1. The Award which applied to the applicant's employment was stated; 2. The applicant was stated to be employed as a soil tester;

1. The period of notice was stated to be "as required by the Award"; 2. The CM Testing Service Employment Conditions Manual was incorporated; 3. The applicant was obliged to comply with any lawful directions and instructions from the directors or management of the first respondent.
2. The confirmation of employment document, dated 25 October 2005, noted that the Civil Construction, Operations and Maintenance General Award - State 2003 applied. This was the same as the earlier contract. It further provided that:

1. Ordinary hours of work were between 6:00 am and 6:00 pm and would not exceed ten (10) through hours on any day; 2. The applicant was employed as a Senior Soil Technician;

1. The normal or ordinary start and finish times were 7:00 am to 3:30 pm Monday to Thursday and 7:00 am to 1:30 pm Friday "subject to variation by agreement";

1. The contract incorporated, relevantly the CM Testing Service Procedures Manual (as did the earlier contract); 2. It was the duty of the employee to: 1. Comply with any lawful directions and instructions from the directors or management of the first respondent; 2. Act in a responsible and respectful way towards the directors and/or managers of the first respondent; 3. Provide faithful service. 3. By the Policy document that: * "All hours worked outside of the ordinary start and finish times are to be approved, in writing, by a director of the company prior to the overtime hours being worked" 4. By the Policy document that the daily completion of time sheets is the responsibility of each employee of the company 5. By clause 7 of the Policy Document: * "In the event that an employee disagrees with the Pay officer's calculations, the employee who disagrees with any calculation shall abide by the following grievance procedure: * (i) initially, any queries as to the calculation of hours is to be raised with the Pay Officer; * (ii) thereafter, any dispute is to be raised with a director of the Company and discussions undertaken regarding the nature of the disagreement; and, * (iii) any dispute and its outcome is to be recorded by a director of the Company with a copy of such recording to be kept on the relevant employee's file, signed by the relevant employee and director and a copy of the signed document provided to the relevant employee."
2. In my view, by proffering the documents on 25 October, 2005 and thereafter holding a meeting with employees to explain the terms, the first respondent was plainly offering a variation of the existing contract of employment.
3. In my view, the applicant accepted the variation to the terms of his contract of employment by his conduct in:

