled to not advance the Applicant for the sake of relativity with other employees, in circumstances where the Applicant ought to have been advanced on merit and in accordance with the classification processes;

 

(b)       That it would take the Applicant twelve years to be promoted to SPO1;

 

(c)        That Professor Garnett would never agree to the Applicant being promoted to SPO1; and

 

(d)       That ANSTO/Dr Doherty was not able to retrospectively address the issue of Mr Lever’s classification.’ 

 

141               As to the above first false representation above particularised by Mr Lever, it was summarised by ANSTO to the effect that the subject thereof was directed to the need for ‘relativity’ as between ANSTO’s employees with respect to ‘advancement’, it being common ground that in the course of that meeting, Dr Doherty said words to the effect of ‘I need to keep some relativity within IM’ (referring thereby to ANSTO’s Information Management Group).  It was contended by ANSTO that there was ‘no evidence in either person’s affidavit from which it can be concluded that this statement by Dr Doherty was false’.  That first alleged misrepresentation was repeated by Mr Lever in the course of his case in reply, where his counsel emphasised that ‘[ANSTO’s] submission [on this issue] flies in the face of the relevant industrial instruments that are before the Court and at all material times set out objective criteria for advancement [and] [t]he allegation that the statement was false is made out on the evidence’ without citing any relevant evidence. 

142               As to the above second false representation above particularised by Mr Lever, ANSTO pointed out that Dr Doherty had testified to being ‘fairly sure’ that he did not say what was purportedly attributed to him, since so much was not in fact his opinion at the relevant time.  It was submitted by ANSTO notwithstanding that what was so attributed to him was ‘… obviously only Dr Doherty’s opinion’, and further that ‘[o]n [Mr Lever’s] own evidence it was a soundly based opinion, because it was expressed immediately after Mr Crakanthorp had said he had taken 12 years to reach that grade’ (see again the second of the four particulars of alleged representations above).  It was the case of ANSTO that it would be ‘irrational to assert that the expression of such an opinion by Dr Doherty prevented [Mr Lever] from pursuing any review available to him of Dr Doherty’s decision to promote him’ to the extent that it did.  The response in reply of counsel for Mr Lever was to compare the seniority of Dr Doherty to the ‘relatively junior and relatively recently employed’ Mr Lever, and to contend that it ‘would be irrational to think other than such statements acted to prevent or hinder [Mr Lever] from exercising his rights to review’, and conversely furthermore, ‘… that was manifestly the intended effect of the statements’.  I found no sufficient assistance however from that submission in reply of Mr Lever, given Mr Lever’s evident maturity in years, his claims to successful business experience before joining ANSTO and his confidence of personality apparent in the witness box in the course of testifying generally. 

143               As to the above third false representation pleaded by Mr Lever, ANSTO acknowledged that Professor Garnett was its Executive Director at the material time, and moreover that Dr Doherty agreed that he said words to similar effect, though upon the basis that so much represented his personal opinion.  It was ANSTO’s response nevertheless that it would be ‘irrational to assert that the expression of such an opinion by Dr Doherty prevented [Mr Lever] from pursuing any review available to him of Dr Doherty’s decision not to promote him’, being a response to which Mr Lever did not rejoin adequately or at all.  Mr Lever submitted in reply in any event that such so-called representation as to Professor Garnett ‘had no basis in fact and was false’, pointing out that Professor Garnett was not called by ANSTO as a witness and the Jones v Dunkel inference must be applied.  I have difficulty in drawing any such inference in the circumstances attending the present issue, but in any event, the ANSTO response was not shown to be otherwise than correct, and I am unable to understand where the submission effectively took Mr Lever’s case as to alleged actionable representation. 

144               As to the fourth false representation so particularised above by Mr Lever, being that ‘ANSTO/Dr Doherty was not able to retrospectively address the issue of Mr Lever’s classification’, ANSTO observed that the evidence, on which that representation was said to have been falsely made, was seemingly based on the statement attributed to Dr Doherty by Mr Lever that ‘I cannot do something retrospectively’.  ANSTO pointed out in relation to Mr Lever’s account of the conversation that it was not clear what was that ‘something’ to which Dr Doherty might have been referring.  In Dr Doherty’s narrative of that conversation, he explained in any event that his words were to the effect, ‘I can’t go back and retrospectively set your objectives at that level’, referring thereby to the predetermined work objectives by reference to which an ANSTO employee’s work performance in each financial year fell to be measured.  Under the CAS in operation at that time, so ANSTO further pointed out, at least one method for an employee to obtain promotion to a higher grade was to demonstrate, in the course of an assessment year, his or her capacity to work at the relevant higher grade by achieving predetermined work objectives commensurate with work at the grade to which the employee was seeking promotion.  ANSTO emphasised accordingly that the setting of such work objectives retrospectively ‘would obviously be highly artificial’, that ‘Dr Doherty’s statement was quite unremarkable, and unlikely to have been false’, and that ‘[Mr Lever] has tendered no evidence from which it can be concluded that the statement was false’.  ANSTO submitted moreover that none of the four alleged false representations prevented Mr Lever from pursuing any review of ANSTO’s decision-making otherwise available to him, and that Mr Lever had ‘only asserted that they were intended to induce him not to seek, or to discourage him from seeking, a review’, but had not asserted ‘his right to make his own decision about a review was taken away from him’.  Consequently ANSTO contended that Mr Lever was in reality charging merely that ‘[ANSTO] sought to influence the decision [Mr Lever] made’.

145               In any event, in relation to the second series of breaches pleaded by Mr Lever in his points of claim, ANSTO submitted that the same were propounded in his submissions in merely ‘a cursory way’.  From what I have already detailed earlier in relation to Mr Lever’s presentation of that series of breaches, it was not a simple task for Mr Lever to obviate the validity of that submission.  Even if there was nothing contained in the so-called ‘relevant industrial instruments in place at the time [which] support the assertions of Dr Doherty as to the reasons for not advancing [Mr Lever] to [SPO1]’, so ANSTO’s submissions continued in relation to this second series of breaches, it did not follow that ‘those representations were false or that they injured [Mr Lever] in his employment’.  ANSTO was at least substantially correct in its contention to the effect that Mr Lever’s submissions upon the second series of breaches were lacking in persuasive force and did not have the purported nature, effect or legal consequences for which Mr Lever contended.  There was in my opinion clear force in that submission.  The impression I tended to gain from the presentation of the case articulated by Mr Lever generally was that it was enough for Mr Lever to advance a purported proposition in the course of addressing an issue he had raised, whether by pleading or submission, in order that ANSTO become obliged to establish the converse or suffer the consequences of the operation of the reverse onus of proof pursuant to s 298V.  In other words, there was a tendency on the part of Mr Lever to misstate the operation in his favour of s 298V, which is confined in scope relevantly to ‘[allegations] that … conduct was … carried out for a particular reason or with a particular intent’. 

ANSTO’s response to the third series of breaches pleaded by Mr Lever

146               The third series of breaches pleaded by Mr Lever in his points of claim involved perhaps a more significant avenue of controversy, arising purportedly in the context of the meetings, correspondence and mediation which occurred in the period of time from August to December 2002, and which ultimately did not cause Dr Doherty to change his mind in relation to Mr Lever’s classification.  Mr Lever required of course that his employment classification claims be fully granted in order for his dispute with ANSTO to be resolved, to which outcome ANSTO was not prepared to accede in the course of the events which happened.  ANSTO’s description of the relevant happenings the subject of this third series of breaches may be summarised to the effect that Mr Lever’s inability to accept that classification outcome on ANSTO’s part caused him to attribute his lack of success to ANSTO’s ‘frustration or blocking of his efforts’, whereas the reality of what occurred, so ANSTO’s submissions continued, was that Mr Lever’s efforts to secure the advancement in promotion to which he aspired were simply unpersuasive from ANSTO’s perspective.  I think that Dr Doherty’s email in particular, upon which ANSTO’s submission here relevantly focused, containing as it did the words ‘Ron, for your own sake, I beg you one last time not to pursue this’, was antithetical to the notion of threat, both literally and in the context in which it was sent, and supported the foregoing ANSTO contentions relating to the third series of breaches.  So much was consistent with Dr Doherty’s email of 13 December 2002 to Mr Lever containing the words ‘No, not at all’, sent in response to Mr Lever’s email of the preceding day in which Mr Lever enquired ‘[a]re you saying my future employment here at ANSTO is at risk if I pursue this?’  ANSTO correctly denied that its first email contained realistically any threat, and moreover correctly characterised its second email in response, containing the words ‘No, not at all’, as having unequivocally contradicted the construction which Mr Lever had sought to place on the first email.

147               Further to the third series of breaches pleaded by Mr Lever, involving the alleged representation by Dr Doherty to Mr Lever that ‘Professor Garnett would not agree to promote [Mr Lever] into another band’, made allegedly for the purpose of persuading Mr Lever against, or preventing him from, pursuing the resolution of his classification dispute, and accordingly for ANSTO to have contravened pars (b) and (c) of s 298K(1), ANSTO submitted in response that no evidence was identified in support of any such allegation of breach.  ANSTO opined that perhaps reliance may have been intended by Mr Lever to be placed upon Dr Doherty’s email to him of 24 September 2002, which contained the following:

‘… I’ve been through a whole morning of role comparisons across the organisation, discussions which make me certain that Helen would not accept an entire band swap even if I were to propose it …’ (Dr Doherty referring thereby to Professor Helen Garnett.)

 

ANSTO was correct in its view that such email reflected an opinion of Dr Doherty by way of forecast of an outcome, and did not purport to prevent Mr Lever from pursuing his classification dispute, and that decision-making remained implicitly and inherently with Mr Lever as to whether or not he would pursue his classification dispute.  I am unable to perceive how it could rightly be maintained that such emailed statement had the effect either of injuring Mr Lever in his employment or of altering Mr Lever’s position to his prejudice within the meaning of the relevant statutory provisions.  Mr Lever’s submission in reply that the content of the foregoing email ‘… did have the effect of injuring [Mr Lever] in his employment’ demonstrated a shortcoming in Mr Lever’s understanding as to the nature and extent of the prima facie material which needed to be in place in order that the imputation of the evidentiary onus might have taken effect. 

148               Accordingly ANSTO submitted, in my opinion correctly, that Mr Lever did not establish that the conduct pleaded in par 33 of the points of claim contravened s 298K(1), and it therefore becomes unnecessary for me to further consider the reasons for any such conduct so propounded by Mr Lever, and whether those reasons were prohibited by s 298L(1).  In that regard, Dr Doherty testified that his reason generally for refusing to concede to Mr Lever’s claims was his conviction that his original decisions were correct.  ANSTO maintained that ‘[i]n none of the evidence is there any mention of matters that would suggest that Dr Doherty had one of the [four] prohibited reasons alleged by [Mr Lever]’.  Those four reasons comprised what appear in subpars (a) to (d) of par 34 of the points of claim earlier extracted by reference to this third series of breaches, and which ANSTO submitted should be dismissed for the following (and earlier foreshadowed) reasons in summary:

(i)                  Dr Doherty had made his most recent decision about the appropriate employment classification of Mr Lever on 2 August 2002 before becoming aware of Mr Lever’s appointment as a union delegate, and that it was ‘fanciful to suppose that [ANSTO’s] reason for maintaining the correctness of [Mr Lever’s] classification should suddenly change in August 2002 because [Mr Lever] had then become a union delegate’;

(ii)                there was no suggestion in the evidence, or in Mr Lever’s submissions, that his entitlement to the benefit of an industrial instrument was an issue or even a topic of discussion at the time of the conduct complained of;

(iii)               Mr Lever had not established, or even alleged, that he ceased to be entitled to the benefit of an industrial instrument by reason of ANSTO’s conduct; and

(iv)              Dr Doherty’s conduct was motivated by a belief that he correctly classified Mr Lever as not by then qualified for promotion to SPO1.

They were reasons of substance which merited careful and comprehensive address by Mr Lever. 

149               In an apparent endeavour to invoke the operation of pars (i) and (j) of s 298L(1), Mr Lever asserted by his points of claim (appearing in the subpar (b) particulars to par 34) that he ‘… had sought a mediation session, a Peer Review and/or a Reference Panel to assist in the resolution of his classification dispute’.  I have difficulty in comprehending how any of those processes may have constituted ‘a proceeding under an industrial law’within legislative paragraph (j), since the notion of ‘proceeding’ connotes a form of curial process.  Mr Lever’s affidavit evidence disclosed of course that he participated ultimately in the mediation which was chaired by ANSTO’s Human Resources Officer, Ms Blackbourn, having ‘forborne from seeking peer review’ on 12 December 2002, as submitted by ANSTO, and having then sought a reference panel in April 2003.  In any event, ANSTO emphasised that Mr Lever was ‘obliged to establish by evidence the factual components of the descriptions’, as contained in pars (i) and (j) of s 298L(1), concerning ‘the prohibited reasons’ which he propounded.  I was referred in that context to what was observed by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161] that s 298V is ‘to be construed as an aid to proof of the intent or reason of the respondent which motivated, or formed part of the motivation for, the [employer’s] conduct… [and] is intended to alleviate the difficulties of proof by one party of the state of mind or motivation of another …’.  Clearly, so ANSTO’s submissions continued on present point, Ms Blackbourn as a so-called ‘internal mediator’ was merely an employee of ANSTO and had no powers under an industrial law, ‘whether to make binding orders as to a person’s rights or otherwise’, and accordingly her function ‘plainly did not meet the descriptions in s 298L(1)(i) or (j)’.  ANSTO therefore submitted that ‘[n]o circumstances existed in which the prohibited reasons specified in s 298L(1)(i) and (j) could sensibly be alleged, much less presumed under s 298V’.  ANSTO added for completeness that ‘[i]t is significant that the contemporaneous documents written by [Mr Lever] make no allegation of any of the prohibited reasons now alleged’.  There is clear force in those ANSTO submissions. 

