FEDERAL COURT OF AUSTRALIA

Regulski v State of Victoria [2015] FCA 206

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

REASONS FOR JUDGMENT

1    In this proceeding, the applicant, Paul Regulski, alleges that the first and second respondents, the State of Victoria and the Victorian Commission for Gambling and Liquor Regulation (“the Commission”) respectively, acted in contravention of certain provisions of Pt 3-1 of the Fair Work Act 2009 (Cth) (“the FW Act”) while he was employed by them over the period from March 2011 to March 2013. The applicant alleges that the third and fourth respondents, Mark Windisch and Gabrielle Levine respectively, were involved in those contraventions within the meaning of s 550 of the FW Act, and were, therefore, also liable in respect thereof under Pt 3-1. The applicant also alleges that the conduct of the first respondent and the Commission constituted breaches of implied terms of his contract of employment which required them to act in good faith towards him and to co-operate with him.

The Facts

2    The applicant commenced the employment which is relevant in this proceeding in July 2009. He was engaged by the first respondent as a Compliance Inspector within the Compliance Directorate of Responsible Alcohol Victoria (“RAV”). The department responsible for the applicant’s employment was the Department of Justice and, for convenience, I shall refer to the first respondent as “the Department”. The applicant remained so employed until 6 February 2012, when his employment was transferred, uncontroversially, to the Commission. Thereafter, the applicant remained in the employ of the Commission until his resignation on 12 March 2013.

3    The Compliance Directorate was principally concerned with enforcing compliance with the provisions of the Liquor Control Reform Act 1998 (Vic) (“the LCR Act”), including those under which liquor licences were subject to conditions. It was based in office premises in Prahran. Mr Windisch was the Manager of the Compliance Directorate. Compliance inspectors, such as the applicant, were organised in four “teams”, identified by the letters A, B, C and D. Each team was under a “team leader”. The applicant was a member of Team C, under the leadership of Lisa Jones. She had been appointed Acting Team Leader in May 2010, and secured the substantive position in July of that year.

4    Subject to certain background facts to which I shall refer as necessary, the presently controversial issues had their genesis in the way in which Ms Jones was treated, at least in her perception, by members of Team C in the period since she had first been made Acting Leader of that team. In her evidence, Ms Jones said that, after she was appointed as Acting Team Leader, she “experienced some hostility from some of the team members”, and that she thought that these members “were having difficulties in accepting [her] as an Acting Team Leader”. She said that she “would often be questioned on the decisions that [she] had made, and [she] felt that the questions were trying to hinder [her] from actually leading the team.” She said that, if she questioned these members on their work, “they would take it quite personally … and raise their voice.” The applicant was one of three of the team members who stood out in this regard. These “behaviours”, as Ms Jones described them, continued after she was appointed as Team Leader.

5    Ms Jones’ concerns about the way she was being treated by some members of her team came to a head over the weekend of 26-27 March 2011. On Friday 25 March, she was told by an inspector (not, so far as I can see, a member of her team) called Jeet Singh that he was uncomfortable with some comments that had been made by members of Team C while Ms Jones was out of the office. He told her that the comments were, as she put it in her evidence, “nasty”, and that the conversation had been led by the applicant and another inspector on the team, Rhys Harrison. Mr Singh told Ms Jones that Mr Harrison had said that she “was only getting married for a visa.” Mr Harrison gave evidence, in the course of which he said that it was his understanding that this related to a comment which he had made to Ms Jones directly in December 2010 when he became aware that she was engaged to be married. According to him, he then asked her whether her “Green Card was running out”. When this was put to Ms Jones under cross-examination, she could not recall it, but she denied that she “laughed” in response to any such comment. Mr Singh was not called, and Mr Harrison said that he did not “believe” that he had made the comment, or any like it, on 24 March 2011.

6    For present purposes, it is not necessary to resolve the primary factual questions of the content and timing of Mr Harrison’s comment. It is sufficient to hold, as I do, that, on 25 March 2011, it came to Ms Jones’ attention, from a source which she seems to have regarded as reliable, that some nasty comments had been made about her in a conversation led by the applicant and Mr Harrison, and that Mr Harrison had said, in the course of that conversation, that she was getting married only in order to secure a visa.

7    During the working day on 26 March 2011, Ms Jones was approached by one of the inspectors on Team C, Ben Considine. He said that he had spoken to the other team members regarding their behaviour towards Ms Jones. In a lengthy email which Ms Jones sent to Mr Windisch on the following day (to which I refer further below), she said that Mr Considine told her that he had told the inspectors that the way that she was being treated by them was “unacceptable”. According to the email, Mr Considine told Ms Jones that this comment of his was not taken well by the members of Team C. Two of them, Ben Swallow and Mr Harrison, became “quite animated”, and the applicant responded by “walking off”. In her evidence-in-chief, Ms Jones added that Mr Considine had told her that another member of the team, Cheryl McInerney, was also present, and that she and the applicant had not only “walked off”, but had added the observation that they did not see why they should be nice to Ms Jones. I am not prepared to make a finding about that observation: it was put neither to the applicant nor to Mr Harrison, and no other person present at the time was called. However, it is uncontroversial that, during the course of the shift on 26 March 2011, Mr Considine did have a conversation with other members of Team C, including the applicant, in which he criticised them for their behaviour towards Ms Jones.

8    After she had left work on 26 March 2011, Ms Jones received a phone call from Mr Swallow. He said that he had been shocked by what Mr Considine had told the Team C inspectors. This phone conversation lasted about 30 minutes. It was followed by another one between Ms Jones and Mr Considine, initiated by Ms McInerney contacting Ms Jones and asking her to call Mr Considine. When Ms Jones called Mr Considine, he was most upset. It seems that he had been called by Mr Swallow, seeking clarification as to what he had said to Ms Jones. Mr Considine told Ms Jones that he had been told by Mr Swallow that he and Mr Harrison had sent emails to Mr Windisch. The conversation between Mr Considine and Ms Jones lasted about an hour, during which, in Ms Jones’ words in her email to Mr Windisch of 27 March, she was trying to calm Mr Considine down.

9    According to Ms Jones’ evidence-in-chief, when she arrived at work on Sunday 27 March 2011, the members of her team would not speak to her: “…they avoided eye contact with me and generally ignored any instructions that I gave.” It became clear, however, that this was not to be understood as a reference to what happened over the course of that shift. All of the members of Team C, save for Ms Jones and the applicant, were occupied for much of the time on inspections and were not, therefore, in the office. In the applicant’s evidence-in-chief, he said that he spent the whole of the day working with Ms Jones. Ms Jones accepted that they were both in the office for the whole of the day, but she did not accept that they were working on the same matter. I do not need to resolve this minor difference: it is sufficient to note that Ms Jones was not challenged on her evidence as to the response which she received from the other team members upon her arrival at work.

10    It was against this background that Ms Jones sent her email to Mr Windisch on the evening of 27 March 2011. The subject line of the email was “Rhys Harrison”. Ms Jones laid out particulars of the conversations which she had had on 26 March, as referred to above, and said that she wanted to give Mr Windisch “some context” in which to read the emails which she had been told had been, or would be, sent to him by Mr Swallow and Mr Harrison.

11    Regarding Mr Considine’s most recent telephone conversation with her on 26 March, Ms Jones said in her email:

It [sic] think Ben tried to do the right thing here and that this is the peer regulation that we have been talking about but there were some personalities within the team that overreacted.

With respect to Mr Harrison specifically, Ms Jones said:

In addition to this, I am still having problems with Rhys Harrison. He is really bordering on bullying and harassment and to be honest I now want to put forward a formal complaint against him. Paul Murtagh approached me last Thursday and said that he has seen what some people have been doing and saying about me in the office and said that if I ever wanted to talk to him he was always available. I thought that this was strange so I approached Jeet today to see if anything occurred last Wednesday when I wasn’t in the office. Jeet stated that he felt very uncomfortable in the office that day as Rhys was making personal attacks against me in front of everyone. One comment made was that I was only getting married so that I can get residency.

In her email, Ms Jones proceeded to deal, in some detail, with the difficulties which she had encountered in her working relationship with Mr Harrison. She concluded by saying that she did not accept Mr Harrison’s “personal attacks about [her] in the office in front of the whole directorate”, and that those attacks were not deserved.

12    Mr Windisch was concerned about what Ms Jones had said in her email, and called her into his office on the morning of Monday 28 March 2011. She brought with her a letter tendering her resignation. Received into evidence without objection was a note which Mr Windisch made of the conversation which followed. According to the note, the meeting commenced at 9.30 am. The note continued:

[Spoke to] [Ms Jones] re email & conversation over weekend. [Ms Jones] was mainly upset about the personal attacks regarding a reference to her marriage being only to get a visa, this was made by [Mr Harrison] as he had mentioned this to another staff member. This was conveyed to [Ms Jones]. She ([Ms Jones]) also has had a number of staff come and offer her assistance. [Ms Jones] stated she had been told that [Mr Harrison] and [the applicant] and [Mr Swallow] were causing trouble behind the scenes and had been openly hostile and argumentative to her in front of office staff. According to [Ms Jones] this has resulted in a new staff member KB had been present when things had been said to [Ms Jones] and had approached [Mr Considine] stating words to the effect they don’t treat her very well. [Ms Jones] then handed me a letter which she told me was her resignation, as a result of the bullying she had been receiving in the recent weeks. [Ms Jones] stated she was sick of the constant battle and remarks that [the applicant] and [Mr Harrison] and, to a lesser extent, [Mr Swallow] had been directing to her. Things like “you couldn’t do an inspection any more” “all [team leaders] can’t admit that inspectors are right. They think they are always right”. Both [Mr Harrison] and [the applicant] argue and question [Ms Jones’] decisions and argue and question legislation and process, eg mixed business. I told [Ms Jones] I did not want to accept resignation.

Aside from what appeared to me to be a groundless suggestion put to Mr Windisch in cross-examination (ultimately not reflected in the final submissions made on behalf of the applicant) that this note was not made contemporaneously with the meeting to which it related, it was not suggested on behalf of the applicant that the note did not constitute a generally accurate summary of the conversation between Mr Windisch and Ms Jones on the morning of 28 March 2011. According to Ms Jones’ evidence, Mr Windisch concluded the meeting by asking her to reconsider her decision to resign, and by telling her that he would speak to her team.

13    And Mr Windisch did indeed speak to the team. It is clear that he was angry, to say the least, about the treatment to which Team C had been subjecting their leader. After Ms Jones had left his office, Mr Windisch himself went out into the open-plan office area and said to the applicant, in a tone which the applicant described as aggressive, “You, get in my office now”. Mr Windisch then walked over to the desk where Mr Harrison was working, and said to him, “Don’t go anywhere. You’re fucking next”. Mr Windisch and the applicant then proceeded into the former’s office. Once he was inside the office, Mr Windisch slammed the door hard, an act which he admitted doing deliberately as indicative of the anger which he then felt in respect of the treatment of Ms Jones. It was the applicant’s evidence that the door was slammed as he was himself still in the course of entering the office, such that the door came into violent contact with his foot and jamming it between the door itself and the door jam. Mr Windisch denied this aspect of the events, stating that, by the time he slammed the door, the applicant was completely inside the office. Although I found, and still find, difficulty in perceiving how the facts as described by the applicant might have occurred, as a matter of mechanics, his recollection of those facts was manifestly a vivid one, and was supported by a contemporaneous note which he made and which was admitted into evidence without objection. I accept that his foot was contacted by the door in the course of it being slammed shut by Mr Windisch. But I would not find that this was intentional on Mr Windisch’s part. At the time, Mr Windisch was in such a state of anger that the applicant’s foot was the last thing on his mind.

14    What followed could not be described as a conversation. It was almost completely one-sided. The applicant was given little or no opportunity to say anything. He was subjected to such a vehement and vitriolic dressing down by Mr Windisch that it left him in no condition to return to his normal work. Both the applicant and Mr Windisch made contemporaneous notes of what was said by the latter on this occasion, and both sets of notes were admitted into evidence without objection. The applicant’s own evidence-in-chief, given without in-court reference to his notes, was comprehensive, and I shall refer to it below. Mr Windisch also gave evidence-in-chief on the subject, but it became clear that he had little or no actual recollection of the dressing-down which he administered to the applicant. In the circumstances, I consider it more reliable to set out below the terms of the note which he took. In so doing, I recognise that the note (which, unlike the applicant’s, was in handwriting) fairly clearly tended to sanitise the intemperate and inappropriate terms in which he addressed the applicant on this occasion. While under cross-examination, Mr Windisch accepted as much.

15    According to the applicant’s evidence-in-chief, as he walked into Mr Windisch’s office, Mr Windisch attempted to slam the door, but the applicant’s foot became caught between the door and the jam. The applicant attempted to tell Mr Windisch what he had done to his foot, but Mr Windisch shut him off, saying, “Get in my fucking office. Sit your fucking arse down.” The applicant then stepped into the office, and Mr Windisch slammed the door again, with extreme force. Once they were in the office with the door closed, Mr Windisch, as the applicant put it, “got up into my face”. Standing close to the applicant and pointing between his eyes, Mr Windisch said, “You’re fucking shit. You’re a useless piece of fucking shit.” The applicant put his hands up defensively, and took a step back to place some distance between himself and Mr Windisch. In this way, the applicant’s back came into contact with the wall, but Mr Windisch closed in on him and continued his invective in the same vein for some four or five minutes. He said, “Sit your fucking arse down”, “Sit the fuck down”, “You’re fucking shit” and similar terms of abuse. The applicant moved towards the door as though to leave, but Mr Windisch blocked his way. The applicant tried to say, “Calm down. I can see you’re out of control”, but Mr Windisch’s response was to say, “Don’t fucking answer back to me. You’re a fucking idiot”.

16    At this point the applicant did sit down. When he was seated, Mr Windisch stood over him and said, “You’re fucking shit. I fucking know you. I’m going to fucking destroy you.” The applicant did not react. This went on for five or ten minutes, after which time Mr Windisch retreated to a position behind his desk, but continued this invective directed towards the applicant from that position. The applicant was shaking, on account of which he had to hold on to his knees. Mr Windisch said, “If this was Vic Pol … we would be out that door”, at the same time pointing to the rear door of the office leading to the car park outside. Mr Windisch continued to say things such as, “You are fucking shit. You are fucking useless. You are the worst person in this place. I know what the fuck you’ve done.” He mentioned the names of a number of people having positions of responsibility in the Department, including Ms Levine and the then Director of RAV, and said that he would speak to them and make sure that the applicant did not get a job anywhere else in the Department; and that the applicant would be sacked because he was “fucking useless” and had “no fucking idea about anything”. Mr Windisch also mentioned the names of people (unknown to the applicant) to whom he intended to speak to ensure that the applicant did not get a job with the Commission.

17    At about this stage, Mr Windisch asked the applicant where his tie was, and the applicant responded that it was in his locker. Mr Windisch told him to “go out there and fucking put it on.” The applicant then left Mr Windisch’s office and returned a moment or two later after putting on his tie. Mr Windisch’s tirade continued, concerned then with the subjects of respect and discipline. Leaning over his desk and pointing at the applicant, Mr Windisch said, “This is how you will sit all the fucking time. You will sit here with respect. You don’t respect anyone. You will show fucking discipline now, so sit up straight”. Mr Windisch then asked the applicant where he used to work, and he replied, as was the case, that he worked in the Sherriff’s Office. Mr Windisch responded by saying that that place was “shit” and that it explained everything, adding, “There’s no discipline in that place.”

18    Mr Windisch told the applicant that he had broken the code of conduct and, pointing to his computer, said, “It’s all recorded on there. I’m going to have you sacked.” Mr Windisch then said to the applicant, “Don’t go and speak to your fuckhead mate, Rhys, about what’s happening.” He told the applicant that he could destroy him, that he was going to destroy his career, that he had fried bigger fish than him. He said, “I will take you down. I’ve dealt with bigger fish than you. No-one is going to believe a piece of shit like you.” He said, “You’re useless. You’re fucking toxic. You’re fucking cancer”. At one point, Mr Windisch said that the applicant did not “even know what a fucking ERR is.” Mr Windisch asked the applicant to get his run sheets, which the applicant had, in the normal course, given to Ms Jones as his Team Leader. The applicant left Mr Windisch’s office and asked her for the sheets. The only one she could find was that which related to the previous day on which, as mentioned above, the applicant had been working in the office. He returned to Mr Windisch with this sheet. Sitting at his desk and pointing to various items on the sheet which the applicant was unable to see from his position, Mr Windisch said things such as, “What the fuck is this? What’s that? You don’t even know how to do this? And what’s this? And what the fuck is that?” With respect to the applicant’s inspection numbers, Mr Windisch said, “This shit about you only doing six or seven inspections a day stops now. You need to do fucking more than that. You’re fucked.”

19    Toward the end of the meeting, Mr Windisch said, “You’ve got a daughter, right?” The applicant nodded. Mr Windisch said that he would make sure that the applicant never saw his daughter again. He would make sure that the applicant was rostered every weekend on which he would otherwise have seen his daughter. He said that he would get one of the other inspectors (not on Team C) to monitor the applicant’s every move. He said that he would have Denise Pravakis (a former team leader who was no longer employed in the inspectorate) audit the applicant’s work from previous jobs and, as the applicant put it in his evidence, “basically, she was going to get [him] sacked”.

20    Mr Windisch then calmed down. He said to the applicant, “Right. Now, you need to get out there, and you need to get this team to work together. You need to get this team to get together and work for Lisa. That’s your responsibility. It’s now your time to shine. And if you fucking don’t, I will fucking get you.” At this point, Mr Windisch looked away, and the applicant took the opportunity to stand up. Moving towards the door, he said, “If you’ve got any issues with me, I would appreciate you speak to me with a bit of respect.” Mr Windisch’s response was, “That will never fucking happen because you will never fucking be in here again.” Then the applicant left the office.

21    Mr Windisch’s notes of the meeting with the applicant were as follows:

[Spoke to] [the applicant] re above issues. I explained in very clear terms that his behaviour was inappropriate and he was causing interference and disquiet in the team. I told him to put on his tie and get his running sheets for the weekend as I wanted to know what work he had been doing. I explained to him that I didn’t think he was up to the standard of being a [compliance inspector] and that as far as I was concerned he would need to improve or leave. I explained that he was … [illegible, even to Mr Windisch] hard and that I was aware of issues with his performance ie not knowing what an ERR was etc. I did not ask him for explanation. I repeated he is not to argue with [Ms Jones] or question her decision making. If he is told to do something he will do it unless it was something illegal which I was sure would not be requested of him. I told him that from now on I would be mentoring his work performance and ensuring he is working properly. I explained that we were and had been very fair to him with regards to his roster in relation to his children but that if he continued to question and argue and make inappropriate comments, I would have to review this as it impacted on us operationally. I explained I did not have confidence in his ability and that he would need to start again.

22    On a number of occasions, when taken to the detail of what the applicant had said in his evidence, Mr Windisch denied making the comments referred to. Such denials, however, were based on what he then believed he would not have said, rather than on any recollection of what he did in fact say. In the circumstances, I accept the applicant’s evidence to the extent that it refers to what Mr Windisch said, and to the general course of the meeting in his office that day.

23    According to the applicant’s evidence, after leaving Mr Windisch’s office, he sat at his desk, unable to concentrate on work. He saw Mr Harrison enter Mr Windisch’s office and the door close behind him. The applicant gathered up some files and left the office. He drove to Williamstown, where he believed there were some premises that would warrant his attention, but, at the time of giving evidence, he could not recall what he actually did when he got there. He was unable to speak to any licensees. He could not stop shaking, such was the emotional impact which Mr Windisch’s dressing-down had had upon him. He did not return to work. This evidence was, at least in the latter respects, directly inconsistent with that given by Ms Jones, who said that, after the applicant had had his meeting with Mr Windisch, he completed six or seven inspections that day, then returning to the office and completing all the necessary paperwork. She said that she did not recall the applicant “being particularly distressed”. Neither witness was cross-examined on the evidence to which I have referred. However, it is uncontroversial that the applicant did not return to work the following day, 29 March 2011, his absence subsequently being covered by a medical certificate. As events transpired, the applicant never returned to work.

