This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “contact us” tab.
My business grows by referrals. I would appreciate it if you would pass my details on to your colleagues, clients or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct and more…
Case: Lamont v University of Queensland (No 2)  FCA 720
Allegations by the applicant of ongoing harassment and bullying, and the what he perceived to be similar conduct by his employer had led to multiple resignations, a heart attack and a suicide. And the importance of separating your policies from your contractual terms.
This judgment responds to some 41 allegations by the applicant. This article focuses on just two:
- What “injures” an employee for exercising a workplace right?
- Does the threat of disciplinary action constitute an “adverse action”?
This case is of an obsessive, tenacious litigant, who genuinely felt he has 41 chances of a successful outcome. In fact, he had five. This was enough to cause the University untold distress and – even if no further award of damages are given/agreed – the legal costs alone could be more than a small country’s GDP.
The main thread in this case is that Prof X was found to be unprofessional (my words) if the dealing of a complaint from what he probably perceived (my words again) to be a vexatious, troublesome employee. Note the judge’s findings on the applicant’s career.
The takeaway message, therefore, is that no matter how trivial or troublesome an employee may be, always address the substantive issue and, if possible, any underlying issues with dispassion. Focus on the issue not the person. In football parlance this is called “playing the ball, not the man (or woman)”.
This matter involves an unhappy employee who felt that his employer and supervisor had not treated him as he thought he should have been treated. As a result, he filed an “adverse action” claim against his employer and four other university employees – alleging 41 counts of “adverse action”.
Now imagine if this was your business. How would you react?
In what can only be described as having more money than sense, the applicant in this matter certainly had a tonne of tenacity, and the financial ability to be represented by a QC, a solicitor and a legal counsel over 13 days of hearing days alone. The judgement itself is a constrained 160 pages. The judge summed it up best:
“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.
“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”. [My emphasis]
In reporting this judgement, I have only included the context and parts that I found to be instructional. For a more complete analysis, I suggest you , dear reader, read the judgement in full.
This matter kicked off with a grievance by the applicant who made some very unsettling allegations against his employer. He wrote a letter (email), dated 12 April 2010, to Prof X making a complaint against Prof Y 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 [a person] to me and a copy of a letter dated April 9, 2010 in reply, from me to [the person]. 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 [the person’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 counselling for harassment from the University’s Employee Assistance Service Provider…These counselling sessions, which have provided me with strategies to cope with harassing behaviour, 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 behaviour by my supervisor [named]. 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 behaviour. I am willing to elaborate further on any of these behaviours and other behaviour 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 [named] cease harassing me and be replaced as my supervisor with [another named person], who is our Acting Deputy HOS. I have approached [nominated replacement] 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 [name] to conduct my annual appraisal, I ask that [nominated replacement] conduct it or, if he is not currently qualified, for [another person, also named] to do so. It is my hope, through this lowest level of intervention, to inhibit escalation of this situation”. [emphasis added].
The applicant’s letter of complaint attached his email exchange with the named person and the applicant had also written a lengthy email to Prof X complaining about a number of issues.
An angry Prof X shared the email with two other people. This being in breach of the confidentiality requirement of the relevant policy. That set off a chain of further complaints by the applicant.
Workplace right to make a complaint
The workplace rights alleged by the applicant include his right to make complaints within s 341(1)(c) under various enterprise agreements and policies. Citing Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346;  FCA 271, Dodds-Streeton J said at , in relation to a “complaint”, the judge noted:
“(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.
Justice Dodds-Streeton added at , in a passage approved in Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 285 IR 290;  FCAFC 16 at  and PIA Mortgage Services Pty Ltd v King  FCAFC 15 at :
“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”.
Adverse action taken against another person
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.
Injures an employee
The judge finding for this provision to be enacted, the employer must “injure” an employee. The injury must be to the employee “in his or her employment”.
The Macquarie Dictionary defines “injure” as:
- to do or cause harm of any kind to; damage; hurt; impair…
- to do wrong or injustice to.
The judge then supported this with 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;  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 – that a failure by an employer to accord natural justice is not of itself an injury in employment. [My emphasis].
“…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”.
Is a formal warning an injury?
In the present case, a question arises as to whether an employee is injured by being given a formal warning following a disciplinary process.