150               Further as to the third series of breaches, ANSTO next addressed Mr Lever’s submission to the effect that performance of his work at ANSTO satisfied the criteria for a higher classification in ANSTO’s new classification system which was introduced on 1 July 2002, and his further allegation that ANSTO’s ‘human resources department had agreed with his argument in July 2002’, though ANSTO pointed out that Mr Lever complained that ANSTO ‘nevertheless did not accept his argument and refused to reclassify him’.  ANSTO was dismissive of that submission of Mr Lever in any event for the following reasons which it advanced:

(i)                  the submission did not establish that its conduct alleged by Mr Lever, in the four segments of examples set out in subparagraphs (a), (b), (c) and (d) respectively in par 33 of the points of claim, appearing under the heading ‘Particulars of Breaches’ (which I have already extracted from Mr Lever’s submissions), was prohibited by s 298K;

(ii)                in any event ‘[t]he argument in paragraphs 94 to 102 of [Mr Lever’s written] submissions can only relate to the conduct alleged in subparagraph 33(a) because subparagraphs 33(b) and (c) specifically refer to separate conduct and subparagraph 33(d) seeks to invoke s 298K(1)(e), which is not available to existing employees’; and

(iii)               none of the matters pleaded in Mr Lever’s written submissions established conduct described pejoratively by Mr Lever as ‘blocking or frustrating the Applicant’s attempts to resolve his classification dispute’ (as par 33(a) of the points of claim averred); the reality of the situation was said to be rather that the events of July to November 2002 did not produce a resolution of the dispute, Mr Lever’s arguments not having persuaded ANSTO in the context of the events which occurred; there is I think force in those ANSTO rejoinders. 

Each of the paragraphs and subparagraphs referred to above has of course been earlier extracted in full within the text to the third series of breaches. 

151               It follows from what I have recorded, and from the indications I have above foreshadowed in the present segment of these reasons, that having considered the respective submissions of the parties which I have outlined in relation to this present series of breaches of Mr Lever’s case, I have been unable to identify sufficient viability in favour of Mr Lever in relation to the themes and thrust of the third series of breaches.  Mr Lever’s characterisation of ANSTO’s conduct as ‘blocking or frustrating’ was an inaccurate as well as an unjustifiably pejorative description of ANSTO’s responses addressed in that third series of breaches, as I think ANSTO asserted on reasonable grounds.  In that regard, ANSTO pointed with justification to the following further factors established by the evidence:

(i)                  Ms Houseman’s role analysis was predicated on Mr Lever’s description of his employment position or status as a so-called ‘project leader’, with which description Dr Doherty disagreed on objective grounds reasonably apparent, and so informed her;

(ii)                Mr Lever’s interpretation of the so-called ‘Role Characteristics document’ (Exhibit D), which, as Mr Lever submitted, supported the claim that he should have been classified at Band 6 because of the specialised nature of his work, took no account of the circumstance that Band 5, at which ANSTO classified Mr Lever, also embraced within its scope ‘specialised knowledge’ as a role characteristic;

(iii)               Mr Lever’s submissions contained no, or no persuasive, explanation of Exhibit A (tendered of course by Mr Lever in the proceedings), the meaning whereof ANSTO described as ‘not obvious on its face’; when cross-examined thereon, Dr Doherty asserted that the document was more complicated than the description portrayed by counsel for Mr Lever; and

(iv)              the two sides of the debate were exemplified in any event by the circumstance that Mr Lever considered his position to match eight of the characteristics of Band 6, whereas Dr Doherty considered that Mr Lever’s work position matched Band 4 in six characteristics and Bands 5 and 6 in five characteristics, and Mr Crakanthorp considered that Mr Lever’s work position matched Band 5 in six characteristics and at Band 6 in five characteristics; accordingly both Dr Doherty and Mr Crakanthorp as decision-makers individually adjudged that Mr Lever’s work was appropriately graded at a level lower than Band 6 on grounds reasonably open to each of them.

I should add that in the course of submissions of Mr Lever in reply, the Court’s attention was drawn to pages 480-486 of the evidence taken in mediation between the parties which took place on 20 November 2002, and to par 30 of Mr Lever’s affidavit of 17 November 2006, in support of a submission that ANSTO ‘… misconstrue[d] the effect of the evidence as to the Role Characteristics document’, upon the basis that the ‘unchallenged evidence of [Mr Lever there given] must be accepted’, and that accordingly ‘[Mr Lever] is prima facie at band 6’, with the consequence that ‘[t]he failure to accord [Mr Lever] a reclassification at that level was therefore an injury in his employment’.  I am unable to accept that any such material overcomes the hurdles presented at least by the evidence summarised in subpars (i) to (iv) above.  It was at best an extraordinarily ambitious submission for Mr Lever to advance, at least in any such framework. 

152               I do not think that it is necessary for the Court to record anything further of the debate between the parties as to the justification or otherwise of the intrinsic merits of the respective gradings made by Dr Doherty and Mr Crakanthorp concerning Mr Lever’s employment skills.  I am not persuaded that the gradings assessed by those senior ANSTO employees at those relatively modest levels to which I have referred, when compared with Mr Lever’s own assessment of his relevant skills, were so assessed other than bona fide and without regard to Mr Lever’s trade union relationship or to any implications of that relationship.  Nor am I persuaded that as a consequence, his aspirations to SPO1 ranking or categorisation were denied or rejected on account of his trade union connections, to the extent (if at all) that such connections may have existed at the times material to ANSTO’s assessment of his qualifications for promotion to the ranking to which he aspired.  Accordingly as I have foreshadowed, I think that ANSTO correctly described as ‘superficial and unhelpful’, and without justification, Mr Lever’s claim that its characterisation of his employment skills for the purpose of promotion within ANSTO, to the level to which he aspired, was (to adopt the precise wording of his written submissions), ‘… in part motivated by his active union involvement’.  A similar observation should apply in my opinion in relation to what Mr Lever’s submissions described as conduct attributable to ANSTO by way of ‘seek[ing] to deter [Mr Lever] from the peer review process’.  In each of those respects, the existence of the statutory ‘reverse onus’ provisions of s 298V did not so operate as to take Mr Lever the distance required for the Court to reach the decision for which he contended. 

ANSTO’s response to the fourth series of breaches pleaded by Mr Lever

153               This next segment of controversy addressed by ANSTO related to Mr Lever’s claim for payment of overtime, that segment involving the fourth series of breaches pleaded by Mr Lever.  It related to alleged contraventions of pars (b), (c) and (e) of section 298K(1), for reasons proscribed by section 298L, concerning injury to employment, altering prejudicially an employment position and discrimination in employment.  In the course of my summary of Mr Lever’s case in chief relating to this fourth series of breaches, I have referred to evidence concerning the controversial dialogues between Mr Lever and ANSTO’s senior officers Messrs Cullen and Crakanthorp relating to what were described broadly in the submissions of the parties as Mr Lever’s ‘union activities’.  In the course of his evidence, Mr Crakanthorp presented a different scenario to that provided by Mr Lever as to what relevantly occurred, in that he emphatically rejected the proposition that Mr Lever’s request for paid overtime work was denied by reason of Mr Lever’s ‘union activities’.  Mr Crakanthorp testified that although Mr Lever’s request for overtime work was indeed rejected, the reason for that rejection was the absence of any need for Mr Lever to work overtime at all, there being no ANSTO operational requirements in that regard, which appears to have been the case.  Moreover Mr Lever did not distil a statutory basis for any proposition to the effect that he was entitled to undertake trade union work in lieu of ANSTO work during working hours, much less to the extent in terms of duration that he apparently devoted to trade union work during working hours.  Nevertheless it was for that reason that he appears to have maintained an entitlement to attend to his usual employment duties at ANSTO out of ordinary hours at overtime rates.  Mr Cullen’s testimony involved denial on his part as to refusal of any request of Mr Lever for overtime work, in that he claimed to have made clear to Mr Lever that any approval for overtime work was not his (that is Mr Cullen’s) responsibility, and further that decision-making on that subject was a matter entirely for senior management’s discretion.  Moreover Mr Cullen was emphatic that Mr Lever’s trade union activities were not mentioned by Mr Lever at all in the course of his (ie Mr Cullen’s) discussions, either with Mr Lever or with Mr Crakanthorp, at least in the context of any overtime claims made by Mr Lever.  

154               ANSTO’s submissions on this fourth series of alleged breaches were further to the effect that the reality of Mr Lever’s request for payment of overtime was that Mr Lever thereby sought ‘a special arrangement in order to boost his earnings’, being an arrangement which was denied as such by ANSTO.  Mr Lever conceded that paid overtime required ANSTO’s approval, and he denied having sought payment of overtime for financial reasons, and asserted unspecifically that his reason was to enable him to ‘cope with the workloads that [he] had’.  ANSTO submitted that Mr Lever was ‘no worse off after [his request for overtime] was refused than before he made the request’, Mr Lever having merely ‘sought an exceptional arrangement for himself [which] was refused’.  There was force in that ANSTO submission. 

155               Moreover ANSTO asserted that Mr Lever ‘was not refused the ordinary opportunity to work overtime as the need arose’, and that there was no evidence to the contrary.  ANSTO submitted therefore that its refusal of Mr Lever’s request, such as it was (or such as his requests were) ‘did not injure him in his employment or alter his position to his prejudice’, and further that such refusal(s) did not ‘discriminate against him in the terms or conditions on which [ANSTO] continued to employ him’.  In that latter regard and for what it may matter in the light of the foregoing findings, ANSTO pointed out in any event that s 298K(1)(e) does not apply to existing employees, in that pars (d) and (e) of that subsection refer only to ‘another person’, that is to say of course, a person to whom employment is offered rather than an existing employee, which I think as a matter of statutory interpretation is correct.  Put another way therefore, ANSTO’s case on present point was that its withholding of approval to overtime work was not ‘conduct’ in the nature of discrimination within s 298K(1)(e), nor did it ‘injure’ Mr Lever, nor ‘alter the position of [Mr Lever] to [his] prejudice’, within pars (b) or (c) also of s 298K(1).  ANSTO further submitted that those conclusions were even more compelling, in the light of Mr Lever’s testimony that his request for overtime was not for financial reasons but merely to enable him to better manage his workload, albeit that his workload was in reality largely in the nature of ‘union work’ or allegedly so.  In that regard I should record for completeness that Mr Lever testified as follows in response to Mr Cullen’s observation to the effect that his workload included in reality ‘union work’:

‘That won’t solve any problems, someone still has to do it.  I do not like the idea of leaving these matters unresolved, I think I should at least follow it through to completion of the matters I have at hand … .’

 

The evidence is unclear as to specifically what were those matters and why they actually constituted ‘union work’ in any ANSTO workplace context. 

156               ANSTO joined issue therefore upon the contention of Mr Lever that the testimonial evidence of Mr Cullen and Mr Crakanthorp indicated that ANSTO’s refusal of Mr Lever’s request was for a ‘prohibited reason’ falling within the scope of s 298L(1) of the Act, and that accordingly the statutory onus of disproving the existence of a ‘prohibited reason’ imposed by subsection (2) thereof had been discharged by Mr Lever.  ANSTO placed reliance moreover upon what I have earlier recorded of its submissions in denial relevantly of the operation of any aspect otherwise of s 298L.  Consequently ANSTO submitted that it became unnecessary for the Court to consider the reasons for any conduct prohibited by s 298L(1) in particular, but that were it necessary to do so, Dr Doherty had established that ‘his reason for refusing to concede [Mr Lever’s] claims was his conviction that his original decisions were correct’.  ANSTO further submitted that Dr Doherty denied ‘the several prohibited reasons improbably hypothesized by [Mr Lever] in paragraph 34 of the [points of claim]’, namely as to Mr Lever having been a member of an ‘industrial association’(that is the CPSU), or as to Mr Lever having sought the assistance of a mediation session, peer review or a reference panel to assist in the resolution of his classification dispute, ANSTO thereby purportedly picking up reference to pars (a) and (i) of s 298L(1).  It was submitted by ANSTO in that context that Dr Doherty testified that his reason for refusing to concede Mr Lever’s claims was his conviction that his original decisions were correct, and ANSTO denied the several prohibited reasons ‘improbably hypothesised’ in par 42 of the points of claim as to any ANSTO motivation falling within any aspects of s 298L(1). 

157               ANSTO further submitted that Mr Lever’s invocation of par (n) of s 298L(1) was without foundation, and moreover that Mr Lever ‘tendered no evidence that would make it apt’, pointing out that he had not nominated any ‘act or thing’ that he had done or proposed to do ‘for the purpose of furthering or protecting the industrial interests of [an] industrial association …’.  Nor had Mr Lever established, so ANSTO’s submissions additionally or alternatively continued, that any such ‘act or thing’ fell ‘within the limits of an authority expressly conferred on [him] by [an] industrial association under its rules’.  ANSTO characterised that allegation as ‘arbitrary and fanciful’, there being said to be ‘no evidence consistent with a hypothesis that [ANSTO] was actuated by this [par (n)] reason’. 

158               The reply of Mr Lever to the foregoing ANSTO submissions was that they were ‘unpersuasive’, and that ‘[t]he refusal to grant overtime was a decision that caused [Mr Lever] to lose the opportunity to earn overtime’, that being ‘an injury as properly understood’, since ‘[a] decision to not allow an employee to access overtime is clearly injurious of that employee’s employment’ and ‘[t]o suggest otherwise is disingenuous’.  No authority was cited for those broadly framed submissions of Mr Lever in reply, which in my opinion seemingly lacked persuasive force. 

ANSTO’s response to the fifth series of breaches pleaded by Mr Lever

159               This complaint of Mr Lever related to alleged breaches of pars (b), (c) and (e) of s 298K(1), which were said to have been constituted by Professor Garnett’s refusal of Mr Lever’s request for referral of his classification dispute to a reference panel, however Mr Lever subsequently acknowledged in submissions in response that ‘s 298K(1)(e) is inapplicable to the instant events’.  By clause 39.1 of the Australian Nuclear Science and Technology Organisation Enterprise Agreement 2002, which was certified pursuant to s 170LT (now repealed) of the Act, and clause 39.14 of that Agreement in particular, it was provided that appeals required to be dealt with under that clause 39 be lodged with the Executive Director within 14 days of the decision under appeal.  By letter dated 23 May 2003, ANSTO notified Mr Lever that it had refused his request for the convening of a reference panel for the reasons, as so submitted by ANSTO, that the appeal ‘related to decisions made more than 14 days earlier’ and Mr Lever ‘had failed to sign his work objectives and assessment forms for recent years’.