24    Back at Prahran, Mr Harrison entered Mr Windisch’s office as summoned. While evidence of what passed between these two men is not directly relevant to the applicant’s case, to the extent that it throws light on Mr Windisch’s then thinking it may be indirectly so, and I allowed it to be led by the applicant. While Mr Harrison could not recall anything else said by Mr Windisch in this meeting, he did recall that “it was all about saying that we were trying to undermine [Ms Jones]”. As soon as Mr Harrison sat down, Mr Windisch said to him, “I want you gone. I want you out of this office. I want you out of this organisation.” He told Mr Harrison that, if he had it his way, he could take Harrison “out to the garage” and deal with the problem in another way. He showed Mr Harrison a statement which he, Harrison, had written, and on which (according to Harrison), “every third or second word was circled”, presumably indicating error. Mr Windisch waved that in Mr Harrison’s face, saying, “This is the problem”. He then criticised Mr Harrison for turning up late for work, saying that it was not acceptable. At some point, Mr Windisch told Mr Harrison that he “would never work at the Department of Justice ever again, that [his] career was finished”. According to Mr Harrison, Mr Windisch’s manner was aggressive. He was “moving forwards”, while Mr Harrison was “moving backwards”, a situation which deprived Mr Harrison of what he called his “personal space”.

25    Mr Windisch’s note of his conversation with Mr Harrison was as follows:

[Spoke to] [Mr Harrison]. [Mr Harrison] in office. At outset I explained that I wanted him to leave and that he shouldn’t be working here. I explained that he had for some time been making inappropriate and aggressive comments to [Ms Jones] in front of other staff. In particular his reference to [Ms Jones] only getting married to get a visa. I explained that other staff had been offended by this and had been concerned enough to raise this with [Ms Jones]. He stated I was a liar as he believed something this was in relation to my decision not to select him as the [Acting Team Leader]. I explained that it was inappropriate to say that your manager is a liar when he had no proof. I explained that I didn’t think he was engaged at the office, as I was aware that he had been trying for some time to get another job. I said as I wanted him out of the office I would make sure he was given that opportunity. I told him he would need to start again as I had no confidence in him, both as a team player and a leader. I stated on numerous occasions I did not want him in the office. However, I was aware that I could not get rid of him and as such he was told not to argue with [Ms Jones] and question her decisions, not to speak disparagingly about her and that the matter regarding the reference to the visa would be dealt with by others. I told him I would monitor his work performance as I believed he wasn’t at the standard of many others at the office. I told him not to question [Ms Jones] about mixed business [regulation] or about legislation and processes.

26    Mr Windisch also summoned Mr Considine and Mr Swallow into his office on the morning of 28 March 2011, and his notes of those conversations are in evidence. Neither of these inspectors gave evidence in the case, and I do not propose to enter upon the detail of what Mr Windisch said to them. It is sufficient to say that the subject of the conversations related broadly to the issue which had led to the earlier meetings with the applicant and Mr Harrison, namely, the relationship between Team C and their leader.

27    At this time, Ms Levine was the Regional Director for the Southern Metropolitan Region of the Department. Although not part of RAV, Ms Levine had responsibility for the Compliance Directorate, and Mr Windisch reported to her. At about 1 pm on 28 March 2011, she received a telephone call from him. He said that she might receive a complaint from a staff member, following a discussion which he had had earlier that morning. He said that he had been angry following various incidents involving Ms Jones and a number of the compliance inspectors on her team, namely Mr Harrison, the applicant, Mr Swallow and, to a lesser extent, Mr Considine. He said that the matters had been exacerbated by an email which Ms Jones sent him at the weekend, and the fact that, earlier that morning, Ms Jones had come in to see him very upset, and had handed him a letter of resignation. He said that Ms Jones had told him that she was not prepared to put up with the inspectors’ behaviours any further. Mr Windisch said that he was angry about what had happened, had left his office, had seen the various members of staff mentioned in their usual places, had pointed at the applicant saying “into my office now”, and had then said to Mr Harrison, “you’re next”. Mr Windisch told Ms Levine that he slammed the door to his office after the applicant had entered, to make the point to them that the matter was serious. He said that he knew that he should not have done this, but he was upset about the treatment of Ms Jones. He said that he had spoken with all of the inspectors, reminding them that their behaviours and attitudes were not acceptable, and that he would be expecting significant changes from them all. He had told them that he was drawing the line, and that today was the beginning of a new start. Ms Levine agreed with Mr Windisch that he should not have spoken to the compliance inspectors while angry, or slammed the door. She said that she would speak to him about this matter, and the content of his conversations with the inspectors, at another time. She reminded him not to say anything further about this to the inspectors concerned. They then discussed what should be done about Ms Jones and her allegations. Ms Levine suggested that Mr Windisch ring “employee relations” to progress this, and that Lisa Jones should be offered “EAP” and be informed that the Department was taking her allegations seriously.

28    Late in the afternoon on 28 March 2011, Ms Levine sent an email to Mr Windisch expressing strong concern about the behaviours of the compliance inspectors mentioned by Mr Windisch in his earlier telephone conversation with her. Her concerns at this point related to Ms Jones, and her position in a workplace that Ms Levine described, in her evidence, as dysfunctional.

29    Mr Windisch replied promptly to Ms Levine’s email. He said that he had spoken to Ms Jones, who was “happy for this to be dealt with formally”. What he meant, of course, was that Ms Jones’ complaint against the applicant and other inspectors would be so dealt with.

30    Ms Levine then (ie still on 28 March 2011) sent an email to Peter Ewer, Assistant Director, People and Culture, or “HR” as Ms Levine paraphrased it in her evidence. She said that there had been a “significant misconduct event at Prahran”, which resulted in one of the team leaders handing in her resignation. The focus of the email was on the behaviours of the inspectors about which Ms Jones had complained. Ms Levine said that there was a “real question” about the “integrity” of the inspectors concerned, and that they had brought the reputation of the Department into disrepute. She identified Ms Jones as the Team Leader, and the applicant and Mr Harrison as the inspectors concerned. She asked Dr Ewer to cause “an urgent investigation” to be undertaken. She asked him to discuss the matter with Mr Windisch, who would ensure that the people concerned were available for interview.

31    Separately, but still on the evening of 28 March 2011, Ms Levine sent a copy of her email to Dr Ewer to Mr Windisch, asking him to ring Dr Ewer the following morning, thanking him for his work and for being so supportive of Ms Jones, and adding, “These 2 have no place with us + the culture.” She also sent a copy of her earlier email to Mr Windisch to Chris Smyth, Director, People and Culture, and added her own thoughts in the following terms:

I am very upset by the behaviour of these 2 staff + don’t see a role for them going forward. The Team Leader has demonstrated her integrity, hard work and commitment to DoJ values + behaviours as well as to the Code of Conduct. She is the type of person we need to keep in the department.

The conduct of these 2 also go to their mistreatment of her because she is a woman.

There are a number of witnesses to this and Lisa is happy to pursue an investigation.

This is what I’ve rung about.

So much has been done in the dept to change behaviours and I believe there’s no room for misogyny.

I will need a lot of convincing to keep these 2 as part of a very high profile team, especially given the integration of the VCGR+RAV.

In both emails, the “these 2” referred to were, of course, Mr Harrison and the applicant.

32    On the following day, 29 March 2011, Dr Ewer forwarded Ms Levine’s correspondence to Alicia Dumais, Manager, Employee Investigations, People and Culture. In the covering email, Dr Ewer noted Ms Levine’s authorisation to commence a misconduct investigation against Mr Harrison and the applicant. On the same day, Ms Dumais spoke to Mr Windisch by telephone. He said that he was concerned that one of the inspectors in his area, Mr Harrison, had allegedly made a comment about another worker in the area, Ms Jones, that the only reason she was getting married was to get a visa to stay in Australia. He told her that a new inspector had expressed surprise at how some of the inspectors spoke to Ms Jones, in which context he mentioned Mr Swallow and the applicant. He made reference to there being some backbiting in the office. He referred to a previous issue that he had had with Mr Harrison, when he did not secure an Acting Team Leader position. They discussed whether it might be necessary to move Mr Harrison out of the area, but Mr Windisch said that he could “manage it”. Mr Windisch said that he wanted a formal investigation into the issues in the workplace. At the end of the conversation, Mr Windisch said that he had “lost it a bit”, and that there could be a complaint against himself.

33    Ms Dumais delegated the function of undertaking a preliminary investigation – having the purpose, effectively, of determining whether there was sufficient material to justify the conduct of a full investigation – to one of the investigators who reported to her, Rachael Marks. On the day upon which Ms Dumais spoke to Mr Windisch, 29 March 2011, he sent her a copy of Ms Jones’ email to him of 27 March 2011 (see paras 10-11 above), and this was made available to Ms Marks. On 31 March 2011, Ms Marks interviewed Ms Jones. On 5 April 2011, Ms Marks spoke to Ms Levine, and then sent her an email, in which she said that she had reservations about putting Ms Jones’ allegations “as is” (Ms Marks’ quotation marks) to the applicant. She said that she had just spoken again to Ms Jones, who would check her diary “for any specific instances we can include in an allegation letter”.

34    Ms Levine forwarded this email to Mr Windisch, referring to her conversation with Ms Marks. She said that it was Mr Harrison who had displayed “the most difficult [and] unacceptable behaviours over a period of time”, and, in relation to the applicant, it was “more about not accepting [Ms Jones’] authority etc”. In his response to Ms Levine, which was sent at 8.05 pm on 5 April 2011, Mr Windisch said that it was “good to hear that [he had not] misread the situation”. He said that Ms Jones had been “putting up with this for some time and just accepts it as normal behaviour”. He said that he did not think that “they will ever change”, but it was important to make sure that Ms Jones and anyone else at the office did not get treated in the way that she was. He admitted that he did not like “this part of the job”, and that it was “a shame that a few can cause so much trouble”. He said that he had tried to contact the applicant to let him know that the Department needed a medical certificate, but he “left a message and [the applicant] has not called back”.

35    Ms Levine replied to Mr Windisch at 8.24 pm. Her email was the subject of some emphasis in the case being conducted on behalf of the applicant and, subject only to grammatical changes necessary to convert Ms Levine’s messaging jargon into ordinary English, I set it out in full below:

Hi Mark-this stuff is the pits! PR hasn’t made any formal complaints to HR and you know I support you completely in your discussion with them. Good that [Mr Harrison] has pulled his head in … but the others…

I’m surprised that [Ms Jones] thought their behaviour “was normal” … this experience hopefully has reminded of how a good organ should work. She needs to learn that line between when it’s right for her to manage and resolve issues and the importance of briefing up. Still, I’m sure that she’s got a much better understanding of this now. She has such ability.

No need to thank me – you’re doing a terrific job and you’re such a breath of fresh air and terrific to work with.

Now, what’s this suggestion to Jason that I mightn’t support you in further studies ….have to be careful here as sometimes get missed! You have my complete support. If you’re interested in the Masters course in regulation/compliance, let’s do it now so you are well positioned prior to the integration [and] we clearly have the [money].

36    There are references in the evidence from which it is apparent that, in about the first fortnight after the applicant’s encounter with Mr Windisch on 28 March 2011, both Mr Windisch and Ms Jones telephoned the applicant, but had not been able to speak to him. Their calls were not returned.

37    I turn next to a three-hour meeting between the applicant and Ms Levine on 14 April 2011. The meeting was initiated by the applicant contacting Ms Levine and, after some failed attempts, he eventually spoke to her by telephone at about 9.50 am on 13 April 2011. He said that he wanted to speak to her about an urgent matter. He said that he had received advice from his solicitors urging him not to speak to Ms Levine alone, but, as he trusted her, he was prepared to do so. A contemporaneous record of what the applicant said in that telephone conversation is provided by the following email which Ms Levine sent to Caitlin Huffer at 1:45 pm on 13 April 2011:

I had a phone call this [m]orning from Compliance Inspector Paul Regulski who has asked to meet with me to discuss a very serious matter.

He indicated that given our previous interactions, he trusts me. He has been advised (not sure by whom) to have another person at any such meeting. He and I agreed that this isn’t necessary.

So I am meeting with him tomorrow at 8am in the city. I have said that I intend to listen to him and understand the issues and where he wants to proceed. He is very angry, has medical certificates…has sought advice…

I think that he’s keen to do something formally…I will try to get him to the mediation route.

Ms Levine met with the applicant at about 8 am the following morning, 14 April 2011, at a café in Exhibition Street.

38    Both the applicant and Ms Levine gave evidence as to the course of the conversation which followed. The applicant did not take notes, either at the time or subsequently. Ms Levine did not take notes during the course of the meeting, but she did so soon afterwards. Her notes were admitted into evidence without objection. I propose to use them to provide structure to what follows, taking into account where necessary the applicant’s oral evidence as to the meeting, and the extent to which Ms Levine’s oral evidence under cross-examination departed from the notes. It was not put to her that the notes were not at least broadly accurate as an account of the course of the meeting, but she was, unsurprisingly in the light of the applicant’s evidence, challenged on particular aspects.

39    The meeting commenced with Ms Levine telling the applicant that she was very happy that he had made contact, as she was concerned, given that he had not responded to phone calls over the previous two weeks. She said it was good to see him. He reiterated that he had been advised by his solicitors not to meet with her alone, but he made the decision to meet as they had had a positive relationship in the days when she was the Sheriff, and he was a new recruit in that office. Ms Levine thanked him for this and said that he could talk to her. He asked her if she knew what had happened recently at Prahran. She said that she knew a little, but encouraged him to tell his story.

40    The applicant said that, on 28 March 2011 in the morning, he was at his desk (or, as Ms Levine’s notes put it, “in a pod”) talking with colleagues namely, Messrs Harrison, Swallow and Considine. Then Mr Windisch came out of his office, pointed at the applicant and said in a loud voice “you, I want you to come into my fucking office now.” He said that he followed Mr Windisch into the office and Mr Windisch slammed the door with his (the applicant’s) foot stuck in it. He said that Mr Windisch was angry and told him to sit down on the other side of the desk. He said that Mr Windisch was shouting at him, asked him where was his “fucking tie”, and told him to go out and get the tie and put it on. The applicant said that he left Mr Windisch’s office, got his tie, put it on, and returned to the office. Then, according to what the applicant told Ms Levine, Mr Windisch continued to shout at him so loudly that he was sure that those working at the other end of the floor could hear it. Mr Windisch kept yelling at the applicant, and pointing at him, while the applicant sat there, not saying anything. As a former military person, the applicant said nothing, but just clenched his fists. The applicant told Ms Levine, “I felt like decking him”. He said that Mr Windisch threatened him, saying that he would talk to various persons in authority (including Ms Levine) and would have him sacked. Mr Windisch said that he would not have a job in the new integrated entity (ie the Commission). Mr Windisch said he would make sure of this. The applicant then told Ms Levine that Mr Windisch made threats against his family, but he was not prepared to discuss those with her.

41    Ms Levine asked the applicant whether he understood why he had been called in to Mr Windisch’s office. The applicant’s response was, “no idea”. The applicant told Ms Levine that at the time, and for several days afterwards, he thought, “stuff it, I don’t need this job”, but he later decided that, although he could cope with issues to do with himself, when threats were made against his family, “that was a different issue”.

42    Ms Levine asked the applicant what outcome he wanted. He said that he would not work with Mr Windisch or at Prahran again. Ms Levine said that she would like him to return to work, such that his skills and experiences could be utilised, although not at Prahran. This led to a discussion of the positions, then potentially available within the Department, for which the applicant might be suitable. At this point the evidence of Ms Levine departed from that which had been given by the applicant himself. He said that Ms Levine referred to two other positions, which might be suitable for him. One was in the Department’s Loddon Mallee region, but Ms Levine said that he would not want to go there, because it was “a shit workplace”. The other was in the Barwon South West region, namely, the position of divisional operations manager role at the Sherriff’s Office at Geelong. The applicant “knocked [that offer] on the head straight away”, saying, “I’m not here to talk about a job offer. I’m here to tell you about what’s happening at Responsible Alcohol Victoria, and to disclose everything that was going on in that place, not just the Windisch incident.” He made it quite clear to Ms Levine that he was not interested in discussing return to work arrangements, but wanted to focus on the allegations which he made, particularly, but not exclusively, against Mr Windisch, in relation to what he considered was an unsafe working environment.

43    According to Ms Levine’s notes, she told the applicant that there was an “RM vacancy” in the Sheriff’s office at Loddon Mallee, and (according to her notes) “ultimately maybe at Barwon South West”. She said that she could negotiate with certain of her colleagues (who were named) and that there were “huge issues in prisons”. She said that, given that the applicant had worked in both private and public sector prisons, his skills would be very useful. Under cross-examination, Ms Levine denied that she had offered the applicant any position at all, and that she referred to a divisional operations manager position in Geelong. She said that the position in Barwon South-West was that of district supervisor. She was not pressed on those denials. Returning to her notes, Ms Levine made it clear that the applicant did not have to return to Prahran during that period but, understanding his “work ethic” as she did, she wanted him to return to work.

44    The applicant indicated that (as Ms Levine had it in her notes), “his head wasn’t in the right space to even think about work”. Ms Levine asked him what he meant by this. The applicant said that recently he had given up smoking. He had had a health check and all was well, but, after the incident involving Mr Windisch, he went to his general practitioner, and “suddenly” he was on a heart monitor as his blood pressure had gone through the roof, he was hooked up to an ECG machine and was referred to a psychologist. He had had an appointment with the psychologist the previous week, who had immediately referred him to solicitors who, in turn, had indicated that the applicant could “go for a large payout against the Department”. It had also been suggested to him that he could go to the media.

45    Ms Levine reminded the applicant of the department’s internal process, and suggested that he should make a formal written statement to her setting out his allegations, and then that process would be followed. The employee relations section would investigate any allegations made by him. According to the applicant’s evidence, Ms Levine said that she would not be getting involved in any potential investigation. According to Ms Levine’s notes, the applicant indicated that he did not know which way he would go. He said that he understood the internal process, but at this stage he was still considering his options. Ms Levine said that there was a process, and that she could not do anything unless he was prepared to make a statement setting out his allegations. The applicant indicated that he understood the process.

46    The applicant then raised a number of issues about RAV at Prahran, namely, that staff were frightened of Mr Windisch and not prepared to raise issues, and that his (the applicant’s) treatment by Mr Windisch “was a commonplace issue”. At this point Ms Levine’s notes record that the applicant “jumped all over the place … suggesting that other staff were prepared to support him”.

47    Although Ms Levine’s notes dealt only briefly with the subject just referred to, the applicant’s evidence-in-chief did so with more elaboration. He said that he told Ms Levine that Mr Considine, Mr Harrison, Mr Swallow, Ms McInerney and others had been subjected to what he described as “one form or another of occupational violence and workplace bullying”, mentioning as perpetrators Mr Windisch, Ms Jones and others. As he mentioned the names of those who had been the victims of such treatment, in some cases Ms Levine made “very derogatory comments about them”. These comments included what the applicant perceived to be references to confidential medical information about the people concerned. The applicant responded with the comment that he had concerns about these people: in one case, a concern about the person’s “safety and welfare”, and in another case, a concern that the person mentioned “was going to commit suicide”. In discussing these people, the applicant used the expression “self-harm”. The applicant told Ms Levine that the “occupational violence and workplace bullying” to which he was referring had been allowed to occur “long before the incident with [himself] and [Mr Windisch]” and that “it needed to stop that day”. Ms Levine’s response was to tell the applicant that the people concerned (ie those who, he alleged, had been the victims of the bullying) should not “be in the job”.

48    Although it is not clear from the applicant’s evidence in quite what order various subjects were raised in this conversation, at one point, apparently apropos his references to other inspectors, he told Ms Levine that he was seriously concerned that Mr Windisch was “still even at the office with this going on”. He said that he was “going to be taking this further”, and that the inspectors referred to would be his witnesses, “and they need to be protected in order to give me a fair and safe hearing on the evidence”. Under cross-examination, the applicant said that he told Ms Levine that Mr Windisch should be “held accountable” for what he had done, and that he had had legal advice, which was to the effect that he could sue for a lot of money in relation to what had been done to him. Ms Levine said that she was not going to get involved in any potential investigation. The applicant made it clear that there were people at the office who needed to be given an opportunity to talk about their experiences of occupational violence and bullying, because the applicant was not the only person suffering from it. At that point, he was the only person “brave enough to stand up to these people and say, ‘I’m not having this any more’.”