1. Working the hours provided for in the fourth contract; 2. Completing time sheets as required by the fourth contract;

1. Making claims for overtime in accordance with the terms of the varied contract, and receiving payment therefor;

1. Attending the meeting on 25 October 2005 and neither at that time nor at any time thereafter stating that he did not accept the terms thereof.
2. The document dated 25 October 2005 did not, in my view, constitute a termination of the earlier contract of employment, but a variation to it. There was no change to the period of notice required to be given on the termination of the applicant's employment. Although there was a change in the applicant's job designation no evidence was given that his duties were considerably changed in any way. Much of the document of 25 October 2005 made explicit what was probably implicit in the third contract. For example the hours of work could have been altered by agreement; the timesheets could have been required by a direction of the employer, as could the requirement to take a lunch break.
3. I find that the terms of the applicant's employment with the first respondent were in part covered by the fourth contract, dated 25 October 2005, in part by the Award, and in part by the Act.
4. I find that the applicant became disgruntled when another employee of the first respondent, Victoria Baker, had her employment terminated. This occurred prior to 25 October 2005.
5. The applicant agreed that aspects of the policy document were introduced specifically in response to Victoria Baker's claim for wages, so as to clear up any misunderstandings to do with working through lunch breaks: T21.13.
6. The applicant also accepted that the timesheet he was required to complete on a daily basis was changed in conjunction with the introduction of the policy.
7. I indicated at the outset of the hearing that I would consider the admissibility of the evidence of Mr Mossman, sought to be adduced by the applicant. The affidavit exhibits a number of pieces of correspondence relating to the termination of Victoria Baker's employment. It was sought to be adduced as evidence of how a comparable employee was treated by the respondents, to support an argument that the first respondent discriminated against the applicant because of his disability. It was said that this was relevant to whether the applicant was terminated because of a disability from which he suffered. In my view the evidence is not relevant to the issues I have to determine. The respondents correctly point out that there is no claim for disability discrimination properly before the Court.
8. I have to decide whether the respondents have proved that it was not a reason for the termination of the applicant's employment that he suffered from a disability. Mr Mossman's evidence does not assist me in that task.
9. I uphold the objection to Mr Mossman's evidence. I note that despite filing extensive written submissions, no reference was made by the applicant to Mr Mossman's evidence as supporting the applicant's case.
10. I find that during the meeting of 25 October 2005 the applicant asked the second respondent a number of questions about the circumstances in which prior approval for overtime claims was required. He was well aware of the policy of the first respondent regarding overtime. As I have said, at no time did the applicant refuse to abide by the terms of the 'fourth contract'.
11. I accept the evidence of the second and third respondents, supported as it was by the evidence of Ms McMurtrie and Mr Kitchen, that following the October 2005 meeting in particular, and leading up to July 2006, the applicant's mood in the workplace was sullen, and at times abrasive and rude. I find that the second and third respondents put up with the applicant's behaviour.
12. It is common ground that the applicant claims that he suffered an injury to his back at work on 26 June 2006. It is also common ground that the applicant was absent from work until 3 July 2006.
13. The respondents concede that the applicant has established that he was temporarily absent from work because of illness or injury as referred to in s.659(2)(a) of the Act.
14. I accept that, prior to the termination of the applicant's employment, he had foreshadowed making a claim to Workcover Queensland, the statutory insurer of employers for workplace injuries. Such a claim ordinarily covers the payments of medical expenses and the like as well as weekly compensation if an employee is off work for any significant period of time. He had provided documents to that effect to the respondents, who were required to complete an employer's report. That report was still outstanding at the date of the termination of the applicant's employment.
15. The respondents argue that submitting a claim to Workcover Queensland, in those circumstances, is not sufficient to engage s.659(2)(e) of the Act. That submission derives support from Jennings v Salvation Army [2003] FCA 1193 at [35]; Zhang, supra, at [34]; and Bahonko v Moorfields Community [2005] FCAFC 116 at [22].
16. The precise ambit of s.659(2)(e), and in particular what is meant by the phrase "recourse to competent administrative authorities" was comprehensively considered by the Full Federal Court in CSR Viridian Limited (formerly Pilkington Australia Limited) v Claveria [2008] FCAFC 177.
17. The majority justices adopted what was said by Lander J in Zhang at [23]:
    • "Three circumstances can trigger the operation of the proscribed reason in s 170CK(2)(e). First, the filing of a complaint by the employee. Secondly, participation by the employee in proceedings against an employer. In both those cases they must involve alleged violation of laws or regulations by the employer. The punctuation supports that construction. Thirdly, recourse by the employee to competent administrative authorities will trigger the operation of the section. All three circumstances are directed to complaints to parties other than the employer."
18. Their Honours concluded, at [48]:
    • "We consider that a competent administrative authority within the meaning of Art 5(c) of the Convention is (1) a governmental or public body or official, (2) exercising a power or function of an executive, ministerial or administrative nature (rather than, for example, of a legislative or judicial nature), and (3) having competence to receive the complaint as to which the worker has recourse to it. To identify the meaning of the expression by reference to its components in this way seems to us, with respect, to be necessary to give due recognition to the contribution of each of them. When the matter is approached this way, the result is that the whole expression has a meaning which seems to be entirely harmonious with the object and purpose of Art 5(c), and in no sense artificial."
19. Theirs Honours accepted that a complaint had to be made by an employee to a body with administrative power to deal with it.
20. Whilst Workcover Queensland is a public body (in the sense of being a statutory corporation) and can investigate and deal with complaints made by employees, there is no evidence in this case that any complaint was made by the applicant. He simply intended to submit a claim for statutory compensation, to which he was entitled. In my view, this is not the sort of conduct contemplated by s.659(2)(e).
21. I reject the applicant's submission that the making of a statutory claim for benefits to Workcover Queensland falls within the ambit of "recourse to competent authorities" under s.659(2)(e) of the Act.
22. The applicant submits that s.659(2)(f) is engaged because he had a physical disability.
23. Disability is not a term defined in the Act. The applicant seeks to import the definition of the term in the Disability Discrimination Act 1992 (Cth). No authority was cited in support of this submission. By the application of orthodox principles of statutory interpretation the specific definition of a term in one Act would not, without more, be applied to the same term in another Act, even if of the same parliament. Neither party referred to any authority in which the meaning of the term 'physical disability' in s.659(2)(f) of the Act has been considered.
24. Nevertheless, even if recourse could be made to the definition that the applicant urges, which is as wide a definition as one could imagine, the evidence does not establish that the applicant suffers from, or has suffered from any disability.