160               ANSTO therefore argued that since Mr Lever’s ‘request for a reference panel was well out of time, the refusal of it did not cause injury to [Mr Lever] in his employment, and was not an alteration of his position to his prejudice’, and that accordingly there was no breach on its part of pars (b) and (c) of s 298K(1).  Mr Davies testified that he drafted the foregoing letter to Mr Lever of 23 May 2003, notwithstanding that it was signed by Professor Garnett, and moreover that he had in fact recommended to Professor Garnett that she similarly should refuse other requests made out of time for reference panels.  He further testified that his said recommendation ‘was not in any way based on Mr Lever’s union membership, his role or activities as a union delegate, or his previous attempts to seek review’, and moreover that he ‘… was conscious of trying to deal with Mr Lever’s issues as an employee separately from issues in which he might be involved as a union delegate’.  Accordingly it was submitted by ANSTO that ‘[t]his evidence establishes that the reason for the refusal of [Mr Lever’s] request was not any of the prohibited reasons hypothesised by [Mr Lever]’, that is to say, for any ‘prohibited reasons as proscribed by Section 298L of the pre-reform WR Act’, as indeed Mr Davies had confirmed in his evidence appearing in par 2 of his affidavit of 10 November 2006, and in particular pars (i) or (j) of subsection (1) thereof.  Moreover as to any operation in the present context of par (n) of that subsection, ANSTO pointed to the absence of any evidence tendered by Mr Lever in order to bring about its operations.  For instance Mr Lever had not nominated any ‘act or thing’ which was ‘within the limits of an authority expressly conferred on [him] by the industrial association under its rules’ and otherwise any of the requirements of s 298L(1)(n).  I did not identify any basis within the scope of Mr Davies’ evidence persuasively to the effect that it was given other than truthfully and with substantial accuracy. 

161               Moreover ANSTO contended that Mr Lever’s ‘argument was barely stated, without any reasoning’ and misconceived, for the following reasons:

(i)                  the decisions, in respect of which Mr Lever sought a reference panel, concerned his classification for the financial years 2000-2001 and 2001-2002; having received notice of those decisions from Dr Doherty on 2 August 2002, Mr Lever’s request for a reference panel was made eight months or so later and was thus well out of time; in any event the request related to something to which Mr Lever had no entitlement, because it was made out of time;

(ii)                the refusal of the request was not contrary to any ANSTO practice, and Mr Lever was not thereby treated less favourably than other employees had been treated; the refusal therefore did not injure him in his employment within par (b) of s 298K(1); and

(iii)               it was unnecessary to adduce testimony from Professor Garnett in order to discharge any onus of proof under s 298V otherwise crystallising in operation, not simply because ‘no prohibited conduct has been established for which the reason might be in issue’, but because Mr Davies testified to being asked by Professor Garnett to draft the response, which he did, to Mr Lever’s request, and Professor Garnett subsequently followed Mr Davies’ recommendation to refuse that request;

(iv)              moreover Mr Davies was described as ‘the real decision maker’ who testified as to his reason for that recommendation and denied the prohibited reasons raised by Mr Lever, and there was no good reason advanced as to why Mr Davies’ evidence in that regard should not be accepted. 

162               Those foregoing submissions of ANSTO concerning the theme and detail of the so-called fifth series of breaches have in my opinion inherent cogency.  Mr Lever’s response was essentially to join issue and assert that ‘[a]gain, the failure to call Professor Garnett who signed the letter leaves the necessary Jones v Dunkel inference open and, in the light of the presumption in s 298V, the breach ought to be found proved’, but I do not think that in all the circumstances there was substance in that rejoinder. 

ANSTO’s response to the sixth series of breaches pleaded by Mr Lever

163               This segment of ANSTO’s responses was formulated in the context of Dr Doherty’s commencement of a period of extended leave in or about April 2003 and his subsequent retirement from his employment at ANSTO shortly afterwards on 17 July 2003.  At 5.17 pm on that last day, Dr Doherty sent an email to Mr Lever headed ‘Industrial Commission’ and which contained the following:

‘Ron, I heard that you had decided to not to [sic] proceed to the final IRC process.  Is this true?  I hope so.  I would not like to see you destroy your career prospects here unless you are planning to leave any way.  You still have good will amongst your ANSTO clients.’ 

 

Mr Lever replied however in the following terms:

‘Greg.  Thanks for your concern.  What I am trying to do is to get on with my work.  I have spoken to Crackers and we have agreed on some training and a future direction for this assessment year.  I want the past issues handled separately.  You will be sorry to hear that I am still trying to resolve these issues by other means.  Hopefully this will not interfere with my future.’

 

On the following day Dr Doherty responded as follows:

‘I am sorry to hear it, because I think it’s inevitable that it will affect your career here, but maybe you are not intending to stay in any case.  I’ll let it rest.’

 

164               Mr Lever pleaded by his points of claim that Dr Doherty sent him two emails on 17 July 2003, ‘… the content of which was drafted with the intent of dissuading or preventing [Mr Lever] from pursuing any industrial proceeding in pursuance of a resolution of his classification dispute’, that averment referring thereby to the foregoing emails I have set out above.  Those emails were further pleaded by Mr Lever to constitute a threat by Dr Doherty for the purpose of dissuading or preventing him from pursuing any such industrial proceedings, and constituted therefore conduct in breach of pars (b), (c) and (e) of s 298K(1).  It is difficult for Mr Lever to sustain reliance upon at least par (e), since that paragraph describes conduct of an employer by whom employment is offered, and not to an existing employee.  As to operation relevantly of s 298L(2) by reason of any such alleged threat within s 298K(1), it is further difficult for Mr Lever relevantly to sustain the same, because neither email of Dr Doherty could reasonably be construed as constituting a threat to engage in conduct proscribed by s 298K(1).  I was referred in that context once more to the meaning of threat described in dictum in Community and Public Sector Union, upon the footing that Dr Doherty’s foregoing emails involved merely expressions of opinion and prediction, which I think to be correct, and which were ignored by Mr Lever in the events which subsequently happened.  Accordingly I think that ANSTO’s position so adopted was correct.  For completeness I would add that Dr Doherty explained that his reasons for sending his foregoing emails was for the ‘long term welfare’ of Mr Lever.  I do not think that Mr Lever’s invocation made by par 52 of his points of claim, for the operation affirmatively in his favour of any one or more of pars (a), (h), (i), (j) and (n) of s 298L(1), has any sound or persuasive basis.

165               I should add for completeness in the present context that Mr Lever submitted that Dr Doherty’s two emails of 28 September 2006, which I have already cited and partially extracted, ‘… could only have been sent as a veiled threat by Dr Doherty, in his capacity as an agent, employee and/or officer of [ANSTO] [in relation] to both his classification dispute with [ANSTO] and his active role as a union delegate and site president for the CPSU’.  Mr Lever further submitted that ‘Dr Doherty’s denials in cross-examination were not persuasive’, and described Dr Doherty’s foregoing emails to Mr Lever as not ‘personal missives’ as Dr Doherty had testified, but rather were ‘accurate reflections of the views and attitude of [ANSTO’s] organisation more generally’, and could ‘… only be seen as injurious to [Mr Lever’s] position and … clearly made for prohibited reasons’.  Each of the foregoing descriptions or characterisations is not how I would seek to describe the content of the subject emails in the context in which the same were brought into existence, nor according to the text thereof in which the same were framed.  Nor am I of the view that the present segment of Mr Lever’s case is relevantly assisted or to be resolved in Mr Lever’s favour on account of any operation of the so-called ‘reverse onus’ stipulated by s 298V, as Mr Lever also contended.  I would characterise those contentious emails as pitched no higher than bona fide counsel and advice volunteered in nothing less than language of friendly as well as conciliatory farewell, and also of goodwill, expressed in the context of what was closure of the relationship personally between Dr Doherty and Mr Lever. 

166               In reply, Mr Lever submitted that ‘[t]he threat was a generalised one … to the effect that [Mr Lever’s] continued actions would, in the words of Dr Doherty, “destroy your career prospects”’, that being sufficient, so submitted by Mr Lever, ‘to amount to prohibited conduct’ pursuant to pars (b) and (c) of s 298K(1), especially in the light of s 298L(2).  I would not so characterise Dr Doherty’s foregoing emailed statements, given the entire context in which the same were made and framed, as having been such as to have invoked the statutory notion of threat.  I would characterise those statements to have involved no more than attempted persuasions. 

ANSTO’s response to the seventh series of breaches pleaded by Mr Lever

167               It will be recalled that par 54 of Mr Lever’s points of claim purportedly picked up reference to two events alleged by Mr Lever to have taken place in September 2003, being events which ANSTO described as ‘separate’.  The first such event related to an offer alleged by Mr Lever to have been made by Mr Davies to him during a telephone conversation on 3 September 2003, in the course whereof Mr Davies was said to have stated that ‘I have spoken to Ian Cullen’, and that ‘[h]e has authorised me to offer to set your objectives for promotion in the 2003/2004 year as long as you don’t proceed with the Reference Panel’.  Mr Davies denied having said words to the effect of ‘… as long as you don’t proceed with the Reference Panel’.  In any event, ANSTO submitted that ‘… even if [Mr Lever’s] version of Mr Davies’ statement is preferred, it amounts merely to an offer which [Mr Lever] was free to accept or reject’, and ‘[i]t was not a threat to injure him in his employment or alter his position to his prejudice’.  I was referred in that context to Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34, where at [244] of the reasons for judgment of Nicholson J the following appears:

‘It is not necessary to proceed to detailed fact finding on these propositions because I consider s 298K(1)(b) has the following effect in respect of voluntary redundancies:

(1)        An offer of voluntary redundancy is not a threat to injure an employee in his or her employment.  It is an offer the employee may accept or reject.’

168               It was next submitted by ANSTO that Mr Lever ‘put his version of Mr Davies’ “offer” in an email’, to which Mr Cullen replied immediately ‘I don’t recall making such an offer … for the record’.  That conversational version was said by ANSTO to ‘corroborate Mr Davies’ denial of the words put in his mouth by [Mr Lever]’.  ANSTO next submitted that the second event alleged in par 54 of Mr Lever’s points of claim, namely as to ANSTO having allegedly ‘… “threatened” to carry out a role analysis in relation to [Mr Lever’s] position, for the purpose of dissuading or preventing him from pursuing a reference panel in resolution of his classification dispute’, appeared to be ‘the second event alone that is alleged to constitute a breach of s 298K(1)’.  ANSTO indicated that Mr Lever’s present complaint, as related to ‘this second event’, appeared to be a telephone conversation which Mr Lever said he had conducted with Mr Davies on 11 September 2003, and in relation to which the alleged ‘threat’ on that day could only have been contained within one or more of the following statements attributed to Mr Davies by Mr Lever on that occasion:

(i)         ‘Before we have a Reference Panel we would like to do a role analysis of your role’;

(ii)        ‘A role analysis could be of benefit to you in a reference panel’;

(iii)       ‘I’ll have to formally record that you refused to have a Role Analysis done’;

(iv)       ‘Are you sure you don’t want to reconsider having a role analysis?’

169               ANSTO submitted that ‘[n]o reasonable person could construe any of those statements as a threat to carry out a role analysis’, and further that the same ‘read like offers’ and ‘[i]ndeed the responses [Mr Lever] says he made to these statements are consistent with his treating them as offers’ which he declined.  I would observe that the third version would be perhaps the more controversial.  In any event, ANSTO made the submission further that ‘[i]t is even more bizarre to infer from these statements that Mr Davies’ purpose was to dissuade or prevent [Mr Lever] from pursuing a reference panel’.  Mr Lever did not appear to testify that he was dissuaded from pursuing the reference panel process by reason of any of those statements attributed by him to Mr Davies.  Be that as it may, ANSTO submitted further that it would have been ‘remarkable’ if any of those statements in reality  had any such effect, and further that in any event, ‘… attempting to dissuade an employee from such a course of action cannot be conduct of the kind described in s 298K(1)(b) and (c)’, since ‘[i]f the attempt succeeds and the employee is dissuaded, the status quo is preserved’, but ‘[i]f the attempt fails, the employer’s conduct has not affected the employee’s exercise of his free will’.  There was clear force in those ANSTO responses. 

170               Addressing specifically the text of par 55 of the points of claim (being of course part of the subject of the seventh series of breaches), ANSTO submitted further that there was no substance in the hypothesis of Mr Lever that the reasons for the conduct of Mr Davies which par 54 thereof purportedly addressed were reasons falling within the scope of pars (a), (h), (i), (j) or (n) of s 298L(1).  ANSTO submitted yet further that s 298L(2) had no application, since of the five different reasons prohibited by subs 298L(1) and relied upon by Mr Lever, ‘… the only ones that could satisfy s 298L(2)(b) are the reasons in s 298L(1)(i) and (j)’, yet the same did not here arise because:

(i)                  the pursuit of a reference panel is not an inquiry or complaint of the kind described in s 298L(1)(i); and

(ii)                s 298L(1)(j) does not crystallise in operation because a reference panel is not ‘a proceeding under an industrial law’, the definition of an ‘industrial law’ contained in s 298B not including a certified agreement and the reference panel being a creature of the certified agreement and not of any industrial law.

Moreover ANSTO  submitted that s 298L(2) would not apply by reason of par (c) not having been satisfied (ante).  There was further force in those submissions. 