Citing a number of previous decisions by the Federal Court, the Judge found:
“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”.
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. One of the contexts in which the issue arises is whether a threat of disciplinary action causes, or can cause, injury.
A recognisable psychiatric illness, according to the judge, clearly comes within the conception of an injury…
“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”. [My emphasis].
“However, … 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”. [Emphasis added].
So, does disciplinary action count as an “injury”
According to the judge, yes:
“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”.
“Not every injury that has a relationship with employment is necessarily an injury “in employment”.
Because the person has exercised a workplace right
The judge further examined another case 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.
The judge then went to a previous matter in which he was involved:
“…that a mere causal nexus between the exercise of a workplace right and the adverse action is not enough…the word “because” in s 340(1) requires an enquiry as to the ‘substantial and operative’ reason or reasons for the relevant action…the enquiry as being into the “operative and immediate” reason or reasons. The mere application of a “but for” test is insufficient…A qualitative judgment must be made as to whether the adverse action was taken because the employee exercised a workplace right”.
Threatening of Disciplinary Action
The tenth allegation is that Prof X, on behalf of the University, threatened disciplinary action against the applicant on 8 July 2010 because he exercised workplace rights.
In his email of 8 July 2010, Prof X threatened that, unless the applicant responded to his letter of 1 July 2010, he would have the applicant investigated for serious misconduct under the University’s Misconduct — Serious Misconduct Policy on the basis of refusing to carry out a lawful and reasonable instruction. The email reads:
Step 1 of the grievance procedure…involves informal attempts to resolve a grievance through, e.g., a meeting with the person concerned…, or an oral discussion with the next most senior officer (me, in this instance). However:
- you did not seek resolution of the problem directly with the person concerned;
- you have failed, in spite of several requests, to meet with me to discuss the matter orally nor agreed to allow me to attempt to deal with the matter informally, e.g. through mediation by hosting a meeting between you and [another employee];
- to my knowledge, at no time have you made any other attempts to resolve the grievance informally;
- your application to me was formal, in writing, and was followed by a large number of additional written (email) submissions.
I have therefore concluded that…you consider that dealing with this matter under step 1 is not possible or appropriate and that your submissions and subsequent actions indicated that you wished to initiate formal step 2 proceedings. I am therefore proceeding with your complaint as per step 2 of the grievance resolution procedures.
I commenced my investigation on 13 April, the day after receiving your letter, and drafted my findings and advice intending to respond to you within the two week timeline…but was unable to complete the procedure because you began a separate claim that I breached confidentiality in assessing your allegation of grievance. I was obliged to delay completion of my formal response until I was able to establish that I was still the officer authorised to do so. The delay therefore was caused solely by your action.
My response dated 1 July is provisional in that, as I have noted, I am giving you an opportunity to make further submissions on two matters if you wish to do so, and to make amends for the false and damaging allegations you have made against three successive Heads of School.
I require a written response to my letter of 1 July by Friday 16 July. If you fail to do so, I hereby give you advance notice that on Monday 19 July I will send you a formal notice advising you that I intend to initiate an investigation into your actions under…Serious Misconduct as to whether you have refused to carry out a lawful and reasonable instruction in respect of a significant matter…
In an email of 9 July 2010 to in-house counsel, Prof X explained the threat he had made as follows:
“I would, of course, not under any circumstances penalise a staff member for lodging a grievance, even if that grievance ultimately failed, provided the complainant entered in good faith into procedures towards resolution of the complaint as is required under the policy. However, failure to respond to a reasonable request to substantiate a grievance, broadening the complaint to include false and damaging allegations about the person complained against and about others, as well as his more general failure to show good faith in trying to resolve the issue by failing to enter into any dialogue or mediation or any communication whatsoever other than his own diatribes, constitute in my view grounds for investigation for serious misconduct”.
The judge finding that Prof X’s email contained a clear implication that he considered that the applicant was committing serious misconduct by failing to comply with a reasonable and lawful direction to respond to his letter of 1 July 2010 and was at risk of being sanctioned, stating:
“The email was calculated to intimidate [the applicant] into complying with Prof [X’s] demand to respond by causing him to fear the consequences for his employment if he did not. The threat to investigate was not significantly different to a threat to take disciplinary action in that regard. [The applicant] feared the consequences for his employment…indicating that the threat had caused him to experience enormous distress, such that he was intending to seek medical advice…the making of the threat aggravated [the applicant’s] psychiatric condition to a minor extent. In my view, the making of the threat caused injury to [the applicant] in his employment”.