25. It is accepted that on 26 June 2006 the applicant contends that he suffered back pain whilst performing his work. There is no evidence that the applicant suffered any injury to his back that was other than transient. The applicant says, and I accept, that he returned to his normal duties on 3 July 2006. The second respondent gave evidence, which I accept, that following his return to work the applicant carried out his normal duties, including performing field density tests and concrete pours. He made no request for light duties, and did not complain of any discomfort in his back.
26. In his Notice of Injury form dated 26 June 2006 the applicant says that he felt a twinge in his lower back that morning. He drove back to work to complete paper work and felt a bit stiff and sore when sitting down. He said that he went to another job and whilst digging a hole with a pick and shovel says he "pulled" his lower back. He says he had hurt his back before, when doing a concrete pour in June 2004.
27. The applicant submitted that the Notice of Injury form, the claim for workers' compensation forms and the medical certificate provided by the applicant to the first respondent put it on notice that the applicant was suffering from a disability. In my view, they do no such thing. It was never articulated by the applicant precisely what disability he suffered, nor what disability the aforementioned documents disclosed to the respondents. At its highest the evidence establishes that the applicant suffered from back pain and stiffness. There is no evidence that any injury was suffered so as to cause that pain and stiffness.
28. In my view, the suffering of pain and stiffness, without more, does not constitute evidence that the applicant suffered from a disability at any time.
29. The applicant relied on two authorities to support the submission that the manifestation of symptoms can constitute a disability for the purposes of s.659(2)(f) of the Act.
30. The first, Penwill v National Jet Systems Pty Ltd [2002] FCA 5, does not assist the applicant. In that case, the symptoms suffered by the applicant were admitted, and at paragraph [24] of the Reasons it is recorded that there was an admission that the symptoms caused a physical or mental disability within the meaning of the subsection. That concession implicitly recognised that there was a difference between the symptoms and the disability.
31. The second case, Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 concerned the Disability Discrimination Act and is not relevant for the purposes of this case. I was unable to find any reference to the proposition that the suffering of pain, or the manifestation of symptoms, without more, is sufficient to constitute a disability, even under that legislation.
32. In the absence of binding authority to the contrary, I would not be prepared to find that the suffering of back pain for a limited duration, with no evidence of the underlying cause of that back pain, constitutes a disability for the purposes of s.659(2)(e) of the Act.
33. The applicant submits that the Court should find that the respondents perceived the applicant to have a disability. To do so would be contrary to the evidence. All the respondents had were the documents to which I have already referred. They were told nothing by the applicant that he suffered any ongoing problems. Indeed, to the contrary, they were told that the applicant was fit to return to work, and he did so, to his normal duties, without any complaint.
34. The applicant has not established that he suffered, at any time, from a physical disability within the meaning of s.659(2)(f) of the Act.
35. It follows that the respondents bear the onus of proving that the applicant's employment was not terminated for a reason that included his temporary absence from work between 26 June and 3 July 2006.
36. In my view, the respondents have discharged that onus. I should add that, even if the applicant had established that he had, by reason of his Workcover claim, had recourse to competent administrative authorities, and/or that he suffered from a physical disability, the respondents have discharged the onus of proving that the reason for the termination of the applicant's employment did not include those reasons. This is because the respondents have proved, to the requisite standard, the real reason for the applicant's dismissal. The second and third respondents each expressly denied that the reason for the termination of the applicant's employment was because of the matters in ss.659 and 793 of the Act to which I have referred. I accept their denials.
37. I turn then to the reason why the applicant's employment was terminated, which is relevant not only to the claims for contraventions of the Act, but also to the applicant's contractual claim.
38. The applicant accepted that he had some difficulty in completing the time sheets required of him in his employment. Not infrequently the applicant made amendments to his time sheet that caused either the third respondent or Ms McMurtrie to require his assistance in deciphering what had been written. These difficulties arose from the applicant's practice of completing his time sheet at the beginning of the day, and then amending it at the end of the day if his work had differed from what he expected (T25.2).
39. The applicant accepted that the third respondent told him that he should be filling out his timesheets at the end of the working day, and there would then be no need for amendments. When it was put to the applicant that he breached the third respondent's direction as to proper completion of the time sheets, because he continued to fill the timesheet out partially in the morning, partially during the day and then at the end of the day amend it, the applicant responded: "Yes I used to do that all the time." (T27.2)
40. On 21 March 2006 the applicant took time off work and did not speak to either the second or third respondent. He simply left a note. The applicant accepted that the second and third respondents subsequently directed him that he was to let one of them know if he was taking sick leave from work.
41. Despite this direction, when the applicant suffered the back pain on 26 June, he simply left the documents in the office and told Ms McMurtrie that he had hurt himself and was going home. The applicant accepts that the second respondent rang him that evening at home and asked if he was coming to work the following day. The applicant says that he responded: "Depending on how I feel. I should be right yes".
42. The applicant did not go to work the next day, and did not contact either the second or third respondent to advise that he would be absent for a week. This understandably frustrated the second and third respondents as they had to reschedule work that the applicant would otherwise have performed. I find that the second and third respondents were not upset that the applicant may have suffered an injury in the course of his employment. They were upset by the fact that the applicant did not contact either of them to tell them what was going on and when he would be returning to work.
43. The applicant accepts, and I find, that he was required to commence work at 5 am on 5 July 2006. The applicant returned to the office at around 9am.
44. The applicant agreed that at around 11am the second respondent told him and Mr Kitchen that he only wanted them to work their eight hours that day (T32.17). The applicant agreed that the second respondent was in fact telling him that he wanted the applicant to finish work at 1:30pm that day. I reject the applicant's evidence that he asked the second respondent what should happen if work came in which necessitated overtime. I prefer the second respondent's evidence.
45. On a number of occasions there was a discrepancy between the evidence of the second and third respondents and that of the applicant. I prefer the evidence of the second and third respondents where there is such a conflict. I do so for a number of reasons. First, in important respects the evidence of the second and third respondents is corroborated by the evidence of witnesses such as Ms McMurtrie and Mr Kitchen. Although Ms McMurtrie is the sister of the third respondent and Mr Kitchen was an employee of the first respondent, I was impressed by their candour and demeanour, even though they gave their evidence by video link. Their evidence did not change under cross examination.