171               Generally as to Mr Lever’s submissions in support of the seventh series of breaches which I have earlier summarised in the course of my presentation of Mr Lever’s submissions in chief upon that segment of his case, ANSTO’s overarching rejoinder was that those submissions ‘misrepresent the state of evidence in respect of [Mr Lever’s] documentation for the assessment years 2000-2001 and 2001-2002’, in that those submissions contained the claim that ANSTO ‘… was responsible for the failure to complete documents required by [ANSTO’s] CAS and HRES P 4.1 procedures, including the setting of objectives, in respect of [Mr Lever]’.  The evidence was asserted by ANSTO to demonstrate rather that ‘this failure was entirely due to [Mr Lever’s] refusal to complete his section of them’, and moreover that evidentiary references made by counsel for Mr Lever ‘… do not support the submission and are not even related to the submission’, and instead ‘[t]he submission ignores a substantial body of evidence contradicting the submission’.

172               In further support of those ANSTO submissions, I was referred by ANSTO to the following evidentiary matters:

(i)                  Mr Lever’s claim to have informed Mr Davies in August 2002 that ‘Greg Doherty is asking me to sign my CAS forms, but I’m still in dispute’, and his further claim that Mr Davies told him not to sign the same;

(ii)                Mr Davies denial of that conversation, and his explanation as to why he would not have said any such thing, which I would interpolate to observe was at least to be anticipated in the circumstances; 

(iii)               the contents of Mr Lever’s letter of 1 July 2003 to Mr Cullen, where in relation to the assessment years 2000-2001 and 2001-2002, Mr Lever wrote ‘[a]lthough a decision was recorded by my then Project Director on the 2^nd August 2002 for both assessment years, I did not submit the forms as I believed that I was working at a higher level’;

(iv)              Mr Cullen’s reply by letter of 4 July 2003 requesting the return of those CAS forms so that Mr Lever’s salary increase, such as it was, could commence, and Mr Lever’s continuing non-compliance with that request;

(v)                Mr Cullen’s repeated endeavours at subsequent meetings to persuade Mr Lever to sign and return those CAS forms, though without success until dispatch thereof by letter to Mr Cullen on 1 September 2003;

(vi)              Dr Doherty’s similar endeavours, along with those of Mr Crakanthorp; in that regard, Dr Doherty testified by affidavit as follows:

‘Over the course of mid to late 2002, Mr Crakanthorp and I subsequently tried to get Mr Lever to complete his objectives for the (then current) 2002-2003 review period. However, Mr Lever declined to sign off on these forms.  On one instance, Mr Lever made a statement to me in words to the following effect:

 

            “I am not disputing what my objectives are.  But the work which I am doing should be recognized as being at Band 6.  I’m not prepared to sign the objectives unless the work is recognized as Band 6.”’

 

ANSTO therefore submitted that there was ‘… a preponderance of credible evidence that it was [Mr Lever] who delayed the completion of these documents, which resulted in the delay in setting the objectives’, and further that ‘[i]t is perverse to submit that [ANSTO] was at fault for the non-completion of [Mr Lever’s] CAS forms when it was [Mr Lever] who was refusing to sign them’. 

173               I would record that Mr Lever for his part disagreed with the foregoing words attributed to him by Dr Doherty, as set out in the preceding paragraph, though on the basis that he could not recall the conversation.  However at least the objective evidence tends to favour the narrative accounts of those respective ANSTO officers.  Thus I think that ANSTO’s explanation of what more likely occurred was in short that Mr Cullen offered to solve the impasse by instigating an independent role analysis of Mr Lever’s position, so that if it showed that Band 6 was appropriate for his position, the setting of annual work objectives for Mr Lever at Band 6 could qualify him for promotion to that band, but that Mr Cullen’s offer was in a sense turned against Mr Cullen and treated as an injury to Mr Lever’s employment and an alteration of Mr Lever’s  position to his prejudice. 

174               In reply in relation to this present series of alleged breaches, Mr Lever first stated that he ‘join[ed] issue with [ANSTO] in respect of these matters’, though he acknowledged that ‘s 298K(1)(e) is inapplicable to the instant events’.  Mr Lever stated that what ANSTO offered to do by way of ‘the right thing’ in promoting Mr Lever to Band 6 was conditioned upon ‘a quid pro quo’ that Mr Lever ‘drop[ped] his ongoing classification dispute’, or as otherwise submitted by Mr Lever, ‘… [ANSTO] will only treat you fairly if you forgo your entitlements to the classification under an industrial instrument’.  He then asserted that ‘… Mr Cullen simply accepted what had been done in the past to prevent [Mr Lever] from obtaining his entitlement to an increment’, citing the following cross-examination of Mr Cullen:

‘When you first started dealing with Mr Lever’s classification dispute, you realised that he had not been paid any increments for the 2000-2001 and 2001-2002 review period … ? --- That’s correct.

 

So far as you are aware, the reason that it [had been] withheld was because he was continuing to agitate his classification dispute? --- That’s correct.

 

If he hadn’t been agitating his classification dispute he would have been paid that back pay by then?  That’s correct.’

 

And further:

‘In the ultimate, whether or not it comes through an assessment or not, the idea was to set him [at] band 6 operating in the future and have Mr Lever give up his past and not proceed with the reference panel.  Is that right? --- That was the strategy that was put to Mr Lever.  Yes.’

 

175               In relation to those circumstances, counsel for Mr Lever contended that ‘[i]t is hardly torturing … the English language to suggest that this amounts to injury for the purposes of the Act’ (emphasis added).  However no authority was cited in support of that proposition and I have encountered difficulty in rationalising how that purported statutory description of conduct on ANSTO’s part is accommodated by authority, notwithstanding the width of the statutory notion of ‘injury’ as exemplified for instance by the High Court in Patrick Stevedores, and more recently by Tracey J in Qantas (ante). 

ANSTO’s responses to the eighth series of breaches

176               Those alleged breaches on ANSTO’s part were said to be constituted by ‘… breaching [Mr Lever’s] right to privacy in relation to the use of emails in the ANSTO workplace’, being conduct of ANSTO described by Mr Lever as obtaining unlawful access to his emails.  However Mr Lever did not identify any basis that would conceivably establish his asserted right to the privacy of the emails sent to him at ANSTO’s workplace.  This controversy apparently arose in October 2004 in the course of an investigation by Messrs Cullen and Davies into an alleged security breach by Mr Lever and another ANSTO employee, Person X (so-called).  At the request of Messrs Cullen and Davies, Mr Crakanthorp copied onto a compact disc the email folder on a computer owned by ANSTO and allocated to Mr Lever for his use at work.  Mr Crakanthorp provided the compact disc material to Mr Davies, who was said to have ‘scrolled through the list of emails in the folder and read some emails between [Mr Lever] and [Person X]’.

177               A principal contention of ANSTO was that such conduct on the part of its senior officers would not have contravened the Workplace Surveillance Act 2005 (NSW), even if that Act had been in force in 2004 and even if a State law applied to the activities of a Commonwealth authority.  Nor did such conduct contravene the Privacy Act 1988 (Cth), nor any other law in force in 2004, as to which Mr Lever provided no satisfactory rejoinder, so ANSTO further submitted.  Moreover no contravention of pars (b) or (c) of s 298K(1) was said by ANSTO to have been articulated by Mr Lever, satisfactorily or at all.

178               As to par 57 of Mr Lever’s points of claim (appearing of course within his framework of the eighth series of breaches), ANSTO submitted as follows:

(i)                  the complaint as to prejudicial alteration of position or injury as a result of ‘… blocking his endeavours to represent [Person X], an ANSTO employee’ was exemplified by ‘… unremarkable incidents in the ongoing relationship between a union delegate and an employer’, in relation to which ANSTO additionally pointed out that ANSTO could not be expected to ‘acquiesce in every action he took in his endeavours to represent [Person X]’;

(ii)                it was unreasonable moreover to describe ANSTO’s failure to accede to Mr Lever’s requests as ‘blocking’;

(iii)               Mr Lever’s case on point confused his rights and duties associated with his role in holding office in a trade union with his rights and duties associated with his role as an employee of ANSTO;

(iv)              if Mr Lever ‘was injured or prejudiced in his role as a union delegate’, which was not conceded by ANSTO, so much did not amount to injury or prejudice in his role as an employee, that being the issue of relevance arising for determination.

179               ANSTO’s foregoing submissions were contended to have even greater force in relation to Mr Lever’s complaint that ‘ANSTO… sought to undermine [Mr Lever’s] union activities and his relationship with the CPSU by writing complaints to the CPSU about [Mr Lever] which lacked substance’; it was contended by ANSTO that so much was not protected by s 298K(1), nor attracted Mr Lever’s ‘formulaic hypothesis of the reasons’ or the grounds the subject of pars (a), (h), (i), (j) or (n) of s 298L(1).  As to Mr Lever’s claim of psychological injury flowing from notice to him that his work emails had been accessed, ANSTO pointed to an absence of evidentiary support for that claim, pointing out that ‘[a] workers compensation claim by [Mr Lever] in connection with this alleged injury was refused by Comcare [and an] appeal against the refusal was dismissed by the Administrative Appeals Tribunal’.

180               Generally as to the eighth series of breaches, ANSTO’s concluding responses were that Mr Lever’s submissions did ‘not identify any injury to [Mr Lever] in his employment or alteration of his position to his prejudice by reason of [ANSTO’s] access to emails stored on one of its computers used by [Mr Lever]’, that ‘[ANSTO] had good reasons related to the security of its premises for accessing the emails’, and that ‘[e]ven if there had been an injury to [Mr Lever] in his employment or an alteration of his position to his prejudice, it was manifestly for reasons that are not prohibited by s 298L(1)’.  By way of amplification, ANSTO pointed to the following circumstances:

(i)                  the concern of ANSTO’s managers over the way Mr Lever was performing his role as a union delegate, and also its interference with the performance of his duties as an employee, needed to be understood in a context whereby Mr Lever ‘… appear[ed] to believe he had free rein as a union delegate to perform little or none of the work for which [ANSTO] was paying him’, and further that ‘… he was immune from close supervision and disciplinary action if his performance as an employee was unsatisfactory’, being a belief that could not be sustained in any such terms; I was referred by ANSTO to Lewis v Qantas Airways Ltd (1981) 54 FLR 101 at 112-114 (Morling J), where earlier principles enunciated in Re Dispute at Broken Hill Pty Co Ltd Steel Works, Newcastle (No. 2) [1961] AR (NSW) 48 at 66 (Richards, Beattie and Kelleher JJ) were cited with approval;

(ii)                included within those statements of principle in Broken Hill, which had been cited in Lewis,were the following of potential operation in the present proceedings:

‘… no man [should] be unjustly penalised for his participation in legitimate activity as a representative of his union [and] [i]t is basic to our system that employees should be organised in industrial unions… Men who are willing to play a part in the affairs of an industrial union are entitled to expect that they will not be prejudiced in their employment because of any legitimate actions they take in any union office they assume … [W]hile this Commission will be vigilant to protect the position of any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak conferring on the wearer immunity from liability from wrongful actions.’ 

 

181               It was pointed out by ANSTO that Mr Lever did not here complain of dismissal, as in the case of the Qantas employee involved in Lewis, and it was submitted by ANSTO, in a sense conversely, that Mr Lever was ‘… very prone to see evidence of victimisation when none existed’, and further that he seemed to believe that upon being appointed as a delegate, he received ‘… a magic cloak conferring on the wearer immunity from liability from wrongful actions’.  Mr Davies defended his managerial conduct as to maintaining observation from time to time upon Mr Lever and his activities whilst he was physically present at the ANSTO workplace.  ANSTO contended accordingly that there was ‘… no evidence that [Mr Davies’ conduct]… injured [Mr Lever] in his employment’; in that regard, Mr Lever did not testify as to any intimidating conduct on ANSTO’s part per medium of any of its officers.  Moreover it was pointed out by ANSTO that ‘[m]atters such as Mr Davies’ observations of [Mr Lever] at work, and a letter to the CPSU expressing concern about [Mr Lever’s] conduct as a delegate are not alleged to have constituted a breach of s 298K(1)’.

182               As to Mr Davies’ conduct in making observations of Mr Lever’s behaviour at the workplace, ANSTO asserted his reasonable entitlement for so doing in his capacity as a holder of managerial office at ANSTO, and further that there was no apparent evidence that any such conduct injured Mr Lever in his employment at ANSTO within par (b) of s 298K(1).  ANSTO complained generally to the effect that in his presentation of submissions, Mr Lever made ‘egregious misstatements of the evidence and unsupportable assumptions of malicious intent by [ANSTO’s] supervisory employees’; certainly in my view some of his contentions are susceptible to criticism for misstatement, as I have at least partly recorded.  It was submitted by Mr Lever nevertheless that it was his case that his ‘e-mails were accessed due to his involvement with [Person X] as a union delegate’, but the counter submission of ANSTO was however to refer to the affidavit evidence of Messrs Davies and Cullen to the effect that access was undertaken in the course of an investigation into a breach of security at ANSTO’s premises.

183               ANSTO next addressed Mr Lever’s assertion that ANSTO accessed his emails in order ‘… to prosecute a malicious breach of duty process’, and contended that there was no evidence to any such effect, nor was there any explanation as to ‘why the Court should prefer [Mr Lever’s] persecution theory to the credible evidence of [ANSTO’s] witnesses’.  I would observe that there was evidentiary support for ANSTO’s contention that the testimonies of each of Messrs Davies and Cullen tended to evince genuine and not contrived grounds upon which ANSTO commenced and pursued its investigation into Mr Lever’s conduct the subject of ANSTO’s security concerns.  As to the matter of the loss of certain documents under Person X’s control and the restrictions placed on Person X’s access to ANSTO’s premises, I think that caution on the Court’s part is appropriate.  On the one hand, that particular focus of events might be thought to have been occasioned by an exaggerated concern with security.  On the other hand, the circumstances of the high level scientific functions (inclusive of matters related to nuclear energy) undertaken by ANSTO at Lucas Heights were not to be understated, much less discarded.

184               I have found it difficult to distil the existence of identifiable injury having been occasioned to Mr Lever in his employment, or of alteration of his position to his prejudice, by reason of ANSTO’s accessing his emails stored on one of its computers used by Mr Lever in the course of the performance of his duties of office as an employee, or to comprehend why ANSTO’s conduct was undertaken for any of the reasons prohibited by s 298L(1), notwithstanding Mr Lever’s averments to the contrary. 