49    According to the applicant’s evidence, he raised with Ms Levine the subject of the professional integrity of some of the inspectors, specifically the way they were conducting inspections. In this context the applicant used the term “cowboy”. Ms Levine allowed him to speak at length on this subject. He said that he had been present on numerous occasions when “some of these cowboy approaches” had been taken by inspectors at licensed premises. He said that there had been times when he had had to leave the premises because he did not like what was going on, and did not want to be involved with it. He told her that he and others did not “act like that, and we were put on this list not to go across the merge, because we weren’t doing what we were told.” (The “merge” was the then proposed transfer of the inspectorate function to the Commission.) The applicant referred to an operation at the “White Charlie” night club – referred to further below – as “just one example of the heavy-handed cowboy approach we’re taking to this industry”. He said that, if the media were to get hold of what happened at that operation, the Department would be “very embarrassed”.

50    Returning to Ms Levine’s notes, she suggested that the applicant could finalise his Certificate IV in Investigations, and that she would pay for him to complete this program. The applicant responded by saying that he was not in the “space” to complete this program, adding that he had done much of the written work, but that he had been “logged out of his PC” and not able to gain access to this work. Ms Levine asked him if he was suggesting that Mr Windisch had done this, and he indicated that he really did not know. He said that he had given his password to other inspectors, and Ms Levine suggested that they might have logged him out of his computer. The applicant said that he wasn’t sure. Ms Levine said that Mr Windisch would not have the applicant’s password, and that there may be a different explanation. The applicant “was silent on this”.

51    The applicant asked Ms Levine if she was prepared to talk to his psychologist. Ms Levine agreed to do so, and rang the psychologist both on his landline and on his mobile phone, and left a message for him to return the call. The psychologist, Dr Paul Grech, returned Ms Levine’s call while she was still in conversation with the applicant. Both Ms Levine and Dr Grech gave evidence about the call, and I shall return to that below.

52    Ms Levine asked the applicant if he had spoken to the police. He said that he had spoken to the local police on the previous day, telling them that he was concerned about being stalked by his manager and asking what he should do. Ms Levine told the applicant, very clearly, that this was something which Mr Windisch would not do. She told the applicant that he was losing “perspective about all of this”.

53    Ms Levine reminded the applicant that there were things that she needed to do by way of informing relevant sections within the department. She told the applicant that, if he intended to go to the media, she would appreciate being told of this prior to it happening, “given that Ministers would be unhappy about surprises”. The applicant said that he understood that and that he would let her know first. The applicant also gave Ms Levine a number of medical certificates.

54    There is one aspect of the meeting between the applicant and Ms Levine on 14 April 2011 that has become more controversial than others. In his evidence, the applicant said that he asked Ms Levine about his return to work, adding, “Do I need to submit a WorkCover claim?” Ms Levine’s response was that he might consider the “detrimental effects” of making such a claim, specifically (as I understood the applicant to accept what was put to him under cross-examination) that he might then be kept out of the workplace for a longer period than might be the case if he were simply found another suitable position. The applicant said (in his evidence) that Ms Levine told him that he should consider himself “on full paid leave until the matter [is] resolved”, providing he could provide medical certificates to the Department.

55    According to the applicant, this assurance from Ms Levine meant that “there was no need for me to think about any return to work plan at that stage”. In her evidence-in-chief, Ms Levine denied having said that that the applicant should consider himself on full paid leave, but under cross-examination she put it rather differently: she had no recollection of saying that, and did not believe that she would have said it, but she was “not an expert in these matters about what happens in terms of pay”. Her notes said nothing about the subject.

56    The actual understanding which the applicant derived from what Ms Levine said on this subject was clarified elsewhere in the evidence. In answer to questions from the court, the applicant accepted that, if he were to be on leave and to be paid, the payment would have had to have been referable to some established heading of entitlement, whether it be recreational leave, or sick leave, or something else. On 11 May 2011, the applicant had an interview with Ms Dumais (to which I refer at para 71 below), the record of which is as follows (“PR” being the applicant and “AD” being Ms Dumais):

PR    Gabi said – when I spoke to her, I said at this stage I’ve got medical certificates to cover me all the way and I’ll continue to do that. I was unsure …

AD    Do you have enough sick leave?

PR    Well I was unsure of the – where it would got [sic]. I worked out roughly how [much] long leave I’ve got. I think I’ve used all my sick leave now. If I was taking my leave of now I’d be into my annual leave and accrued leave, which I’ve still got more of. Gabi assured me that that would at some point be reimbursed and to consider myself on full [going] leave, providing I can keep the medical certificates.

AD    On which leave, full …

PR    Just on leave.

AD    Leave?

PR    Yes, full paid leave.

AD    Full paid leave. So she said that your – even though your sick leave’s run out?

PR    Well I think it’s only – would have only just run out. It’s hard, I haven’t been on [kiosk] for a month.

AD    Okay, and so …

PR    It’s my understanding that when all this is resolved that any leave that I’ve used, whether it be sick or annual leave, will be reimbursed.

AD    So that’s what Gabi had said to you?

PR    Yes, and that’s my understanding. They haven’t got back with anything formal on that.

This puts it rather differently from the terms of the applicant’s evidence in this case. In the latter, there was no suggestion that Ms Levine had said that the applicant would use all the sick leave and annual leave that he had, and then be reimbursed for having taken it.

57    In the light of the evidence to which I have referred, I consider it most probable that, at the meeting on 14 April 2011, Ms Levine said something from which the applicant reasonably understood that, provided he supplied the Department with medical certificates, his pay (she may have said “full pay”) would continue as normal. I do not accept that she said anything that would have reasonably given him to understand that his full pay would continue under such an arrangement, regardless of the applicant’s entitlements, until the resolution of the issues which he had with Mr Windisch, whatever that might have entailed. Neither do I accept that she made any reference to the reimbursement of sick or recreational leave. That may have been the applicant’s understanding, but Ms Levine did not state it.

58    At about 11:00 am, Ms Levine told the applicant that she had to leave, as she had a meeting to attend. The applicant reminded Ms Levine that, according to the Department’s website, all incidents needed to be recorded within 30 days. She responded that, should he send something to her, she was happy to record it on the register. The applicant suggested that he would do so immediately, and that he could send her his medical certificates.

59    According to Ms Levine, she and the applicant left on good terms. She reminded him of the availability of the Department’s employee assistance service, and said that she could not do anything unless he was prepared to send in a formal complaint. He said that he would get back to her prior to seeing the psychologist “etc …”, and thanked her for listening to him.

60    I turn next to the telephone conversation between Ms Levine and Dr Grech on 14 April 2011 to which I first referred in para 51 above. According to Ms Levine’s evidence, she answered Dr Grech’s call, and he immediately said aggressively to her, “This is the worst case of workplace bullying I’ve seen – that I’ve seen in my 20 years of clinical practice. Mr Regulski could sue the department for a lot of money. And if this isn’t investigated at the highest levels, then I will be going to the ministers and the media.” For a while, Ms Levine was just listening to Dr Grech. Then she asked him how many times he had seen the applicant, to which the answer was once. She said that, on the basis of a single consultation, he had only heard the applicant’s “version of this, and not anyone else’s.” She said that, if he wanted to help the applicant, the best thing he could do was to convince him to put in a formal complaint, without which she was unable to do anything. She concluded by saying that he (Dr Grech) would not be dealing with her any more: he would be hearing from someone in the employee relations team in the Department.

61    Ms Levine included the details of her conversation with Dr Grech in her notes of her meeting with the applicant on 14 April 2011. What I have said in the previous paragraph is, however, based on her oral evidence. Save for some variations in order and emphasis, it is consistent with her notes, the only important departure from them being the absence in the notes of any reference to Dr Grech threatening to take the applicant’s case to the media. Under cross-examination, Ms Levine adhered, credibly and convincingly, to her evidence-in-chief. She was not cross-examined on the single respect in which that evidence departed from the terms of her notes.

62    Dr Grech gave evidence, but he said nothing in chief about his telephone conversation with Ms Levine on 14 April 2011. He produced no note of that conversation. When asked an open question under cross-examination as to what he had said to Ms Levine, Dr Grech said that he –

… expressed concerns about my patient’s mental and emotional state and simply inquired whether his current mental and emotional state could be considered in the circumstances and that he was wishing to express concerns to her as somebody who oversees different aspects of the department in which he worked. He felt unsafe and insecure, very vulnerable, and I felt it was in everyone’s best interest if he confided in somebody who he understood or hoped that he could trust to listen to his situation and his circumstances. … And I expressed concern that in terms of my initial observations of him, he presented as a very vulnerable and anxious patient. And he had given me his consent to discuss those types of matters with who I understood to be his – his manager at the time. … I indicated to Gabby that, at that point, I was effectively his psychologist – or treating psychologist – and if there was anything I could possibly do to assist, if she wanted to touch base with me in the future in terms of how Paul was functioning and travelling, then the door would always be open and I could be contacted, and Paul had given his consent for that to occur.

Dr Grech denied that he was aggressive in the course of his conversation with Ms Levine, he denied that he had described the applicant’s case as the worst case of bullying that he had encountered in years of clinical practice, and he denied that he told Ms Levine that he wanted the matter to be investigated at the highest level, adding “that’s not my role”. Dr Grech did accept, however, that Ms Levine said something along the lines that, if the applicant wanted matters to be processed, he would need to put in a formal complaint.

63    From what the court has before it, it would seem that Dr Grech’s evidence about his telephone conversation with Ms Levine was based wholly on his recollection over a period of more than three and a half years. Nothing about the conversation was mentioned in his professional report, which was admitted as part of the applicant’s case. When he was answering questions under cross-examination, I had the impression that he was doing so by reference to what he thought he would, or would not, have said, rather than by reference to a clear recollection of the conversation. By contrast, Ms Levine had the benefit of her notes of the conversation, which had been made contemporaneously. They were, of course, more than merely the notes jotted down by one party to an electronic communication: Ms Levine was, at the time, acting in the course of her employment as a manager in the Department. Her notes were on departmental notepaper and were, in my view, a business record. Furthermore, this was, I consider, a clear instance of the listener in a non-routine conversation having a stronger, and more reliable, actual recollection of what the speaker said. It was apparent when Ms Levine gave her evidence on this subject that, despite the passage of time, she retained such a recollection of what Dr Grech said to her on 14 April 2011. I accept her evidence in preference to that of Dr Grech, including her reference to him having made a comment about the media (with respect to the latter aspect, substantially because she was not cross-examined about it).

64    After her meeting with the applicant on 14 April 2011, Ms Levine attended a meeting with Ms Dumais and another manager with human resources responsibilities in the Department, Caitlin Huffer. Ms Levine did not take a note of what was discussed at that meeting, and gave no evidence about it. According to Ms Dumais’ evidence, Ms Levine related to herself and Ms Huffer what the applicant had told her in the meeting that morning. Ms Levine said that she did not believe that Mr Windisch would have done the things of which he had been accused by the applicant. However, Ms Dumais received the news of the applicant’s allegations against Mr Windisch as something which required investigation on her part.

65    At the same meeting, Ms Dumais reported on the state of her, and Ms Marks’, consideration of Ms Jones’ allegations against the applicant. She said that, as a result of Ms Marks’ preliminary investigation, it had been determined that there were not sufficient details to warrant a formal investigation into those allegations. Although not directly relevant to the applicant’s circumstances, I mention here that there was, in due course, a formal investigation of Ms Jones’ allegations against Mr Harrison, the result being that some disciplinary action was taken against him.

66    Ms Levine spoke to the applicant (presumably by telephone) for eight or nine minutes on the morning of 18 April 2011. According to an email which she sent to her superior, with a copy to Dr Ewer, the applicant sounded “much brighter and calmer” than he had on 14 April; and he told her that he was feeling “much better”. He was pleased that there was to be an investigation into his allegations. He said that he was going to get advice the following day, but would not be consulting solicitors. Ms Levine told the applicant that she was very keen to get him back to work, given his work ethic. She reminded him that he would be found a job which used his experience, and that the offer which she had made in that regard remained in place.

67    On 19 April 2011, the applicant sent an email to Ms Levine in terms which included the following:

I am writing to you to make a formal complaint about the conduct of Responsible Alcohol Victoria compliance manager Mark Windisch.

On Monday 28th March 2011, I was ordered into Mark Windisch’s office. I could see he was angry and behaving very aggressively towards me. I attempted to communicate with Mark on several occasions to which he stated “sit the fuck down”. I suggested that we can discuss this matter at another time when he has calmed down to which he again said “sit the fuck down, if this was vic pol we would be out that door” as he pointed towards the rear car park. I took this as a physical threat. Mark ignored my requests and continued to abuse me verbally. I felt physically threatened as his voice was at shouting level and his positioning was in close proximity. He demanded that I was seated and he stood over me to ensure I complied. He was gesturing extremely aggressively towards my face. I was unable to leave the room as I feared for my safety.

Throughout the incident, I was threatened, undermined, humiliated and constantly abused with profound language. The threats were made in relation to my professional career with the Department of Justice at present and in the future when we merge with Gaming. Mark threatened that I would be place under another acting team leader who would “ride me into the ground” and “not give an inch”. Mark put me on show in front of other colleagues demeaning my professional integrity. Mark also made threats about the relationship with my daughter. In addition he made unfounded accusations towards all aspects of my professional conduct whilst working within the Department of Justice. He threatened that “I will speak to Murray Smith, Gabby, Raj and Brendan Facey to get you fired”. At no stage during the ordeal, was I made aware of the reason for Mark’s actions, despite my attempts to ask what I had done wrong.

This is a brief overview of the incident and does not detail the content of what Mark said or his overall behaviour towards me.

Since the incident, I have been medically unfit to return to work and remain in a fragile state. I am accessing professional services to deal with my ongoing physical and psychological issues as a direct result of Mark’s actions. I have not attended work since this incident, therefore have been unable to report my injuries or illnesses in the OH&S incidents reporting register, as per protocol according to Work Safe Victoria.

On the same day, the applicant told Ms Levine that his health care professionals had recommended that he distance himself from “the current situation”, that he would be travelling overseas for 10 days, and would not be contactable.

68    On 20 April 2011, Ms Levine emailed Mr Windisch, with a copy to Ms Huffer, enclosing a medical certificate operative until 5 May 2011 which the applicant had provided, and noting that he was “close to or has run out of sick leave”. She was not sure of the “correct process” from there, and queried whether the applicant’s absences might be set against his recreation leave entitlements without his consent.

69    On 6 May 2011, the applicant first sought the advice of his solicitors.

70    On 10 May 2011, Ms Levine emailed Ms Dumais, inquiring whether she had had any further contact with the applicant. She said that the applicant had run out of sick leave, and was not being paid by the Department. She added that she had not been contacted by the applicant since before Easter (which was, that year, over the period 22-25 April). In reply, Ms Dumais said that the applicant was to be interviewed at 9:30 am the following day. In her evidence, Ms Dumais said that this was to be an element of her preliminary investigation for the purpose of deciding whether to proceed to a formal investigation of the applicant’s allegations against Mr Windisch.

71    The interview between Ms Dumais and the applicant proceeded as arranged on 11 May 2011. Afterwards, Ms Dumais emailed Ms Levine informing her that the applicant’s understanding was that he would be paid for his time away from work, and that any sick leave or recreation leave used for the purpose would be “reimbursed”, as he considered that the absence was “a direct consequence” of Mr Windisch’s conduct. She asked Ms Levine to “confirm” (ie to clarify) what she (Ms Levine) had told the applicant regarding his leave.

72    On the following day, 12 May 2011, the applicant sent an email to Ms Levine, in which he noted that he had been advised by Ms Dumais that he had used his sick leave entitlement, and that, if he wanted to be paid, he would have to take recreational leave. He asked to be given that leave. He inquired of the position that he would be in once he had used up all of his leave entitlements but remained unfit to return to work. He noted that he had not received any salary since 20 April 2011.

73    Ms Levine replied on 13 May. She approved his request to take recreational leave. She said that an employee who had exhausted his or her sick and recreational leave entitlements but remained unfit to return to work would normally be placed on “unpaid sick leave”. In her email, Ms Levine continued:

I note that as soon as you are medically fit for work, given that you have indicated that you do not want to return to Prahran, you and I have had some discussions regarding some alternative options, at your current pay level, within the Department. I hope that you are able to re-engage in work as soon as possible as I think that this will be a positive step forward for you and the Department. I am happy to talk with you about this further when you

In the course of the applicant’s cross-examination, counsel for the respondents noted that this email may have been “cut off”, but he secured the applicant’s agreement to the proposition that he understood this passage in the email as amounting to an invitation to him have a further discussion with Ms Levine about alternative employment options within the Department.

74    There followed an exchange of emails as between the applicant and Ms Levine on the subject of his pay entitlements, and some issues which he had with the Department’s payroll processing arrangements. I do not need to refer to these, but they culminated in an email from Ms Levine to the applicant on 14 May 2011, in which she confirmed that, taking account of all of the applicant’s available leave, and some “time in lieu”, his entitlement to pay would be exhausted on 29 May 2011. She continued:

Should you be unable to return to your original duties at this time I would be happy to further discuss options with you, and I am keen to assist you with a plan for return to work in alternative location and role.

I look forward to hearing to hearing [sic] from you prior to the 29 May.

75    On 15 May 2011, the applicant responded in the following terms:

I understand and appreciate you wanting to assist me to return to work and will be more than willing to discuss a potential return to work plan. However, at this point in time, it is unlikely that I will return to work before there is a conclusion/outcome to the complaint. As you may be aware, the details of the complaint involves threats made by Mark Windisch against my continued employment and career within the Department of Justice. I hope you are able to understand the difficulty this puts me in, in terms of returning to work. I am in regular consultation with my GP and Clinical Psychologist around these issues and they are in support of my recovery and general wellbeing.

76    On 17 May 2011, Ms Dumais sent an email to Ms Levine asking why, given the nature of the allegations made against Mr Windisch, there was no recommendation that he be suspended or placed on alternative duties pending the investigation. She asked Ms Levine confirm what she understood to be her view that Mr Windisch did not represent an occupational health and safety risk at Prahran. Replying, Ms Levine said that she did not believe that Mr Windisch was a risk, adding, “I also question the veracity of the strength of claims made against him”.

77    On 20 May 2011, Ms Levine replied to the applicant’s email of 15 May 2011. She said:

As indicated in my previous email, after the 29 May you will have exhausted all paid leave options, however, if you were to work with me to develop a suitable return to work plan in another region, which usually takes approximately 10 working days, it would not be necessary for you to report for work during this time. I strongly believe this is a productive way forward, and I ask you to give it serious consideration. Should you not see your way clear to do this, then you would be on Sick Leave Without Pay.

As you and I had previously discussed, working in another metropolitan region would give you the opportunity to work completely outside of the RAV space, and given your experience, your skills would assist in another area of justice. And, you would maintain salary at level.

Ms Levine added that she would be happy to make time to work with him face to face the following week to commence the process for his return to work. This would achieve, she said, both a different role for the applicant and the continued payment of his salary. Under cross-examination, the applicant agreed with counsel’s proposition that, at this time, Ms Levine was “really trying very hard to engage with [him] on [his] coming back to work in an environment where [he] wouldn’t have to deal with Mr Windisch”.

78    On 23 May 2011, the applicant said in an email to Ms Levine that he would be “more than happy” to meet with her to work through a suitable return to work plan, adding that he believed that this would be “a productive way forward”. Such a meeting was arranged, and took place at 8:15 am on 25 May. Both the applicant and Ms Levine made a note of what had been discussed at this meeting, and both notes were received into evidence without objection. Both also gave evidence about the meeting.

79    According to the applicant’s note, he told Ms Levine of his concern for the staff in RAV, and that he feared that some of them may “self-harm”. He told her that he held Mr Windisch accountable for his actions. She responded that it was his (the applicant’s) word against Mr Windisch’s. At this point, in what was apparently an editorial addition by the applicant, his note continued:

I cannot believe she said that – that is what [Mr Windisch] threaten[ed] to me. Why is she supporting him.