46. This is to be contrasted with the applicant's evidence, which is the second reason for my preferring the evidence of the second and third respondents where it conflicts with the applicant's evidence. In his affidavits the applicant gave a certain version of events as to what occurred on 5 and 10 July 2006. In cross examination his evidence changed considerably. Two examples will suffice. In his evidence in chief the applicant said that he did not swear or speak angrily during the 'discussions' on 10 July. His cross examination revealed to the contrary. Secondly, the applicant sought to challenge Ms McMurtrie's evidence about the time he left work on 5 July on a wholly unsubstantiated basis, namely that he may have been working in a shed out of her view. The applicant did not give this evidence in his affidavits. There were a number of other occasions when the applicant's sworn evidence in chief was resiled from or contradicted in cross examination. I do not propose to individually deal with each example.
47. Thirdly, I was impressed by the way the second and third respondents gave their evidence. They did not waver under prolonged cross examination. The demeanour of the second respondent belied the applicant's description of him as an "in your face" and confrontational manager. Rather, the applicant's demeanour supported the second and third respondent's description of the applicant's demeanour in the workplace. Mr Kitchen's evidence supports my impression of the second respondent as a calm and non-assertive person, and that the applicant is prone to outbursts of rudeness and aggression.
48. Fourthly, there were internal inconsistencies in the applicant's evidence. For example the applicant gave evidence that during the confrontation that occurred on 10 July he agreed to forego any claim for overtime. Yet he maintained the case, through to final submissions, that he made a threat or the respondents perceived a threat that he would take action against the first respondent for unpaid overtime. If he had agreed to forego the claim for overtime, which involved a very small amount, why would he subsequently make such threats?
49. I accept that on 5 July 2006 the applicant was given a specific direction by his employer to only work until 1:30 pm. The applicant disobeyed that instruction.
50. Further, I find that the applicant submitted a false claim for overtime on his time sheet for 5 July. The time sheet was incorrect in a number of respects. Most importantly, it recorded the applicant finishing work at 2pm. On his own evidence he finished at 1:50pm and "rounded up" his finishing time to 2pm. The time when the applicant took lunch was incorrectly recorded. During the lunch time recorded the applicant was in fact carrying out a job at Bargarra.
51. At T61 the applicant accepted that he had the opportunity before leaving work on 5 July to correctly record his hours of work for that day. He accepted it was false to say that he did have a lunch break from 12:00 - 12:30 (T62.22) and a finishing time of 2 pm.
52. The applicant accepted that the time sheet would be relied on by his employer, and there was a policy as to how they were to be completed, and that no one was to work through their lunch break without approval. The applicant says that he made the decision to do the work that day rather than the next day.
53. At T65.45 the applicant was asked if he would accept that irrespective of whether he left at 1:50 or 1:40, the second and third respondents had a right to be upset about him falsely recording his finishing time. The applicant replied: "Yes, I'd say they could."
54. I accept the second respondent's evidence (at T89) that he had concerns about overtime claims, and on 5 July 2006 specifically asked Ms McMurtrie to specifically note the time the applicant left work.
55. I accept Ms McMurtrie's evidence that the applicant left work that day at 1:40pm. Yet the applicant recorded his finishing time as 2pm, so as to attract a claim for overtime. I accept that the applicant continued to work past 1:30, contrary to his employer's specific direction. In my view, this was indicative of the applicant's general disdain for the second respondent's authority.
56. Although Ms McMurtrie said that the job that the applicant undertook at Bargarra had to be done that day, I am satisfied from the evidence of the second respondent that the applicant could still have left work at 1:30 pm that day if he chose to do so.
57. The second respondent did not endorse the applicant's time sheet, authorising his claim for overtime, as the first respondent's policy required. I note that he did authorise the claim for overtime worked from 5 am to 6 am that day. I accept that the second respondent felt that by making an unauthorised claim for overtime the applicant had deliberately flouted his policy. He felt that the claim had been made dishonestly. No doubt this dissatisfaction with the applicant was exacerbated when the applicant did not discuss the second respondent's refusal to authorise the claim, but placed a large asterisk on the time sheet were the authorisation was required no doubt to bring it to the second respondent's attention.
58. Much attention was paid in the evidence to events that occurred on 10 July. On that day, the third respondent was preparing the pays for employees. I accept that she and the second respondent had discussed the applicant's time sheet for 5 July and had agreed that the first respondent would not pay any overtime for the afternoon period. The third respondent went to explain to the applicant why that was so.
59. The applicant accepts (T39.23) that the third respondent said to him: "We won't be paying you for the last 20 minutes of overtime that you've claimed." The applicant claims that he responded: "And why is that?"
60. The applicant accepted (T39.41) that the third respondent then said to him words to the effect of: "You didn't have your lunchbreak at that time and, also, you didn't leave at 2pm, you left at 1:40 pm". The applicant says that he told the third respondent that he had finished at 1:50 and said: "what's twenty minutes?" He also said: "Fair enough put 1:40". The applicant accepts that he made it plain to the third respondent that he was not disputing not being paid for overtime. He said to the third respondent: "Yes, do what you like. You play the game your way."
61. I accept that during this discussion the applicant raised his voice towards the third respondent, but he was not swearing. The second respondent heard what was happening and went to investigate further. The applicant took the key to the office from his key ring and gave it to the second respondent. In his affidavit, the applicant said that he stated: "If you don't trust me here is the key - if you want me to do overtime then tell me first". In cross examination he accepted that his language was more colourful than this. He said, as he gave the key to the second respondent: "I don't have to deal with this shit" (T41.35).
62. All witnesses agree that the second and third respondents left where the applicant was then working. I accept that they were surprised by the hostile reception they had received. In hindsight perhaps unwisely, the second respondent decided to return to speak to the applicant to attempt to talk through the issue.
63. I accept that initially the applicant did not want to discuss the matter any further. However, I reject the applicant's evidence that the second and third respondents attempted to provoke him into a fight, or that they were abusive and bullying towards him. I find that it was the applicant that was hostile and abusive.
64. The applicant describes the ensuing conversation as 'robust' In his affidavit evidence he denied being rude, threatening or aggressive, or swearing. I accept that he was all of these things. This is corroborated by Mr Kitchen, who although outside the premises could hear the applicant yelling abuse at the second and third respondents.
65. I find that during the conversation the applicant was openly hostile and abusive to both the second and the third respondents. I accept that during the conversation the applicant:

