FEDERAL COURT OF AUSTRALIA

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

ORDERS

THE COURT ORDERS THAT:

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

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

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

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

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

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

REASONS FOR JUDGMENT

RANGIAH J:

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

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

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

    breached the contract of employment.

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

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

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

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

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

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

8    I will proceed by:

    briefly describing the roles of the parties and the witnesses;

    summarising my assessment of their evidence;

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

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

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

    considering the allegations of breach of contract;

    considering the question of relief.

THE PARTIES AND THE WITNESSES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ASSESSMENT OF THE WITNESSES

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

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

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

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

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

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

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

THE LEGISLATION

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

45    Section 340 is within Div 3 and provides, relevantly:

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

(a)    because the other person:

(i)    has a workplace right; or

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

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

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

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

…

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

Meaning of workplace right

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

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

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

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

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

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

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

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

…

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

…

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

(a)    dismisses the employee; or

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

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

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

48    Section 360 of the FWA provides:

360    Multiple reasons for action

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

49    Section 361 of the FWA provides, relevantly:

361    Reason for action to be presumed unless proved otherwise

(1)    If:

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

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

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

50    Section 550 of the FWA provides:

550    Involvement in contravention treated in same way as actual contravention

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

…

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

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

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

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

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

51    Section 793 of the FWA provides, relevantly:

793    Liability of bodies corporate

Conduct of a body corporate

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

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

…

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

State of mind of a body corporate

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

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

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

THE PRINCIPLES

Section 340(1) of the FWA

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

(1)    the conduct alleged by the applicant occurred;

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

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

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

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

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

Workplace rights

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

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

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

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

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

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

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

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

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

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

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

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

Adverse action taken against another person

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

(a)    dismissing the employee;

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

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

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

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

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

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

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

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

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

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

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

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

66    The Macquarie Dictionary defines “injure” as:

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

2.     to do wrong or injustice to.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Emphasis in original.)

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

Because the person has exercised a workplace right

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

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

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

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

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

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

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

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

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

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

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

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

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

(Citations omitted.)

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

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

Multiple decision-makers

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

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

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

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

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

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

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

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

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

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

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

Section 550 of the FWA

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

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

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

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

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

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

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

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

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

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

Section 140 of the Evidence Act 1995 (Cth)

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

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

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

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

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

(c)    the gravity of the matters alleged.

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

The allegations of Adverse Action

Preliminary

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

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

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

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

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

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

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

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

(5)    whether the alleged workplace rights were exercised;

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

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

The workplace rights alleged

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

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

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

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

…

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

…

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

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

…

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

…

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

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

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

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

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

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

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

Existence of workplace rights

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Exercise of workplace rights

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

132    I accept that by raising disputes about whether his annual performance appraisals were being dealt with in accordance with cl 62 of the 2010 Enterprise Agreement and cl 60 of the 2014 Enterprise Agreement, Dr Lamont exercised the workplace rights described at (p) and (z).

133    I accept that by complaining about his supervisor under cl 61 of the 2014 Enterprise Agreement, Dr Lamont exercised the workplace right described at (aa).

134    In summary, I find that Dr Lamont exercised the following workplace rights:

Witnesses who were not called

135    There were four University employees who had involvement in some of the decisions of which Dr Lamont complains, but who were not called to give evidence. These employees were Mr Dean Griffiths (the HR Manager for the Faculty of Arts), Mr Mark Croucher (the University’s Legal Officer), Mr Anthony Lennon (the Deputy Director of HR) and Ms Jane Banney (the Director of HR from 2012 onwards).

136    Dr Lamont submits that as Mr Griffiths, Mr Croucher, Mr Lennon and Ms Banney were not called, the respondents have not discharged their onus of proving that the relevant decisions were not made for reasons that did not include his exercises of workplace rights. That submission is based upon the premises that, firstly, their reasons had a material effect on the reasoning process of the ultimate decision-makers and, secondly, s 361 of the FWA is engaged. It is necessary to examine the validity of those premises.