Returning to the narrative of the meeting, according to the applicant’s note, he told Ms Levine that he could not believe that Mr Windisch was still at [something indecipherable] “bullying my witnesses”. He said that it had been over a month to that point. He said that it was a joke that Mr Harrison was put through a disciplinary hearing after he also was exposed to Mr Windisch’s aggression, and was terrified. He reminded Ms Levine that he had made her aware of this a month previously. He asked her why Mr Harrison was being put through that. Ms Levine was silent. The applicant told Ms Levine that he was unable to be paid, and what were the effects of that. She suggested Centrelink, which prompted the applicant to insert what I read as another editorial addition, as follows:

What a joke. I am the one who is being bullied here. I have no support from [the Department] or [Ms Levine].

80    Returning to the narrative of the meeting, according to the applicant’s note, he mentioned his concern about Mr Windisch coming to his house, to which Ms Levine responded that neither Mr Windisch nor she knew where the applicant lived, and that his roster was “addressed to the bush (Moe)”. The applicant’s notes continue:

How does she know this. She has told me she cannot access my kiosk at [indecipherable – ACC?]. She is now referring to [indecipherable – them and even?] made known my Moe address. This is my parents’ house. Are they safe. This is fucking bullshit. What has she got to hide – is she involved in this somehow. It would explain a lot. Especially supporting [Mr Windisch].

81    Returning to the narrative of the meeting, according to the applicant’s note, Ms Levine asked whether he may have been stressed when he was in the prison services over six years, and whether he may not have dealt with that. The applicant’s note concluded with the comment “I hope she is not involved – [I?] she has not pressured [Mr Windisch] in any way.”

82    It is apparent that the applicant’s note was not a comprehensive record of this meeting with Ms Levine. In his evidence-in-chief, he mentioned other things that were discussed. With respect to return to work options, the applicant said that Ms Levine gave him the phone number of someone whom he did not know – described by the applicant as “some kind of a manager or maybe in the same position as her in another area” – and told him to contact that person. The discussion did not “go into a return to work plan or anything”. At the meeting on 25 May 2011, the applicant told Ms Levine of his disgust as to how his complaint against Mr Windisch had been handled. The gravamen of his concern, which I believe the court was being invited to accept he conveyed to Ms Levine, was that Mr Windisch remained at work. For reasons which will appear, it is important to note the terms of the applicant’s evidence-in-chief on this point, and to observe the context in which it was given:

So what else was said in that meeting?---We then went into the incident. Well, not the details of it, but what had taken place after it, ie, told her my disgust how it has been handled, how the department have handled this incident. I was - - -

What did you say?---I told her I was disgusted in the way it was being handled.

What do you mean “the way it was being handled”. What do you mean by - - -?---How Mark Windisch was still at that office, I could not – I did not – I could not get my head around, after I told her previously and an investigator that he’s continuing to bully and harass my witnesses. I am not going to get a fair trial while he’s there.

And what did she say?---It was at that point she made it pretty clear that she didn’t consider anything I said was the truth. She told me that she was supporting Mark Windisch. And she made a threat to me similar to one Mark Windisch made to me in that office.

What did she say?---“It’s your word against his.” That was the threat. And I’m not sure I mentioned that in the other Windisch – but that was part of the incident. He – “It’s your word against mine. You won’t know shit.” She made a similar comment, “It’s your word against his,” and I was pretty disgusted in that. And I think at that point she knew that I definitely knew that she wasn’t going to support me in any way, and I think she knew that maybe I wasn’t going to speak to her much any more either. It wasn’t a good feeling for me, because up to that point I remained very hopeful that the regional director of the Department of Justice would sort the matter out, at least to get some kind of fair hearing into what has happened.

The applicant and Ms Levine also spoke about pay issues, Ms Levine telling the applicant that he needed to come back and work for her, or he would be on leave without pay. His response was, “Neither of those two are an option. I’m still unfit for duties.”

83    According to Ms Levine’s notes, the applicant said that he had now accepted legal advice and intended to sue Mr Windisch, and that he had gone to the ethical standards department of the Victoria Police to lodge a complaint against Mr Windisch (Windisch still being, at the time, a sworn police officer). Ms Levine asked the applicant why he was going down that path, and he responded “to get him” after what he had done to him. In her note, Ms Levine adverted to “the vehemence and determination” with which this response was given. Ms Levine told the applicant that the departmental investigation into his complaint against Mr Windisch was going to be “totally independent”, and that she had not seen the letter sent out in connection with that investigation. The applicant suggested that the investigation was likely to be lengthy, and could potentially take months. This aspect was discussed, Ms Levine indicating her surprise as to the applicant’s estimate of time, adding that she saw the matter differently, given the number of people whom the applicant had nominated (presumably as witnesses), and that the line of questioning would be around what the staff had seen or heard. The applicant told Ms Levine that his view was that each of the staff would want to take significantly longer to outline their “run-ins” with Mr Windisch, as his (the applicant’s) experience was not isolated. Ms Levine reminded the applicant that, if other staff members had concerns, then they should formally lodge their complaints. The applicant indicated that they were not prepared to do this, and that they were frightened. When Ms Levine pursued this point, the applicant was not prepared to go any further. She reminded him that the other staff members could contact her with their concerns, but the applicant responded that they would not do that.

84    Ms Levine raised with the applicant that it would be good for him to return to work, told him of her discussions with the regional officer in the north-west region, said that the applicant could move to that region with his existing public sector position, and that it would be a region that had a lot to offer, especially given the number of prisons, “CCS” and sheriffs. Ms Levine asked the applicant what he saw as his skills, and he mentioned operation work, he said that he like to be left to get on with his job rather than being managed, he said that he liked working with people, he mentioned teamwork, he said that he liked to be moving around, rather than being stuck in an office, he said that the job with RAV was his “dream job”, and he said that he “liked the compliance space”. Ms Levine told him that, if he agreed to return to work, that he would continue to be paid throughout this time, and that it might take ten days or so to reach an agreement on the job. The applicant asked what would happen to the leave which he had already used, whether this leave would be returned to him, and what would happen if he went on WorkCover. Ms Levine said that she did not know the answer to these questions, but they would deal with them “in the future”.

85    The applicant indicated that both his doctor and his lawyer had recommended that he go on to WorkCover. He said that perhaps that was what he should do. Ms Levine reminded him that this was his decision, but urged him to consider seriously her return to work offer. The applicant then asked whether, if he returned to work in June, he would be given leave for three weeks commencing on 30 June, as he had made arrangements to drive to the Northern Territory. Ms Levine said that this could be accommodated. The applicant asked whether, if he went on to WorkCover, he could withdraw that claim “down the track”. Ms Levine said that it was her understanding that this was the case, but that she would check that for him.

86    At this point Ms Levine’s notes record that the applicant’s “thoughts were all [over] the place”. He reminded her of how stressed he was, and said that, every time any cars drove near his place, he became very jumpy, as he thought it might be Mr Windisch. Ms Levine reminded him that they had previously discussed this, and said that it would not happen. She added that, as the applicant had not updated “KIOSK and his records, his home address was still somewhere in Gippsland”. The applicant told Ms Levine that his mother, whom he described as “a stress head” was getting more and more upset about his situation, and that his father was ready to assault Mr Windisch for what he had done to the applicant. The applicant told Ms Levine that his relationship was not going well because of the stress of everything, and that at that stage they (presumably him and his partner) were not talking about getting married. Ms Levine’s notes record that the applicant “went on about this”.

87    Ms Levine raised the subject of the applicant completing his Certificate IV qualification, and the applicant asked if he could use a computer to download his work. Ms Levine agreed to this and, at the conclusion of the meeting, she took him to vacant desk for that purpose. The applicant reminded Ms Levine that he had completed a management certificate, and was interested in this.

88    The applicant returned to the issue of Mr Windisch, and what he had done to him. He said that he had left home and joined the army at eighteen years of age, and had been subjected to various forms of bastardisation, and had himself also been involved in this practice, so he knew all about it. He talked to Ms Levine about his job in the private prison system, saying that he enjoyed the work, but it was time to leave. At the conclusion of the meeting, Ms Levine told the applicant to let her know if his doctor was prepared to clear him to return to work. They parted on cordial terms.

89    Ms Levine’s relevant evidence-in-chief was in the form of an affidavit, the contents of which were manifestly based on her note, but were more limited than it. Under cross-examination, she was not challenged on the note, so far as it went. However, for reasons which will become clear, in an important respect Ms Levine’s evidence in respect of this meeting on 25 May 2011 passed that of the applicant like a second ship in the night. As noted above, the applicant said that, at one point in the meeting, Ms Levine made it “pretty clear” that she did not consider anything which the applicant said was the truth, and said that she was supporting Mr Windisch, adding, “It’s your word against his.” The applicant was not cross-examined on this evidence. In her evidence-in-chief, anticipating what the applicant would say in his own evidence (from the terms of a paragraph of his affidavit which was not read), Ms Levine denied that she had said to the applicant that she was in support of Mr Windisch or that it was the applicant’s word against Mr Windisch’s. Like the applicant, Ms Levine was not cross-examined on this aspect of her evidence.

90    On this aspect of the facts, the evidence actually given by the applicant was not on all fours with what had been in his affidavit but, as I say, the relevant paragraph of his affidavit was not read. The applicant then gave viva voce evidence as to his recollection of what Ms Levine had said. While this evidence was being given, Ms Levine, as a party, was in court. Under cross-examination, the applicant was not challenged on the truth of his evidence with respect to this meeting. Ms Levine gave no oral evidence in response to that of the applicant. The reality of the position is that the applicant gave the oral evidence to which I have referred, and was not challenged on it, either in cross-examination or in the oral evidence-in-chief of the other party to the relevant conversation. To the extent that counsel for the respondents would wish to be understood as relying on Ms Levine’s affidavit, I consider, in the circumstances, that this was not a satisfactory place to leave the controversy. I accept the applicant’s evidence with respect to this aspect of the conversation in his meeting with Ms Levine on 25 May.

91    Subject to that important qualification, I accept the broad accuracy of Ms Levine’s note of the meeting which, as I say, was not challenged by the applicant’s counsel.

92    In the early afternoon of 25 May 2011, the applicant informed Ms Levine that he had seen his doctor, who had advised him that he was medically unfit for duty. That assessment was to be reviewed before 10 June. He said that he had the paperwork for a WorkCover claim, and that he would be submitting one. He thanked Ms Levine for giving him an alternative working solution and a contact person for a possible return to work plan. He said that he would consider that “over the coming weeks”. At that time, however, he needed to follow the advice of his medical practitioners. The applicant signed his WorkCover claim that day, 25 May 2011.

93    On the evening of 25 May 2011, Ms Levine sent an email to Dr Ewer, with a copy to Ms Dumais and Mr Smyth. In it, she said that, while not a psychologist, she wondered whether the applicant might not have fully recovered from some of the experiences to which his previous employments had subjected him. I do not need to take that aspect of the email further, but it is worthy of mention here that Ms Levine said that she found it difficult to understand that the applicant responded to the “discussion” (Ms Levine’s inverted commas) which he had had with Mr Windisch on 28 March 2011, while “another staff member”, presumably Mr Harrison, had accepted that he had crossed the line, and been dealt with.

94    It was also on 25 May 2011 that Mr Windisch was informed, by letter of that date, that there would be a formal investigation into the applicant’s allegation of misconduct against him. The investigation was to be conducted under the relevant provisions of the applicable industrial agreement. An external investigator was to be engaged for the purpose. Mr Windisch was given until 1 June 2011 to provide his written response to the allegations. By letter dated 31 May 2011, Ms Dumais notified the applicant of the commencement of the investigation, and informed him that his written statement, and the transcript of his interview with her on 10 May, had been provided to the investigator (who had by then been appointed). In her letter, Ms Dumais noted that “complainants are not notified of whether allegations are or are not substantiated or the particular discipline outcome, as this is a confidential disciplinary process for Mr Windisch”.

95    On 30 May 2011, the applicant’s WorkCover claim was received by Andrew Foxton, Injury Management Consultant in the Safety and Wellbeing Group, People and Culture, at the Department. The claim was referred to the Department’s WorkCover insurer, Allianz Australia Workers’ Compensation (Victoria) Ltd (“the insurer”). In the claim, the applicant had named Ms Levine as the person to whom he reported his injury, and Mr Foxton made email contact with her on the day that he received the claim. In a subsequent email to Ms Levine the same day, Mr Foxton said that he needed to start planning for the applicant’s return to work regardless of the status of his claim. He asked Ms Levine to whom he needed to talk, adding that he needed to know what suitable duties might be available to the applicant, his return to work location, and who his supervisor was. On the same day, Ms Levine replied to Mr Foxton, saying that she had been trying to get the applicant back to work in another region, away from RAV. She said that the applicant was not prepared to return to work until “the investigation” was completed, adding, “he has been advised this by various others – Lawyer, psychologist + doctor … from the very beginning”.

96    On the same day, 30 May 2011, Mr Foxton prepared a return to work plan for the applicant, but it was little more than a standard form with formal details entered on to it. In the section that required a statement of the steps that had been taken to facilitate a return to work, Mr Foxton had entered, “Suitable duties to be identified when work capacity is known” and “Suitable duties, attendance times/dates to be negotiated with employee when work capacity is known”. This form was sent to the insurer, to the applicant and to his doctor. In the covering letter to the applicant, Mr Foxton said that he was meeting with Ms Levine “this Wednesday”, ie 1 June 2011, to discuss suitable duties for him and his potential return to work location. He invited the applicant to call him if he wished to discuss the matter further.

97    From the terms of an email from Mr Foxton to Ms Levine on 3 June 2011, it seems that they did meet on 1 June, but neither of them gave evidence about that meeting. He asked her whether she had been able to find some suitable duties, a location and a manager to whom the applicant would report. Ms Levine replied to this email on 6 June 2011, stating that she had discussed the matter with Michael Carroll, the Regional Director, North Western Metropolitan Region, and that there was a range of important projects on which the applicant could work. She mentioned projects, and the skills and characteristics required of a person who would work on them. She said there was “enormous room for choice”. She said that the role would be in the North-West Region of the Department, where RAV did not operate. She said that the most appropriate role in the first instance would be one based at Broadmeadows, “which would ease him back into the workplace, he would be well supported and if additional training is required … I would be happy to pay for this.” The following day, 7 June 2011, Mr Foxton emailed Ms Levine, saying, “sounds promising”. He asked her to speak to the applicant about these options, and to give him some time to consider them. He said that he would need “some duties” that the applicant would be undertaking at Broadmeadows, so that he could put the proposal to him for discussion with his doctor. Ms Levine did not speak to the applicant as requested by Mr Foxton because, as she put it under cross-examination, “by that stage [the applicant] had had his WorkCover claim accepted.” That justification was an echo of what she had said in her affidavit: “Once [the applicant’s] WorkCover claim was filed, [Mr Foxton] had management of the matter from that point forward.”

98    The evidence does not deal with what was done about the applicant, or his WorkCover claim, over the next three weeks or so. His absence from work was covered by medical certificates which he regularly supplied to the Department.

99    On 30 June 2011, Mr Foxton sent the applicant a proposed offer of suitable employment as part of his return to work. The position was that of “Project Officer – IMES” (Infringement Management Enforcement Service) at the Broadmeadows Justice Centre, reporting to Colin Carabott. The duties, and daily hours of work, for the proposed position were set out. Mr Carabott had been the applicant’s manager in his (the applicant’s) previous employment in the Sherriff’s office. He had recommended these duties for the applicant because he knew they would be suitable for him. In the covering letter, Mr Foxton asked the applicant to discuss the proposal with his doctor, to whom a copy of the proposal had also been sent. The applicant was given until 13 July 2011 to respond, with the opportunity to seek an extension if required. The letter stated that, if the doctor issued a certificate of capacity clearing the applicant for the proposed role, there would be a meeting between him and Mr Foxton “to formalise the offer”. Mr Foxton received no response to that letter from the applicant, either oral or written. In his contemporaneous letter to the doctor, Mr Foxton said that, if he believed that the applicant had the capacity for the job, he (Foxton) would appreciate him (the doctor) issuing the appropriate certificate of capacity.

100    On 5 July 2011, one of the inspectors at Prahran who was on long service leave at the time, Katherine Markovski, returned the call of Mr Windisch. She thought it was strange that he would ring her while she was on long service leave. According to her evidence, Mr Windisch commenced by asking her how her husband was getting on (how he was “travelling” as she put it in her evidence) at the Police Academy, where he was, apparently, undertaking a course of some kind. Mr Windisch then asked her how she knew the applicant’s wife, as she had worked with her previously. (I think that Ms Markovski, fairly obviously, intended to say that Mr Windisch had asked her whether she knew the applicant’s wife, and I shall read the evidence in this sense.) Ms Markovski apologised to Mr Windisch because, other than working at the same location, she could not recall who the applicant’s wife actually was. Mr Windisch then said, “So you don’t know anything about Paul’s partner?”, to which Ms Markovski responded, “No, unfortunately I don’t know who she is. …. I can’t remember her.” She could not recall any reference by Mr Windisch to her return to work from long service leave. She said that at no stage was the applicant’s welfare spoken about: “It was purely Paul’s partner”. Ms Markovski was not cross-examined.

101    In his examination-in-chief, Mr Windisch too said that he asked Ms Markovski as to how her husband was going at the Police Academy. He said that he then “simply” said, “Oh, do you know if Paul’s coming back?” He said that he did not “even know Paul had a partner”. That is to be contrasted with the relevant passage in Mr Windisch’s affidavit, in which he said that he rang Ms Markovski to ask her how her husband was going and “to find out about her proposed return to work date”. He added, “I may have enquired as to the welfare of Paul at this time”. Under cross-examination, Mr Windisch denied that he believed that Ms Markovski had worked with the applicant’s wife, saying that, when he spoke to her, he thought that she had worked with the applicant himself.

102    In this area of the case, I prefer Ms Markovski’s evidence to that of Mr Windisch. She was a stranger to the issues that have become controversial in this case, and had no connection to the parties. The phone call from Mr Windisch was, on any view, an unexpected one for her, and she is likely to have paid close attention to what he said. Ms Markovski gave her evidence with care and moderation. Her evidence was consistent with a text message which she sent to the applicant on the subject on 1 May 2012. By contrast, Mr Windisch’s evidence was not wholly consistent with the affidavit which he swore on 4 August 2014, only about four months before giving evidence (but more than three years after the conversation). As mentioned, counsel for the respondents chose not to cross-examine Ms Markovski, the result of which was that I did not have the benefit of observing how she would have coped with being directly pressed on the inconsistencies between her evidence and what Mr Windisch proposed to say.

103    By July 2011, the external investigation into the applicant’s complaint against Mr Windisch was under way. It seems that one of the inspectors to whom the investigator wanted to speak was Mr Harrison. There is little in the hard evidence in the case that would enable me to put a date on it, but Mr Harrison gave evidence that Ms Levine spoke to him at some point before he saw the investigator, and told him only to answer the questions that were asked during the investigation, and not to offer information outside what was necessary to provide those answers. Ms Levine gave no evidence-in-chief on this subject, but, in cross-examination, she said that she told the inspectors to whom the investigator proposed to speak “to tell the truth”. She said that they all “volunteered a range of other information” to her, but she said to them, “You need to tell the truth about the incident. The investigation is into the incident. If there are other issues, then you can make a formal complaint.” This was the only positive evidence, additional to that of Mr Harrison, that any kind of conversation along these lines was had. In relation to Mr Harrison himself, what Ms Levine said did not come squarely to grips with his evidence, which I accept. Mr Harrison also said that, as a result of this instruction from Ms Levine, he was more timid in responding to the investigator than he otherwise would have been. Over the objection of counsel for the respondents, I allowed Mr Harrison to inform the court what he would otherwise have told her. He would have said that, during his meeting with Mr Windisch on 28 March 2011, he was fearful that Mr Windisch was “going to flip and start actually attacking” him, that it took him months to get over what Mr Windisch had done, and that it was difficult (my adjective interpreting the sense of what the witness said) being required to “walk back into the office for years afterwards to … [and to] get on with life” under the supervision of Mr Windisch and Ms Jones, each of whom, he knew, had “issues” with him.