1. Said, in relation to any future request for him to do overtime, that the second respondent would have to be at the office to open up for him. He said the second respondent: "better be fucking in the office to let him in otherwise I will just sit out the back and do fucking nothing"; 2. Said, when it was put to him that he had left on 5 July at 1:40 and not 2pm as he had recorded on his timesheet: "Don't you say I fucking don't do anything for this company. When Ian was the boss and he would ring you for early pours, you would ring me and I would do them. So don't you say I've done fucking nothing for this company";

1. Referred to the third respondent as a bitch (in the context of dismissing other workers, particularly Victoria Baker);

1. Said to the second respondent words to the effect: "Why didn't you sign off on the fucking time sheet for that day" (T42.35); 2. Said, when the third respondent suggested to the second respondent that they walk away from the confrontation: "Yeah Mark walk away like your wife said. Do what your wife says Mark.". The tone was mocking;
2. The applicant accepted in cross examination that the second respondent could have been somewhat shocked by his words and conduct. At T53.40 the applicant agreed that the conversation got out of hand.
3. The applicant accepts that he never provided the respondents with any reason for the errors in his timesheet.
4. The second respondent asked the applicant 'Is there more to this problem?' The applicant says he took this to be a reference to the overtime issue. The applicant says he responded: 'Yes there is a problem but you will find out in due course'. This is not dissimilar to what the second respondent says the applicant said: "I'm not allowed to say anything. You'll find out what's coming."
5. I accept that the second respondent later approached the applicant and asked if he was alright to continue to work. The applicant replied that he was.
6. I accept that the applicant's reaction to the issue of the false overtime claim being raised with him rattled the second and third respondents. The second respondent said that he was not going to put up with that sort of behaviour from the applicant. He said that he had tolerated the applicant's poor behaviour for some time, but the events on 10 July were the straw that broke the camel's back. I accept that although they obviously had reservations about the applicant's continued employment, and discussed whether they would dismiss the applicant, the second and third respondents did not decide to terminate his employment on that day.
7. I accept that over the ensuing days it became clear to the second and third respondents that they could not continue to work with the applicant. The applicant refused to communicate with them in the office. He glared and sneered at fellow employees and the second respondent. The atmosphere in the office was tense. The applicant took to timing his breaks with a stop watch. This was confirmed by Ms McMurtrie.
8. The second and third respondents decided to terminate the applicant's employment on or around 12 July. They took legal advice about the correct procedure to take.
9. A letter of termination was prepared. It was handed to the applicant on 14 July. No reason was given for the termination of the applicant's employment. The second and third respondents told the applicant orally that they were not obliged to give a reason, but said it was a managerial decision. They did not want to have another verbal altercation with the applicant.
10. Curiously, the letter of termination specifically states: "Your employment is not terminated due to your recent Workcover claim for injury."
11. The solicitor for the applicant seized on this statement, and submitted that it demonstrates that the second and third respondent had obviously told their solicitor about the Workcover claim, meaning that it was in their mind as to why the applicant was being dismissed. Therefore, so went the submission, part of the reason for the termination of the employment was the making of the Workcover claim.
12. Assuming (contrary to my earlier conclusion) that the making of a Workcover claim was a proscribed reason for termination, I reject the conclusion that simply because it is referred to in the letter of termination entitles the Court to conclude that the making of the claim was a reason for dismissal.
13. I accept that it was the first Workcover claim made by the applicant in the course of his employment. I accept the second respondent's evidence that he was not concerned about the making of the claim, nor any effect it would have on the premiums, as to which there was no evidence in any event. I accept the second respondent's evidence at T126.20: "Making a claim didn't even enter our head, you know."
14. The fact that the second and third respondents told their solicitor about an outstanding Workcover claim is equally consistent with them seeking advice about what would happen with it, given the termination of the applicant's employment. The solicitor, cognisant of s.659(2) of the Act may then have inserted the sentence referred to out of an abundance of caution.
15. This demonstrates that the reason the particular sentence is in the letter is left entirely speculative by the evidence. I am not prepared to draw any inference that its inclusion means the respondents had the making of the claim in mind as one of the reasons for the termination of the applicant's employment.
16. The applicant accepts that during his employment he made no statement that he was going to make any claim, or complaint against the first respondent in respect of the unpaid overtime. This is not how the second respondent perceived the situation, as I shortly discuss. As indicated above, I prefer the second respondent's evidence.
17. I accept that the applicant's employment with the first respondent was terminated because of the applicant's unacceptable behaviour in the workplace, not only on 10 July but also prior to and subsequent to that date. I find that the respondents have discharged their onus of proving that the applicant's employment was not terminated because of his temporary absence from work, the making of the Workcover claim, or any actual or perceived physical disability suffered by the applicant.