137    Mr Griffiths, Mr Croucher, Mr Lennon and Ms Banney are not identified in the FASOC as persons who materially contributed to the decisions and whose reasoning was affected by Dr Lamont’s exercises of workplace rights. Dr Lamont’s affidavits refer to each of these persons as having given advice to decision-makers, but do not assert that their advice was influenced by any proscribed reasons.

138    In these circumstances, it would be procedurally unfair to the respondents to allow Dr Lamont to pursue his claim that Mr Griffiths, Mr Croucher and Mr Lennon made material contributions to the decisions: cf CFMEU v BHP at [62].

139    In any event, s 361 is not engaged and the onus of proof is not cast on the respondents: cf Hall at [18]–[19]. There is no evidence to suggest that Mr Griffiths, Mr Croucher or Mr Lennon were motivated to provide advice that was adverse to Dr Lamont because he had exercised any workplace rights. In circumstances where the relevant decision-makers were called and gave evidence as to their reasons for making their decisions, I would not draw any Jones v Dunkel inference from the absence of these witnesses: see Jones v Dunkel (1959) 101 CLR 298. Even if a Jones v Dunkel inference were drawn, it could not fill the evidentiary gap and lead to an inference that the advice of Mr Griffiths, Mr Croucher or Mr Lennon was motivated by proscribed reasons.

140    Ms Banney is in a slightly different position. Associate Prof Crotty gave evidence that he made a decision to take the disciplinary proceedings against Dr Lamont in 2016 jointly with Ms Banney. I will deal separately with that issue in the course of these reasons.

The first allegation

141    The first allegation is that the University, through Prof Moore, took adverse action by notifying Prof Almond and Associate Prof Hutch of the contents of Dr Lamont’s letter of complaint against Prof Moore dated 12 April 2010. It is further alleged that Prof Moore notified Prof Elson that Dr Lamont made the complaint. It is alleged that these actions were taken because Dr Lamont exercised the workplace rights identified above.

The evidence

142    On 12 April 2010, Dr Lamont wrote to Prof Fotheringham making a complaint against Prof Moore under the Staff Grievance Resolution Policy:

I am writing to you in accordance with Section 4, Step 1 of the University’s 5.70.8 Staff Grievance Resolution. I have attached a copy of a letter dated March 19, 2010 from Clive Moore to me and a copy of a letter dated April 9, 2010 in reply, from me to Clive. Although the letters do not give all the background information they are, nevertheless, long and detailed enough to give a clear indication of the matters of my concern. I believe that Clive’s behaviour towards me, over at least the past 6 months, constitutes harassment.

As you know our School has a sad history of harassment. Both the previous two Heads of School were sued by staff members for harassment resulting in large out-of-court settlements which cost our School dearly both in terms of reputation and money. Last year, a staff member, [name deleted], resigned, alleging harassment. In addition, we now have a history of one staff member, [name deleted], who was a friend of mine, being terribly stressed by his treatment in the School and dying of a heart attack; and now the tragic case of [Dr XY] committing suicide. All these matters have weighed heavily on my mind in the past, but it was mainly as a result of [Dr XY’s] suicide and the subsequent visit to our School of the Staff Support and Rehabilitation Advisor that I finally decided to seek counseling for harassment from the University’s Employee Assistance Service Provider, Davidson Trahaire Corpsych. These counseling sessions, which have provided me with strategies to cope with harassing behavior, have also helped me make the decision to bring this matter to your attention

My hope is for this situation not to escalate – I have no desire to add to the sad public history of the HPRC School. Congruent with this intention, I am bringing this matter to your attention under “Step 1” and Section 4.1 of the University’s HUPP 5.70.8 Staff Grievance Resolution Policy which states “The aim is to reach an acceptable outcome that minimises any potential detriment to ongoing workplace relationships.” My grievance is that I have been the subject of harassing behavior by my supervisor, Clive Moore. To help you determine whether a genuine grievance exists (under 4.5(1)) I have provided you with the two letters which I believe provide ample evidence of harassing behavior. I am willing to elaborate further on any of these behaviors and other behavior not described in the letters, if you would like.