The judge went on to reject the validity of Prof X’s reasons for the “threat” stating:
“I do not accept that Prof [X] genuinely thought that [the applicant] was disobeying a lawful and reasonable workplace direction…I consider that Prof [X] correspondence reveals that his view was that [the applicant’s] complaint was spurious and made for ulterior purposes, including bypassing the annual performance appraisal that would otherwise be conducted by the Head of School. His correspondence also reveals that he thought that if [the applicant] could not provide further evidence about his claims, he should withdraw them. His email of 3 June 2010 indicates that he wanted [the applicant] to apologise to Prof [Y] and Associate Prof [Z]. I consider that Prof [X] made the threat in order to intimidate [the applicant] into withdrawing his claims if, as Prof [X] expected, he could not provide further evidence, and to apologise to Prof[‘s Y and Z]. The threat was made because [the applicant] had made his complaint of 12 April 2010″.
In finding that the applicant’s complaint of 12 April 2010 was genuine and that he exercised a workplace right by making his complaint, the judge found the threat to be an adverse action:
“Prof [X], being aware that [the applicant] had made his complaint, made the threat that caused the injury constituting the adverse action. Prof [X] was knowingly concerned in the contravention…”
Duty of confidentiality
The judge formed the impression that the applicant, while acutely sensitive to his own perceived unfair treatment, still lacks insight into the unfairness and seriousness of implying that Prof X contributed to Dr XY’s suicide. Ultimately, the judge finding:
“[The applicant] had a workplace right to make a complaint pursuant to the Staff Grievance Resolution Policy and exercised that right. I find that, even though [the applicant] did not have an adequate basis for making the part of his complaint that implied that Prof [X] had contributed to the suicide of Dr XY, he had a genuine belief in the truth of his complaint. I find that Prof X disclosed the letter of complaint because [the applicant] had exercised his workplace right.”
Confidentiality v Injury
According to the judge, the breaching of the confidentiality did not “injure” the applicant because the fear and stress was not to his employment. In the judge’s words:
“I accept that the threat by Prof [Y] to consider an action for defamation amounted to an “injury”…to [the applicant] because it caused him substantial fear and distress, leading to his apology. However, I do not accept that it was an injury to [applicant], “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 [the applicant] wrote the letter of complaint in his employment and about his employment. However, the fear and distress caused to [the applicant] 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…”
However, the disclosure of the letter did “injure” the relationship between Prof Y and the applicant, and this, according to the judge amounted to adverse action against the applicant.
Choosing who conducts your performance appraisal
The applicant put that he was “injured” by not being able to choose who conducted his annual performance review. The judge rejected this stating that:
“[The applicant] has not demonstrated that he was injured by either the appointment of [name] as his performance reviewer or any actions taken by [name]. I am satisfied that [name] performed his role dispassionately and competently. There were three categories for the rating of performance levels, “Not applicable”, “Satisfactory” and “Not Satisfactory”. [the applicant] was rated “Satisfactory” in each category of performance. I find that [the applicant] was not injured as he alleges”.
Another matter pertaining to the performance appraisal process was raised by the applicant in that he was directed to remove remarks from the documentation relating to the applicant’s grievances against the university. The applicant was threatened with disciplinary action if he failed to remove the offending words. The judge also rejected this allegation, stating:
“However, I do not accept that Prof Z gave the direction that [the applicant] remove references to the grievances and made the threats to take disciplinary action if he did not, because [the applicant] had exercised any workplace rights. The fact that the direction was to remove references to grievances does not mean that the adverse action was taken because [the applicant] had made those grievances. As I have said, the mere satisfaction of a “but for” test is insufficient. That [the applicant] had made the grievances was not a substantial and operative reason for directing their removal. I find that the direction and the threat to take disciplinary action if he did not comply were made because Prof [Z] considered that it was not productive, appropriate or warranted to allow references in the Form B relating to what [the applicant] considered to be an ongoing grievance against the University and allegations of violations of University policies, victimisation and misconduct. It was not because he exercised workplace rights”.