104    On 4 August 2011, the investigator into the applicant’s allegations against Mr Windisch provided her report to the Department. The following is extracted from the Executive Summary of that report:

The allegation that on the 28 March 2011, Mr Windisch did not treat Mr Regulski with respect and/or appropriately manage Mr Regulski has been considered in view of the particulars, both separately and together, in order to determine whether they have been substantiated and whether there has been a breach of the Department of Justice’s Misconduct Policy and/or of Mr Windisch’s employment obligations or might otherwise amount to inappropriate behaviour. Every particular is not required to be substantiated for the overall allegation to be found.

On balance, Mr Windisch did not treat Mr Regulski with respect and/or appropriately manage Mr Regulski on 28 March 2011, and accordingly the overall allegation is proven to the requisite standard. The overall findings of the particulars can be summarised as follows:

•    On 28 March 2011, Mr Windisch entered the open plan office and inappropriately raised his voice, yelled, swore (saying to Mr Harrison and you’re fucking next”) and gestured (finger pointed) whilst singling out Mr Regulski and Mr Harrison. In addition, in returning to his office with Mr Regulski he slammed the door with force. Although Mr Windisch acted with the intention of making a strong statement and to communicate that he was serious about deterring further workplace ‘interference’, his manner and position of authority served to make this inappropriate conduct in the workplace. A reasonable person would consider this behaviour as intimidating.

•    Mr Windisch and Mr Regulski had a conversation inside Mr Windisch’s office. Mr Windisch raised his voice on numerous occasions. Some witnesses recall hearing two raised voices, some one voice (but they could not distinguish if it was Mr Windisch’s or Mr Regulski) and some recall hearing no raised voices. No witnesses could hear the content of the conversation. Regardless of intention, raised voices are not appropriate forms of communication.

•    On a number of occasions during their conversation Mr Windisch swore using the words “fuck” and “shit”. It is likely this was for emphasis and reflective of a communication norm within RAV, rather than being an excessive personal attack on Mr Regulski. Never the less, swearing would be considered inappropriate at this professional level, especially at times of heated or serious discussion.

The above conduct separately and collectively breaches the Department of Justice’s Code of Conduct. Mr Windisch did not treat Mr Regulski with respect or manage him appropriately when he singled him out in the open plan office and ordered and yelled at him into his office, slammed the door, raised his voice at Mr Regulski and swore on a number of occasions (using the words “fuck/fucking” and “shit”). Regardless of intention, these behaviours are not appropriate forms of communication or management for a senior manager within the Department of Justice. In particular, these actions breach the clauses 6.1, 7.1 and 7.2 requiring leaders to demonstrate respect and lead and manage employees to provide a safe, encouraging and supportive work environment. Furthermore, such behaviour would also be inappropriate if it reflected ongoing management style, particularly for a leader in the Department of Justice.

Mr Windisch and Mr Regulski were the only people present at the majority of the time of the allegation, and their evidence directly conflicts. In the absence of corroborating witnesses and other evidence, and based on the information collected by this investigation (please see Section 4), it cannot be established that the following is more likely than not to have occurred. As such, the following particulars of the allegation were not substantiated:

•    that Mr Windisch physically struck Mr Regulski’s foot or intimidated and threatened him physically;

•    that Mr Windisch physically prevented and intimidated Mr Regulski from leaving the room or that Mr Windisch came into Mr Regulski’s personal space in a threatening manner;

•    that Mr Windisch swore excessively to make personal attacks on Mr Regulski;

•    that Mr Windisch threatened Mr Regulski’s job or to demean his reputation to superior at RAV and the public service more generally by using his position of authority and his professional network;

•    that Mr Windisch threatened to make Mr Regulski’s work at RAV more difficult by applying unreasonable scrutiny; and

•    that Mr Windisch threatened to orchestrate the working roster to prevent Mr Regulski from seeing his daughter.

105    On 25 August 2011, Mr Windisch was advised of the allegation that had been upheld by the investigator, and the particulars thereof. He was informed by the Acting Executive Director, Regional and Executive Services, that he would be counselled in accordance with the relevant provisions of the applicable industrial agreement. That counselling was done, by letter countersigned by Mr Windisch, on 12 September 2011.

106    The applicant was informed of Mr Windisch’s disciplinary outcome by letter from Ms Dumais dated 16 September 2011. At the conclusion of her letter, Ms Dumais said:

Mediation

To seek to provide some closure for you and Mr Windisch, the Department would like to offer you the opportunity to participate in a mediation with Mr Windisch. This does not necessarily involve you both in the same room and can be in the form of a facilitated discussion. Mr Windisch has indicated that he would like to engage in such a process. Please contact me by 30 September 2011 to confirm whether or not you would like to take up the offer.

Return to work

I note that this matter has had a significant impact upon you and that you have previously indicated that you would not be returning to work until the investigation has been completed. I also understand that you do not want to return to your substantive position.

Under the Accident Compensation Act (1985), the Department is obligated to provide you with suitable employment when you have some capacity for work. This obligation continues for 52 weeks from when your claim was received.

Allianz have chosen an independent occupational rehabilitation provider, Ayres Management Services, to assist with your return to an alternate time limited ole, they will be providing you with job seeking assistance. Now that the investigation has been completed, I suggest you call Andrew Foxton, Injury management Advisor to discuss your return to work intentions, including your current capacity (if any) to work. Andrew can a [sic] called on [omitted], or by email to [omitted].

There is no suggestion that the applicant contacted Mr Foxton as invited to do by Ms Dumais.

107    On 27 October 2011, Mr Foxton attended a case conference with the Department’s insurer in relation to the applicant. By then, the only correspondence which he had received from the applicant or his doctor were regular medical certificates stating that the applicant was unfit for all duties.

108    On 20 December 2011, Mr Foxton sent the applicant a letter referring to the return to work plan which he had sent in June (see para 99 above). He now attached another such plan, which would involve a placement from 9 January 2012 to 3 February 2012 (the then most recent medical certificate received by the Department expiring on 8 January 2012). The position was that of “Probity Officer” at the Commission, in Spring Street, Melbourne. Mr Foxton asked the applicant to discuss the suitability of the proposal with his doctor (a consultant psychiatrist) at his next consultation. The applicant was invited to visit the workplace in Spring Street and to discuss the proposal with the relevant manager there. Mr Foxton said that he would arrange a “meet and greet” if the applicant required it. The plan, under cover of a corresponding letter, was sent to the applicant’s doctor.

109    On 7 February 2012, the applicant’s employment was transferred to the Commission. The only significance of that circumstance was that, thenceforth, a different employer became responsible for the applicant’s situation. In place of Mr Foxton, Lyssa Lai, People and Culture Advisor (Employee and Industrial Relations), now managed the applicant’s WorkCover case on behalf of the Commission, reporting to John Veale, Manager, People and Culture.

110    On 21 February 2012, the applicant underwent an independent medical examination on the instructions of the insurer. I shall have reason to return to some aspects of the examiner’s report below.

111    On 5 March 2012, the applicant’s doctor wrote to Mr Foxton in reply to the latter’s letter of 20 December 2011. He said that he had discussed the return to work plan with the applicant, who had informed him that, because of the recent merger between RAV and the Commission, the proposal “would put him in direct contact with his ex-manager and staff”. The doctor did not, therefore, believe that the proposed position was suitable for the applicant. He asked Mr Foxton to offer the applicant a position that would not involve that contact. In his affidavit, Mr Foxton made the point that this was “nearly three months” after his letter to the doctor of 20 December 2011, and that, had the applicant accepted the return to work offer according to its terms, he would not have been obliged to work with Mr Windisch. Aside from the arithmetical curiosity self-evident in this evidence, I would not accept the appropriateness of the suggestion, if suggestion there be, that the applicant’s doctor had, in effect, sat on his hands without cause in relation to Mr Foxton’s letter of 20 December. In Mr Foxton’s letter of the same date to the applicant, he anticipated that, “given the time of year”, the applicant might need an extension of time to see his doctor. Furthermore, in an email (annexed to Mr Foxton’s own affidavit) of 30 January 2012, the insurer’s case manager told Mr Foxton that she had had “a lengthy discussion” with the applicant regarding the return to work plan, adding in parenthesis, “his GP will not endorse”.

112    After the transfer of the RAV staff to the Commission, Mr Veale made it his business to take stock of the transferred employees who were in receipt of WorkCover payments, one of whom was the applicant. In April 2012, he contacted Michael Condon, Manager, WorkCover, at the Department and discussed the applicant’s case. Mr Condon advised Mr Veale that, as far as he understood the situation, the applicant had no interest in returning to work and no intention of doing so. At the time of this conversation – indeed, at all times until Mr Veale was under cross-examination in this proceeding – Mr Veale was not aware of the request made by the applicant’s doctor in the letter referred to in the preceding paragraph that the applicant be offered a position that did not involve contact with his ex-manager and staff.

113    On 13 April 2012, Mr Veale sent an email to Johanna Ortiz, Senior People and Culture Co-ordinator at the Commission, saying that “we will need to pick up the Regulski matter”. He told her what Mr Condon had said. He raised the questions whether the applicant could be “retired on medical grounds” or some other action could be taken. He said that the applicant had been absent for over a year and had “rejected at least one placement opportunity (with Corrections)”.

114    On 19 April 2012, Mr Foxton advised Ms Ortiz by email that the applicant’s make-up pay component would cease on 25 May 2012, and that he would thereafter be entitled only to the compensation component of his weekly payments. On 4 May 2012, Ms Ortiz sent a letter to applicant, passing on this advice.

115    Also on 4 May 2012, the applicant telephoned Mr Veale. He asked who had responsibility for the management of what Mr Veale described as his “return to work and general case management”, the Department or the Commission. Mr Veale told the applicant that the Commission was his new employer, but at the same time they would need to work closely with the Department. It was agreed that the applicant and Mr Veale would meet to discuss his situation.

116    No doubt because of the applicant’s call, and in anticipation of the meeting with him, Mr Veale requested his staff to obtain an update from the insurer on the applicant’s case. Conformably with Mr Veale’s intention, on 8 May 2012 the insurer provided an update on the applicant’s case. Part of its report dealt with the advice received from the independent medical examiner dated 21 February 2012, as follows:

1.    Mr Regulski has an Adjustment Disorder with Depressed and Anxious Mood;

2.    Mr Regulski’s condition occurs in the context of his perception of his workplace experiences and involves a number of allegations of bullying and harassment within his Department as described.

3.    Mr Regulski has launched a number of legal initiatives to deal with his claimed perception of his workplace and those matters are still ongoing. Provided Mr Regulski could be guaranteed of a safe work environment a number of the workplace positions and duties detailed in the Recovre report would be appropriate for him. Certainly if those positions occurred outside of his former workplace and he had no contact with his former co-workers in my opinion, given his improved emotional and psychological functioning with treatment, Mr Regulski would be regarded as having a capacity for pre-injury, alternative or suitable duties.

[4.]    Mr Regulski could return immediately to work in duties as outlined above from a psychiatric perspective.

[5.]    Mr Regulski would not be regarded as having no work capacity from a psychiatric perspective

[6.]    There are no other factors of relevance.

The “proposed strategy” of the insurer was stated as follows:

Review currently being conducted by Worksafe to assess whether potential termination on weekly comp can be issued based on IME Entwisle.

On receipt of the Job seeker plan from Recovre; will be sent to Worksafe for review.

Paul to continue actively participating in Job seeking with Recovre until any decisions have been made.

117    Mr Veale did meet with the applicant on 16 May 2012. The most reliable indication of the course of that meeting is Mr Veale’s email to Ms Lai on 22 May. He said that the applicant had indicated that he wanted to ensure that the Commission was across the outcome of the Department’s investigations around bullying and harassment, that he was prepared to be interviewed in relation to any investigations around culture and behaviour, that he had submitted a complaint to the Ombudsman and to the Office of Police Integrity, and that he was taking civil action against Mr Windisch. In his email to Ms Lai, Mr Veale also stated that he had that day, 22 May, again spoken to the applicant. He told the applicant that the Commission had further details from the Department regarding his claim, that he would be following up on the insurers, that the Commission was “seeking a strategy around his eventual return to work in another organisation”, and that Ms Lai would contact him as case manager once the Commission was “clear on the insurance arrangements”. Mr Veale noted (in the email) that the applicant wanted assurances that the Commission, not the Department, was handling his case.

118    On 23 May 2012, Ms Lai emailed Mr Veale, stating that she had been in contact with the applicant’s case manager at the insurer, who had clarified the following things:

•    After 52 weeks there are no obligations under the Act to keep his position open. We can fill this (if we already haven’t done so). He has been non active on the system for more than 90 days so should not be counted towards headcount. He is currently at 54 weeks as of this week.

•    He is currently not fit to go back to pre-injury workplace. (we need to clarify scope of this as claim came under DoJ).

•    Case manager has advised if we could no longer accommodate him in any scope, we will still be liable to premium charges which are very costly to the organisation.

•    As this case has gone past the 52 weeks, New Employment Services has been engaged to assist in finding suitable roles for Paul externally. This program involves active mentoring, job seeking, interview skills etc. He has been compliant and has been actively participating in this.

•    Once we reach 130 weeks and he has not found a suitable position, there will be two outcomes:

1.    If his GP signs him off with no capacity. He will continue on WC but will be removed from our books. (Again, costs to the organisation will be high)

2.    If his GP signs him fit for work, his WC will cease and no effect to our premiums. Note: he has been signed off for full capacity but not at current workplace.

119    On 12 June 2012, the insurer wrote to Mr Condon at the Department. The subject of the letter was a review of the applicant’s ongoing entitlement to weekly WorkCover payments. The Department was advised that the insurer had determined that, as from 16 July 2012, the applicant was no longer entitled to weekly payments because he was no longer incapacitated for work. The Department was advised that it should not make any weekly payments to the applicant after 16 July 2012. The insurer’s determination was said to have been based on the “available information”, including the report of the independent medical examiner, a vocational assessment report of 29 November 2011 by an organisation called “Recovre” and a job seeker plan of 16 April 2012 by the same organisation. So far as I can see, there is nothing in the evidence to explain the identity, nature or role of that organisation.

120    Admitted into evidence without objection, and not the subject of cross-examination, was an email of 17 July 2012 from the applicant’s case manager at the insurer to Ms Lai. In response to the latter’s inquiry, the case manager said that she had attempted to contact the applicant on 15 June 2012, had sent a “no contact” letter to him on that day, had attempted, again without success, to contact him by telephone on 16 June 2012, and had emailed him on 17 June 2012 asking him to telephone her. It was not until 13 July 2012 that the applicant emailed the case manager “stating he received notification that his employer advised him of his termination”. She sent a return email requesting him to contact her, but, as at 17 July, he had not done so.

121    On 23 July 2012, the applicant spoke by telephone with the insurer’s case manager. She reminded him that, on 21 February 2012, the independent medical examiner had reported that he (the applicant) would not be regarded as having no work capacity from a psychiatric perspective. To this the applicant added “in a safe working environment”, and the case manager agreed. She advised the applicant that the vocational assessment that he attended with the rehabilitation provider had been sent to the examiner. She outlined the job prospects and options that were available to the applicant. The applicant queried the validity of the termination of his compensation payments, stating that he believed that the decision to terminate had been made at the request of the Department to “get rid” of him. This, he believed, was because he had “serious court proceedings/allegations” against the Department. He said that he recorded all his calls, and that the call on which he was having that very conversation was being recorded. The case manager told the applicant that he did not have her permission to record their conversation. She said that she was not aware of his allegations or court proceedings against the Department. She had not been informed of it by the Department, and had become aware only by the applicant then drawing it to her attention. The applicant queried whether his payments had been terminated because he was being represented by Slater and Gordon. The case manager advised him that, based on medical information, the decision to terminate had been made because he was not deemed to be incapacitated. The applicant said that he had had a good relationship with his previous case manager, to which the case manager responded that the decision had not been a matter of personal choice, and regardless of whether it was the previous case manager or herself who made it, it was purely based on the medical evidence on the file. The applicant said that it was odd that this had happened after the current case manager had taken over. The applicant said that, as he had no regular income, the termination of his weekly payments left him with no choice but to return to work. He asked what would happen if he returned to work and walked up to the person with whom he had had issues, as a result of which his injury was “re-aggravated”. To this, the case manager replied that all claims were reviewed on a case by case basis. She advised the applicant of his appeal rights.

122    The applicant did appeal. His dispute was the subject of a conciliation conference held on 18 September 2012. On 27 September 2012, the Conciliation Officer noted that the parties had accepted her recommendation, namely, that the applicant’s leave entitlements be restored up to the date of the conference. Mistakenly, the payroll section at the Commission interpreted this as requiring the recommencement of weekly compensation payments, a subject to which I shall return shortly.

123    On 24 October 2012, Mr Veale and Ms Lai met with the applicant at a coffee shop in Collins Street. As Mr Veale explained in his evidence he told the applicant that, at that time, the government had “a resourcing issue”. All departments, and statutory bodies such as the Commission, were asked to look at making savings. Budgets were reduced, and the Commission was to reduce its staffing numbers through a voluntary departure scheme. With respect to return to work opportunities for the applicant, Ms Lai was not only looking within the Commission, but also liaising with the Department, a much larger organisation, and therefore more likely to have openings that might be suitable for the applicant. This was explained to the applicant. For his part, the applicant raised the issues which he had had with the Department, saying that he was clear as to who was responsible as the employer. He said that he was looking at taking possible legal action against Mr Windisch. He said that it would not be possible for him to return to work with the staff with whom he had issues; and he named 10 of them. There was a discussion about the applicant’s preferences on a return to work, in which respect Mr Veale asked him to supply an updated CV. It seems that the applicant did not promptly do so, as, in an email to him on 19 November 2012, Ms Lai referred to the meeting of 24 October and asked him to supply the CV. She said that that would “assist us in understanding your skills and capabilities and aligning these with any potential positions which may arise”. The applicant sent his CV to Ms Lai on 20 November 2012.

124    On 7 November 2012, the applicant’s solicitors wrote to the Commission, seeking clarification of its position in relation to a return to work program for their client. They “noted” that he had “not been contacted in recent months with regard to the return to work program”. In the light of the matters referred to in the previous paragraph, it can be seen that that statement was wrong. On 27 November 2012, the Acting Chief Executive Officer of the Commission replied to the solicitors’ letter. She mentioned the receipt of advices from the applicant’s doctor that he was unfit to return to the Commission. She referred to the meeting on 24 October 2012, and to the applicant’s delay in forwarding his CV. She said that the then current “recruitment freeze” imposed on the Commission by the government made the process of finding an available and suitable role for the applicant “challenging”. She said that the Commission had an occupational health and safety obligation not to return the applicant to a role that would place him in contact with Mr Windisch or the other team members whom he had named at the meeting on 24 October.

125    It is established on the pleadings, but not the subject of evidence, that, on or about 11 December 2012, the applicant provided the Commission with “a draft initiating proceeding” (an expression taken from the Amended Defence which made a qualified admission of the relevant allegation).

126    The applicant had not been entirely satisfied with the way the Commission gave effect to the conciliated settlement of his WorkCover dispute in September 2012. He had contended that his entitlement to leave taken over about a seven week period commencing on 29 March 2011 had not been recredited. In an email to him on 18 December 2012, Ms Lai said that she had been working with the Department in relation to that contention, in the course of which it was realised that it had been a mistake to interpret the settlement as involving the resumption of the applicant’s weekly WorkCover payments. Accordingly, in a spreadsheet attached to the email setting out a reconciliation of the applicant’s various entitlements, the payroll team at the Commission had “included calculations for the back payment owing to you based on agreement that you utilise your sick leave entitlements and then utilising your annual leave entitlements for the period 19/9/12 till 15/12/12 (the end date of the last pay period).” Ms Lai also advised the applicant that, if the applicant continued to use his annual leave credits, his entitlement would run until 11 January 2013. In a conversation with Ms Lai on 21 December 2012, the applicant indicated that he did wish to use his annual leave credits in this way.

127    By letter to Ms Lai dated 20 December 2012, the applicant’s solicitors disputed the Commission’s right to cease making weekly compensation payments with effect from 18 September 2012, and noted that they had forwarded a statement of claim, alleging contraventions of s 340 of the FW Act, to the Department on 13 December 2012. On 14 January 2013, Mr Veale responded to this letter confirming that the outcome of the conciliation did not involve the continued making of weekly payments beyond 18 September 2012. On 16 January 2013, the applicant’s solicitors wrote to Mr Veale, putting in contest the position which he had taken in his letter of 14 January, and threatening proceedings under s 340.

128    By email to Mr Veale sent on 12 March 2013, the applicant resigned from his position with the Commission, and from the Victorian Public Service. That resignation was accepted.

129    The present proceeding was commenced on 29 July 2013.

summary of the applicant’s case

130    The applicant sues under s 340 of the FW Act, invoking para (a), and subpara (ii) of para (c), of s 341(1). The relevant provisions are as follows:

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

(a)    because the other person:

(i)    has a workplace right; or

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

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

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

(a)    is entitled to the benefit of … a workplace law …; or

…

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

…

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

131    The senses of “adverse action” on which the applicant relies are those given by paras (b) and (c) of item 1 in the table to s 342(1), namely, that the relevant employer –

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

(c)    alters the position of the employee to the employee’s prejudice ….

132    The applicant alleges that adverse action of this kind was taken against him –

    when Mr Windisch gave him an abusive dressing-down in his office at Prahran on 28 March 2011;

    when Ms Levine accepted Mr Windisch’s version of those events rather than his own;

    when Ms Levine spoke to inspectors about what they were permitted to say in their evidence in the investigation into Mr Windisch’s misconduct;

    when Mr Windisch attempted to elicit information about his wife from Ms Markovski;

    when the Department failed to offer him a return to work plan;

    when the Commission failed to offer him a return to work plan; and

    when the Commission discontinued the making of weekly WorkCover payments to him.

Following the structure of the applicant’s submissions, in my reasons below I shall deal with the second, third and fourth of these allegations together. Otherwise, each allegation will be the subject of a separate section.

133    In contract, the applicant relies on two implied terms, namely, the obligation of contracting parties to co-operate and the duty of good faith. Under the former, the applicant points to what he says is the Department’s failure fully to investigate Mr Windisch’s conduct on 28 March 2011, and its failure to offer him (the applicant) a return to work plan; and to the Commission’s failure to offer a return to work plan. Under the latter, the applicant points to the conduct of 28 March 2011 as such, to Ms Levine’s management of the applicant’s complaint about that conduct, and to Ms Dumais’ handling of the investigation into that complaint.

Mr Windisch’s treatment of the applicant on 28 March 2011

134    It was submitted on behalf of the applicant that the dressing-down which he received from Mr Windisch on 28 March 2011 was adverse action within the meaning of paras (b) and (c) of item 1 in the table in s 342(1) of the FW Act. While denying that allegation in their Amended Defence, the respondents conducted their case in court as though it were uncontroversial. In the circumstances, I think the proper course for the court is to accept the allegation, although I stress that I have not given the matter the consideration that it would have required had it been put seriously in issue by the respondents.

135    The applicant alleged that this adverse action was taken by Mr Windisch because he (the applicant) exercised a workplace right when he declined to participate in an inspection which was conducted, under cover of a warrant, on 29 October 2010 at a night club in Prahran called White Charlie. The applicant made the following allegation in his Further Amended Statement of Claim:

15.    The Applicant refused to participate in the White Charlies Warrant because he believed the tactics being used were illegal.

PARTICULARS

The Applicant informed his manager Lisa Jones that because he believed that the methods being used to execute the White Charlies Warrant were illegal, he would not participate in the execution of the warrant. Section 107(1) of the Liquor Control Reform Act 1998 provides that a person who is not a licensee must not sell liquor or offer liquor for sale. The Applicant was of the understanding that tThe directors of White Charlie’s did holdeld a liquor licence and had special permission from the Director of Liquor Licensing to be trading. However, the warrant was going to be executed on the basis that the directors had no permission to trade and were in breach of section 107.

It is necessary to give some attention to the matters referred to in the particulars to this pleading.

136    An earlier attempt at an inspection on 16 October 2010, not covered by a warrant, had been frustrated when management at the venue required the inspectors to leave. A warrant was obtained, and the inspection was scheduled for the evening of 28 October 2010. A briefing was held that day, involving not only the necessary inspectors but also some police officers. The applicant was a member of the inspection team, and was, at the appointed hour, ready to proceed with his colleagues to the venue. However, for some reason White Charlie did not open that night, and no inspection was conducted. It was re-scheduled for the following evening, 29 October 2010, and was in fact conducted then, commencing at about 8 pm.

137    The applicant’s evidence was that, after the briefing on 28 October 2010, he told Ms Jones that he “had a lot of concerns about what was about to take place and the way it was taking place”. He said that he was “concerned about whether this is even legal”. He said: “What happened to the section 107 in the Act where we need to establish that they’re a licensee?” Ms Jones did not respond to these comments by the applicant, but just “walked off”. In her evidence, Ms Jones did not directly contradict the applicant’s evidence. When asked in chief whether the applicant raised any issues with her regarding the warrant, her response was, “He may have asked questions, but, no.” When counsel for the respondents asked whether Ms Jones had a recollection of the questions that might have been raised, Ms Jones’ response was, “General questions regarding the process”. Under cross-examination, Ms Jones denied that the applicant had told her that he had concerns about the legality of the execution of the warrant.

138    While Ms Jones recalled that the applicant had asked her some questions about the process being, and intended to be, used in the inspection of the White Charlie venue on 28 October 2010, it was clear that her recollection did not extend to the detail, nor even to the content at a general level, of his questions. In the circumstances, I would accept the applicant’s evidence about what he said in the course of this brief conversation. However, I also accept Ms Jones’ evidence of her recollection of it, to the extent that it reflects how she understood what the applicant had said. On any view, Ms Jones was dismissive of the applicant’s comment. I consider it unlikely that she thought anything further of it, a circumstance which would be wholly consistent with her now imperfect recollection of the detail of what the applicant had said.

139    There is no evidence that the applicant told Ms Jones that he “would not participate in the execution of the warrant”. But he did not participate. Indeed, he did not attend for work at all on 29 October 2010. What actually happened was the subject of the following rather unsatisfactory evidence given by the applicant:

I believe I said that I was sick, where I wasn’t going to be available. I might not have said I was sick. I might – I had an issue with calling in and saying, “I’m sick”. I generally said “I won’t be coming in today”, and, if I need to give a reason, that I could get a medical certificate if needed. But there was no need for that at this particular point. So I would have said that, “I’m not coming in tomorrow”, and left it at that.

Apart from the appropriateness of this kind of subterfuge, there is a question, not dealt with clearly in the evidence, whether it was to Ms Jones that the applicant offered the information that he would not be attending for work on 29 October 2010 at the time of his conversation with her about the legality of the proposed inspection. The way he gave his evidence would suggest not, although the course of what was then his examination-in-chief was substantially interrupted by clarifications required by the court and objections by counsel for the respondents. When Ms Jones was under cross-examination, it was not put to her, clearly and in terms, that the applicant had told her that he would not participate in the White Charlie inspection, or that he would absent himself from work in order to avoid such participation. Indeed, Ms Jones’ understanding of the reason for the applicant’s absence on 29 October 2010 was that, for personal reasons, he worked according to a roster which was slightly different from that of the other members of Team C.

140    In this state of things, I consider that objective facts hold the potential to resolve the question whether the applicant told Ms Jones that he would refuse to participate in the White Charlie inspection on 29 October 2010. As mentioned above, the applicant was ready to participate in the inspection as originally scheduled on 28 October 2010. As he put it in his evidence –

The warrant was due to be executed on the Thursday. It was all set up; ready to go. There was [sic] two people sitting off the venue at the Coffee Club, which is directly opposite it, basically waiting – we were sitting in a room, waiting for a green light.

Although the applicant may at that point have had reservations about the legality of the proposed inspection, on no view had he then decided that he would not participate. The conclusion I reach is that that decision was made at some point subsequent to the abandonment of the inspection scheduled for 28 October 2010 and, therefore, well after his conversation with Ms Jones, which took place immediately after the relevant briefing, in the afternoon of that day.

141    Returning to the particulars of the applicant’s pleading, the statutory provision there referred to, s 107(1) of the LCR Act, provided that “a person who is not a licensee must not sell liquor or offer liquor for sale.” To that extent, the particulars are well-founded. However, no attempt was made by the applicant in his evidence, or by his counsel in her submissions, to sustain the proposition that there was in fact any doubt as to the legality of the inspection at the White Charlie venue. Counsel made it clear that the applicant’s case was not that the inspection would have been illegal – it was only that he held a genuine belief that it was illegal. The grounds for such a belief were not developed, either in evidence or in submissions. No attempt was made to provide any evidentiary basis for what was said about the directors of the relevant company in the applicant’s particulars. By contrast, the affidavit upon the strength of which the warrant was obtained was tendered by the respondents, and it appears to provide incontestable grounds for the deponent’s belief that a contravention of s 107 may well be have been committed in relation to this venue. In his case, the applicant did not touch upon such matters.

142    To the extent that it matters, I reject the applicant’s factual case that he had a genuine belief that the inspection proposed for the White Charlie venue would have been illegal.

143    In his Further Amended Statement of Claim, the applicant alleged that he had a “workplace right” within the meaning of Pt 3-1 of the FW to decline to participate in the inspection at White Charlie “as he reasonably believed it was illegal”. It was no part of the applicant’s case that his belief in this respect was reasonable. It was only that it was genuine. Aside from that aspect, however, there are two immediate problems with this allegation. First, no attempt was made to demonstrate how a belief in, as distinct from the reality of, the illegality of this inspection would have entitled the applicant to refuse to carry out his normal work as directed. I do not suggest that there may not have been a basis for such a position – I indicate only that no such basis was articulated as part of the applicant’s case. Secondly, and more fundamentally, the right not to participate in some aspect of an employee’s job, even if believed to involve an illegality, was not a “workplace right” within the meaning of Pt 3-1 of the FW Act.

144    The term “workplace right” was defined in s 341(1) of the FW Act as follows:

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

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

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

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

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

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

The “right” on which the applicant relies, as identified above, clearly did not fall within this provision.

145    Notwithstanding that holding, and although the applicant’s submissions were attended by a certain confusion on the point, it seems as though the applicant would wish his case to be understood also in the sense that the brief comment which he made to Ms Jones about the proposed inspection on 28 October 2010 was a “complaint or inquiry” within the meaning of s 341(1)(c) of the FW Act. I would hold that it was not. It was in the nature of a comment or observation, and had the character neither of a complaint nor of an inquiry.

146    A less tractable issue for the applicant in this part of his case, however, is whether the applicant’s comment to Ms Jones on 28 October 2010 was “in relation to his … employment” within the meaning of s 341(1)(c)(ii) of the FW Act. I would hold not. It was concerned only with the legality, or perhaps more broadly the regularity, of an operation being undertaken by the inspectorate. It had nothing to do with the applicant’s employment. In his case in court, the applicant attempted to make his inquiry relevant to his employment by stressing what he claimed to be a concern that he was being required by his employer to act in ways that may not have been lawful. But s 341(1)(c)(ii) is concerned with the character of the complaint or inquiry, not with the sentiments that prompted its making. The applicant’s evidence as to his question of Ms Jones, which I have accepted, did not include any suggestion that he had, as an employee, an issue about being required to participate in the White Charlie operation.

147    It follows that the applicant’s allegation that Mr Windisch’s treatment of him on 28 March 2011 was in contravention of s 340 of the FW Act must be rejected. In case it later becomes relevant, however, I shall address the question whether Mr Windisch so acted because the applicant absented himself from work on 29 October 2010 or because of the comment which he had made to Ms Jones on the previous day.

148    Mr Windisch himself denied that he acted for any such reason. Indeed, his evidence was that he was unaware of the applicant’s having declined to participate in the White Charlie operation or having made the comment to Ms Jones. Nowhere in the evidence is there any reference to the point at which, or to the circumstances under which, Mr Windisch might have become aware of either circumstance. It was frankly conceded on behalf of the applicant that, in the nature of things, he would not normally expect to be able to provide particulars of communications between Ms Jones and Mr Windisch. But the subject of there having been a communication by which Mr Windisch became appraised of the applicant’s refusal to participate and his comment to Ms Jones was not even broached with either of them whilst under cross-examination It was put to Mr Windisch that the real reason for him administering the dressing-down to the applicant was because he had “finally found a way of getting back at [the applicant], because he had complained about White Charlie’s”. Mr Windisch emphatically denied that, and cross-examining counsel left the matter there. How, when, or under what circumstances Mr Windisch might have come by the knowledge which he would have needed to have had if the applicant’s case is to succeed, in the face of Mr Windisch’s denials, was not explored.

149    Neither were these issues raised with Ms Jones. Although I have accepted the applicant’s evidence about the terms of his comment to her on 28 October 2010, that Ms Jones would not have informed Mr Windisch of the comment is wholly consistent with the nature of it, the circumstances under which it was made, and Ms Jones’ contemporaneous reaction to it.

150    It was the applicant’s case that Mr Windisch’s treatment of him on 28 March 2011 was so disproportionate to the nature of the complaint which Ms Jones’ had made in her email of the previous day that there could be no explanation for the treatment other than that Mr Windisch, having known for some time of the applicant’s refusal to participate in, and his comment about, the White Charlie operation, chose to make this the occasion to exact retribution. It was in this sense that counsel for the applicant used the adverb “finally” in her cross-examination of Mr Windisch, in the passage to which I referred at para 148 above. With respect to the first aspect of this submission, counsel emphasised, both in her cross-examination of Mr Windisch and in her address, that Ms Jones’ email mentioned the applicant only once, and then in a relatively benign context (see para 7 above).

151    I would reject this submission at both of its levels. First, it was not only Ms Jones’ email that placed Mr Windisch into such a state of anger. He had received, and read, that email on a mobile device before arriving at work on 28 March. It was what Ms Jones told him in his meeting with her at about 9.30 am that day, and the fact that she had prepared a letter of resignation, which made him really angry. In the context of that meeting, the limited reference to the applicant in the email is of secondary importance. Secondly, there was nothing in Mr Windisch’s angry reaction which had any plausible connection with the applicant’s circumstances, conduct or statements in the period immediately before the White Charlie operation. When Mr Windisch learned that the applicant was alleging that his comment made to Ms Jones on 28 October 2010 was the reason for the dressing-down on 28 March 2011, he was “stunned”, and I can well understand that he would have been. No reasonable view of the evidence in this case would sustain a perception of any relation between these two events.

152    The applicant was not the only inspector spoken to by Mr Windisch on 28 March 2011. He spoke also to Mr Harrison, Mr Considine and Mr Swallow. The applicant happened to be the first in point of time, but someone had to be. The fact that the applicant was only one of four inspectors spoken to by Mr Windisch that day is strongly confirmatory of the respondents’ case that his concern was with the relationship issues which Ms Jones had raised with him, and not to any extent with issues going back five months which related only to the applicant.

153    For the sake of completeness, I would add that it is possible that the applicant’s comment to Ms Jones on 28 October 2010 was amongst the apparently numerous instances of members of her team questioning her decisions and her knowledge of the legislation under which the inspectors operated, as to which she complained to Mr Windisch on 28 March 2011. This was not, however, the applicant’s case. That the comment should be understood in this light was put neither to Mr Windisch nor to Ms Jones herself. In the circumstances, nothing further needs to be said about that possibility.

154    Under s 361 of the FW Act, had it been established that the applicant did make a complaint or inquiry in relation to his employment, the respondents would have borne the legal onus of proving that Mr Windisch did not dress him down on 28 March 2011 for reasons which included the making of that complaint or inquiry. Once Mr Windisch denied that he knew of the existence of the facts constituting the complaint or inquiry, any positive facts upon which the applicant might then seek to rely to impugn that denial would be for him to prove. He would carry the evidential onus in relation to those facts. He has not discharged the onus of proving that, at any stage and by any means, his having declined to participate in the White Charlie operation and having made the comment to Ms Jones came to Mr Windisch’s attention. But I would go further and find that they did not.

155    I find, therefore, that neither the circumstance that the applicant declined to participate in the White Charlie operation nor the circumstance that he made a comment to Ms Jones on 28 October 2010 about the legality, or regularity, of the operation which was to have taken place that night was the reason, or a reason, why Mr Windisch gave him a severe dressing-down on 28 March 2011.

Alleged adverse action by Ms Levine and Mr Windisch in May and July 2011

156    It was next submitted on behalf of the applicant that the following things amounted to adverse action within the meaning of Pt 3-1 of the FW Act:

(a)    Accepting Mr Windisch’s version of the events of 28 March 2011 in preference to the applicant’s. This was alleged to be constituted by statements made by Ms Levine at her meeting with the applicant on 25 May 2011 that she supported Mr Windisch, that she did not believe the applicant’s version of the relevant events, and that she did not believe his other allegations of bullying by Mr Windisch and other managers of RAV.

(b)    Attempting to influence the investigation into Mr Windisch’s conduct on 28 March 2011. This was alleged to be constituted by Ms Levine speaking to Mr Swallow, Ms McInerney and Mr Harrison and informing them that, if they made statements to the investigator about workplace bullying, Mr Windisch would terminate their employment, whereas if they made statements favourable to Mr Windisch, their promotion opportunities were “looking good”.

(c)    Trying to find out personal information about the applicant. This was alleged to be constituted by Mr Windisch’s telephone conversation with Ms Markovski on 5 July 2012, in which he asked who was the applicant’s partner and what was the applicant's family situation.

157    It was submitted that, in point of fact, these actions were taken against the applicant because of the complaints which he had made to Ms Levine orally on 14 April 2011 and in writing on 19 April 2011. These complaints were said to be covered under s 341(1)(c) of the FW Act in two ways: first, the general complaint about bullying in the workplace (see paras 46-47 above) was made to a person or body, the Department, which had the capacity under the Occupational Health and Safety Act 2004 (Vic) (“the OHS Act”) to seek compliance with s 21 of that Act (s 341(1)(c)(i)), and secondly, that general complaint and also the applicant’s specific complaint about how he was treated by Mr Windisch on 28 March 2011 were complaints in relation to his (the applicant’s) employment (s 341(1)(c)(ii)).

158    The respondents accepted that the OHS Act was a workplace law for the purposes of s 341(1)(c)(i) of the FW Act. If what the applicant said to Ms Levine on 14 April 2011 about bullying in the workplace amounted to a complaint, I consider that it should be treated as having been made to the Department, and that the Department had the capacity under the OHS Act to seek compliance with that Act. The respondents were not heard to contest either of those propositions, although, in fairness to their representatives, I would add that the propositions were implicit, rather than articulated, in the applicant’s case. The submissions which I received from both parties in relevant respects make this a singularly inappropriate occasion to attempt any elaboration of the meaning or scope of s 341(1)(c)(i).

159    What the respondents did contend was that the applicant's statements to Ms Levine on 14 April 2011 were not complaints within the meaning of s 341(1)(c) at all. For the moment, I am concerned only with what I have called the applicant's general allegations about workplace bullying, and not yet with his specific references to 28 March 2011.

160    In this part of their submissions, the respondents relied on the judgment of Dodds-Streeton J in Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346. Although a footnote in their written submissions referred to substantive passages in her Honour’s reasons, the submissions themselves were limited to the summary which her Honour provided in the following terms (314 ALR at 353-354 [29]):

I concluded, for reasons set out below, that in the context of s 341(1)(c)(ii) of the Act:

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

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

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

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

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

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

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

It was submitted on behalf of the respondents that the only complaint that met these “criteria” was the specific one about Mr Windisch's conduct on 28 March 2011. No detailed analysis of how the applicant’s more general allegation failed to fit within the limits of Shea was offered. Of these so-called criteria, (f) and (g) relate only to subpara (ii) of s 341(1)(c), and may be put to one side for the moment. On any view, (a), (b), (c) and (e) are amply satisfied on the facts of the present case. As to (d), I note that it was not put to the applicant that, in making this allegation to Ms Levine on 14 April 2011, he was acting for extraneous purpose.

161    I find, therefore, that, in making the general allegations to which I have referred in para 156 above, the applicant was exercising the right to make a complaint of the kind mentioned in s 341(1)(c)(i) of the FW Act.