185               In the course of submissions in reply, Mr Lever seemingly eschewed the existence of any suggestion to immunity in his favour from disciplinary action by virtue of ‘his role as the site president of the CPSU and union delegate’, and contended that his case was ‘… simply… to not be … injured in his employment because of his role as a delegate and president of the CPSU’.  That rejoinder begs the issue in the first place of course as to whether any of the matters complained of by Mr Lever constituted any injury sustained by him within par (b) of s 298K(1).  I should add for completeness that Mr Lever broadly asserted in reply a repetition of his contentious claim as to Mr Davies’ so-called ‘… damaging communications with [Mr Lever’s] senior union officials and his covert and directed surveillance of [Mr Lever] at work’, without thereby particularising explicitly the statutory breach purportedly invoked.  So much reflected a further instance of Mr Lever’s broadly framed contentions by way of submissions in reply. 

ANSTO’s response to the ninth series of breaches

186               The ninth series of breaches focused upon pars 63 and 64 of the points of claim, being breaches said by Mr Lever to have occasioned to him psychological injury and as a consequence, ‘a loss of future earning capacity and damage to his career advancement, including within ANSTO’.  Paragraph 63 of Mr Lever’s points of claim was described by ANSTO as ‘very confused but appears to say that, on 3 November 2004, [ANSTO] began an investigation into a breach of duty by [Mr Lever]’ in circumstances where ‘ANSTO was aware that the alleged breach of duty had no basis in fact’.  Such investigation was pleaded to be, as interpreted by ANSTO, ‘… a step in a disciplinary procedure and therefore a threat of dismissal’, and thus discriminatory against Mr Lever; that appears to have been the first occasion of complaint by Mr Lever whereby par (a) of s 298K(1) was invoked in the pleading of the points of claim.

187               It was asserted by Mr Lever in the said par 63 of the points of claim that ANSTO ‘… was aware that the breach of duty [alleged] had no basis in fact’.  ANSTO’s response was that ‘[Mr Lever] may well hold such a belief, but there is no evidence that it was shared by [ANSTO’s] supervisors or managers at the relevant time’.  The suspected breach of duty sought to be investigated by ANSTO related to security procedures at ANSTO’s Lucas Heights establishment and compliance therewith.  Mr Cullen described at length the grounds for the investigation, and the reasons for his belief as to their importance, if not also their gravity in terms of implications to ANSTO, from pars 58 to 65 of his affidavit evidence of 27 September 2006.  It was submitted by ANSTO that it ‘was entitled to conduct an investigation when presented with an allegation of a breach of security procedures’, and that it acted reasonably and lawfully in principle in so doing.

188               It was next contended by ANSTO that Mr Lever’s case, to the effect that the investigation constituted a threat of dismissal, was misconceived for two reasons.  The first reason was that ‘an investigation is a course of conduct, whereas a threat is a communication of a particular type’, and further that ‘[a]n investigation cannot be a threat’, and ‘[o]nly a communication … in the course of the investigation could be a threat’.  It was further contended in any event that there was ‘… no evidence that [Mr Lever] received a communication threatening dismissal’.  The second reason propounded by ANSTO was that Mr Lever’s allegation as to being threatened with dismissal was contradicted by his reaction to hearing of the pending internal ANSTO investigation, in that on 11 November 2004 Mr Lever wrote to Mr Cullen, in the course whereof he was said to have vigorously denied any breach of duty, and to have described the allegation as ‘vexatious [and] baseless’; accordingly it was further said by ANSTO that ‘[i]t is clear that he did not contemplate dismissal as an outcome of the investigation’.  In summary as to this second reason, ANSTO submitted that there had been no threat of dismissal, and therefore no threat of conduct enjoined by par (a) of s 298K(1).

189               ANSTO added for completeness that the initiation of the investigation could not constitute a threat to and did not injure Mr Lever in his employment, nor did it alter Mr Lever’s employment position to his prejudice, and hence contended that such initiation did not fall within pars (b) or (c) of s 298K(1).  ANSTO pointed out that had the investigation ‘implicated [Mr Lever] in misconduct and disciplinary action ensued against him, that would constitute an injury or alteration’ within those respective paragraphs, but those stages of the investigation had not been reached.  Moreover the initiation of the investigation was described by ANSTO as neither forbidden conduct nor a threat of forbidden conduct, since ‘[a]ny injury to [Mr Lever] in his employment or alteration of his position to his prejudice would have been a step subsequent to the investigation itself’.  I was referred in that regard once more to Geraldton Port Authority, this time at [261], where R D Nicholson J observed as follows:

‘I do not consider the conduct by the [Authority] in advising the second applicants and the MUA employees that they had been moved to irregular shift work … could be characterised as action which “threatened” injury or prejudicial alteration.  Rather, the injury and prejudicial alteration are the consequences of that action and accordingly I find no action was taken to threaten the relevant employees in that respect pursuant to s 298K(1).’

The initiation of the investigation was further described by ANSTO as not constituting a communication to Mr Lever to the effect ‘that proscribed action will be taken’, reference to dictum in Telstra being repeated.  ANSTO emphasised in that regard that any ‘[s]uch action would depend on the outcome of the investigation’.

190               The next area of controversy addressed by ANSTO concerned Mr Lever’s entry into an area of ANSTO’s premises on 20 October 2004 in the controversial circumstances involving the person referred to in the proceedings as Person X, together with his denial of any knowledge that Person X was not entitled to gain any such access.  It was ANSTO’s case that at the time of his controversial site entry accompanied by Person X, Mr Lever was in fact aware that Person X was not so authorised by ANSTO.  I was referred by ANSTO to the following affidavit evidence in particular:

(i)                  Person X was first notified of site access restrictions by email of ANSTO’s Dr Carr sent to Person X’s home on 15 September 2004 at 4.19 pm;

(ii)                Person X sent Dr Carr’s said email to Mr Lever on 16 September 2004; that email became an attachment to a further email which Mr Lever sent to Mr Cullen on 11 November 2004, and which became exhibited to Mr Lever’s affidavit of 1 June 2006;

(iii)               Dr Carr’s said email to Person X, which Person X thus passed on to Mr Lever, contained the words ‘[a]s you are on sick leave and unable to attend for duty you cannot attend site during this period’;

(iv)              Person X remained on such sick leave as at 20 October 2004.

191               It was submitted by ANSTO that such evidence showed that ‘there was a very sound basis for the breach of duty investigation’, since ‘[Mr Lever] and [Person X] knew on 20 October 2004 that [Person X] was not allowed access to the site because Person X was on sick leave’.  It was further submitted to be ‘… beside the point that the Australian Federal Police had mistakenly allowed [Person X] access to the site on that day’.  In that context I was referred to the Australian Federal Police report made on that day and the circumstances therein recorded.  It was further submitted that Mr Lever’s submissions on the present issue to the Court ‘… completely ignore the source of the prohibition on [Person X’s] access and the means by which it was communicated to Mr Lever’, being submissions said to be ‘… based on a selective survey of the evidence’ and to be ‘fatally flawed’. 

192               Person X’s affidavit account of the incident in pars 13 to 19 was somewhat enigmatic, in that there does not appear to be any explanation of Person X’s encounter with the Australian Federal Police on site on the occasion in controversy, or at all.  Person X acknowledged that in the context of that controversial entry, Person X ‘entered the wrong security code PIN a few times’, though for the reason that Person X ‘did not have … reading glasses’.  Person X said that Person X then ‘entered and exited [the] building a number of times looking for [Person X’s] glasses in [Person X’s] car’, and that ‘[i]n the end [Person X] went home to pick up [Person X’s] glasses [which] can be verified by the record of exit at 7.01 am and again entry at 7.35 am’, adding thereby that ‘[Person X’s] house is 10 minutes from ANSTO by car’. 

193               In reply, Mr Lever submitted that he did not need to prove the fact of dismissal, and that it was enough to prove the threat of dismissal for a prohibited reason, referring thereby to s 298L(2) of the Act.  He asserted that ‘[i]t is unambiguously the case that one of the potential outcomes of the breach of duty process is dismissal’, and I was referred in that regard to clause 36 of the 2002 Enterprise Agreement, where the following appears :

‘36.24.5   Be dismissed, in which case the dismissal is to be processed in accordance with Clause 8.5 of this Agreement.’

It was further submitted in reply by Mr Lever that ‘[t]he commencement of the process therefore amounts to a threat of dismissal via the breach of duty process’, without however identifying with precision or at all what constituted that ‘commencement’ or the ‘breach of duty process’, yet Mr Lever then contended that ‘… the commencement of the breach of duty process was unambiguously an injury and/or alteration in [Mr Lever’s] employment’ for the purposes of pars (b) and (c) of s 298K(1); without identifying what precisely constituted any such ‘injury’ and’ alteration in employment’, and for what reason or reasons.  Mr Lever acknowledged that ‘s 298K(1)(e) is inapplicable to the instant events’.  There was no substance in Mr Lever’s submission in reply. 

ANSTO’s response to the tenth series of breaches

194               ANSTO’s response to Mr Lever’s case as to the tenth series of breaches related to what Mr Lever pleaded to be ANSTO’s attempts to ‘… deprive [Mr Lever] of any remuneration whilst Comcare was determining whether or not to accept liability for [Mr Lever’s ] workers compensation claim’.  Those attempts alleged by Mr Lever were summarised by ANSTO as follows:

(i)                  an attempt ‘to induce [Mr Lever] to terminate his employment’, contrary to par (a) of s 298K(1);

(ii)                an attempt to injure Mr Lever in his employment, contrary to par (b) of s 298K(1);

(iii)               an attempt to alter Mr Lever’s position as an employee, contrary to par (c) of s 298K(1); and

(iv)              a refusal to extend the benefit of what was asserted to be a customary term as to, or an established practice of, paying ordinary remuneration to an employee until such time as liability for their workers compensation claim had been determined by Comcare, being a refusal said to be contrary to par (e) of s 298K(1).

195               The components of Mr Lever’s workers compensation claim were described by ANSTO as follows:

(i)                  he suffered a psychological injury at his workplace;

(ii)                he was absent from work on annual leave between 24 December 2004 and 31 January 2005;

(iii)               he did not return to work after the conclusion of that annual leave, upon the basis of his medical practitioner’s certificate as to unfitness for work from that time;

(iv)              he remained ‘off work’ on sick leave;

(v)                his entitlement to sick leave became exhausted on 24 March 2005;

(vi)              since that date he had been receiving social security benefits;

(vii)             he had not performed work for ANSTO since 24 December 2004.

Mr Lever’s claim for workers’ compensation was unsuccessful. 

196               ANSTO emphasised that no dismissal, or threat of dismissal, in fact occurred, nor had been alleged by Mr Lever.  ANSTO pointed out that ‘[t]he most that is alleged is an attempt to induce [Mr Lever] to resign’, being a circumstance described by ANSTO as ‘… far from being conduct forbidden by s 298K(1)(a)’.  ANSTO repeated its earlier submissions in that regard as to why attempts cannot constitute relevantly ‘[c]onduct’ as described in that section.  It was pointed out by ANSTO that Mr Lever did not allege any contractual or award entitlement to remuneration during the period in which Comcare was giving consideration to his workers compensation claim, but instead had alleged the existence of ‘a custom that [ANSTO] applied to other employees’.

197               ANSTO’s Human Resources Consultant, Mr O’Shea, testified by way of his affidavit of 27 September 2006 (par 18) as follows:

‘By about early to mid March 2005, I was increasingly conscious of the fact that Mr Lever had not returned to work, or made any contact with ANSTO of which I was aware suggesting that he would like to return in any capacity.  I was also aware that his accrued general leave would be exhausted on 24 March 2005.  I was, however, aware that Mr Lever was due to accrue a further 15 days paid general leave on 29 April 2005.  I thought it appropriate to ask Mr Lever whether he wished to seek approval to anticipate the leave credits which would otherwise become due in April 2005.  This was so that he could remain on paid leave for as long as possible.’

 

As has already been recorded, Mr Lever became ultimately in receipt of social security benefits, not having worked at ANSTO since 24 December 2004 and his workers’ compensation claim not having been granted or allowed in that regard.  ANSTO pointed out that it had at all material times doubted that Mr Lever’s workers compensation claim would be accepted by the insurer, and ‘with good reason as it transpired’, so ANSTO asserted.

198               In those circumstances ANSTO submitted that there was no applicable ANSTO custom available in his favour, such as Mr Lever had sought to invoke and that accordingly Mr Lever had not been deprived of any ‘customary benefit’ so-called by Mr Lever, and moreover that there was no conduct by ANSTO otherwise in contravention of pars (b) or (c) in particular of s 298K(1) in the circumstances postulated on behalf of Mr Lever.  ANSTO concluded its case in relation to the tenth series of breaches by pointing out that ‘[t]here having been no conduct forbidden by s 298K(1), it is unnecessary to consider [ANSTO’s] reasons for [its] conduct’ here complained of by Mr Lever in the context of the tenth series of breaches.  Mr O’Shea explained his reasons for declining Mr Lever’s suggestion that he should be paid his ordinary wage rate following upon the exhaustion of his sick leave entitlements, those reasons being described as unrelated to Mr Lever’s ‘union activities’.  Mr O’Shea denied having harboured any reason prohibited relevantly by the Act. 

199               Mr Lever acknowledged in his reply by way of joinder of issue upon the tenth series of breaches that par (e) of s 298K(1) had no application and further that par (a) of s 298K(1) was not pressed.

ANSTO’s response to the eleventh series of breaches pleaded by Mr Lever

200               In response to Mr Lever’s case propounded as the eleventh series of breaches, ANSTO distilled as one of his complaints that it was alleged to have ‘… attempted to induce [Mr Lever] to terminate his employment and/or to injure [Mr Lever] in his employment and/or to alter [Mr Lever’s] position to his prejudice by seeking to deprive [Mr Lever] of the opportunity to return to work’.  ANSTO’s threshold observation was that nothing inherent in that complaint could operate to establish any breach of par (e) of s 298K(1), and that presumably what was intended by Mr Lever was to refer to par (a) of s 298K(1), the allegation made by Mr Lever boiling down to an asserted attempt on ANSTO’s part to induce him to resign.  Any such allegation was said by ANSTO to be bound to fail, as ANSTO having earlier pointed out, in the context of its response to the tenth series of breaches, that any such conduct was not proscribed by par (a) of s 298K(1).