18. The applicant submitted that even if the respondents' evidence about what occurred on 10 July was accepted, it did not justify the termination of the applicant's employment. However, that comes back to the point I made earlier in these reasons. The employer does not have to establish a fair or morally acceptable reason for termination. The employer only has to prove that the termination was not for a proscribed reason. I accept that the first respondent has discharged that onus. As North J said in Australasian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910 at [220] the existence of a cogent explanation for the conduct might be an indication that the prohibited reason did not so actuate the conduct. That is the present case.
19. The applicant's claim relying upon a contravention of s.659(2) of the Act therefore fails.
20. In his affidavit of 10 January 2007 the applicant says that after perusing all of the affidavit material he is of the view that his employment was terminated was because of his entitlement to the benefit of an industrial instrument pursuant to s.793(1)(i) of the Act. He doesn't say how. The Court was not further enlightened by the applicant's oral evidence.
21. It was submitted on behalf of the applicant that the claim in respect of s.793(1)(i), (j) and (k) of the Act was mainly based on admissions in the respondents' affidavit material.
22. The applicant referred to Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452 where at [126] Buchanan J described the respondents' task, in the light of s.809, is to displace the legislative presumption that it has acted for a reason which contravenes the s.793 of the Act.
23. In Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 at [109] it was stated by the members of the Full Court:
    • "Section 298V does not relieve the applicant in proceedings under Div 6 of Pt XA of the Act from proving on the balance of probabilities each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise: R v Hush; Ex parte Devanny [1932] HCA 64; (1932) 48 CLR 487 at 507."
24. Section 298V was a statutory predecessor to s.809 of the Act.
25. The applicant therefore has to establish the threshold facts for one or more of the proscribed reason in s.793(1) of the Act to be enlivened such that the evidential onus then passes to the respondents to rebut the statutory presumption that a proscribed reason was the reason for termination.
26. It is accepted by the respondents that the applicant was entitled to the benefit of an industrial instrument, namely the Award that applied to his employment. Section 793(1)(i) is therefore enlivened.
27. The applicant subsequently brought proceedings against the first respondent in the Queensland Industrial Magistrates Court. He did so, in part in reliance on an award that he maintained covered his employment.
28. I find that the applicant made no explicit reference to any intention to bring proceedings, or rely on any industrial instrument, prior to the termination of his proceedings. The applicant gave evidence that he assumed, whilst he was employed, that he was being paid under the correct award, and says that he never told the respondents that he was going to sue them or make a complaint against them (T59).
29. The applicant submits that the respondents perceived that the applicant had made a threat to bring a claim for unpaid overtime, as referred to in s.793(2) of the Act. However, the subsection does not seem to me to apply in the case of an employee threatening to bring a claim for unpaid overtime. Rather that sort of behaviour would fall within s.793(1)(j) of the Act, if the employer was put on notice, or believed from what had happened, that such a claim would be made, or was proposed to be made.
30. The statements made by the applicant on 14 July when he picked up the envelope containing his letter of termination were made after the decision had been made to terminate his employment and can therefore be put to one side for the consideration of whether the employer has discharged its onus.
31. The applicant did make some comments during the verbal altercation on 10 July that could have been perceived as threats, such as "You'll find out what's coming".
32. Perhaps the best evidence, so far as the applicant is concerned, is the second respondent's evidence of the state of the working environment during the week leading up to his dismissal, at paragraph 17 of his affidavit that: "Even at this stage, the Applicant was threatening me with making a claim for something work related. The applicant also told me in no uncertain terms that he wanted to get what he was entitled to. I took this as a threat."
33. In my view, this is sufficient to enliven s.793(1)(i) (j), (k) and (l) of the Act. The second respondent was aware that the applicant may bring proceedings relying on his entitlement to overtime.
34. This is sufficient to invoke the presumption in s.809 of the Act: Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463.
35. Whether the conduct of the employer has been actuated by a prohibited reason or reasons that include a prohibited reason is a question of fact: Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34 at [295]
36. Given my conclusions as to the reason why the applicant's employment was terminated, I am satisfied that the respondents have proved that the reasons for such termination were not those specified in s.793(1)((i), (j), (k) or (l), being the subsections relied upon by the applicant.
37. The claim for a contravention of s.793(1) of the Act must also fail.
38. Section 661 of the Act provides:
    • (1) Subject to subsection (8), an employer must not terminate an employee's employment unless:
      • (a) the employee has been given the required period of notice (see subsections (2) and (3)); or
      • (b) the employee has been paid the required amount of compensation instead of notice (see subsections (4) and (5)); or
      • (c) the employee is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue the employment of the employee concerned during the required period of notice (see subsection (7)).
    • (2) The required period of notice is to be worked out as follows:
      • (a) first work out the period of notice using the table at the end of this subsection; and
      • (b) then increase the period of notice by 1 week if the employee:
        • (i) is over 45 years old; and
        • (ii) has completed at least 2 years of continuous service with the employer.

Employee's period of continuous service with the employer

(3) For the purposes of subsection (2), the regulations may prescribe events or other matters that must be disregarded, or must in prescribed circumstances be disregarded, in ascertaining a period of continuous service.

(4) The required amount of compensation instead of notice must equal or exceed the total of all amounts that, if the employee's employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee because of the employment continuing during that period.

(5) That total must be worked out on the basis of:

• (a) the employee's ordinary hours of work (even if they are not standard hours); and

• (b) the amounts ordinarily payable to the employee in respect of those hours, including (for example) allowances, loading and penalties; and

• (c) any other amounts payable under the employee's contract of employment.

(6) The regulations may make provision for or in relation to amounts that are taken to be payable under a contract of employment for the purposes of paragraph (5)(c) in relation to an employee whose remuneration before the termination was determined wholly or partly on the basis of commission or piece rates.

(7) Without limiting the generality of the reference to serious misconduct in paragraph (1)(c), the regulations may identify:

• (a) particular conduct; or

• (b) conduct in particular circumstances;

that falls within that reference.

(8) The regulations may exclude from the operation of this section terminations of employment occurring in specified circumstances that relate to the succession, assignment or transmission of the business of the employer concerned.

1. The first respondent gave the applicant four weeks' wages in lieu of notice. It was not contended by the applicant in his final submissions that this did not comply with the Act. I accept that this was reasonable notice.
2. The applicant's case for a breach of s.661 at the end of the day came down to the assertion that the first respondent was required to, and did not, pay the employer's superannuation contribution on the payment in lieu of notice; an amount said to be $243.51.
3. It was said on behalf of the respondents that this allegation was not raised until final submissions, and that they should, in those circumstances, be permitted to adduce further evidence as to the first respondent's liability to pay the contributions.
4. In my view, that further evidence is unnecessary.
5. At paragraph 16 of his first affidavit, the applicant stated that on the termination of his employment he was paid four weeks' wages in lieu of notice together with his other 'statutory entitlement' (by which I presume he refers to matters such as unpaid recreational leave, long service leave and the like). The applicant says he was not paid the superannuation contributions on the payment in lieu of notice. That statement carried with it the assumption that such payment was required to be made. There was nothing further in the applicant's affidavit evidence to prove that assumption.
6. Although paragraph 2 of the amended application lacked any particularity I accept that the statement to which I have referred in his affidavit sufficiently identifies the non-payment of superannuation contributions related to the period of notice as being the alleged contravention of s.661(4) of the Act.
7. However, that is as far as the applicant's evidence goes. The applicant would not himself have been paid any superannuation contributions. They would have been remitted to his superannuation fund. The applicant adduced no evidence of the identity of the trustee of the fund, nor that payment had not been made to the fund. The applicant did not refer the Court to any statutory provisions dealing with obligation of the first respondent to make any superannuation contributions where there has been a payment in lieu of statutory notice.
8. At paragraph 16 of his affidavit filed 13 September 2006 (where first appearing) the second respondent stated:
   • "As to the superannuation aspect, I have received by [sic] legal and accounting advice in this regard. It has been brought to my attention that there is a taxation ruling regarding the payment of superannuation entitlements when there is a payment in lieu of notice. I acknowledge that the sum of $243.51 was outstanding in this regard. Payment has now BEEN MADE?"
9. At paragraph 44 of the same affidavit the second respondent states:
   • "We paid the superannuation which was due to the date of termination of employment. I accept that there may be $243.51 outstanding for superannuation which would accrue for the period in lieu of notice however I was unsure as to how to proceed because of a taxation ruling
10. The second respondent was not asked about this in cross examination. His evidence was therefore left equivocal as to whether the payment had been made or not.
11. The applicant bears the onus of proving that:
    1. Superannuation contributions were required to be made by the first respondent on his behalf for the period in lieu of notice; and
    2. Such superannuation contributions were not paid.
12. In my view, although the applicant has arguably discharged his onus of proof in respect of the first of these matters, by reason of the second respondent's affidavit evidence, he has not discharged the second, in that he has not proved that the payments have still not been made.
13. The applicant argues that if the payment was not made at the time of termination, which appears to be conceded by the respondents, that constitutes a contravention of s.661(4) of the Act. Reliance was placed on Furey v Civil Service Association of WA (Inc) [1999] FCA 1492; (1991) 91 FCR 407.
14. Therefore, the Court is left in the position where a contravention of s.661 of the Act has been established, but there is no evidence to show that the payment required to be made has not in fact been made subsequently. The remedy open to the Court under s.665(7) of the Act is discretionary. The only available remedy is for the payment of damages. Those damages are incapable of assessment because of deficiencies in the applicant's evidence.
15. The claim relating to the contravention of s.661 therefore also fails.
16. In the associated jurisdiction of this Court, the applicant also seeks damages for breach of the contract of employment. That is against the background that the applicant secured employment two weeks after the termination of his employment with the first respondent, at a greater remuneration, but based in Rockhampton rather than Bundaberg.
17. The applicant adduced no evidence that would enable the Court to assess damages suffered by the applicant.
18. The applicant was provided with reasonable notice of the termination of his employment. Four weeks' notice was, both under the Award and the contract, as well as the Act, appropriate. Having regard to the applicant's position I consider four weeks notice more than reasonable.
19. It is submitted by the applicant that the first respondent breached the following implied terms of the contract of employment:

1. That the first respondent would not terminate the applicant's employment without due cause for doing so; 2. That the first respondent would not without reasonable cause conduct itself in a manner likely to damage and destroy the relationship confidence and trust between parties as employer and employee;