Given that I am not proceeding under “Step 2” of the Policy, as I understand it, what is required of you is to “determine whether a genuine grievance exists” (4.5(1)). However, if you wish yourself to formally determine whether harassment has occurred under HUPP 1.70.6 please notify me and I would be willing to have the letters used as evidence in that determination and would be willing to provide further evidence if needed. However, if you are proceeding under “Step 1”, which I have initially asked for, it requires that the staff member state “what a preferred outcome might be”. In the spirit of not wanting to escalate this problem further, I need to express to you my preferred outcome. My preferred outcome is that Clive Moore cease harassing me and be replaced as my supervisor with William Grey, who is our Acting Deputy HOS. I have approached William about this matter and he has agreed to act as my supervisor if formally asked by you. Given that, in the circumstances, it would be completely inappropriate for Clive to conduct my annual appraisal, I ask that William Grey conduct it or, if he is not currently qualified, for Fred D’Agostino to do so. It is my hope, through this lowest level of intervention, to inhibit escalation of this situation.

…

(Errors in original.)

143    Dr Lamont’s letter of complaint attached his email exchange with Prof Moore of 19 March 2010 and 9 April 2010. It is also relevant to mention that on 12 March 2010, Dr Lamont had written a lengthy email to Prof Moore complaining about a number of issues, including that:

    Prof Moore had recently told academic staff that the University’s policy was that research and publications were more important than teaching and said he would implement a system where those whose research and publication rates were too light would be expected to carry a heavier teaching load.

    Prof Moore had not recognised the hard work and contributions to the School Dr Lamont and Dr Hyde had made, including that about 30% of their salaries were paid by the Science Faculty for teaching they did in the Bachelor of Science Degree.

    Their contribution should be reflected as “workload points”, reducing their teaching load so that their research work would not suffer.

    In a dispute between Dr Lamont and the officer manager, Prof Moore had sided with the office manager, saying that Dr Lamont’s tone was intemperate and directing him to desist from using that tone.

    In an incident when Dr Lamont was picking up his printing from the staff printer, Prof Moore berated Dr Lamont for not knowing whether Dr Hyde photocopied lecture notes for his students.

    Prof Brown should be supported for the position as the new Deputy Head of School.

144    On 19 March 2010, Prof Moore responded to Dr Lamont’s email of 12 March 2010. On 9 April 2010, Dr Lamont replied, making it clear that he was unhappy with Prof Moore’s response. Dr Lamont then made his complaint of 12 April 2010 to Prof Fotheringham.

145    Clause 3 of the Staff Grievance Resolution Policy contained “Policy Principles”. Clause 3.1(d) stated that the principles of natural justice and procedural fairness were to be observed, including that: any person who was the subject of the grievance must be informed of all the allegations in relation to their behaviour; that they must have a full opportunity to put their case; that all parties to the complaint have the right to be heard; and that decision-makers must be impartial and fair in their dealings with the parties. Clause 3.1(e) provided that:

Confidentiality will be respected and maintained at all times within the constraints of the need to fully investigate the matter, subject to any legal requirements for disclosure and consistent with the principles of natural justice.

146    On 12 April 2010, Prof Fotheringham sent an email to Dr Lamont acknowledging receipt of his complaint and asking him to confirm whether there were any other communications that might assist to understand the issues that he had raised. His email also said, “In the interest of natural justice I will of course ask Clive in [sic] likewise”.

147    There was an exchange of emails between Prof Fotheringham and Dr Lamont. Prof Fotheringham deposes that he considered a number of emails provided by Dr Lamont, but could not identify anything that appeared, on its face, to constitute the six months of harassment that Dr Lamont had alleged in his complaint.