201               Addressing next the potential operation of pars (b) and (c) of s 298K(1) in relation to the circumstances the subject of this eleventh series of breaches, ANSTO focused upon par 73 of the points of claim (which of course has been earlier reproduced in full), and pleaded statutory breaches said to have been constituted by the ten matters thereby listed, each of which was claimed to have obstructed or interfered with Mr Lever’s attempt to return to work.  The further threshold response of ANSTO to this eleventh series of breaches was that seven of the matters listed by that par 73, as set out in subpars (a) to (e), (h) and (i) thereof, constituted alleged failures of ANSTO to do something, yet however the conduct allegedly constituting those failures were incapable of involving contravention of s 298K(1).  The reasons for that response on its part were submitted by ANSTO to have been already explained in the course of its addressing the allegations made adversely to Dr Doherty’s decision-making, and where reference was made to the operation of s 298K(1), and in particular to its confinement in scope to forbidden intentional acts of an employer, and to the Full Court’s dicta in BHP Iron Ore v AWU which I have earlier extracted in these reasons.  In any event, ANSTO’s foreshadowed answer to those enumerated allegations was to the effect that they were not supported by any evidence adduced in the proceedings.  ANSTO entered nevertheless upon an exhaustive review of the evidentiary matters which bore upon the ten matters the subject of the ‘Particulars of Conduct’ to par 73 of the points of claim (denoted of course as subpars (a) to (j) of par 73), and falling within the scope of the eleventh series of breaches so postulated by Mr Lever, which ten matters I will now address consecutively. 

202               First as to subpar (a) concerning ANSTO ‘failing to respond to Dr Pead’s [initial] medical certificate dated 2 February 2005’, which was apparently not attached to Mr Lever’s lengthy affidavit of 1 June 2006.  According to par 157 of that affidavit, Mr Lever was thereby described as ‘unfit for work until 23 February 2005 and thereafter fit for restricted duties’.  Reference was there made to a subsequent medical certificate of Dr Pead issued on 11 February 2005 to the effect that Mr Lever would be unfit for work until 24 March 2005, which was also not apparently exhibited to Mr Lever’s affidavit of 1 June 2006.

203               ANSTO made the further observation that since by implication of Mr Lever’s evidentiary material, Dr Pead’s medical certificate of 2 February 2005 was superseded by his subsequent certificate of 11 February 2005, the allegation as to ANSTO’s failure to respond to his earlier medical certificate was ‘at least curious’, it not being ‘obvious what response [ANSTO] should have made’.  ANSTO pointed out that ‘[i]t could not sensibly be suggested that [ANSTO] should have relied on the certificate of 2 February … when Dr Pead had reversed his opinion about [Mr Lever’s] fitness for such work by 11 February …’, and so advanced that observation ‘… even if [ANSTO] had prepared a return to work program by 11 February’.  ANSTO further pointed out that even if ANSTO had prepared a return to work program, so much ‘would have been to no avail’, as Mr Lever was subsequently certified as purportedly unfit to return to work.  In any event as ANSTO pointed out, Mr Lever produced no evidence of any attempt by him to return to work based on Dr Pead’s certificate of 2 February 2005. 

204               Mr O’Shea explained why he ‘… did not start exploring [a return to work] plan with ANSTO’s Rehabilitation Manager’ in response to the content of that certificate of 2 February 2005, and as ANSTO pointed out, it would have been unusual so to do, in the light of the subsequent medical certificate of 11 February 2005, and he denied that he was ‘motivated by the fact that Mr Lever was a union member or a union delegate… [or] by any involvement which Mr Lever might have had in pursuing any issues or disputes, whether on his own behalf or on behalf of any union members’, concerning a return to work program’.  He explained that to do so would have been to no avail, ‘as [Mr Lever] was certified unfit to return to work’.  In those circumstances, ANSTO observed that ‘… the allegation that [it] failed to respond to the earlier certificate is, at least, curious’, and further that ‘[i]t is not obvious what response [ANSTO] should have made’.  ANSTO contended that ‘[i]t could not sensibly be suggested that [Mr Lever] should have relied on the certificate of 2 February and made arrangements for [Mr Lever’s] return to work on restricted duties on 23 February, when Dr Pead had reversed his opinion about [Mr Lever’s] fitness for such work…’.  Attached to Mr O’Shea’s affidavit of 27 September 2006 was Dr Pead’s medical certificate of 11 February 2005, whereof Mr O’Shea said he became first aware in late March 2005.

205               ANSTO advanced several submissions in relation to that earlier Dr Pead certificate of 2 February 2005, pointing out that it contained the recommendation that Mr Lever ‘… be removed from the “hostile environment” and [that the] appointment of an independent arbitrator would be appropriate’, perhaps arguably involving thereby an observation extending beyond the scope of a general practitioner medical certificate as to unfitness for work.  Be that as it may, as ANSTO rightly pointed out, the response of ANSTO to that certificate of Dr Pead ‘did not alter the position of [Mr Lever] to his prejudice or injure him in his employment, by failing to act on these recommendations’, referring thereby of course to pars (b) and (c) in reverse order as contained in s 298K(1). 

206               As to Dr Pead’s subsequent medical certificate of 12 March 2005, Mr Lever sought to advance a case as to ANSTO ‘failing to respond to and act upon Dr Pead’s letter of 12 March 2005 to Dr Ian Smith proposing a return to work’.  ANSTO pointed out that Mr Lever ‘does not say he provided it to [ANSTO]’, and further that Mr Lever ‘knows only that it was among documents produced by [ANSTO] in his AAT appeal’, and moreover that Mr Lever ‘does not say when the letter was received by [ANSTO]’, nor ‘has … called evidence from Dr Pead about its delivery’.  In any event, so ANSTO’s submissions continued, ‘[e]ven if the letter had been received by [ANSTO], its contents would not have been helpful’, because ‘[i]t contains the glib recommendations that “[Mr Lever] be removed from the hostile environment and the appointment of an independent arbitrator would seem appropriate”.  Accordingly ANSTO contended that so much ‘did not alter the position of [Mr Lever] to his prejudice or injure him in his employment, by failing to act on these recommendations’.  There was clear force in those ANSTO explanations and submissions otherwise. 

207               As to other segments of the ‘Particulars of Conduct’ the subject of par 73 of Mr Lever’s points of claim, ANSTO made the following further observations which are material to the controversy remaining between the parties concerning the instant subject matter of complaint:

(i)                  the so-called ‘Rehabilitation Guidelines for Employers’ issued by Comcare were not placed in evidence by Mr Lever, nor was any conduct of ANSTO alleged to be contrary thereto the subject of evidence in the proceedings and specifically identified by Mr Lever;

(ii)                no ‘misleading information [provided by ANSTO] to Comcare in relation to [Mr Lever’s] workers compensation claim in 2005’ was identified with any particularity, and notably any particularity as to the reason why ANSTO’s conduct complained of was said to be misleading;

(iii)               no explanation was particularised by Mr Lever as to what ANSTO allegedly did ‘or tried to do’, such as to have constituted a threat of conduct forbidden by s 298K(1). 

The Court was referred by ANSTO in that context of complaint to clause 27.9 of the ANSTO Enterprise Agreement 2002 concerning the fitness for duty of employees who had been sick or injured.

208               The comprehensive responses of ANSTO to the present segment of the case of Mr Lever included reference to the following evidentiary matters:

(i)                  the evidence of Mr O’Shea concerning ANSTO’s attempts to persuade Mr Lever to attend a medical examination, and of the industrial dispute which ensued;

(ii)                the further evidence of Mr O’Shea to the effect that Mr Lever’s objection to being examined by a medical practitioner nominated by ANSTO was that he was not yet fit to return to work;

(iii)               the yet further evidence of Mr O’Shea by way of denial of any prohibited reason for seeking to have Mr Lever examined by a medical practitioner, and in particular any reason associated with Mr Lever’s ‘union membership, union office, or representation of union members or other employees’.

209               In ultimate summary, ANSTO submitted that by seeking to compel Mr Lever to attend a ‘Fitness for Duty’ medical appointment, pursuant to clause 27.9 of the ANSTO Enterprise Agreement 2002, for the stated purpose of formulating a return to work plan, when that was supposedly not the lawful purpose of that clause 27.9, did not support this eleventh series of breaches contention of Mr Lever.  It is difficult to perceive how subpar (g) of par 73 in particular of that eleventh series of breaches could reasonably be sustained by Mr Lever, whether by way of evincing a basis for ‘blocking’ or interfering with any alleged attempt of Mr Lever to work, or otherwise. 

210               The allegation the subject of subpar 73(h) of the points of claim was in particular extraordinary, being described in ANSTO’s submissions as ‘the most egregious example of [Mr Lever’s] defective reasoning’ falling within the scope of the eleventh series of breaches segment.  The implication advanced thereby was that ‘by failing to agree to [Mr Lever’s] request made to Dr Ian Smith on 17 January 2005 to investigate the ANSTO officers responsible for [Mr Lever’s] injury’, ANSTO thereby contravened s 298K(1) of the Act.  As summarised by ANSTO, all that boiled down to the proposition that ANSTO should have either agreed to Mr Lever’s requests or been in breach of s 298K(1)’.  The submission of counsel for ANSTO was that ‘[i]t is illogical to suggest that [ANSTO’s] failure to acquiesce in [Mr Lever’s] desire to have these [ANSTO] employees investigated has somehow blocked or interfered with an attempt by [Mr Lever] to return to work’, and further that Mr Lever ‘… does not explain how the absence of such an investigation blocked or interfered with his return to work’, those two matters being described as ‘quite independent of each other’.  I agree that the complaints advanced by Mr Lever in par 73(h) of his points of claim did not constitute breach of pars (b) or (c) of s 298K(1).

211               The allegation subject of par 73(i) of the points of claim, relating to ANSTO ‘… failing to act upon approaches by the CPSU on behalf of Mr Lever to formulate a return to work assessment, including the approach made by the CPSU in its letter of 21 September 2005 to Mr Davies’, was similarly misconceived by Mr Lever, in that there was no evidence tendered of any such ‘approaches’ by the CPSU on behalf of Mr Lever to ‘formulate a return to work assessment’.  That letter of the CPSU to ANSTO raised objection to ANSTO’s arrangement of an appointment for Mr Lever to be examined by Dr Lewin, and requested that Mr Lever be examined instead by Dr Hall, but did not ask ANSTO to ‘formulate a return to work assessment’.  I think it to be correct that nothing alleged in par 73(i) of Mr Lever’s points of claim altered his position to his prejudice within par (c) of s 298K(1).  The text of the letter written by Patrick Blades, ANSTO’s Associate Director, People and Development, on 19 August 2005 and which prompted CPSU’s response of 21 September 2005, merits reproduction in full in that regard:

‘In my letter to you dated 17^th June 2005, I stated that it is in the interest of all parties that the issue of your return to work be addressed.  ANSTO’s focus is to look at ways to assist employees back to their workplace and but [sic] in order to implement any plans or where appropriate, to initiate a return to work program, ANSTO must be appraised of your fitness for duty.

 

Accordingly, I have arranged with Dr Lewin for you to be assessed.  The assessment is a consultative process, and I have requested that Dr Lewin liaise with your treating practitioner Dr Pead.’

 

212               ANSTO next addressed par 74 of the points of claim containing the allegation by Mr Lever that ANSTO ‘attempted to induce [Mr Lever] to terminate his employment and/or to injure [Mr Lever] in his employment and/or to alter [Mr Lever’s] position to his prejudice by seeking to deprive [Mr Lever] of the opportunity to work’.  It was submitted by ANSTO in broad response that ‘[a]s has been the case with all the conduct previously alleged, if it occurred at all, [Mr Lever] has failed to establish that it was forbidden by s 298K(1), and no question arises about the reasons for it’.  It was further submitted by ANSTO that ‘[n]otwithstanding that position, where the matters alleged in paragraph 73 have some basis in fact, there is evidence of the reasons for [ANSTO’s] conduct, and displaces the presumption of a prohibited reason under s 298V’.  So much reflected I think the operation relevantly of s 298K(1).

213               It therefore becomes unnecessary for me to address the allegation of loss and damage said to arise from the matters pleaded in relation to the eleventh series of breaches, but I will nevertheless briefly do so.  As to the claim for ‘… a loss of opportunity to earn remuneration at various times since [Mr Lever] has been certified fit for suitable duties in the period February 2005 to date’, ANSTO contended rightly that such case was misconceived, since ‘[Mr Lever] did not lose an opportunity to earn remuneration between February 2005 and 1 June 2006 because he was [so of course he claimed] unfit for work in all that time’.  Reference was made by ANSTO in that regard to par 157 of Mr Lever’s affidavit of 1 June 2006, where, after referring to Dr Pead’s medical certificate of 11 February 2005, Mr Lever added ‘… and I have continued to be certified unfit for work since that time’.  Hence ANSTO’s submission that ‘[i]t could not be presumed that he ha[d] been fit for work since 1 June 2006 without medical evidence to that effect’.

214               Generally as to the eleventh series of breaches, ANSTO drew attention to Mr Lever’s purported reliance on the comments of his own medical practitioner Dr Pead, contained in his medical certificate of 2 February 2005, as to the causes of Mr Lever’s alleged condition.  In that context, ANSTO submitted that ‘[o]f course, the doctor’s comments are simply a record of what [Mr Lever] has told him’, and that for example, Dr Pead ‘cannot possibly have come to an independent conclusion that [Mr Lever] had been subjected to “false accusations” or a “hostile environment”’.  The submission was I think correct, Dr Pead not having been in a position of course to have independently formed those judgments.