162    Was he also exercising the right to make a complaint of the kind mentioned in subpara (ii) of s 341(1)(c)? Aside from the Shea aspects with which I have already dealt, the only basis upon which the respondents submitted not was that the complaint did not relate to the applicant’s employment. I do not accept that submission. It is true that, in conversation with Ms Levine, the applicant mentioned some other employees specifically by name, but that was, as I perceive it, by way of demonstrating that he was not the only one to be affected by the conduct which he alleged. So much is apparent from the comment he made as referred to at the end of para 48 above. The essence of his allegation is that the workplace in which he was required to work as an employee was characterised by bullying etc. That was, in my view, a complaint in relation to his employment.

163    That leaves the applicant’s complaint about his treatment by Mr Windisch on 28 March 2011. It was made both orally on 14 April 2011 and in writing on 19 April 2011. This was undoubtedly a complaint in relation to the applicant’s employment: see FW Act, s 341(1)(c)(ii).

164    The questions which remain are whether the Department took adverse action against the applicant, and, if so, whether one or more of the complaints referred to above was or were amongst the reasons why that action was taken. The actions which I must consider are those referred to in para 156 above.

165    As to the first action, I have found that, at the meeting on 25 May 2011, Ms Levine did make it clear to the applicant that she did not consider anything which he said was the truth, and that she was supporting Mr Windisch. She also said, “It’s your word against his.” However, I do not accept that this amounted to adverse action within the meaning of the FW Act. It was submitted on behalf of the applicant that this was an injury to him in his employment, or a prejudicial alteration of his position, within the meaning of paras (b) and (c) of item 1 in s 342(1) of the FW Act. That submission is quite without substance. Ms Levine was to have, and did in fact have, no part to play in the Department’s investigation of the applicant’s complaint against Mr Windisch. Her views about who was telling the truth as to the events of 28 March 2011 were neither here nor there. They could not have, and they did not in fact have, any effect by way of injuring him in his employment or by way of altering his position to his prejudice.

166    Lest it might later be necessary, I shall make a finding about Ms Levine’s reason. Here it is important to note the context in which Ms Levine expressed herself in the way that she did. The comment was part of a conversation. As is apparent from the applicant’s evidence-in-chief set out at para 82 above, it was in the nature of a response to what the applicant had said about the appropriateness of Mr Windisch remaining at work where he could continue to bully and to harass the applicant’s “witnesses”, thereby compromising his ability to get what he described as a “fair trial”. The comment was not, ex facie at least, related to the complaints which the applicant had made on 14 April 2011. Neither was it in a contextual continuum with the applicant’s complaints: they had related to workplace bullying etc in the broad and to Mr Windisch’s conduct on 28 March 2011, whereas the comment made on 25 May 2011 related to the integrity of the forensic process which the applicant had initiated by his complaint of 19 April 2011. This distinction is not conclusive, of course, but it sets up a starting point for the present inquiry which is, in point of context, separate from the complaint which is said to have been the reason for the comment.

167    Implicitly if not in terms, what the applicant proposed to Ms Levine on 25 May 2011 was that the Department should take the drastic step of standing down, or of transferring, the manager of the inspectorate on little more than the applicant’s version of events, and before the holding of the disciplinary investigation for which the applicant’s formal complaint called. Ms Levine is presumed to have been conscious of the range of outcomes which such an investigation had the potential to yield, including counselling (as was, indeed, ultimately the outcome of the investigation). That a line manager such as Ms Levine should consider, in this setting, whether there was what would be recognised as a prima facie case before taking such a step is an intellectual process with which any court would be well familiar. She was also, of course, aware that she would not be responsible for the investigation, so no question of prejudgment arose.

168    Ms Levine’s reason for making the statements was to justify the maintenance of the status quo pending the resolution of the applicant's complaint, and then only to provide a rational response to the applicant’s criticisms. In one way of looking at it, if the applicant’s complaint had never been made, the occasion for Ms Levine to have made her comment would not have arisen. But that is not the sense in which “because” is used in s 340(1)(a) of the FW Act. As was made clear in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 549, the section is concerned with Ms Levine’s reason or reasons, not with the objective factual matrix that provided the setting for her to have said anything on the subject at all. I find that she did not make this comment because the applicant had complained against Mr Windisch.

169    As to the second action, I would find that it did not occur as alleged. The only evidence as to any relevant statement made by Ms Levine to any inspector other than Mr Harrison was that to which I have referred in para 103 above. As to Mr Harrison himself, the only evidence was that Ms Levine instructed him to confine himself to answering the questions that were put to him, and not to volunteer any additional information. That benign injunction - albeit that it made Mr Harrison more timid than he would otherwise have been about his own situation - does not come close to the adverse action alleged by the applicant, and could on no view have constituted a prejudicial alteration of the applicant’s position or an injury to him in his employment. To the extent that the applicant would wish to be taken to be relying also on the evidence referred to in para 103, I would make a like finding.

170    With respect to the reason why Ms Levine advised Mr Harrison, and possibly some other inspectors, in the terms that she did, I find that she did not do so because of the applicant’s complaints of 14 and 19 April 2011. Again, in one sense, without those complaints the investigation into Mr Windisch’s conduct would not have been proceeding at all, but that does not mean that Ms Levine acted because the applicant made those complaints.

171    As to the third action, the facts do not sustain the allegation that Mr Windisch asked who was the applicant’s partner and what was the applicant’s family situation. However, according to evidence which I have accepted, Mr Windisch did ask Ms Markovski whether she knew the applicant’s wife. This was not, in my opinion, adverse action by Mr Windisch within the meaning of s 342(1) of the FW Act. It did not alter the applicant’s position at all, whether prejudicially or otherwise, and it did not injure him in his employment. It was a harmless, albeit curious, inquiry by Mr Windisch.

172    As to Mr Windisch’s reason for making this inquiry, in his affidavit he said that he telephoned Ms Markovski “to ask how her husband was going, and to find out about her proposed return to work date”. The findings which I have made above in this respect make it inevitable that I would reject the second aspect of this explanation, and I do so. I accept the first one so far as it goes, but it strikes me as a minor and incidental purpose which Mr Windisch achieved by making the phone call. I think it most unlikely that it was the reason, or even part of the reason, for the call as such. The real question, however, is why Mr Windisch inquired whether Ms Markovski knew the applicant’s wife. Since Mr Windisch denied that he did make an inquiry in such terms, he was in no position to offer, and did not offer, a reason for making it. The other important consideration is that the context and dynamics of the case provide no obvious explanation for why the inquiry was made: as I said above, it can only be described as curious. I cannot and do not make any positive finding as to Mr Windisch’s reason, or reasons, for seeking this information from Ms Markovski. Had I held that his relevant conduct amounted to adverse action, I would have held that the respondents had not discharged the onus of proving that Mr Windisch’s reasons did not include the fact of the applicant having made his complaint.

173    Finally in this compartment of the applicant’s case, there is one aspect of the case that might, had it been pressed with any seriousness, have warranted consideration. In his pleading, the applicant seemed to categorise his complaint to Ms Levine as one which was made under s 5 of the Whistleblowers Protection Act 2001 (Vic). His counsel chose, however, not to elaborate upon that allegation, nor to explain the linkages between that Act and Pt 3-1 of the FW Act. His counsel referred to what was said to be the Department’s own policy in relation to the protection of whistle blowers when she was cross-examining witnesses for the respondents. Her final written submissions, however, contained only the most cursory of references to the Act, and said nothing about the policy. In counsel’s final oral address, the subject of whistle blowing was not mentioned. In the circumstances, I do not propose to say anything more about this category of protection, whether statutory or otherwise.

The Department’s failure to offer a Return to Work Plan

174    The applicant’s next claim under s 340 of the FW Act is that, also because he had made the complaints dealt with in the previous section of these reasons, namely, that against Mr Windisch’s treatment of him on 28 March 2011 and that against workplace bullying etc generally, the Department “failed to provide him with any suitable return to work plan”. Expressing the claim in this way, as the applicant did, raises the immediate question whether an omission can ever come within para (b) or para (c) of item 1 in the table to s 342(1) of the FW Act.

175    Although, in s 12 of the FW Act, “action” includes “omission”, the effect of s 342 is to provide an exhaustive setting-out of the conduct and situations that constitute “adverse action”. In the present context, the question is not whether the umbrella term “adverse action” includes an omission. Rather, the questions are whether the expression “injures the employee in his or her employment” comprehends a situation in which the employer does nothing, the result of which is that the employee suffers an injury in his or her employment, and whether the expression “alters the position of the employee to the employee’s prejudice” comprehends a situation in which the employer does nothing, the result of which is that the position of the employee is altered to his or her prejudice.

176    In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 18, Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said of the statutory predecessor of item 1(b) in the table to s 342(1) that it covered “injury of any compensable kind”, and of that of item 1(c) that it was “a broad additional category which [covered] not only legal injury but any adverse affection of, or deterioration in, the advantages employed by the employee before the conduct in question”. These observations provide qualitative content to the provisions now under consideration, but they do not answer the questions set out in the previous paragraph. In Patrick, the High Court was not concerned with omissions.

177    Those questions were not the subject of any developed submissions on behalf of either of the parties in the present case. In those circumstances, it would be inappropriate for me to attempt to give any categorical, or universal, answers to them. Counsel for the respondents were content to accept that conduct characterised by the employer failing to do what was, in the circumstances obtaining, its obligation to do, or what would, in those circumstances, otherwise be done as a matter of course, might be regarded as coming within item 1(b) or (c) if, as a result of the failure, the employee did suffer an injury in his or her employment or suffered a prejudicial alteration of his or position, as the case requires. It is, therefore, necessary to identify what were the Department’s obligations with respect to a return to work plan under the Accident Compensation Act 1985 (Vic) (“the AC Act”) in 2011.

178    The return to work plan was the subject of s 195 of the AC Act, which provided as follows:

Plan return to work

(1)    An employer must, to the extent that it is reasonable to do so, plan the return to work of a worker from the date on which the employer knows or ought reasonably to have known of the worker's incapacity for work, whichever is the earlier date.

Penalty:     120 penalty units for a natural person;

600 penalty units for a body corporate.

(2)    An employer must when planning the return to work of a worker undertake the tasks specified in subsection (3) as often as is necessary to enable the worker to return to work in employment which is consistent with the worker’s capacity for work.

(3)    Planning the return to work of a worker includes—

(a)    obtaining relevant information about the worker’s capacity for work; and

(b)    considering reasonable workplace support, aids or modifications to assist in the worker’s return to work; and

(c)    assessing and proposing options for suitable employment or pre-injury employment; and

(d)    engaging in consultation in accordance with section 196; and

(e)    providing the worker with clear, accurate and current details of the worker’s return to work arrangements; and

(f)    monitoring the worker’s progress.

(4)    For the purposes of this section, an employer knows or ought reasonably to have known of the worker’s incapacity for work from the date of the commencement of the employment obligation period within the meaning of the section 194.

179    Because it was referred to in s 195(3)(d), s 196 is also relevant, and provided as follows:

Consult about the return to work of a worker

(1)    An employer must, to the extent that it is reasonable to do so, consult about the return to work of a worker with—

(a)    the worker; and

(b)    subject to the consent of the worker, the worker's treating health practitioner; and

(c)    a provider of occupational rehabilitation services that provides those services to the worker in accordance with section 99 and 99A.

Penalty:    120 penalty units for a natural person;

600 penalty units for a body corporate.

(2)    The employer must consult with the persons specified in subsection (1) by—

(a)    sharing information about the worker's return to work; and

(b)    providing a reasonable opportunity for those persons to consider and express their views about the worker's return to work; and

(c)    taking those views into account.

(3)    For the purposes of this section, an employer’s consultation with a worker about the return to work of the worker must involve the employer consulting directly with the worker however a worker may be assisted by a representative during any consultation.

180    The first thing to note about s 196 is that “plan” was used as a verb, denoting something which the employer must do. In terms, there was no obligation to “have a plan” in the documentary sense, much less to provide one to the employee. The next thing to note is that, insofar as the worker himself or herself was to be involved, the employer’s obligation was to consult conformably with s 196. No doubt recognising this, in her oral submissions (which gave better definition to this aspect of the case than her written outline had done), counsel for the applicant identified the adverse action on which her client relied as the Department’s failure to consult. Resisting this aspect of the applicant’s case, counsel for the respondents relied upon a number of matters as amounting to consultation under s 196. In what follows, I deal only with communications which would satisfy s 196(1), ie not including those which were internal to the Department.

181    The first such matter was the exchange of correspondence between the applicant and Ms Levine between 13 and 20 May 2011, as referred to in paras 73-77 above. The context for that, of course, was the applicant’s strong disinclination to contemplate a return to work, as conveyed to Ms Levine on 14 April 2011. If there were to be a return to work, it would never be to the position which the applicant held at the time. This made the situation an unusual one, and required the Department to consider the applicant’s suitability for jobs which would involve a transfer. Taking these special features into account, I would hold that the correspondence relied on by the respondents did amount to consultation of the kind required by s 196(2) of the AC Act.

182    The next matter on which the respondents relied was Mr Foxton’s letter to the applicant and his doctor of 30 May 2011: see para 96 above. Of itself, this letter was not, in my view, sufficient to satisfy the obligation referred to in s 196(2)(a) of the AC Act and was not, therefore, consultation under that section.

183    The next matter on which the respondents relied was the proposal sent by Mr Foxton to the applicant and to his doctor on 30 June 2011: see para 99 above. In my view, this amounted to consultation within the meaning of s 196 of the AC Act. As I understand his case, the applicant accepted that, but pointed out that, at the time, he had been medically certified as having no capacity for work in any role or under any circumstances. That may then have been so, but the Department’s obligation to consult existed nonetheless, and the step taken by Mr Foxton on 30 June did, in my view, discharge that obligation.

184    The next matter on which the respondents relied was the proposal sent by Mr Foxton to the applicant and to his doctor on 20 December 2011: see para 108 above. In my view, this amounted to consultation within the meaning of s 196 of the AC Act. As I understand his case, the applicant’s problem with this proposal was that it would have involved working for the Commission, with the attendant possibility that he might have come into contact with Mr Windisch, and possibly others at RAV with whom he had issues, as expressed in his doctor’s response to Mr Foxton on 5 March 2012. That rejoinder does not, however, answer the respondents’ contention that the Department consulted. Indeed, on one way of looking at it, the making of a proposal in a form that would enable the worker and his or her medical adviser to assess the suitability of it, by reference to existing disabilities, is the essence of consultation. In my view, the step taken by Mr Foxton on 20 December discharged the Department’s obligation to consult under s 196.

185    The thrust of the applicant’s submission was that the two consultations to which I have referred were isolated, and that, otherwise, he received nothing but silence from the Department with respect to return to work from the lodgement of his WorkCover claim until the transfer of his employment to the Commission in February 2012. In point of fact, that submission must be accepted. It then becomes a question of how the facts would speak in the context of s 195(2) of the AC Act, which obliged the Department to consult “as often as [was] necessary to enable [him] to return to work in employment which [was] consistent with [his] capacity for work”. Here, the respondents rely on the circumstance, established on the evidence, that the applicant’s doctor regularly certified that the applicant had no capacity for work, these certificates running from the making of his WorkCover claim until well after he left the employ of the Department.

186    It is at this point, as it seems to me, that we get to the nub of the applicant’s case in relevant respects. His counsel submitted that it was subsequent to what she described as his doctor’s certification in September 2011 that the applicant was fit to undertake “modified duties” that the Department’s obligation to consult, and to plan the applicant’s return to work, arose. No such certification, however, was referred to in the applicant’s Further Amended Statement of Claim, and none, so far as I can see, was in the evidence. Indeed, in evidence is a certificate by the applicant’s doctor dated 6 September 2011 that he was unfit for any duties from 13 September until 13 October 2011, one in the series of like certificates to which I have referred. In her cross-examination of Mr Foxton, it was not suggested by counsel for the applicant that the applicant’s doctor had certified him fit for modified duties in September 2011. In his final address, counsel for the respondents drew attention to this evidentiary deficiency in the applicant’s case. Counsel for the applicant said nothing about the matter in reply.

187    I hold, therefore, that the applicant’s proposition that the Department fell down in its obligation to consult the applicant about his return to work conformably with the relevant provisions of the AC Act, or to plan for his return to work, has not been made good. There was no other basis upon which the applicant proposed, in this part of his case, that adverse action had been taken against him. I reject the allegation that it was.

188    The result is that there was no omission on the part of the Department by reference to which the court might consider its reasons therefor. For the sake of completeness, however, I propose to say something about Mr Foxton’s reasons for managing the applicant’s WorkCover claim in the way that he did. He was an impressive witness. He struck me as a most conscientious public sector administrator, to whom the idea of turning aside from the duties of his service for some extraneous reason, such as a worker having made a complaint against management, would be abhorrent. That he harboured such an idea in his management of the applicant’s claim was never put to him. Indeed, given the nature of the allegation that this aspect of the applicant’s case implicitly levelled at Mr Foxton, the cross-examination of him was both brief and benign. I consider that the proposition that the Department (for whom Mr Foxton was, relevantly, the actor) omitted to do more than it did in relation to a plan for the applicant’s return to work because of the complaints which he had made is not only disproved but quite far-fetched.

The Commission’s failure to offer a Return to Work Plan

189    The applicant’s next claim under s 340 of the FW Act relates to the period when he was in the employ of the Commission. The adverse action alleged is the Commission’s failure to provide a return to work plan or, as it was put in the applicant’s outline, “to facilitate his return to work”. As it was explained by the applicant’s counsel in closing, the reasons proscribed by s 340 were twofold: first, that the applicant had complained to the Department on 14 and 19 April 2011 – effectively the same claim as that with which I have dealt in the previous section of these reasons, but made against the Commission as employer – and secondly, that the applicant had a right to return to work under the AC Act.

190    Commencing with the adverse action, much of what I would say here has already been said in the previous section. Both sides conducted their cases as though the transfer of the Department’s relevant obligations under the AC Act was seamless, and I am content to travel with that assumption.

191    It was submitted on behalf of the respondents that this aspect of the case was given a temporal limitation by s 194(1) of the AC Act, which limited to a period of 52 weeks after 30 May 2011 (ie to 28 May 2012) the Commission’s obligation to provide suitable employment, subject to the applicant’s capacity, under s 194(2). That seems to be tolerably clear, but the respondents went further and submitted that the obligations to plan a return to work, and to consult, under s 195 were also so limited. Section 195 is not, at least in terms, so limited: the date referred to in subss (1) and (4) appears to be a commencing date only. The submissions of the respondents were put as though the construction for which they implicitly contended was self-evident.

192    I do not think it was or is. The obligation under s 195(1) was, in point of time, open-ended. The deeming provision in s 195(4) operated by reference to the commencement of the “employment obligation period”. The respondents seem to take the view that s 195 should be read harmoniously with s 194, and that the obligation to plan for an employee’s return to work could only have been linked to the “employment” which the employer was obliged to provide under s 194(2). This may indeed be the construction which s 195 has received in Victorian courts, but I was referred to no relevant judgments. Neither, regrettably, were the submissions of the applicant at all helpful on this point. In the circumstances, I consider that I have no option but to take the conservative approach, which also accords with the natural grammatical construction of the relevant provisions, and hold that the Commission’s obligations under ss 195 and 196 did not come to an end on 28 May 2012.

193    The content of those obligations was much influenced by the certificates which the applicant provided as to his capacity to work. Even before the applicant’s employment was transferred to the Commission, Mr Foxton had suggested that he accept a role as a probity officer in the employ of the Commission. The Department’s insurer’s case manager had a lengthy discussion about this proposal with the applicant’s doctor at some time before 30 January 2012. The doctor would not endorse the proposal. That provided the background to the doctor’s letter of 5 March 2012 which formally rejected the proposal on the very ground that, involving employment by the Commission as it did, it would have had the potential to bring the applicant into contact with those with whom he had crossed swords at RAV. By then, the applicant was employed by the Commission, and the discussion with the case manager, and the letter of 5 March 2012, boded ill for any attempts that Mr Veale and his staff might make to find a role for the applicant that was within the restrictions to which his doctor would certify. Consistently, all the certificates which the applicant’s doctor issued stated that he was unfit for any duties (although one of them, signed on 20 November 2012, added the rather unhelpful endorsement that the applicant “is not able to go back to his previous role”).