148    Prof Fotheringham’s evidence is that, based on his understanding of the principles of natural justice, he considered it necessary to inform Prof Moore about the allegations Dr Lamont had made against him and give Prof Moore an opportunity to respond to those allegations. On 20 April 2010, Prof Fotheringham met with Prof Moore and advised him that he had received a complaint and provided him with a copy of the letter of complaint. He told Prof Moore that he should take some time to consider the complaint before providing his response, but should come back and discuss the matter as soon as possible, and that they should try to resolve the matter informally and quickly. Prof Fotheringham deposes that he provided the letter of complaint to Prof Moore with the expectation that Prof Moore would keep the complaint confidential. Prof Fotheringham gave evidence that he emphasised to Prof Moore that the matter was to be kept confidential.

149    On the same day, Prof Moore sent Dr Lamont’s letter of complaint to Prof Almond and Associate Prof Hutch (the previous Heads of School). Prof Moore deposes that he provided the letter because he considered that in order to respond properly to the complaint, he needed to find out whether Dr Lamont’s allegations were accurate. His evidence is that he did not give them the letter in order to bully or harass Dr Lamont. Prof Moore states that Prof Almond and Associate Prof Hutch each told him that the allegations made in the letter of complaint were untrue.

150    On 20 April 2010, Prof Almond wrote to Dr Lamont saying:

It has been brought to my attention that you claim in a recent letter to the Executive Dean of the Faculty of Arts ‘that both of the previous two Heads of School were sued by staff members resulting in large out-of-court settlements which cost our School dearly both in terms of reputation and money’.

You should know that neither in my role as Head of School of HPRC nor previously as Head of the Department of Studies in Religion have I ever been sued for harassment (or anything else for that matter) by any member of that School or of that Department. I consider your claim to be damaging to my reputation at the University of Queensland and defamatory.

I would be grateful if you would retract this claim in writing to the Executive Dean within a week of the receipt of this email. Should you not do so, I will take further advice with a view to legal action against you.

151    On 20 April 2010, Prof Fotheringham emailed Prof Moore stating that Prof Almond had just threatened to sue Dr Lamont for defamation, and that Associate Prof Hutch was similarly enraged. The email said that, strictly speaking, there had been a breach of confidentiality in relation to the complaint.

152    Prof Moore responded on the same day saying:

Sorry for the breach. There was nothing on the letter that said confidential, and I felt that the past two Heads of School had a right to know what was being said about them; and I wanted to check details with them. Noone has a right to circulate such scurrilous and inaccurate material. I will react similarly to Phil and Richard to anyone who hints that I have any role in [Dr XY’s] suicide. Julian needs to understand this very fast. While I understand that you are trying to bring this to a conclusion, I will not accept any personal battering or bad mouthing of the School in this way. The University needs to take action against staff who do this, and if they do not, individuals like Phil and Richard will.

153    Prof Fotheringham sent an email to Prof Almond on 20 April 2010 saying that he understood Prof Almond’s concern, but asked him to stay his demand. Prof Fotheringham said that he was concerned about Dr Lamont’s state of health, referring to Dr Lamont’s rambling, erratic and unstructured emails, and said that a charitable view should be taken of his comments.

154    On 20 April 2010, Dr Lamont wrote to Prof Almond saying that he would be happy to retract the claim made against Prof Almond. Dr Lamont said that the belief he stated in his letter was one widely held within the School, but acknowledged that if it was false it should not continue to be repeated. Dr Lamont apologised for any offence. Dr Lamont deposes that he did so because he was afraid of Prof Almond’s threat of legal action and other possible actions against him. Dr Lamont deposes that from that point on he avoided Faculty and School functions which he believed Prof Almond or Prof Moore may attend.

155    On the same day, Dr Lamont wrote to Prof Fotheringham saying that he was very concerned by the fact that Prof Almond had contacted him objecting to the contents of the complaint letter. Dr Lamont complained that the confidentiality of the complaint had been breached.