In coming to these conclusions, the judge was cognisant of the purpose of a Performance Appraisal was one of development of an employee’s career/identify training opportunities that would benefit the employee.
ALLEGATIONS OF BREACHES OF CONTRACT
Whilst there were no specific allegations of breach of the contract of employment, in the “prayer for relief”, damages are sought for breach of implied terms of the contract.
The allegations seem to be that the University breached implied terms of the contract of employment:
- to provide the applicant with a safe system of work, to take all reasonable steps necessary to protect his safety and to avoid exposing him to unnecessary risks of injury;
- to cooperate with the applicant;
- to comply with its policies.
The judge summarising the “common law” of the contract of employment may be of assistance to fellow practitioners…
Safe system of work
In Tame v New South Wales (2002) 211 CLR 317, McHugh J held at :
…The law of contract does not imply two terms of reasonable care; it does not imply a duty to protect against physical harm and a separate duty to protect against psychiatric injury. It simply implies a general duty to take reasonable care for the safety of the employee and, it might be added, for the employee’s property.
Implied duty of cooperation
There is an implied duty to cooperate in the doing of acts necessary to performance of, or to enable the other party to secure a benefit provided by, the contract: Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at  and .
In Regulski v State of Victoria  FCA 206 at –, Jessup J held:
“211 As to the first implied term relied on, there is, of course, a duty of co-operation which is implied into employment contracts, as within the class of contracts in which the derivation of the benefit of the contract by one party is dependent upon some co-operative action by the other party: see Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596. But, properly understood, the duty to co-operate is a specific one. It is not as though there is a term in contracts of employment that the parties must co-operate with each other, in the broad as it were. An employee who declines an invitation to act in a supervisory position to cover a temporary absence may be viewed by his or her employer as being distinctly unco-operative, but this would not give rise to a breach of contract…
“213 It was submitted on behalf of the applicant that “the scope of the required co-operation between the parties to a contract must be defined by what has been promised under the particular contract.” I accept that. It was then submitted that the policies of each of the respondents in the present case had been agreed as between the relevant respondent and the applicant, such that “both the employer and the employee would comply with their respective policies in the workplace”. I do not accept that. It was not pleaded that the policies had been agreed as terms of the applicant’s contract of employment: indeed, it was alleged that the Department required the applicant to comply with its policies. Consistently with this allegation, I would hold that, in presently relevant respects, the respondents’ policies were internal rules, procedures, etc with which their employees were required to comply. They were issued pursuant to an employer’s common law power to direct. They were not contractual”.
The policies as implied terms
Ed: this is most important and why each employment contract should contain words to the effect: “Your employment will also be governed by the Company’s published policies and procedures as may be varied from time to time. However, these policies and procedures do not refer any contractual obligations at law, including the Code of Conduct”.
The applicant alleged that the University’s policies are incorporated into the terms of the employment contract.
“An employer’s policies or procedures can only be incorporated into an employment contract by express or implied agreement. Whether or not the terms of policies or procedures have been incorporated depends upon the parties’ intentions, which are to be determined objectively. The Court is required to consider whether or not the language used by the parties, in the context in which those words were used, would have led a reasonable person to believe that the policy or procedure had been incorporated.
“The factors that are relevant include the wording of the contract; the wording of the policy or procedure in question (and whether or not the terms are contractual or promissory in nature); the subject matter of the policy or procedure and the circumstances surrounding the making of the contract; and whether or not the contract has an express clause that states the policy or procedure is not incorporated: see generally Romero at –.
“A term will not be implied if to do so would contradict any express term of the contract. Accordingly, terms of a policy or procedure will not be incorporated if to do so would be inconsistent with an express term of the contrary.
“Employment contracts have been found to incorporate an employer’s policies and procedures in circumstances where the employee was required in the employment contract to “abide by” the policies and procedures and the policies and procedures used promissory language. A policy or procedure will not be incorporated if it is intended to operate as a guideline only and is not intended to have contractual force, or the employment contract expressly provides that the policy or procedure does not form part of the employment contract”.
The allegations (outcome)
Of the 41 allegations, the judge upheld five, therefore finding that the University contravened s 340(1) of the FWA. That is that the University was “guilty” of taking adverse action against the applicant on five occasions.