215               ANSTO then submitted that Mr Lever’s criticisms of ANSTO’s employees for not instituting a ‘return to work’ plan for Mr Lever were ‘unwarranted’, and that except for the short period of time before the medical certificate of Dr Pead bearing date 2 February 2005 was superseded by his certificate of 11 February 2005, ANSTO ‘was entitled and required to assume that Mr Lever was unfit for work’.  ANSTO further submitted incidentally that Mr Lever suggested that the medical certificate of 11 February 2005 was not provided to ANSTO until ‘around May/June 2005’ , because the copy in evidence bore a typed comment made by Dr Pead.  ANSTO yet further pointed out that ‘… the evidence on which he relies is only that the particular copy annexed to the affidavit of Mr O’Shea was a copy so provided’, and moreover that Mr O’Shea’s uncontradicted affidavit evidence was that he saw the certificate at least in late March 2005, and he did he say that the copy annexed to his affidavit was ‘the precise copy he first saw’.

216               In summary therefore, ANSTO contended that Mr Lever’s submissions were only broadly referrable to the matters in paragraph 73 of the points of claim, and that it was difficult to align them with any particular piece of conduct out of the many alleged in that paragraph.  Rather, so ANSTO’s contention concluded in that regard, Mr Lever’s submissions constituted ‘a melange of submission[s] thrown at the various specific allegations in the [points of claim] in the hope that some of it might stick’, but that ‘[n]one of it does’.  From what I reviewed and recorded of the evidentiary material purportedly the subject of the eleventh series of breaches, I think that it must be said that there is force in that criticism advanced by ANSTO. 

217               In reply, Mr Lever acknowledged that par (e) of s 298K(1) ‘is inapplicable in the instant events’ and that subpars (c), (d) and (j) of the points of claim were no longer pressed.  However Mr Lever maintained that ‘… threatening of action is sufficient to amount to prohibited conduct’ under s 298L(2)’.  Mr Lever pointed out moreover that ANSTO ‘… seeks to prove that it received the 11 February 2005 [medical] certificate in circumstances where it only puts in evidence a document that was patently not received until after 10 June 2005’, and I was referred to Exhibit Q and Mr Lever’s evidence tendered ‘at the very conclusion of the trial’.  Moreover it was submitted by Mr Lever in that context that ‘in the absence of any evidence, [ANSTO] seeks… to suggest that [Mr Lever] has not proved that [ANSTO] received the 12 March 2005 letter of Dr Pead… addressed to ANSTO and signed by the doctor [yet which] was in the possession of [ANSTO] at the time of the AAT hearing in 2006’.  It was hence contended by Mr Lever that absent any evidence in rebuttal, all that was sufficient proof of the letter ‘being sent by Dr Pead and received by [ANSTO] on or about 12 March 2005’.  Aside from the controversy concerning the extent of import of those somewhat relatively uninformative certificates of Dr Pead and the extent accordingly of their respective significance, the problem remained as to whether the inference is reasonably open to be drawn from the context to, and surrounding circumstances concerning the receipt by ANSTO of, either or both of the Dr Pead’s certificates referrably to the legislative contraventions alleged.  I remain in difficulty in comprehending how it was that the mere receipt by ANSTO of those medical certificates crystallised an obligation relevantly on the part of ANSTO, non-fulfilment or non-performance whereof reflected the consequence of statutory breach, whether by way of so-called ‘block[ing]’ or interfering with any supposed attempt by Mr Lever to return to work, or otherwise.

218               Mr Lever pleaded by par 73(b) of his Points of Claim that ANSTO ‘… fail[ed] to respond to and act upon Dr P Pead’s letter of 12 March 2005 to Dr Ian Smith proposing a return to work’, though ANSTO pointed out that Mr Lever ‘does not say he provided it to [ANSTO],’ and that Mr Lever ‘knows only that it was among documents produced by [ANSTO] in his AAT appeal [and] does not say when the letter was received by [ANSTO]’.  Nor did Mr Lever adduce ‘evidence from Dr Pead about its delivery’, so ANSTO further pointed out.  In any event, even if Dr Pead’s certificate the subject of immediate controversy had been received in a timely manner, containing as it did what ANSTO described as ‘the glib recommendation that [Mr Lever] “… be removed from the ‘hostile environment’ and appointment of an independent arbitrator would seem appropriate”’, somewhat unconventional advice for a medical practitioner to advance on behalf of an employee patient to an employer in circumstances such as then prevailing.  The fact remained, so ANSTO further submitted I think rightly, that ‘[ANSTO] did not alter the position of [Mr Lever] to his prejudice, or injure him in his employment, by failing to act on these recommendations’. 

ANSTO’s response to the twelfth series of breaches pleaded by Mr Lever

219               The conduct asserted by Mr Lever to have constituted the threat the subject of the twelfth series of breaches propounded by him was attributed to Mr Davies, of course an employee of ANSTO engaged as an Industrial Relations Advisor at the material time.  That impugned conduct of Mr Davies was further asserted by Mr Lever to have been constituted by an ANSTO threat to ‘dismiss’ him, and thus purportedly to ‘injure [him] in his … employment’ or ‘alter [his] position … [to his] prejudice’, within pars (a), (b) and (c) respectively of s 298K(1) of the Act.  The threat so alleged was said to have been made orally by Mr Davies to Mr Muffatti, an officer of the CPSU, on 22 September 2005, and subsequently in writing by letter of ANSTO bearing date 28 September 2005.

220               Mr Davies testified by affidavit to having participated in a conversation with Mr Muffatti on or about 22 September 2005, in the course of which he complained about Mr Lever’s refusal to comply with ANSTO’s direction to attend a specialist doctor for examination in the context of the time of Mr Lever’s absence from work for reasons allegedly of incapacity.  Mr Davies testified to having said in particular on that occasion, ‘[e]veryone needs to understand that a continued failure to comply with a reasonable request constitutes a serious breach of duty.  If it continues, I’ll have to take legal advice on what options are open, including termination.  Can’t you get Ron to see some sense?’  Mr Davies’ said letter of 28 September 2005 contained words to similar effect on its third page.  It was submitted by ANSTO that ‘[i]f this was a threat at all, it was a threat to get legal advice’, and ‘… was not a threat to do anything forbidden by s 298K(1)’.  There was clear force in that ANSTO contention.  It was further submitted by ANSTO moreover that ‘… an announcement of an intention to act in a particular way in the future is not forbidden by s 298K(1)’, and I was referred in that regard to what was recently said by Tracey J in Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1 at [26], as follows:

‘The first difficulty which confronts the applicant is that, in February 2006, the respondent did no more than announce an intention to provide four airbuses to Jetstar at times prior to March 2007 so that Jetstar could commence international operations and that those aircraft would not be crewed by the respondent’s employees, who in February 2006, flew them on domestic routes. No contemporaneous action to implement the announced decision was taken. Counsel have not directed my attention to, nor have I found, any authority which supports the proposition that a mere announcement of an intention to act in a particular way at some time in the future can constitute conduct of the kind to which s 298K(1) is directed. Each of the cases to which my attention was directed, in which a contravention of the section was found, involved the making of a decision by an employer which was immediately operative even though the consequences of the decision may not have had an immediate effect on particular employees. …The approach to the construction of s 298K which is evident in these cases is explicable in part by reference to the language of the section. The various paragraphs in s 298K(1) which identify proscribed conduct speak in the active voice (“dismiss”, “injure”, “alter the position”, etc). The employer must do something to prejudice an employee not merely foreshadow some future action which might or might not prove to be prejudicial.’

Between those two passages extracted above from within [26] of his Honour’s reasons, there was cited several authorities, including Geraldton Port Authority and BHP Iron Ore v AWU.  Mr Lever’s case in the present context did not come proximately or at all within the scope of those principles. 

221               In any event, after testifying in his affidavit evidence in some detail as to what he thus said to Mr Muffatti ‘[o]n or about 22 September 2005’, Mr Davies advanced the following explanation:

‘My comments in this regard were motivated solely by the fact that I believed that Mr Lever was refusing to comply with a lawful and reasonable direction.  My desire was not to terminate Mr Lever’s employment or to take other disciplinary action; it was to get him to go to the medical examination.  I was not influenced by the fact that Mr Lever was a union delegate, or by the fact that he had raised various grievances and participated in other disputes.  I think I would react in exactly the same fashion if any other employee was refusing to attend a medical examination despite having been off work for an extended period.’

 

It was submitted by ANSTO that Mr Davies ‘… wished only to persuade [Mr Lever] to comply with a reasonable direction to attend a medical appointment’, so much not being a prohibited reason as contended by par 79 of Mr Lever’s points of claim.  In my opinion the submission was correct, and no persuasive rejoinder was raised by Mr Lever to the contrary.  No steps were taken at any material time to terminate Mr Lever’s employment, or to threaten to do so.  Mr Lever’s submission in reply that ANSTO ‘… identifies the threat of termination and… this aspect of the claim is proved in the light of the s 298V presumption’ was I think misconceived because of the absence of any ‘threat’ within the scope of s 298L(2). 

ANSTO’s response to the thirteenth series of breaches pleaded by Mr Lever

222               ANSTO made the preliminary observation that although pars 81 to 83 of Mr Lever’s points of claim alleged breaches of s 298K(1)(a), (b), (c) and (e), such breaches as were particularised in terms were confined to pars (a), (b) and (c) of that subsection, that is to say, in terms of ‘dismiss’, ‘injure’ and ‘alter the position’ of Mr Lever.  In the first place, ANSTO contended that par (a) could have no operation, by reason of ‘… the absence of a dismissal’ of Mr Lever, his allegations involving ‘no more than an attempt to induce a resignation’ and therefore not crystallising in operation the terms of par (a).  As was mentioned further by ANSTO, if any attempt on ANSTO’s part to induce resignation did in fact take place at all, for which there was no evidence, that attempt would have ‘failed’.

223               As appears from the particulars provided to par 82 of Mr Lever’s Points of Claim, which of course I have earlier reproduced in my description of its averments, Mr Lever next pleaded that ‘ANSTO attempted to induce [Mr Lever] to terminate his employment and/or to injure [Mr Lever] in his employment and/or to alter [Mr Lever’s] position to his prejudice by failing and refusing to properly classify [Mr Lever’s] position and to thereby put pressure on [Mr Lever] to … not pursue his classification dispute [and] therefore… remain in a low classification to the detriment of [Mr Lever] in his position at ANSTO and to the injury of [his] employment at ANSTO’.  ANSTO submitted in response that ‘[a]n attempt to injure or alter is not forbidden by s 298K(1)(b) or (c) as such, [since] [t]here must be an injury or alteration, or a threat to injure or alter’, yet ‘[n]o threat to injure or alter is alleged by [Mr Lever]’.  In other words, to plead an ‘attempt’, without more, did not trigger the operation of those paragraphs of s 298K(1), which was literally correct.  Additionally ANSTO submitted that ‘there was no injury to [Mr Lever’s] employment or alteration of his position to his prejudice’, in that ANSTO ‘… did not fail to properly classify [Mr Lever]’, who remained ‘… at all times, properly classified’, given that an incorrect classification by an employer of an employee’s capacity or suitability is susceptible to contravention of subsection of subs 298K, which I would have thought would require at least more than merely any such ‘per se’ circumstances.  ANSTO thus emphasised in any event that Mr Lever ‘… was never reduced in classification [such as] would have been an injury to his employment or an alteration of his position to his prejudice’, Mr Lever having thereby at ‘[a]t all times … remained in his present classification or was promoted [which] could hardly be an injury or prejudicial alteration’.  ANSTO contended that a further reason why the allegations of breach in par 82 should fail was that the same depended on the allegations of fact and argument contained in par 81 of the points of claim that in any event were ‘unsupported by evidence and wrong’. 

224               ANSTO proceeded thereafter to address seriatim each of subpars (a) to (f) of the ‘Particulars of Conduct’ pleaded to that par 81, as follows:

(i)                  as to subpar (a), which alleged that Dr Doherty misled Mr Lever into believing that he would be promoted to SPO1 if he ‘signed off’ on his 1999/2000 objective setting and assessment form, Dr Doherty did not mislead Mr Lever as to any promotion in his favour, for reasons which have been earlier outlined;

(ii)                as to subpar (b), which alleged that Dr Doherty failed to correctly classify Mr Lever on 2 August 2002, such allegation had not been made out for reasons which have been also earlier outlined in these reasons;

(iii)               as to subpar (c), the same was said to have revealed Mr Lever’s so-called ‘one-eyed view of his classification dispute’; thus Mr Lever alleged that Dr Doherty ‘declined to reconsider’ his decision about Mr Lever’s classification at a meeting on 21 August 2002 attended also by Mr Crakanthorp; the agenda of that meeting was characterised in short by ANSTO in terms of ‘discussion … about that decision’; moreover it was contended by ANSTO that ‘[t]he meeting itself constituted a reconsideration’, but that ‘Dr Doherty was not persuaded that he was wrong’, and further that ‘[h]e did not change his decision after reconsidering it’; accordingly it was contended by ANSTO that Mr Lever ‘wrongly regards Dr Doherty’s failure to change his decision as a failure to reconsider’;

(iv)              as to subpar (d), Mr Davies testified that he was ‘fairly sure’ that he did not make any such statement, and he then proceeded purportedly to explain that:

‘… I cannot think of any instance in which a staff member has received a CAS based promotion of two classifications (ie skipping an entire classification and all the incremental points within it).  The only times I can think of people receiving a promotion which skipped an entire grade have been when an existing employees has successfully applied for an advertised vacancy at the higher level and won it after competing through a merit selection process.  This sort of promotion is quite different from that which happens under CAS’;

Moreover Mr Crakanthorp for his part testified as to his absence of awareness of anyone being promoted in the manner which Mr Lever was proposing; ANSTO asserted further in that context that Mr Lever’s ‘verballing’ of Mr Davies was ‘glib and self-serving’, particularly in the light of Mr Davies’ cogent reasons for refuting what was thus attributed to him; it was further said by ANSTO that ‘… even if other employees … had been given CAS promotions that skipped a grade, it does not follow that [ANSTO] discriminated against [Mr Lever] by not giving him such a promotion’, and in that regard, ANSTO pointed out that ‘[t]he circumstances surrounding the other promotions would have to be examined in order to ascertain whether they were the same or sufficiently similar to the circumstances of [Mr Lever]’, since ‘[t]he promotions of other employees might have been due to circumstances that did not apply to [Mr Lever]’;

(v)                as to subpar (e), Mr Lever asserted, as submitted by ANSTO, that ‘… a comparison between his translation to a new classification structure in June 2002, and the translation of 20 other employees at that time, demonstrates discrimination against him by [ANSTO]’; that reclassification evidence appeared in par 47 of Mr Lever’s affidavit of 1 June 2006; ANSTO’s response however was that such evidentiary material merely disclosed that ‘… 20 employees including Mr Davies were reclassified and about 20 others including [Mr Lever] were not’, assuming that asserted evidentiary material to have been authentic; moreover it was pointed out by ANSTO that any such circumstances, if correct, did ‘not exclude the possibility, or likelihood, that the circumstances of the group of employees that included Mr Davies were sufficiently different to those of the group that included [Mr Lever] to warrant their differential treatment’; in any event, ANSTO emphasised that Mr Lever was thereby relevantly treated the same as about 20 of its other employees; and

(vi)              as to subpar (f), ANSTO’s rejoinder was that Mr Lever’s ‘submission … is not supported by the evidence’ and that ‘at all times [ANSTO] correctly classified [Mr Lever]’, and moreover that ANSTO’s witnesses ‘explicitly den[ied] that they had prohibited reasons for the conduct alleged in paragraphs 81 and 82 of the [Points of Claim]’ (the subject of course of the thirteenth series of breaches).

225               Accordingly ANSTO’s submission relevantly to what I have reviewed above was that its conduct as alleged by Mr Lever in pars 81 and 82 of Mr Lever’s points of claim ‘did not occur, or was not in breach of s 298K(1)’, and that ‘[n]o grounds existed for the Court to make any of the orders sought’. 

226               Alternatively it was asserted by ANSTO that if the Court should find that there had been established any conduct for a reason prohibited by the Act, the Court should not grant the order specified in par 84(c) of the points of claim ‘that ANSTO classify [Mr Lever] in his employment as no less than a Band 7 employee with retrospective effect from 1 July 1999 (being the commencement date for the 1999-2000 assessment period)’.  Two propositions were broadly distilled by ANSTO by way of summary in that regard, as follows:

(i)                  Mr Lever had asserted many times in his affidavit and documentary evidence the opinion that he should be classified at a higher level, yet his senior managers at ANSTO had repeatedly disagreed with that opinion’; and

(ii)                Mr Lever had ‘conspicuously failed to provide evidence sufficient for the Court to arbitrate on this difference of opinion’.

Moreover ANSTO asserted in any event that ‘[t]he classification of its employees is a matter within the prerogative of [ANSTO]’, and that as Mr Lever’s witness, Mr David Melville, said in the course of cross-examination, such classification involved inherently and necessarily subjective and discretionary considerations about which reasonable people could conceivably disagree.  Accordingly so ANSTO’s submissions concluded, ‘[t]he Court should be reluctant to involve itself in such an exercise [and] should allow [ANSTO] to assess the classification appropriate for [Mr Lever], having regard to its operational requirements’. 

227               As to par 82 of Mr Lever’s points of claim, it suffices to record ANSTO’s formal submission in relation thereto, which concerned an allegation of injury in employment in the circumstances particularised in par 81 of Mr Lever’s points of claim, as follows:

‘[Mr Lever] makes no submission on these paragraphs and purports to reserve a right to make submissions about them in reply.  He has no such right.  He should be treated as having abandoned the allegations in these paragraphs of the [Points of Claim]’.  His strategy denies [ANSTO] the opportunity that he now seeks to make written comment on the opponent’s submissions.’

 

In reply, Mr Lever joined issue in respect of these matters with emphases that ‘… the fact of injury or dismissal is not required’, since ‘[i]n light of s 298L(2) the applicant need only prove a threat’, or so Mr Lever submitted.  However, of course, any such ‘threat’ within that subsection must be ‘made to engage in conduct referred to in subsection 298K(1) or (2)’,and pursuant to subs 298L(1) be for a ‘prohibited reason’ within s 298L(1) ‘with the intent of dissuading or preventing the person from doing the act, or coercing the person to do the act …’ within s 298L(2) 

ANSTO’s response to the fourteenth series of breaches pleaded by Mr Lever

228               The response lastly falling for consideration (the fifteenth series of breaches not having been ultimately pressed) relate to what is pleaded by pars 85 to 88 of Mr Lever’s points of claim (ante); after setting out the text of those paragraphs of the Points of Claim, the written submissions of counsel for Mr Lever added the following by way of summary:

‘Again the specifics establishing these individual breaches have been dealt with in the course of the submissions above.  It is submitted that taken together, the individual breaches show a course of conduct establishing that at least on and from February 2001 ANSTO has blocked or interfered with the Applicant’s attempts to resolve his classification dispute with ANSTO for prohibited reasons as alleged.  The applicant reserves his right, as with all breaches alleged, to make further submissions orally and where appropriate in reply in this regard.’ 

 

229               I think however that my reasons for decision already set out have covered the field of the material elements of Mr Lever’s case as ultimately pursued in the proceedings.  In brief response to this fourteenth series of breaches, Mr Lever formally joined issue, with emphasis again that ‘[t]he pleadings are to the effect that, taken as a whole, [ANSTO’s] conduct amounts to injury and/or alteration of [Mr Lever’s] employment to his detriment’.  As will have already been indicated, I think that Mr Lever has been unable to make good any such claim on the evidence and in the light of the legislation and the authorities to which I have already referred.

Conclusions

230               The respective cases articulated by the applicant, Mr Lever, and the respondent, ANSTO, were comprehensive in scope, both as to the factual issues placed before the Court and as to the purported operation relevantly of the general law.  I have sought to set out in detail the nature and extent of the contextual circumstances which the parties respectively adduced in the course of the presentation of their respective cases inclusive of the principles of industrial law which they contended to be here applicable.  The present proceedings have featured a number of contentions as to statutory interpretation reflective of principles that have emerged in the course of resolution of industrial litigation since the Workplace Relations Act 1996 (Cth), and the subsequent Workplace Relations Amendment (Work Choices) Act 2005 (Cth), came respectively into operation.  Each of the parties have provided to the Court extensive written submissions subsequent to the close of the ninth day of hearings of the trial, largely in relation to the factual issues presented for resolution, and concerning which I have in many instances expressed already preliminary views. 

231               I would offer the observation that the very extensive written material provided by the parties to the Court by way of affidavit evidence and concluding written and oral submissions raises legitimate concern as to whether litigious disputes conducted, in particular, under the aegis of Division 3 of Part XA (now repealed) of the Act might well be more expeditiously and economically conducted by way of the more traditional trial proceedings, whereby the evidence of lay witnesses, whether or not preceded by affidavit or otherwise written statements, follows upon completion of pleadings and discovery of documents and the administration of interrogatories.  For a trial judge to receive testimony in that more time honoured way facilitates the judicial task of assessing the credibility of testimony.  Of course expert testimony per se is excluded from those observations.  A more traditional procedural course along those lines would tend to achieve an earlier hearing, as well as reduced legal cost to the parties.  Moreover the introduction of jurisdiction for the Federal Court to make costs orders in industrial cases would tend to assist the confinement at least of the principal issues to be litigated.  The present litigation has exemplified in my opinion the tendency to expand to an unnecessary extent the nature and extent of the issues falling for determination, both procedural and ultimately determinative, mainly because of the evolving scope of the evidentiary issues.  Moreover an increased resort to oral testimony, in the place of affidavit evidence, except in the case of expert evidence, would tend to reduce the scope and duration of the entire litigious process in more instances than not, as well as contribute to earlier hearings and thus determinations.  In short, I think that the prospect of shorter and more confined scope of litigation would be enhanced if the present processes of the Court in industrial matters could be reformed along the lines above suggested.  In the present case, the substance and reality of the issues falling for resolution did not warrant the intricacy and length of the judicial process which here evolved.

232               The structural feature of the presentation of Mr Lever’s case has been of course its assignment of fifteen so-called series of breaches (of which the last was not pressed in submissions) allegedly occasioned in circumstances involving Mr Lever’s endeavours to achieve his promotion as an employee to the level of employment within ANSTO to which he aspired and for which he asserted qualification and entitlement.  As I have recorded, he was initially promoted in December 2000 to a level above that to which he was originally appointed after he first joined ANSTO on 28 April 1999.  Exemplifications of that kind of circumstance are not readily accommodated in a conceptual sense by the s 298K notions of dismissal, injury in employment, altering the position of employment to an employee’s prejudice and discrimination in the terms or conditions upon which employment is offered or made available, within the scope of subsection (1).  The present proceedings are of course confined in operation to aspects of subsection (1) of s 298K, and concern the implications of ‘prohibited reasons’, proscribed in subsection (1) of the comprehensive s 298L. 

233               The controversy at the centre of this dispute has been Mr Lever’s complaint as to the inadequacy of his promotion within the employment structure of ANSTO, being a dispute which originated in or about late October 2000 and crystallised especially in about August 2002 in the context of his meeting with certain senior ANSTO executives.  At or about that latter time, Mr Lever became a delegate of the CPSU at the ANSTO operational establishment at Lucas Heights, that occurring therefore about two years or so after he had initially agitated for his ranking and consequential remuneration as a Senior Professional Officer 1 (which I have abbreviated already in these reasons as ‘SPO1’) within the ANSTO employment hierarchy.  Accordingly it was for over two years or so that Mr Lever agitated for his recognition of the employment status of SPO1 to which he thus aspired, during which time he engaged actively in continuing perseverance to that end on the one hand, though to an extent of, what may be described as, unfortunate insensitivity as to his relationship with senior holders of office within ANSTO on the other hand.  Yet as I have just indicated his role as a delegate with the CPSU did not commence until some time after his differences with ANSTO had crystallised or at least substantially evolved.  It was hence broadly in that context that the controversies and fractured relationships evolved and crystallised to the extent I have recorded.

234               The conclusions I have reached in these necessarily lengthy reasons for judgment are that the fourteen so-called series of breaches, as pleaded and ultimately maintained by his extensive written submissions and subsequent oral submissions, should not be upheld at least to any significant or relevant extent and must therefore be dismissed as not sustainable.  I have reached that conclusion principally for the reasons which were framed extensively and yet precisely by the legal representatives of ANSTO, and which reasons I have summarised, along with those reasons articulated by the legal representatives of Mr Lever.  In respect of none of those so-called series of breaches has Mr Lever been able to establish or demonstrate sufficient or adequate support or validity for his case as to contravention of the subject legislation based upon or arising out of circumstances established by the evidence adduced in the proceedings, and otherwise in accordance with the operation of the general law upon those circumstances.  Put another way in summary, Mr Lever has been unable to demonstrate that there was occasioned to him ‘dissmiss[al], injur[y] … in employment’, ‘alter[ation] [of employment] position … to [his] prejudice’or ‘discriminat[ory] [conduct] against another person in the terms or conditions on which [ANSTO] offer[ed] to employ [another] person’, in any such instances for any ‘prohibited reason’within the operation ofs 298L of the Act.  In short, none of the various so-called series of breaches pleaded by Mr Lever have been otherwise made out, for the reasons comprehensively framed by counsel for ANSTO.  In my opinion, the carefully analytical submissions of ANSTO entirely answered the somewhat sweeping scope and manner of presentation of Mr Lever’s case, inclusive of his extensive submissions in reply that tended to fall significantly short by way of purported rejoinder.  

235               To set out my reasons for those conclusions necessarily entailed little more than a reiteration of the substance of the contentions of ANSTO as I have framed and summarised the same in a sequence corresponding with Mr Lever’s extensive points of claim, being contentions which, as I have thereby indicated seriatim, did not come adequately to issue in the course of Mr Lever’s submissions in reply.  ANSTO has succeeded in establishing the correct or substantially correct operation relevantly of the legislation to the circumstances postulated and as I have sought to summarise in relation to each of the series of breaches propounded by Mr Lever.  In my opinion Mr Lever’s submissions have sought to advocate operations of the legislation in relation to circumstances not available under or not otherwise geared to the operation relevantly of sections 298K and 298L of the Act or in conformity with the body of judicial interpretation upon those statutory provisions.  In contrast, ANSTO’s submissions have been framed largely in line with the established authoritative interpretation of the subject statutory provisions, to the extent that, of course, authority is presently available, and in line for the greater part at least with the prevailing testamentary and documentary evidence.

236               Accordingly it would be unduly repetitive for me to restate in these conclusions the evidentiary and juridical submissions, my evidentiary findings, and the applicable principles of the general law and their operation relevantly which I have made or sought to apply or affirm in favour of ANSTO (as the case may be) in relation to each of the controversial segments raised by Mr Lever and addressed in these reasons for judgment.  ANSTO has fully and comprehensively addressed and answered correctly, or substantially and sufficiently so, for the reasons I have recorded in favour of ANSTO, the fourteen series of breaches propounded by and on behalf of Mr Lever both in his submissions in chief and reply.  For the reasons apparent already from my recorded examination of each of ANSTO’s responses and contentions which I have restated in these reasons, my conclusion is that Mr Lever has failed to establish any of the series of breaches propounded on his part in the proceedings, and that accordingly the entirety of the proceedings must be dismissed.  I will make an order accordingly. 

 

I certify that the preceding two hundred and thirty-six (236) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti .

Associate:

Dated:         16 August 2007

Counsel for the Applicant:	Mr D M Shoebridge
Solicitor for the Applicant:	Employment Lawyers
Counsel for the Respondent:	Mr R F Crow
Solicitor for the Respondent:	Henry Davis York Lawyers
Dates of Hearing:	27, 28, 29 and 30 November 2006; 1, 4, 8, 14 December 2006; 5 April 2007 and 28 June 2007
Date of Judgment:	16 August 2007