156    On 20 April 2010, Prof Almond emailed Prof Fotheringham saying, relevantly:

Clearly my concerns are personal. I’m genuinely weary of this sort of foolishness, and (in the light of Julian’s email) really irritated that this sort of damaging gossip should not only circulate but be believed and acted upon.

But my concerns do go to larger HR issues within the University. For there does seem to be a pattern developing according to which any attempt by an HOS to exercise appropriate decision making authority is met by a hail of harassment accusations, by demands for changes of supervisor, and indeed in this case by quite false statements about former Heads of School. And I do worry that, at the first whiff of such, we run the white flag up the mast.

Be that as it may, I am willing to hold off to see how it comes out after you’ve spoken to him.

157    On 20 April 2010, Prof Fotheringham sent an email to Prof Moore stating that Dr Lamont had emailed Prof Almond withdrawing his comments and apologising. Prof Fotheringham said he thought that Dr Lamont’s letters were a product of stress and urged Prof Moore to exercise calm and understanding.

158    Under cross-examination, Prof Moore said that he was horrified and shocked when he found out about Dr Lamont’s complaint against him. He denied that he was angry. He said that he decided to send a copy of the letter to Prof Almond because it said things about Prof Almond that he believed to be demonstrably untrue.

Consideration

159    The respondents have not disputed that Prof Moore had an obligation under the Staff Grievance Resolution Policy to keep the complaint confidential. They argue that there was no breach of the obligation of confidentiality because Prof Moore genuinely believed that the letter was not confidential and that he needed to find out whether or not Dr Lamont’s allegations were accurate in order to respond to the complaint.

160    Dr Lamont alleges that Prof Moore’s breach of confidentiality was adverse action taken against him that caused him injury within Item 1(b) of s 342(1) of the FWA because:

(1)    Prof Almond accused Dr Lamont of defaming him, threatened legal action and demanded that Dr Lamont withdraw his allegations;

(2)    The breach of confidentiality negatively impacted upon Dr Lamont’s relationship with Prof Almond in his employment.

161    The respondents deny that these matters amount to injury to Dr Lamont in his employment.

162    Dr Lamont’s letter of 12 April 2010 made a complaint of harassment against Prof Moore. In the second paragraph of that letter, Dr Lamont said, “As you know our School has a sad history of harassment”. He went on to allege that the previous two Heads of School were sued by staff members for harassment. Dr Lamont also referred to a staff member who had allegedly been harassed and to another who was “terribly stressed by his treatment” and died of a heart attack. Dr Lamont then referred to, “the tragic case of [Dr XY] committing suicide”. In the next sentence Dr Lamont said that it was partly as a result of Dr XY’s suicide that he decided to seek “counselling for harassment”. He said that those counselling sessions provided him with strategies to cope with “harassing behaviour” and to help him to make his decision to make the complaint. As Prof Moore had been the Head of School when Dr XY committed suicide, Dr Lamont clearly implied that Prof Moore had harassed Dr XY, and that the harassment had contributed to his suicide.

163    Dr Lamont deposed that he made no allegation that Prof Moore had a role in Dr XY’s suicide, and had merely raised that possibility. I consider Dr Lamont’s evidence to be disingenuous in this respect. His letter did more than raise that possibility. Dr Lamont clearly implied that Prof Moore had harassed Dr XY and contributed to his suicide.

164    I find that Prof Moore was shocked, outraged and angry about the content of the letter of 12 April 2010, particularly the implication that he had contributed to the suicide of Dr XY. The depth of Prof Moore’s anger is revealed in his email of 20 April 2010. Dr Lamont has placed in evidence the material he relied upon for his assertion about the suicide. That assertion seems to have been based on no more than rumour, innuendo and conjecture. Dr Lamont, perhaps fuelled by anger and resentment at how he perceived he had been treated, apparently felt his comment was justified. However, it was not. I have formed the impression that Dr Lamont, while acutely sensitive to his own perceived unfair treatment, still lacks insight into the unfairness and seriousness of implying that Prof Moore contributed to Dr XY’s suicide.