The judge will hear the parties as to penalties on a later date but set out the consideration of the question of compensation and damages.
Ed: At this point it is instructive to point out that there no restrictions on awards to successful applicants in the Federal Court system. This is different to an unfair dismissal whereby the award of compensation to a successful applicant is six months’ pay.
The judge then set out a number of citations (omitted) relating to the award of compensation as summarised:
- There needs to be a causal connection between the contravention and the loss claimed.
- What is reasonable in the circumstances and what would have been likely to occur had the Act not been contravened.
- The detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.
- Compensation may be awarded for non-economic loss such as hurt and humiliation, as well as for economic loss.
Penalties (This case)
Turning specifically to the applicant’s situation:
- Breach of confidentiality and resulting fear of the threat of legal action:
“I accept that [the applicant] must have experienced substantial fear and distress upon receiving the threat of legal action. I accept that he was also distressed by the breach of confidentiality of his complaint itself.
- The applicant submitted that he developed a psychiatric illness as a result of his mistreatment by the University. He relies upon two reports of a psychiatrist. The judge commenting:
“I consider that the aggravations were minor and of temporary effect. The evidence does not establish that the aggravations caused by the contraventions were permanent. By far, the greater contributions to his condition were made by the numerous workplace events which have either been found not to constitute any breach of the FWA or did not form part of the pleaded allegations”.
The judge awarded the applicant $15,000 for the mental and emotional distress.
Lack of career progression
The applicant submitted that his career has not progressed because of the workplace events and his reputation has suffered and that he should be awarded compensation for that loss:
“It is necessary to consider whether the contraventions have made any contribution to the lack of progression of [the applicant’s] career.
“[The applicant] has been continuously employed with the University on a full-time basis since February 1998. He has remained at the level of Lecturer (Level B) since he was appointed. He applied for promotion to Senior Lecturer (Level C) once in early 2000 and was unsuccessful.
“…his philosophy colleagues who started at the same time as him have been appointed to Senior Lecturer (Level C) and Associate Professor (Level D) respectively. He states that he expected to complete one of his books in 2011 and to have followed his colleagues with promotion in 2012 to Senior Lecturer and then to Associate Professor by now.
“It may be accepted that [the applicant’s] career has stalled. The reason for that is that he has not applied for promotion. His failure to apply seems to recognise that promotion would not be warranted upon the present state of his academic accomplishments. The issue is why he does not have the accomplishments necessary to achieve promotion.
“I accept that [the applicant’s] psychiatric condition has played some part in the lack of progression of his career. For example, since 2010, [the applicant] seems to have been obsessed with and focussed upon his complaints, and now this litigation. Some of his correspondence reveals an extraordinary amount of time dedicated to composing submissions to support his complaints and composing lengthy emails to make a point, at the expense of the time available for research. He declined to take the SSP leave he was granted in 2013, when that might have helped him to improve his research record.
“It may be noted that [the applicant’s] career was already at a standstill before he made his initial complaint…on 12 April 2010, since he had been employed by the University as a lecturer for about eleven years without being promoted”.
“…I consider that the minor contributions these contraventions made to his psychiatric condition have made no material contribution to [the applicant’s] lack of career progress. I am not satisfied that the contraventions have contributed to the stalling of his career or affected his reputation in any other way.
“In making this assessment, I do not wish to sound harsh. The evidence shows that [applicant] is highly regarded as a teacher by his students. I would have thought that the ability to teach and impart knowledge is by far the most valuable quality an academic could bring to a university. Unfortunately, it appears that the University is much more impressed by the quantity of publications in obscure journals read only by other academics”.
Damages for breach of contract
“The general principle is that where a party sustains a loss by reason of a breach of contract, they are, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.
“[The applicant] would not have suffered the temporary aggravations of his psychiatric illness that I have found if the University had performed the contract. On the basis of the facts I have found, the award of damages for breach of contract would be the same as the award of compensation for the University’s contraventions of s 340(1) of the FWA. As I have indicated, I will award [the applicant] $15,000 for those contraventions”.
WHERE TO FROM HERE?
The awarding of $15,000 to the applicant is just the beginning. The judge allowed for further submissions (which he limited to 15 pages) leaving the door open for further penalties and costs in the applicant’s favour, which is scheduled for a further hearing 8 July 2020.