1. That the first respondent would act towards the applicant in good faith;

1. That the first respondent would exercise its power in relation to the applicant fairly; 2. That the first respondent would not exercise its powers to the detriment of the applicant on the basis of misleading, incorrect or prejudicial information.
2. I accept that an implied term of good faith in a contract of employment has been accepted by Australian courts. This picks up the second term sought to be implied by the applicant (see, for example Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104).
3. In my view the terms otherwise sought to be implied in the contract by the applicant do not meet the tests laid down in cases such as BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 and Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 at 347. They are not necessary to give business efficacy to the contract of employment, nor are they so obvious that they go without saying.
4. In my view the first respondent was entitled to terminate the applicant's employment upon giving him reasonable notice. It did so.
5. The first respondent had good cause to terminate the applicant's employment. The applicant disobeyed directions of both the second and third respondents. The applicant submitted a false overtime claim. The applicant did not behave in a responsible or respectful way towards his employer's directors.
6. The claim for damages for breach of contract must be dismissed.
7. I did not understand the applicant to press a claim for damages for breach of the Disability Discrimination Act. Such a claim is not maintainable in the present proceedings: s.674 of the WR Act; s.46P Disability Discrimination Act.
8. Finally, I am required to deal with the issue of costs.
9. Section 666 of the Act provides:
   • (1) Subject to this section, a party to a proceeding under section 663 must not be ordered to pay costs incurred by any other party to the proceeding unless the court hearing the matter is satisfied that the first-mentioned party:
     • (a) instituted the proceeding vexatiously or without reasonable cause; or
     • (b) caused the costs to be incurred by that other party because of an unreasonable act or omission of the first-mentioned party in connection with the conduct of the proceeding.
   • (2) Subsection (1) does not empower a court to award costs in circumstances specified in that subsection if the court does not have the power to do so.
   • (3) In this section:
     • costs includes all legal and professional costs and disbursements and expenses of witnesses.
10. Section 824 of the Act provides:
    • (1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.
    • (2) Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first-mentioned party to pay some or all of those costs.
    • (3) In subsections (1) and (2):
      • costs includes all legal and professional costs and disbursements and expenses of witnesses.
11. In Kanan v Australian Postal & Telecommunications Union [1992] FCA 539; (1992) 43 IR 257 at 264-5 Wilcox J said:
    • "It seems to me that one way of testing whether a proceeding is instituted "without reasonable cause" is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause."
12. In Re Ross; ex parte Crozier [2001] FCA 1665 at [11] the Full Federal Court stated that, given the terms of the statutory predecessor to s.666, an applicant will only rarely be ordered to pay the costs of a proceeding in exceptional circumstances.
13. Most recently, in Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143 the Full Federal Court had occasion to consider what was meant by the phrase "unreasonable act or omission" in s.824 of the Act, but which also appears in s.666(1)(b) of the Act. Their Honours observed, at [29] that there is a distinction between a party who pursues arguments which are ultimately abandoned or rejected by the Court and a party who commences a proceeding which is misconceived in the sense of being incompetent or unsupportable.
14. I reject the submission that the applicant's claim was made vexatiously or without reasonable cause. I agree that the application and amended application lacked particularity in a number of respects. However, at the end of the day the determination of the claim devolved to whether the court accepted the respondents' evidence regarding the reason for the termination of the applicant's employment. I have accepted that at least one subsection in s.659(2)(a) was enlivened. As much was conceded by the respondents. I have found that a number of subsections of s.793(1) were enlivened. In those circumstances, the respondents bore the evidential onus of persuading the Court that the applicant's employment was not terminated for a proscribed reason. The respondents' evidence may have been accepted or it may have been rejected. The applicant could not reasonably predict the outcome of contests as to credibility.
15. At the time the proceedings were commenced the applicant was faced with a coincidence of events: his absence from work due to back pain, his making of a Workcover claim that had been addressed by the first respondent, his claim for overtime being rejected, the workplace confrontation on 10 July following which the second respondent asked him if he was able to keep working and the subsequent dismissal on 14 July. Against that background, it was not unreasonable to commence the proceedings. Bearing in mind the credibility contests involved, and the respondents' bearing of the onus of proof, it was not unreasonable to persist in the proceedings.
16. The respondents submit that the applicant's reliance on ss.659(2)(e) and (f) was misconceived. I do not agree. Simply because an argument is rejected does not mean it should not have been advanced. In any event, I do not agree that additional cost was incurred by the respondents because of the inclusion of grounds relying on those two subsections. The respondents still bore the onus of proving that the applicant's employment was not terminated for a proscribed reason.
17. For similar reasons I reject the argument that the applicant's conduct unreasonably prolonged the hearing. The same witnesses would have been required for the respondents to discharge their onus of proof. The applicant was entitled to test the respondents' evidence.
18. It is submitted that the applicant's refusal to list the matter for two consecutive days led to the incurring of costs. The fact that the second and third respondent had to fly to Brisbane twice is pointed to. However, there may have been costs savings. Overnight accommodation for the second and third respondents was not required. The witnesses McMurtrie and Kitchen were not required to fly to Brisbane.
19. I accept that the hearing was never likely to finish in one day. However, to be entitled to costs, the respondents must persuade me that refusing to agree to a listing for two days initially or to adjourn the matter on the first day of hearing so that two consecutive days could be allocated was unreasonable. They have not discharged that burden. Many factors go into a decision whether or not to insist that a hearing proceeds even if it is not likely to finish on the day allocated by the Court.
20. The applicant's common law proceedings for breach of contract are not caught by the two statutory provisions to which I have referred. Ordinarily, the winning party would be entitled to its costs of those proceedings. However, I am of the view that the inclusion of those proceedings did not add to the costs that the parties would have otherwise incurred. Against the background of ss.666 and 824 I decline to make any order as to costs of the common law proceedings.
21. For the reasons that I have given, the amended application must be dismissed. The orders will be as set out at the commencement of these reasons.

I certify that the preceding one hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of Wilson FM