165    Prof Moore was outraged and angry about the allegations made against the School generally and against him personally. I do not accept that Prof Moore merely provided the letter to Prof Almond and Associate Prof Hutch in order to find out if the allegations were true so that he could respond to the complaint. It was unnecessary for Prof Moore to obtain that information, since he believed the allegations to be untrue and could have simply said so in his response to the complaint. His email of 20 April 2010 is revealing. It said, inter alia:

I will react similarly to Phil and Richard to anyone who hints that I had any role in [Dr XY’s] suicide. Julian needs to understand this very fast…I will not accept any personal battering or bad mouthing of the School in this way.

166    It is probable that Prof Moore hoped and intended that Prof Almond and Associate Prof Hutch would react as Prof Almond did. I find that Prof Moore provided the letter to Prof Almond and Associate Prof Hutch because he was outraged and angry about the allegations Dr Lamont had made against Prof Moore and against the School.

167    Prof Fotheringham gave evidence that he informed Prof Moore on 20 April 2010 that the process was confidential. Prof Moore deposes that Prof Fotheringham did not so inform him. If Prof Fotheringham had told Prof Moore that the process was confidential, it is likely that he would have reminded Prof Moore of that in their subsequent email exchange. I find that Prof Fotheringham did not tell Prof Moore that the process was confidential. However, apart from merely asserting as much in his email of 20 April 2010, Prof Moore did not give evidence that he was unaware that the process was confidential. As Head of School, it is quite improbable that Prof Moore was unaware of the requirement to maintain the confidentiality of the complaint. He seems to have overlooked that requirement in his rage. I reject the submission that he genuinely thought the complaint was not confidential.

168    Ultimately, however, whether Prof Moore knew that the complaint was confidential makes no difference. Prof Moore disclosed the letter to Prof Almond and Associate Prof Hutch because he was outraged and angry about the allegations and wanted Dr Lamont to understand very fast that he could not get away with making such allegations. I find that he disclosed the letter because Dr Lamont had made the complaint against him.

169    Dr Lamont had a workplace right to make a complaint pursuant to the Staff Grievance Resolution Policy and exercised that right. I find that, even though Dr Lamont did not have an adequate basis for making the part of his complaint that implied that Prof Moore had contributed to the suicide of Dr XY, he had a genuine belief in the truth of his complaint. I find that Prof Moore disclosed the letter of complaint because Dr Lamont had exercised his workplace right.

170    The next issue is whether Dr Lamont was injured by the disclosure of the complaint to Prof Almond and Associate Prof Hutch. The FASOC does not plead that the disclosure of the complaint in breach of the obligation of confidentiality itself amounted to an injury. Rather, it pleads, firstly, that the injury consisted of Prof Almond accusing Dr Lamont of defaming him, threatening legal action and demanding the withdrawal of the allegations.

171    I accept that the threat by Prof Almond to consider an action for defamation amounted to an “injury” within s 342(1) of the FWA to Dr Lamont because it caused him substantial fear and distress, leading to his apology. However, I do not accept that it was an injury to Dr Lamont, “in his…employment”. As I have said, not every injury that has a connection or relationship with employment is necessarily an injury “in employment”. The threat to consider an action for defamation was certainly connected with his employment because Dr Lamont wrote the letter of complaint in his employment and about his employment. However, the fear and distress caused to Dr Lamont by the possibility of an action for defamation was because of the financial consequences and stress that litigation would have had on him in his personal life. The evidence does not establish that the threat had any consequences for his employment. I do not consider that the threat caused an injury to Dr Lamont in his employment.