194    If, as appears to be the applicant’s case, this left the Commission in the position of being obliged to plan his return to work in the employ of some other public department or authority, I would hold that no such obligation arose under the AC Act. If there is one thing which was absolutely clear from the provisions of Div 2 of Pt VIIB of that Act, it is that the bundle of return to work obligations imposed by that division applied to the employer by whom the worker in question had been employed at the time of his or her injury. The result is that, insofar as statutory obligations are concerned, Mr Veale and Ms Lai were limited to jobs within the Commission. While I do not suggest that this made it impossible for them to find a job that would be consistent with the applicant’s refusal to contemplate any work with those with whom he had worked in RAV, it must be accepted that it significantly complicated their task.

195    Taking those riders into account, did the Commission fall down on its statutory obligation to plan the applicant’s return to work, and to consult with him in that regard? I consider that it was entitled to regard itself as receiving the baton from the Department, as distinct from starting again. It knew of the insurer’s case manager’s discussion with the applicant’s doctor in January 2012. It had the latter’s letter of 5 March 2012. What happened next may be viewed as less than ideal, but the continuing flow of medical certificates effectively informed the Commission that the applicant could not work anywhere. The doctor’s intimation that he might certify the applicant to work away from his old work area and the people with whom he was involved there was more in the nature of an unofficial sidebar to the legal situation which confronted the Commission. Even so, Mr Veale spoke to the applicant on 16 and 22 May 2012. As it seems to me, there followed a kind of a moratorium on return to work discussions, brought about by the cessation of the applicant’s weekly payments after 16 July 2012, the applicant’s appeal against that, and the conciliation of 18 September 2012. It was after what appeared to be a successful resolution to that conciliation that, on 24 October 2012, the applicant, Mr Veale and Ms Lai engaged in what was, in my view, a consultation that would have satisfied the requirements of the AC Act. It was not until nearly a month later that the applicant supplied the CV requested by Ms Lai, and it was not long after that that the applicant started talking about litigation.

196    In a landscape which was in many respects murky, the one thing which stands out is the continued supply of medical certificates which stated that the applicant was unfit for all duties. In the result, as was the case when the applicant was employed in the Department, it cannot be said that the Commission failed to comply with the provisions of the AC Act insofar as they required it to plan the applicant’s return to work under s 195(3) as often as was necessary to enable him to return to work in an employment which was consistent with his capacity for work. There was, therefore, no adverse action taken against him in this sense.

197    That would be enough to dispose of this aspect of the applicant’s case. However, again for the sake of completeness, there are two further matters with which I should deal. The first is that, in this part of his case, in addition to relying on his ability to make a complaint under s 341(1)(c) of the FW Act, the applicant submitted that he had a workplace right constituted by his right “to seek a return to work plan” under the AC Act, and that the adverse action described above was taken against him because he exercised that right. Since the adverse action – assuming, contrary to my conclusion most recently expressed above, that there was adverse action – was the Commission’s failure to plan for the applicant’s return to work and to consult in that regard, there is an obvious circularity in this proposition. Perhaps that would not be fatal, but it would make the applicant’s contention that the Commission acted for the reason that he exercised the right referred to inherently improbable, even given the terms of s 361 of the FW Act. I shall return to that aspect briefly below. For the moment, I shall consider so much of the applicant’s submission as involves matters which are part of his primary case.

198    Although this was not made entirely clear in the submissions presented on behalf of the applicant, it would seem that he here relies on s 341(1)(a) of the FW Act: the AC Act was relevantly a “workplace law”, and he was entitled to the benefit of it. Putting aside presently irrelevant situations, such a law was one which “regulat[ed] the relationships between employers and employees (including by dealing with occupational health and safety matters)”. The respondents submitted that the AC Act was not such a law. That submission, in my view, approached the question at too high a level of generality. A “law” may be a single provision of an Act, it may be a group of provisions, or it may be an Act as a whole. It may be (although I do not hold) that, at the high level, the AC Act did not have the purpose of regulating the relationships between employers and employees. But the question is whether, in pursuit of the objects referred to in paras (b) and (c) of s 3 –

(b)    to make provision for the effective occupational rehabilitation of injured workers and their early return to work; [and]

(c)    to increase the provision of suitable employment to workers who are injured to enable their early return to work;

– the AC Act operated in a way which effected such a regulation.

199    Section 189 of the AC Act set out the purpose of Pt VIIB as follows:

Purpose

The purpose of this Part is to provide—

(a)    that employers, workers and other persons involved in the return to work process cooperate to ensure that workers successfully return to work;

(b)    that employers are responsible for providing pre-injury employment or suitable employment to enable workers to return to work;

(c)    that workers are responsible for participating in the return to work process consistently with their capacity for work;

(d)    for workers to be represented, assisted and supported in the return to work process;

(e)    for effective occupational rehabilitation for workers to facilitate their early and sustainable return to work.

Divisions 2 and 3 of Pt VIIB dealt with the “obligations” of employers and employees respectively (see s 190). Those obligations included the ones arising under ss 195 and 196 which I have set out at paras 178-179 above.

200    These provisions required employers to act in certain ways, and in that sense were regulatory. The field in which they were required to act was that of the relationships which they had with their relevant employees. Most relevantly to the present case, they were required to plan the return to work of injured employees, and to consult with them. The result presumptively achieved by obedience to these provisions was that employees would perform work, in the service of their employers, which they would, or at least might, not otherwise have performed. In my view, ss 195 and 196 of the AC Act were workplace laws within the meaning of the FW Act.

201    The second matter is the Commission’s reasons for managing the applicant’s situation under the AC Act, specifically under Div 2 of Pt VIIB, in the way that it did. Because of the conclusions I have reached above on the adverse action aspect of the case, it may be thought that this is a highly theoretical subject, but it involves questions of fact, and findings should be made. The Commission put Mr Veale forward as the individual whose reasons should be held up to light in this regard, and I did not understand the applicant to take issue with that approach. In his evidence-in-chief, Mr Veale said that none of the steps taken in the management of the applicant’s WorkCover claim was influenced by the fact that he had made a complaint against the Department. The closest counsel for the applicant came to cross-examining Mr Veale on that evidence was in the following exchange:

And you made no effort to find him a job because you had been told by Ms Levine that he was not to be employed in the Department of Justice; that’s correct, isn’t it?---No, that’s totally – that is – that’s – that’s not true at all.

When this allegation was put to Ms Levine, she too denied it. There is nothing in the evidence otherwise that would give any contextual sustenance to the allegation. I cannot discern any legitimate basis for the allegation to have been put to either witness.

202    On all of the evidence, I find that no act or omission of the Commission or its staff in relation to planning, or failing to plan, for the applicant’s return to work, or consulting, or failing to consult, with him in that regard was to any extent influenced by the circumstance that he complained to the Department about his treatment by Mr Windisch on 28 March 2011 or about bullying etc at RAV generally. The latter was not the reason, or a reason, for the former.

203    The only other matter to be dealt with here is whether the circumstance that the applicant was entitled to the benefit of the return to work provisions of the AC Act was the reason, or a reason, why he was not accorded that very benefit, that is, as was put on his behalf, why the Commission did not plan for his return to work conformably with ss 195 and 196 of that Act. As mentioned above, the applicant’s case in this area proposes a state of affairs which is inherently improbable. In the Further Amended Statement of Claim, it was not alleged that the Commission acted for this reason, with the result that the requirement in s 361(1)(a) of the FW Act was not satisfied. The applicant himself, therefore, bore the onus of proof in relation to the Commission’s reasons. That onus was not discharged. Indeed, the evidence was quite devoid of anything that would support this very strange allegation.

Cessation of weekly WorkCover payments

204    The applicant next says that the Commission contravened s 340 of the FW Act when it removed his weekly WorkCover payments after he complained to it about its failure to offer him any return to work. The removal of the payments was said to be adverse action within the meaning of s 342(1), and the complaint was said to come within the terms of s 341(1)(c)(ii).

205    What the applicant describes as the “removal” of his weekly payments was the step taken by Ms Lai, communicated to the applicant on 18 December 2012, to recalculate his entitlements by reference to the view that it had been a mistake for his weekly payments to have been resumed after the conciliation of 18 September 2012 (see para 122 above). It was no part of the applicant’s case to contend that he was, as a matter of law, entitled to weekly payments as a result of the conciliated outcome. It will be recalled that the very point of the conciliation was to deal with the insurer’s decision of 12 June 2012 that weekly payments would cease on 16 July 2012. I accept the respondents’ submission that the reinstatement of weekly payments after the conciliation was a mistake, and did not reflect any entitlement which the applicant then had.

206    In these circumstances, the respondents submit that the discontinuation of the payments was merely the correction of that mistake, and did not amount to adverse action. I accept that submission. The applicant was not injured in his employment when that correction was effected. Neither was his position altered to his prejudice. In this part of the case, therefore, there was no adverse action.

207    For the sake of completeness, I shall consider the other aspects of the applicant’s case on the discontinuation of weekly payments. As pleaded, it was the sending of the correspondence to which I have referred in para 125 above on or about 11 December 2012 which provided the reason for the discontinuation. As mentioned, that correspondence was not in evidence, but the allegation drew a limited admission. Neither the allegation nor the Commission’s response to it establishes that the correspondence, or the court documents which accompanied it, raised a complaint about the Commission’s failure to offer the applicant a return to work. I hold, therefore, that the applicant has not established the objective existence of the circumstance which is alleged to have been the reason, or a reason, why the Commission acted. There is, therefore, no starting point by reference to which to measure the consistency of its reasons with Pt 3-1 of the FW Act.

208    For the above reasons, this aspect of the applicant’s case must be rejected.

The applicant’s case in contract

209    The applicant’s case in contract is based upon what are alleged to be two implied terms expressed as follows:

(c)    the Applicant and First Respondent would ensure that they cooperated with each other to enable the continuity of employment with the First Respondent (the “Co-operation Term”);

(d)    During the Applicant’s employment with the First Respondent, the Applicant an the First Respondent would act in Good Faith towards each other (the “Good Faith Term”).

In the context of other admitted facts, references to the Department in these allegations included also, for the appropriate period, references to the Commission.

210    The case has been conducted on the basis that it was only the applicant’s contract which provided the legal framework for the parties’ relations, whether the employer was the Department or the Commission. The applicant’s allegation that he was employed pursuant to the contract was admitted. In the evidence, occasional reference was made to the industrial agreement which, apparently, existed, but it was not in evidence and the respondents placed no reliance on it. Further, as a public sector employment, one might suppose that some form of statutory regulation had a role to play, but none was referred to.

211    As to the first implied term relied on, there is, of course, a duty of co-operation which is implied into employment contracts, as within the class of contracts in which the derivation of the benefit of the contract by one party is dependent upon some co-operative action by the other party: see Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596. But, properly understood, the duty to co-operate is a specific one. It is not as though there is a term in contracts of employment that the parties must co-operate with each other, in the broad as it were. An employee who declines an invitation to act in a supervisory position to cover a temporary absence may be viewed by his or her employer as being distinctly unco-operative, but this would not give rise to a breach of contract. Neither is the implied term properly expressed in the applicant’s pleading as set out in para 209 above. Aside from the imprecision of the notion of “continuity of employment”, there are many commonly-occurring situations in which employment, for one reason or another, may not be continuous – such as those referred to, for example, in s 62(2) of the Long Service Leave Act 1992 (Vic) – without, so far as I am aware, it ever being suggested that the implied duty of co-operation is necessarily brought into play.

212    So I would reject the applicant’s allegation that his contract contained the term which he pleaded. But, following the way the respondents conducted their case, I propose to consider the applicant’s case in the light of the implied duty of co-operation as properly understood.

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

214    The particular passage in the Department’s policies upon which the applicant relied was to be found in the “Anti Bullying and Workplace Conflict Policy”. The introductory paragraph to that policy was as follows:

The Department of Justice values and respects the diversity of its workforce, and is committed to providing a workplace that is free of bullying and workplace violence for all employees, customers, and visitors to the workplace.

The policy commenced with the following principle:

This policy clearly supports the Department of Justice value of “Respect Other People”. As such it requires Employees to treat all people – employees and clients – with respect.

There was a section which gave content to the concept of “bullying”, opening as follows:

The department is committed to providing a working environment that is free from bullying and occupational violence. The department expects all employees to treat each other fairly, and with respect, courtesy and sensitivity.

The “behaviours” that would constitute workplace bullying were set out, commencing with “verbal abuse whether orally or in writing”. Then:

By definition, a single incidence of bullying behaviour does not constitute workplace bullying. Workplace bullying is repeated unreasonable behaviour: not necessarily the same type of behaviour each time, but behaviour that is consistently bullying.

Any single incident of bullying behaviour or other mistreatment must however be appropriately dealt with. Managers have a general duty of care to provide a safe workplace and safe system of work in accordance with the Occupational Health and Safety Act 2004.

215    The “responsibilities” of employees, managers and supervisors, and “Human Resources” were set out. Amongst the responsibilities of managers and supervisors was the following requirement to –

Respond promptly and sensitively to all situations where inappropriate behaviour has occurred or alleged to have occurred. These include ensuring the alleged victim of bullying or violence is not subjected to further victimisation, or reprisals, for having reported the bullying or violence.

It was submitted on behalf of the applicant that, “in failing to fully investigate the allegations by [the applicant] in relation to the Windisch incident, and in failing to provide a proper return to work for [the applicant], the RAV has breached this policy, and in turn breached its duty to co-operate”; and that “in failing to offer a return to work and in removing [the applicant’s] weekly payments, the [Commission] has breached its own policy and in turn breached its duty to co-operate”.

216    This submission is problematic at both the legal and the factual levels. Legally, it posits the existence of a co-operation obligation unrelated to any term of the applicant’s contract, and is thus inconsistent with the submission, which I have accepted, referred to at the start of para 213 above. Factually, because of the applicant’s certificated illness, the Department was never in a position to consider the compliance by local management with this aspect of its policy. In the result, the applicant was not subjected to further victimisation or reprisals for the simple reason that he was not at work. I would also hold that, so far as it could (short of suspending or transferring Mr Windisch in advance of any disciplinary proceeding against him), the Department did respond promptly and positively to the applicant’s complaint. In the initial period, Ms Levine proposed alternative work suggestions which were rejected not because of their unsuitability but because the applicant had professional advice, in effect, that he was incapable of returning to work anywhere.

217    As to the allegation against the Commission, there was nothing in the provision of the policy upon which the applicant relied which would have given rise to a positive obligation upon the Commission to find the applicant a position. It continued to be the case that the applicant would not countenance any return to work proposal that would have put him in contact with Mr Windisch, and the Commission too was prepared to accept that restriction. If anything, that approach was conspicuously conformable with the policy. Finally in this area, I regard the submission that it was a breach of the policy for the Commission to have removed the applicant’s weekly payments as quite without merit: indeed, with respect to those involved, the submission borders on the disingenuous. The removal was done in June 2012 at the direction of the insurer, that direction being based upon the report of the independent medical examiner.

218    For the above reasons, I reject so much of the applicant’s case as is based on the implied duty of co-operation.

219    Turning to the second implied term relied on by the applicant, the “good faith term”, his counsel was unable to refer me to any decided case in which it had been held that there was, in contracts of employment as a class, a term expressed as the applicant did in this case (see para 209 above). Much has been written, of course, about the requirement of good faith in the exercise of powers and discretions under commercial contracts, and the application of analogous principles in an employment context was discussed by Mr Irving in The Contract of Employment, 2012, at para 8.29. But I do not believe that the existence of a term expressed as the applicant has done in this case – that the parties “would act in good faith towards each other” – has ever been suggested. As counsel for the applicant acknowledged, in Commonwealth Bank of Australia v Barker (2014) 312 ALR 356 French CJ, Bell and Keane JJ left open the question whether “there is a general obligation of good faith in the performance of contracts” (312 ALR at 371 [42]). In the present case, this very large question received scant attention in the submissions made on behalf of the applicant. Neither should it have. For reasons which follow, the facts of the case do not approach the point at which concepts of good faith, however expressed, might come into play.

220    There were three areas in which, in the submission of the applicant, the Department acted in bad faith towards him. The first concerned the conduct of Mr Windisch himself on 28 March 2011. That submission must be rejected. Whatever else might be said about Mr Windisch’s conduct, he did not act in bad faith towards the applicant. Indeed, his actions were almost the polar opposite of what might be regarded as acting in bad faith. There was nothing underhand, opportunistic, expedient, self-interested or calculated about his conduct. Neither did he harbour some ulterior purpose, or exercise powers for purposes for which they were not intended. Rather, albeit that his actions were unreasonable, and in some respects irrational, they were on any view spontaneous, and genuinely reflective of his then state of mind. They involved what must be regarded as the paradigm case of straight talking. There are several strong criticisms which might be directed to Mr Windisch for the way he treated the applicant, but acting in bad faith is not one of them.

221    The second area of alleged bad faith concerned Ms Levine’s early reaction to the applicant’s complaint about Mr Windisch’s conduct. It was submitted that she “immediately accepted that [Mr Windisch] had done nothing wrong”. That submission was based on the email correspondence to which I have referred at paras 34-35 above. At least as submitted, this point differs from the first one in that it alleges, in effect, duplicity on Ms Levine’s part: she was soothing the applicant in her meetings with him, while at the same time reassuring Mr Windisch that she supported him and she doubted the accuracy of the applicant’s complaint. Here I would make a distinction between the period before Ms Levine was first contacted by the applicant on 13 April 2011 and the period which came after that contact. In the earlier period, it was only Mr Windisch’s mea culpa itself, in his phone call to Ms Levine at about 1 pm on 28 March 2011 that alerted her to the possibility that there might be a complaint from the applicant about his (Mr Windisch’s) conduct. In that period, particularly in the first few days, what was most visible on Ms Levine’s radar was the issue reported by Ms Jones. Clearly, she felt very strongly about that, but she was not, then, in a position in which she had to consider behavioural issues and complaints coming from both sides – both by and against the applicant.

222    With respect to the later period, I accept the underlying factual basis of the applicant’s case, but I do not accept that Ms Levine was engaged in any duplicity. I accept that her communications with Mr Windisch and Ms Dumais, and possibly others, conveyed doubt, at least, on her part as to the more extravagant claims which the applicant made about Mr Windisch’s conduct. She was also giving the applicant to believe that she sympathised with his position. But the two lines of communication were not incompatible. She made it clear to the applicant that she could do nothing about his troubles with Mr Windisch unless he put in a formal complaint, and he knew, as was the case, that Ms Levine would have no part in any investigation arising from such a complaint, save possibly being a witness herself. In the meantime, Ms Levine, as the relevant line manager, turned her mind, quite promptly in my view, to the prospect of the applicant being found suitable employment elsewhere in the Department. She accepted without demur his position that he should never be required to work with Mr Windisch again. As for Mr Windisch himself, Ms Levine’s general support for him did not compromise the discharge of her responsibilities in relation to the future employment of the applicant. As I have said, she was a manager, not a judge or an arbitrator. In my view, there was nothing in the position adopted by, or in the acts or omissions of, Ms Levine in this period that had the quality of bad faith about it.

223    The third area of alleged bad faith was raised in an submission that “there was no investigation (and in particular by [Ms Dumais]) as to the reason why [Mr] Windisch had acted in such a manner, that is whether there were any allegations against [the applicant] which could have justified [Mr] Windisch taking any action against [the applicant] on 28 March 2011”. I must confess to being mystified by this submission. There was an investigation into Mr Windisch’s conduct and, in some respects, the applicant’s complaint was upheld. Consideration was given to whether the applicant’s conduct needed to be investigated, and it was decided that it did not. What the Department did, or did not do, is so unclear in this written submission, which was not the subject of oral clarification, that I have found it impossible to measure it against the standards of good and bad faith.

224    In the written outline filed on behalf of the applicant, there was, additionally to the matters already referred to, a desultory paragraph alleging bad faith on the part of the Commission. This paragraph, which was not developed orally, was quite inadequate for the purpose intended, and nothing further needs to be said about it.

Disposition of the proceeding

225    For the above reasons, the application must be dismissed.

Associate:

Dated:    13 March 2015