172    The FASOC pleads, secondly, that Dr Lamont was injured “in his…employment” because the disclosure of the letter of complaint to Prof Almond negatively impacted upon Dr Lamont’s relationship with Prof Almond in his employment. Prof Almond was also employed by the University. That Prof Almond made the threat and that Dr Lamont was forced to apologise, demonstrates that the disclosure did have a substantial negative impact upon their relationship. In Squires at 164, Ellicott J held that there may be an injury in employment where an employee is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial. The breach of confidentiality was substantially different treatment to the way Dr Lamont was entitled to be treated under the Staff Grievance Resolution Policy. That breach led to a detrimental impact upon the relationship between Dr Lamont and Prof Almond and, therefore, had a prejudicial impact upon Dr Lamont. The detriment was not only to their personal relationship, but to their relationship as fellow employees, since Dr Lamont avoided Faculty and School events which he thought Prof Almond might attend. A detriment of that kind can, in my opinion, amount to an injury in employment. That can be demonstrated by using a more extreme example of where an employer deliberately poisons the workforce against a particular employee, who is then ostracised and isolated by his workmates—that would clearly amount to an injury in employment. In this case, I find that the breach of confidentiality injured Dr Lamont in his employment because it caused a substantial deterioration in his relationship with a fellow employee.

173    Therefore, I find that the disclosure of the confidential complaint by Prof Moore was adverse action taken against Dr Lamont.

174    The University is a body corporate pursuant to s 4(2)(a) of the University of Queensland Act 1998 (Qld) (the UQ Act). The respondents did not argue that s 793 of the FWA would not operate to make Prof Moore’s action attributable to the University. I find that by disclosing that information, the University contravened s 340(1) of the FWA.

175    If Prof Moore was knowingly concerned in the contravention, he is, under s 550(1) of the FWA, also taken to have contravened s 340(1) of the FWA. In Yorke v Lucas (1985) 158 CLR 661, it was held at 667–670 that in order for a person to have been knowingly concerned in a statutory contravention, that person must have been an intentional participant, with actual knowledge of the essential elements constituting the contravention. However, it is not necessary that the person know that those elements amount to a contravention. Prof Moore knew that Dr Lamont was entitled to make a complaint under the Staff Grievance Resolution Policy but disclosed it to Prof Almond and Associate Prof Hutch, intending that Dr Lamont would be caused detriment or harm. I find that he was knowingly concerned in the University’s contravention.

176    The second aspect of Dr Lamont’s first allegation is that Prof Moore disclosed the complaint to Prof Elson and as a result Dr Lamont was injured in his employment as Prof Elson was subsequently appointed to conduct his performance appraisal. Prof Elson cannot recall Prof Moore telling him about the complaint and, further, his evidence was that he did not know any details about the grievance prior to a performance review meeting with Dr Lamont on 30 April 2010. It may be noted that Dr Lamont included references to his complaint against Prof Moore in his performance assessment documentation. Prof Moore expressly denies telling Prof Elson about Dr Lamont’s complaint, and I accept his evidence in that regard. I find that the allegation that Prof Moore took adverse action against Dr Lamont by disclosing his complaint to Prof Elson has not been established.

177    For these reasons, I uphold the first allegation in part.

The second and third allegations

178    The second allegation is that Prof Moore failed to step aside as Dr Lamont’s supervisor and maintained his involvement in Dr Lamont’s performance appraisal, his SSP application and leave processes.

179    It is convenient to deal with the third allegation at the same time, which is that Prof Fotheringham denied Dr Lamont’s request for a new supervisor and maintained Prof Moore’s involvement in his performance appraisal, SSP application and leave processes.

180    In respect of the third allegation, Dr Lamont relies only upon a workplace right described as a right to make a complaint or inquiry in relation to his employment. I have ruled that this is not a workplace right within s 341(1) of the FWA, and the allegation must fail for that reason alone. In case I am wrong, I will consider the other issues involved in the third allegation.

The evidence

181    The role of a supervisor was dealt with in cl 19 of the 2006 Enterprise Agreement, which has the heading “Academic Staff Supervision”. The clause provided, relevantly: