Lamont v University of Queensland

ion v Coal and Allied Operations Pty Ltd (1999) 140 IR 131; [1999] FCA 1531 Dafallah v Fair Work Commission (2014) 225 FCR 559 Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263; [2011] FCA 803 Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 Ferrcom Pty Ltd v Commercial Union Assurance Company of Australia Ltd (1993) 176 CLR 332 Finance Sector Union of Australia v Australian & New Zealand Banking Group Ltd (2002) 120 FCR 107 Foggo v O'Sullivan Partners (Advisory) Pty Ltd (2011) 206 IR 87; [2011] NSWSC 501 Gibbs v The Palmerston Town Council [1987] FCA 732 Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62 Gray v Sirtex Medical Ltd (2011) 276 ALR 267; [2011] FCAFC 40 Hammond v Department of Health (1983) 6 IR 371 Health Services Union of Australia v Tasmania (1996) 73 IR 140 Jones v Dunkel (1959) 101 CLR 298 Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 Major v State of South Australia (1999) 140 IR 29; [1999] FCA 1684 Maritime Union of Australia v Fair Work Ombudsman (2016) 247 FCR 154 National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139; (2013) FCA 451 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 Regulski v State of Victoria [2015] FCA 206 Riverwood International Pty Ltd v McCormick (2000) 177 ALR 193; [2000] FCA 889 Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403 Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; [2014] FCA 271 Squires v Flight Stewards Association of Australia (1982) 2 IR 155 State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441; [2014] FCAFC 184 Stefanovski v Digital Central Australia (Assets) Pty Ltd (2018) 368 ALR 607; [2018] FCAFC 31 Tame v New South Wales (2002) 211 CLR 317 Tattsbet Ltd v Morrow (2015) 233 FCR 46 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466; [2003] FCA 480 Yorke v Lucas (1985) 158 CLR 661 Yousif v Commonwealth Bank of Australia (2010) 193 IR 212; [2010] FCAFC 8

Date of hearing: 11-21 March, 25 and 26 July 2019

Date of last submissions: 10 October 2019 (Applicant)

National Practice Area: Employment & Industrial Relations

Solicitor for the Applicant: Susan Moriarty and Associates

Counsel for the Respondents: Mr CJ Murdoch QC with Mr E Shorten

AND: UNIVERSITY OF QUEENSLAND First Respondent

RICHARD FOTHERINGHAM (and others named in the Schedule) Third Respondent

JUDGE: RANGIAH J DATE OF ORDER: 28 MAY 2020

1. The first respondent pay the applicant $15,000 by way of compensation for loss arising from the first respondent's contraventions of s 340(1) of the Fair Work Act 2009 (Cth).
2. The applicant file and serve submissions (not exceeding 15 pages) and any affidavits on the questions of penalties, costs and any other relief by 4.30 pm on 15 June 2020.
3. The respondents file and serve submissions (not exceeding 15 pages) and any affidavits on the questions of penalties, costs and any other relief by 4.30 pm on 29 June 2020.
4. The applicant file and serve submissions (not exceeding five pages) and any affidavits in reply by 4.30 pm on 2 July 2020.
5. The hearing of the questions of penalties, costs and any other relief be listed for 8 July 2020 at 10.15 am. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT THE PARTIES AND THE WITNESSES [9] ASSESSMENT OF THE WITNESSES [37] THE LEGISLATION [44] THE PRINCIPLES [52] Section 340(1) of the FWA [52] Workplace rights [54] Adverse action taken against another person [58] Because the person has exercised a workplace right [79] Multiple decision-makers [87] Section 550 of the FWA [92] Section 140 of the Evidence Act 1995 (Cth) [94] The allegations of Adverse Action [96] Preliminary [96] The workplace rights alleged [101] Existence of workplace rights [103] Exercise of workplace rights [111] Witnesses who were not called [135] The first allegation [141] The evidence [142] Consideration [159] The second and third allegations [178] The evidence [181] Consideration [203] The fourth allegation [218] The fifth allegation [238] The seventh allegation [253] The ninth allegation [260] The evidence [264] Consideration [293] The tenth allegation [301] The thirteenth allegation [318] The fifteenth allegation [336] Telephone usage [337] Conference leave [342] Workload Assessment Policy [354] The twenty-second and twenty-third allegations [356] The evidence [358] Consideration [386] The twenty-fourth allegation [410] The twenty-fifth allegation [418] The twenty-sixth allegation [432] The twenty-seventh allegation [454] The thirty-first allegation [473] The evidence [475] Consideration [481] The thirty-second allegation [500] The thirty-fourth allegation [518] The evidence [521] Consideration [542] The thirty-fifth allegation [554] The thirty-seventh allegation [569] The thirty-eighth allegation [595] The thirty-ninth and forty-first allegations [622] ALLEGATIONS OF BREACH OF ENTERPRISE AGREEMENTS [652] The 2006 Enterprise Agreement [653] Clause 17 [653] Clause 19 [656] Clause 26 [660] The 2010 Enterprise Agreement [663] Clause 44 [663] Clause 62 [667] Clause 63 [671] The 2014 Enterprise Agreement [675] Clause 60 [675] Clause 61 [681] ALLEGATIONS OF BREACHES OF CONTRACT [686] Safe system of work [689] Implied duty of cooperation [696] The policies as implied terms [699] RELIEF [706] Compensation under s 545 of the FWA [710] Damages for breach of contract [741] SUMMARY [743]

RANGIAH J: 1 The applicant, Dr Julian Lamont, is employed as a lecturer by the first respondent, University of Queensland (the University). In this proceeding, Dr Lamont alleges that the University: contravened s 340(1) of the Fair Work Act 2009 (Cth) (the FWA) by taking adverse action against him because he exercised workplace rights; contravened s 50 of the FWA by failing to comply with relevant enterprise agreements; breached the contract of employment. 2 Dr Lamont alleges that the second respondent, Professor Clive Moore, the third respondent, Professor Richard Fotheringham, the fourth respondent, Associate Professor Martin Crotty, and the fifth respondent, Professor Peter Høj, were accessories to the University's contraventions of the FWA. 3 Dr Lamont made an initial complaint of harassment against Prof Moore in 2010. He subsequently made a cascading series of complaints of victimisation and misconduct against other employees of the University arising from their dealings with his complaints. Dr Lamont's allegations are principally to the effect that the respondents engaged in adverse action against him because of the various complaints he made. The respondents deny each of the allegations. 4 The material before the Court reveals a multitude of disputes between Dr Lamont and the respondents ranging well beyond those that are pleaded. It must be emphasised that it is not the function of the Court to resolve all of these disputes, but only those raised for consideration on the pleadings. 5 I do not propose to list the allegations made in the pleadings, nor to describe the evidence of the witnesses in narrative form. That is because of the sheer number of allegations made and the scale of the evidence. There are over 6,000 pages of affidavit material, and over 8,000 pages of documents in total. The applicant's written submissions alone exceed 500 pages, while those of the respondents exceed 300 pages. Many of the affidavits are prolix and replete with barely relevant, repetitive or superfluous material. There were many communications between the protagonists by email, and many of these were verbose and turgid, containing numerous acronyms and phrases decipherable only by academics. In particular, Dr Lamont's emails tended to flow in a stream of consciousness that makes them difficult to read and understand. 6 The parties, particularly the applicant, have made what should have been a fairly straightforward case into one of almost labyrinthine complexity. To illustrate the point, after nine days of evidence, there were two days of closing oral addresses, almost all of which was spent trying to understand the complex structures of the written submissions, while the parties barely touched upon the particular allegations made and the evidence led. I recognise that the respondents were required to respond to the voluminous material filed by the applicant, but even so, the material filed by both parties was excessive. 7 In these circumstances, I propose to limit my description of the evidence to that which I consider is directly relevant to the allegations, and to do so as succinctly as I can. 8 I will proceed by: briefly describing the roles of the parties and the witnesses; summarising my assessment of their evidence; setting out the relevant provisions of the FWA and the case law interpreting those provisions; considering the allegations of contraventions of s 340(1) of the FWA; considering the allegations of breach of s 50 of the FWA; considering the allegations of breach of contract; considering the question of relief.

THE PARTIES AND THE WITNESSES 9 Dr Lamont has been employed as a lecturer in philosophy by the University since 1998. His allegations concern events occurring between April 2010 and January 2016. 10 Dr Lamont is employed in the School of Historical and Philosophical Inquiry, which was previously known as the School of History, Philosophy, Religion and Classics (the School). 11 The School was created in 2001 when four previously separate departments were amalgamated. There appears to have been some residual tension between academics from the various disciplines, particularly those who had come from the philosophy department (such as Dr Lamont) and those who had come from the history department (such as Prof Moore). 12 The first Head of School was Professor Phillip Almond from 2001 to 2005. Prof Almond was succeeded by Associate Professor Richard Hutch from 2005 to 2008. 13 Prof Moore was appointed as Head of School on 1 September 2008, and remained in that position until his retirement on 30 June 2013. 14 A central event was that, on 12 April 2010, Dr Lamont made a complaint that Prof Moore had been harassing him over a period of six months. In his letter of complaint he also made certain allegations about the conduct of Prof Almond and Associate Prof Hutch. Prof Moore disclosed the complaint, in breach of the confidentiality requirement of the relevant policy, to Prof Almond and Associate Prof Hutch. That set off a chain of further complaints by Dr Lamont. 15 Prof Fotheringham was the Executive Dean of the Faculty of Arts from 2005 to 24 December 2010. Prof Moore reported to Prof Fotheringham. Prof Fotheringham's management of the complaint against Prof Moore led to Dr Lamont making a complaint of victimisation and bullying against Prof Fotheringham on 3 December 2010. 16 Associate Prof Crotty commenced in the role of Head of School on 1 July 2013, replacing Prof Moore. He remained in that position until 30 June 2017. In that role, Associate Prof Crotty was designated as Dr Lamont's supervisor. The allegations against Associate Prof Crotty principally concern the conduct of Dr Lamont's annual performance reviews in 2014 and 2015 and disciplinary action taken against Dr Lamont in 2016. 17 Prof Høj has been the Vice-Chancellor and President of the University since October 2012. In that capacity, he is the Chief Executive Officer of the University and an official member of the University Senate, which is the University's governing body. Prof Høj is alleged to have failed to properly manage certain complaints made by Dr Lamont and to have labelled him as "paranoid". 18 Dr Lamont gave evidence and called Mr Phillip Procopis, Professor Kay Saunders, Dr Dominic Hyde, Associate Professor William Grey, Mr Roger Byrom, Professor Deborah Brown, Dr Aurelia Armstrong and Professor Warwick Middleton to give evidence. 19 Mr Procopis was employed by the University as its Director, Assurance and Risk Management Services (or in some similar position), from 1993 to 2 July 2012. In that capacity, he was the University's chief internal auditor and investigator of fraud, corruption and public interest disclosure matters. 20 Prof Saunders was a professor of history at the University from 2003 to 2005 and was a member of the University Senate. 21 Dr Hyde was a senior lecturer within the School. Dr Hyde worked closely with Dr Lamont in teaching a philosophy course within the Science Faculty. 22 Associate Prof Grey was the Acting Deputy Head of School until his retirement in 2012. 23 Mr Byrom was asked by the University to investigate and report on Dr Lamont's complaints made in December 2010 against Prof Moore and Prof Fotheringham. In June 2011, he prepared a report which made findings of misconduct against Prof Moore and Prof Fotheringham. The University declined to provide a copy of the report to Dr Lamont or to utilise it in the resolution of his complaints. 24 Prof Brown became the Deputy Head of School after Associate Prof Grey. She replaced Prof Moore as Dr Lamont's supervisor. Although her title varied over the years, it is convenient to refer to her as Prof Brown throughout these reasons. 25 Dr Armstrong is an academic staff member in the School. 26 Prof Middleton is a psychiatrist who gave evidence about his diagnosis of Dr Lamont's psychiatric condition and the causes of that condition. 27 The individual respondents gave evidence, and also called the following witnesses. 28 Professor Peter Cryle, Professor Frederick D'Agostino and Professor Thomas O'Regan were the members of a Committee that recommended against approval of Dr Lamont's Special Studies Program (SSP) application in July 2010. 29 Professor Robert Elson was a professor of history at the School. Prof Elson carried out Dr Lamont's performance appraisal in 2010. 30 Ms Shard Lorenzo was the University's Director of Human Resources from 2008 until May 2012. Ms Lorenzo was involved in administering and attempting to resolve Dr Lamont's complaints against Prof Moore and Prof Fotheringham. 31 Professor Michael Keniger was the Senior Deputy Vice-Chancellor from 2009 to 2011. He worked with Ms Lorenzo in dealing with Dr Lamont's complaints against Prof Moore and Prof Fotheringham. He made the decision to not make use of Mr Byrom's report in the grievance process. Dr Lamont made a complaint about Prof Keniger's conduct in late 2011. 32 Mr Maurice McNarn was the Executive Director of Operations at the University between at least 2011 and 2016. Mr McNarn managed Dr Lamont's complaint about Prof Keniger until Dr Lamont withdrew the complaint. 33 Mr John Story was the Chancellor of the University from 2009 to 2016. In 2011, Dr Lamont asked Mr Story to undertake an independent investigation of his case, but Mr Story refused to do so. 34 Professor Philip Dowe was the Deputy Head of School until 2015 and made decisions in 2012 concerning Dr Lamont's workload. Dr Lamont complained that he had been harassed by the making of these decisions. 35 Professor Deborah Terry was the Acting Vice-Chancellor from December 2011 to October 2012 and then the Senior Deputy Vice-Chancellor until she left the University in January 2014. She dealt with a complaint made by Dr Lamont in 2012 and also responded to his correspondence with Prof Høj. 36 Professor Timothy Dunne became Executive Dean of the Faculty of Humanities and Social Sciences. In 2014, he dealt with concerns raised by Dr Lamont about Associate Prof Crotty and also threatened disciplinary proceedings against Dr Lamont if he failed to delete references to his grievances from his performance appraisal documentation.

ASSESSMENT OF THE WITNESSES 37 My impression is that many of the issues arose from the confluence of three difficult personalities. 38 Dr Lamont's evidence revealed dissatisfaction with many aspects of the way he was treated by the University and its staff, particularly Prof Moore and Prof Fotheringham. His tendency was to assume that any decision or proposal that did not give him exactly what he wanted revealed bias or an intention to victimise him, even when that could not be supported on any reasonable view of the circumstances. He lacked insight into flaws in his own conduct. In particular, he appeared not to understand the seriousness and unfairness of his implication that Prof Moore had engaged in conduct that had contributed to the suicide of another staff member (I will refer to that staff member as Dr XY). Further, he lacked insight into the difficulties that his conduct caused for many of the University's staff in the performance of their duties. 39 I consider that Dr Lamont does have some justified concerns about his treatment by Prof Moore, Prof Fotheringham and Prof Keniger. However, his perception that he was treated badly and victimised at every step is not justified, and his subjective view of particular events and the reasons for them is often unreliable. 40 I am satisfied from the evidence of witnesses including Prof Saunders, Associate Prof Grey, Dr Hyde, Prof Brown and Dr Armstrong that Prof Moore was a belligerent and abrasive character, with a dictatorial leadership style. That is also apparent from some of Prof Moore's own emails. As with Dr Lamont, he lacked insight into flaws in his own conduct, particularly his breach of the confidentiality of Dr Lamont's complaint against him, and he tended to play down his role in the events that unfolded. Prof Moore clearly developed resentment and animosity towards Dr Lamont (these feelings were mutual). Despite these matters, I consider that much of his evidence was supported by contemporary documents or other evidence and that his evidence was generally reliable. However, I do not accept his evidence as to his reasons for breaching the confidentiality of Dr Lamont's complaint. 41 Prof Fotheringham's initial role was to attempt to resolve the dispute between Dr Lamont and Prof Moore. When Dr Lamont started making demands and criticisms of Prof Fotheringham, he seemed to resent the challenge to his authority. Prof Fotheringham made an unwarranted threat against Dr Lamont which exacerbated an already difficult situation. I consider that Prof Fotheringham's evidence was generally reliable. However, as I will discuss, I reject his evidence about his motivation for making his threat. 42 Ms Lorenzo had the unenviable task of mediating between Dr Lamont, Prof Moore and Prof Fotheringham. I find that she was a reliable witness, except in respect of her evidence about why she recommended that Prof Keniger not utilise the report prepared by Mr Byrom. I have also found Prof Keniger's evidence upon that issue unreliable. 43 I am satisfied that the evidence of the other respondents and their witnesses was generally reliable. I should add that while a number of Dr Lamont's allegations seemed to be based upon the misconception that decisions he disagreed with were always made because of some bias or enmity against him, by and large, the relevant University officers performed their duties dispassionately and professionally and, in some instances, went out of their way to assist him.

THE LEGISLATION 44 Part 3-1 of Ch 3 of the FWA is entitled "General protections". Division 3 of Pt 3-1 is entitled "Workplace rights". 45 Section 340 is within Div 3 and provides, relevantly: (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. Note: This subsection is a civil remedy provision (see Part 4-1). … 46 Section 341 of the FWA defines "workplace right" as follows: Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee - in relation to his or her employment. Meaning of process or proceedings under a workplace law or workplace instrument (2) Each of the following is a process or proceedings under a workplace law or workplace instrument: … (k) any other process or proceedings under a workplace law or workplace instrument. … 47 Section 342(1) of the FWA sets out a table that describes when a person takes "adverse action against another person". Under Item 1, adverse action is taken by an employer against an employee if the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer. 48 Section 360 of the FWA provides: 360 Multiple reasons for action For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. 49 Section 361 of the FWA provides, relevantly: 361 Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. 50 Section 550 of the FWA provides: 550 Involvement in contravention treated in same way as actual contravention (1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. … (2) A person is involved in a contravention of a civil remedy provision if, and only if, the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or (d) has conspired with others to effect the contravention. 51 Section 793 of the FWA provides, relevantly: 793 Liability of bodies corporate Conduct of a body corporate (1) Any conduct engaged in on behalf of a body corporate: (a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or … is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body. State of mind of a body corporate (2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show: (a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and (b) that the person had that state of mind.

Section 340(1) of the FWA 52 Under s 340(1) of the FWA, a person must not take adverse action against another person because the other person, relevantly, exercised a workplace right. The applicant bears the onus of proving that: (1) the conduct alleged by the applicant occurred; (2) that conduct constitutes "adverse action taken against another person" for the purposes of s 342(1); (3) the right alleged was a "workplace right"; and (4) the applicant exercised (or had not exercised), or proposed to exercise (or proposed not to exercise), the "workplace right". (See Tattsbet Ltd v Morrow (2015) 233 FCR 46 at [119]; Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at [76].) 53 If s 361 of the FWA is engaged, the onus is on the respondent to prove that the adverse action was not taken because the applicant exercised (or did not exercise), or proposed to exercise (or proposed not to exercise), the workplace right.

Workplace rights 54 Dr Lamont pleads that he exercised "workplace rights" within the meaning of that expression in s 341(1) of the FWA. 55 The workplace rights alleged by Dr Lamont include his right to make complaints within s 341(1)(c) under various enterprise agreements and policies. In Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; [2014] FCA 271, Dodds-Streeton J said at [29], in relation to a "complaint": (a) a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation; (b) the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant; (c) the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose; (d) the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii); (e) a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer; (f) a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and (g) a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation. 56 Justice Dodds-Streeton added at [625], in a passage approved in Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 285 IR 290; [2019] FCAFC 16 at [28] and PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 at [12]: In my opinion, the requirement that the complaint be one that the employee "is able to make" in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation. 57 Dr Lamont also relies on certain clauses of enterprise agreements as providing "workplace rights" on the basis that they confer a "benefit" under a workplace instrument within s 341(1)(a) of the FWA. The Macquarie Dictionary defines "benefit" to include, "anything that is for the good of a person". There is no reason, in my opinion, to read down the width of the expression.

Adverse action taken against another person 58 Under s 342(1) of the FWA, taking "adverse action against another person", relevantly, consists of an employer: (a) dismissing the employee; (b) injuring the employee in his or her employment; (c) altering the position of the employee to the employee's prejudice; or (d) discriminating between the employee and other employees of the employer. 59 The Further Amended Statement of Claim (FASOC) alleges only that the adverse action injured Dr Lamont in his employment. Unusually, it does not also plead that Dr Lamont's position was altered to his prejudice. That has led to considerable argument about the width of the phrase, "injures the employee in his or her employment". 60 The respondents submit that the phrase is narrower than, "alters the position of the employee to the employee's prejudice", relying on Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 18. They submit that what is required is that the employee be in a worse position in his or her employment after the action than before it. They submit that it involves deprivation of one of the more practical incidents of employment or the singling out and substantially different treatment of an employee: see Childs v Metropolitan Transport Trust (1981) IAS Current Review 946 at 948; Health Services Union of Australia v Tasmania (1996) 73 IR 140 at 145. They submit that it does not encompass mere embarrassment or upset on the part of an employee, or a denial of natural justice, or a breach of the contract of employment itself. 61 The applicant submits that the approach in Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at 164 requires that the words "injures the employee in his or her employment" extend to any circumstances where an employee is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen as injurious or prejudicial. 62 In Patrick Stevedores, the High Court considered s 298K(1) of the Workplace Relations Act 1996 (Cth) (the WR Act), a provision in very similar terms to Item 1 of the table in s 342(1) of the FWA. The majority held at 18: Paragraph (a) covers termination of employment; par (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. 63 The respondents submit that the majority construed the phrase, "injures the employee in his or her employment" narrowly, deciding that it only covers compensable injury. The respondents contrast this with the majority's construction of "alters the position of the employee to the employee's prejudice" as a "broad additional category". That interpretation is arguable, but is answered by the opinion expressed by the Full Court in Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 at [139] that the majority in Patrick Stevedores implicitly approved the approach adopted in Squires. 64 In Squires, Ellicott J considered the words "injure in his employment" at 164: The words 'injure in his employment' are in the context of s.5 words of wide import. I do not regard them as referring only to financial injury or injury involving the deprivation of rights which the employee has under a contract of service. They are, in my view, applicable to any circumstance where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial. 65 The phrase "injures the employee in his or her employment" in Item 1 of s 342(1) of the FWA is not relevantly distinguishable. Therefore, the narrow construction contended for by the respondents must be rejected. However, there are limitations inherent within the phrase. The employer must "injure" an employee. The injury must be to the employee "in his or her employment". 66 The Macquarie Dictionary defines "injure" as: 1. to do or cause harm of any kind to; damage; hurt; impair... 2. to do wrong or injustice to. The authorities seem to have regarded s 342(1) (and its equivalent under s 298K(1)(b) of the WR Act) as taking the first of these meanings, not the second. They have focussed upon whether there is some practical detriment or harm to the employee in his or her employment, and mere unfairness or injustice has not been regarded as enough. That was, for example, the approach in Squires at 164 which required that the treatment must be injurious or prejudicial. In Major v State of South Australia (1999) 140 IR 29; [1999] FCA 1684, where the employer refused an employee who had been seconded to a union a further period of unpaid leave as the employer was entitled to do, Marshall J held that the employee was not injured. In Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 (Jones v QTAC), Collier J held at [121]-[122] that a failure by an employer to accord natural justice is not of itself an injury in employment. 67 That approach is, in my respectful opinion, correct. Under Item 1(b) of s 342(1), what is required is that the employer injures the employee. The provision contemplates that the employer takes an action which has a consequence, namely injuring an employee. It is the consequence of the action, not the action itself, which is the injury. Therefore, it is not enough that an action by an employer is itself wrong or unjust - it must cause some kind of material harm or detriment to the employee. 68 The question of whether an omission is an "action" within s 342(1) can be left aside for present purposes. While, in a number of instances, Dr Lamont pleaded injury caused by omissions, the respondents did not argue that s 342(1) requires only actions and not omissions. That may have been for the practical reason that the allegations might have simply been recast as actions. 69 In the present case, a question arises as to whether an employee is injured by being given a formal warning following a disciplinary process. In Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93, the Full Court considered the phrase, "alters the position of an employee to the employee's prejudice" in s 298K(1)(c) of the WR Act (see now Item 1(c) of s 342(1) of the FWA). The Full Court held at [17]-[18] that the imposition of terms that reduce the security of employment may alter the position of an employee to the employee's prejudice, provided that the alteration is real and substantial, rather than merely possible or hypothetical. In Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131; [1999] FCA 1531, Branson J at [95] rejected a submission that a formal warning to an employee did not alter his position to his prejudice, finding the warning had made his position less secure: see also Finance Sector Union of Australia v Australian & New Zealand Banking Group Ltd (2002) 120 FCR 107, per Wilcox J. These cases demonstrate that a formal warning may cause a practical detriment to an employee. In my opinion, a practical detriment of that kind may also amount to injury to an employee. 70 There is also an issue in the present case as to whether distress, falling short of a psychiatric injury, can be an injury to an employee in his or her employment within Item 1(b) of s 342(1) of the FWA. One of the contexts in which the issue arises is whether a threat of disciplinary action causes, or can cause, injury. 71 As the Macquarie Dictionary definition demonstrates, the ordinary conception of "injure" is to cause harm of any kind, damage, hurt or impair. A recognisable psychiatric illness clearly comes within the conception of an injury under s 342(1). Subject to qualifications which I will come to, I do not think that psychological or emotional distress falling short of a recognisable psychiatric illness is necessarily excluded. A situation can readily be imagined where an employee is bullied and harassed by a supervisor to the point where the employee experiences great distress at work on a daily basis, but that distress does not rise as high as a psychiatric injury. In my opinion, distress falling short of a recognisable psychiatric illness may be regarded as an injury if it causes sufficient harm, damage, hurt or impairment to the employee's emotional state. 72 However, in the context of s 342(1), not all harm, damage, hurt or impairment to an employee's feelings can necessarily be regarded as an injury. In my opinion, the word "injury" implies that a minimal level of harm is insufficient. For example, I do not think that a person who experiences physical pain that is slight and fleeting could be said to be injured. In the day to day conduct of any employment relationship, an employer may make decisions and take actions which result in disappointment, upset or reduction in job satisfaction. Some examples include asking an employee to improve their punctuality or performance, requiring an employee to do new or different duties, or requiring an employee to work reasonable overtime. In such a circumstance, it could not necessarily be said that the "employer…injures the employee in his or her employment". To be described as an "injury", there must be a sufficient level of harm, damage, hurt or impairment to the employee's emotional or psychological welfare. A qualitative judgment must be made as to whether the level of emotional distress demonstrated by the evidence amounts to an injury. 73 In Hammond v Department of Health (1983) 6 IR 371, the Industrial Commission of New South Wales in Court Session, considered an allegation that the respondent contravened s 95 of the Industrial Arbitration Act 1940 (NSW) by injuring an employee in her employment or altering her position to her prejudice by reason of her membership of an industrial union. The Commission held at 375: We are of the view that, when determining whether a prima facie case has been made out that an employer has injured a person in his employment, or altered that person's position to his prejudice, an objective view must be taken. We can understand and, indeed, sympathise with an employee when a change in position results, in the employee's view, in less job satisfaction than he was formerly experiencing. But if that were the only "injury" or "prejudice" which the employee suffers, it would be insufficient, in our view, to bring the employer within the purview of s. 95 of the Act. 74 Accordingly, when determining whether an injury has occurred, it is necessary to take an objective view: the employee's subjective view alone is insufficient to make out an injury. 75 In United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466; [2003] FCA 480, Goldberg J, in the course of deciding whether a prima facie case existed, said at [89]: I do not accept that a person charged is not affected in his or her employment until the charge has been proven. The expressions found in s 298K(1)(b) and (c) encompass a wide range of conduct both direct and indirect. The laying of the charges exposes an employee of the Board to a potential disadvantage in his or her employment if the charges are ultimately proven. 76 I accept that the taking of disciplinary proceedings can cause injury to an employee because the employee is exposed to the potential of adverse consequences for his or her employment. The employee's employment may be less secure. Further, a threat to take disciplinary proceedings may amount to an injury because, if the threat is carried out, the employee is exposed to potential adverse consequences. In my opinion, the emotional consequences of such a threat being made or proceedings being taken may also amount to an injury. 77 Under Item 1(b) of s 342(1) of the FWA, any emotional distress amounting to injury to an employee must be "in his or her employment". In Maritime Union of Australia v Fair Work Ombudsman (2016) 247 FCR 154, Bromberg J held at [59]: The word "in" has a different purpose. It requires that the effect be located in the person's employment. It identifies that there must be a nexus between the effect and an advantage enjoyed by the person which that effect has prejudicially altered. The advantage affected must be an advantage enjoyed in the person's employment. The word "in" connotes that the advantage must derive from the employment. If a mere relation, as distinct from a derivational relation, between the employment and the advantage had been intended, the familiar statutory phrase "in or in connection with", or perhaps just "in connection with", would likely have been utilised. The preposition "in" operates by way of limitation. (Emphasis in original.) 78 I respectfully agree with his Honour's analysis. I would add that the phrase "in his or her employment" may be contrasted with "in relation to his or her employment" (used in the definition of "workplace right" in s 341(1)(c)(ii) of the FWA). The former requires a closer connection between the injury and the employment than would be required if the latter were used. Not every injury that has a relationship with employment is necessarily an injury "in employment".

Because the person has exercised a workplace right 79 Section 361(1) of the FWA provides, relevantly, that if the applicant has alleged that a person has taken action for a particular reason or with a particular intent, and taking that action for that reason or with that intent would constitute a contravention of Pt 3, it is presumed that the action was taken for that reason or with that intent, unless the person proves otherwise. 80 In order to take advantage of s 361(1), an applicant must precisely and distinctly plead the alleged reason for the contravening conduct and all the material facts concerning the contraventions alleged against the respondent: Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 at [18]-[19]. 81 A mental state, such as the reasons for the doing of an act, can only be attributed to a corporation by attributing it to one or more of the corporation's officers or employees. Section s 793(2) of the FWA provides that if it is necessary to establish the state of mind of a body corporate, it is enough to show that the relevant conduct was engaged in by a person specified in s 793(1), and that the person had the required state of mind. The persons specified in s 793(1) are, relevantly, an officer, employee or agent (an "official") engaged in conduct on behalf of the body corporate within the scope of his or her actual or apparent authority. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 (CFMEU v BHP) at [62], the Full Court held that an applicant must plead or particularise the identity of the officials whose state of mind is relied upon. The Full Court found it unnecessary to decide whether the identity of the relevant officials is a material fact that must be pleaded, or merely evidence by which a material fact (the knowledge of the company) is to be proved and which must be particularised. 82 In my opinion, in order to engage s 793, it is necessary to plead that each individual whose state of mind is relied upon had the required state of mind, was an official of the company and engaged in the conduct on behalf of the body corporate within the scope of his or her actual or apparent authority. That suggests that the identity of the relevant individual or individuals should be pleaded and not merely particularised. 83 In State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441; [2014] FCAFC 184, Tracey and Buchanan JJ described at [32] the principles from Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (BHP Coal) as follows: • The central question to be determined is one of fact. It is: "Why was the adverse action taken?" • That question is to be answered having regard to all the facts established in the proceeding. • The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made. • It will be "extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer." • Even if the decision-maker gives evidence that he or she acted solely for non proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable. • If, however, the decision-maker's testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361. 84 In Hall, the Full Court held at [100]: The orthodox approach to dealing with allegations of adverse action said to be engaged in "because" of a particular circumstance requires the party making such an allegation to establish the existence of the circumstance as an objective fact. If an applicant, on the whole of the evidence, establishes, to the Briginshaw standard, that the elements of a particular contravention (other than the reasons for the respondent taking action) exist and if the respondent wishes to avoid an adverse finding in respect of the alleged contravention the respondent will bear the onus to establish, on the balance of probabilities, that he or she had not acted for any proscribed reason. As has already been noted above, s 360 contemplates that there might be multiple reasons for a respondent taking action to the prejudice of the applicant. A reason will not be proscribed unless it is "a substantial and operative factor" in the respondents' reasons for taking the adverse action. (Citations omitted.) 85 In Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd, Jessup J (with whom I agreed) observed at [32] that while a party's failure to lead particular evidence may tip the scales in favour of drawing an inference adverse to that party, the inference must still be fairly open on the evidence which has been called. 86 In the same case, I held at [132] that a mere causal nexus between the exercise of a workplace right and the adverse action is not enough. In Barclay at [104], Gummow and Hayne JJ considered that the word "because" in s 340(1) requires an enquiry as to the "substantial and operative" reason or reasons for the relevant action. In BHP Coal, Gageler J described the enquiry as being into the "operative and immediate" reason or reasons. The mere application of a "but for" test is insufficient. Otherwise, the outcomes in Barclay and BHP Coal would have been different. The closeness of the connection between the exercise of the workplace right and the adverse action must be examined. A qualitative judgment must be made as to whether the adverse action was taken because the employee exercised a workplace right.

Multiple decision-makers 87 In some cases, a decision that is alleged to constitute adverse action may have been made by more than one decision-maker, or may be contributed to by advice given by another person to the decision-maker. 88 In Gibbs v The Palmerston Town Council [1987] FCA 732, Gray J observed at 84-85: …[T]here is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply "rubber stamps" a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advanced by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority. 89 In National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139; (2013) FCA 451, Gray J said: [26] It is often the task of a court to make a finding as to the minds of which natural person or persons constitute the directing mind and will of a corporate body, for the purpose of determining the state of mind of that corporate body. Sometimes, the question is as to the knowledge of the corporate body. As Brennan, Deane, Gaudron and McHugh JJ said in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 583: A division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them. The same can be said of states of mind other than knowledge, such as reason or intent… 90 In Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166; [2015] FCA 1014, Reeves J, having reviewed the authorities, concluded: [121] …[W]here the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry…focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision… [122] I therefore consider the focus and scope of the inquiry in this matter should proceed in two parts. First, an inquiry to ascertain whose reasons had a material effect on the reasoning process that preceded Mr Pretorius' ultimate decision to dismiss Mr Scott. And, secondly, an inquiry to examine the reasoning employed by those persons to ascertain whether it was affected by a prohibited reason or, to put it in the terms of s 360 of the FWA, whether Clermont Coal has established to the requisite standard that none of the alleged "particular reasons "was a substantial and operative reason" for the decision to dismiss Mr Scott… 91 The effect of the judgment in CFMEU v BHP at [62] is that the identity of each official of a body corporate whose state of mind is relied upon must be pleaded or particularised. Further, the presumption under s 361(1) will not be engaged unless the identity of the persons who took the relevant action for a particular reason is pleaded, or at least particularised: cf Hall at [18]-[19].

Section 550 of the FWA 92 Under s 550(1) of the FWA, a person who is involved in a contravention of a civil remedy provision is treated as having contravened that provision. Section 550(2) identifies when a person is taken to be involved in such a contravention, including when a person is knowingly involved in a contravention. 93 In Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456, White J summarised a number of principles relevant to the question of whether a party has been knowingly concerned in a contravention. His Honour said: 227 In order to be knowingly concerned in, or party to, a contravention, a person must have engaged in some conduct which "implicates or involves" him or her in the contravention, so that there is a "practical connection" between the person and the contravention: Qantas Airways Ltd v Transports Workers' Union of Australia [2011] FCA 470; (2011) 280 ALR 503 at [324]-[325]. See also Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]. In Trade Practice Commission v Australian Meat Holdings Pty Ltd (1988) 83 ALR 299, Wilcox J at 357 quoted with approval the following passage from the judgment of the Full Court of the Supreme Court of Western Australia in Ashbury v Reid (1961) WAR 49: The question which a Court should ask itself in determining whether an act or omission on the part of an individual comes within the terms of section 54 is whether on the facts it can reasonably be said that the act or omission shown to have been done or neglected to be done by the defendant does in truth implicate or involve him in the offence, whether it does show a practical connection between him and the offence. The statement in Ashbury v Reid was also approved in R v Nifadopoulos (1988) 36 A Crim R 137 at 140 with the Court (Kirby ACJ, Maxwell and Carruthers JJ agreeing) saying that "a person cannot become criminally involved in an act made unlawful by mere knowledge or inaction on his part - some act or conduct on his part is necessary". 228 In Yorke v Lucas (1983) 49 ALR 672 at 681, the Full Court of this Court approved the following statement of Pennycuick V-C in Re Maidstone Buildings Provisions Ltd [1971] 1 WLR 1085 at 1092-3: [T]he expression "party to" must on its natural meaning indicate no more than "participates in" or "concurs in". And that, it seems to me, involves some positive steps of some nature. See also Sent v Jet Corporation of Australia (1984) 2 FCR 201 at 208-9. 229 In order for a person to have been knowingly concerned in a statutory contravention, that person must have been an intentional participant, with knowledge of the essential elements constituting the contravention: Yorke v Lucas (1985) 158 CLR 661 at 670. However, it is not necessary that a person with knowledge of the essential elements making up the contravention also know that those elements do amount to a contravention: Yorke v Lucas at 667; Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 at [48]. An accessory does not have to appreciate that the conduct involved is unlawful: Australian Competition and Consumer Commissioner v Giraffe World Australia Pty Ltd (No 2) [1999] FCA 1161; (1999) 95 FCR 302 at [186]. 230 Actual knowledge of the essential elements constituting the contravention is required. Imputed or constructive knowledge is insufficient: Young Investments Group Pty Ltd v Mann [2012] FCAFC 107 at [11]; (2012) 293 ALR 537 at 541.

Section 140 of the Evidence Act 1995 (Cth) 94 Section 140 of the Evidence Act 1995 (Cth) provides: (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. 95 In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [31], the Full Court held that Dixon J's discussion in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 of the operation of the civil standard of proof, "appositely expresses the considerations which s 140(2) of the Evidence Act require a court to take into account". The relevant considerations include that s 340 of the FWA is a civil remedy provision, contravention of which exposes the respondents to pecuniary penalties.

Preliminary 96 Dr Lamont's allegations of contravention of s 340(1) of the FWA evolved over the course of the hearing. In his written submissions in reply, a table entitled "Applicant's Table of Adverse Action and Workplace Rights" was produced, and a revised version was subsequently filed (the Table). I understand Dr Lamont's ultimate case to be encapsulated in the Table, although supplemented by his written and oral submissions. I approach the identification of the allegations and the issues primarily by reference to the Table and the FASOC. 97 There were a number of topics addressed extensively in the written material and cross-examination, but which were not pleaded as contraventions of the FWA or breaches of contract. Some examples are the allegations of harassment made by Dr Lamont against Prof Moore in his initial complaint, an allegation that Prof Moore breached the confidentiality of that complaint and further allegations of victimisation made against Prof Moore in 2012. I only propose to refer to such issues to the extent necessary to give context to the allegations that are specifically pleaded. I will not determine any allegations that have not been pleaded as breaches of the FWA or the contract of employment. 98 I will consider each allegation set out in the Table in order. The allegations are broadly chronological. The gaps in the numbering reflect the fact that some of the allegations pleaded in the FASOC were not ultimately pursued. 99 In respect of each allegation of contravention of s 340(1) of the FWA, it will be necessary to consider: (1) whether the event pleaded happened, and whether it happened as alleged; (2) whether the event involved "adverse action taken by an employer against the employee" within s 342(1); (3) who took the action that is attributed to the employer; (4) whether the rights alleged were "workplace rights" within s 341(1); (5) whether the alleged workplace rights were exercised; (6) whether the adverse action was taken against the applicant because the applicant exercised the workplace rights. 100 I will not necessarily address each of these issues in respect of each allegation. In some instances, for example, if it is clear that the alleged action was not taken at all, or if the action was not taken because Dr Lamont exercised any workplace right, it may be too artificial to determine whether there was "adverse action" taken against him.

The workplace rights alleged 101 I propose to address the existence and exercise of the workplace rights pleaded by Dr Lamont at this stage. That is because many of the workplace rights relied upon are common to many of the allegations and dealing with them now will avoid repetition. 102 The Table and the FASOC allege that Dr Lamont relevantly exercised the following workplace rights: (a) to notify a dispute about the matter under the Agreement pursuant to clause 35 of the Agreement which is an entitlement to the benefit of, or a role or responsibility under a workplace instrument and/or the ability to initiate, or participate in, a process or proceedings under a workplace instrument; (b) to have that dispute processed pursuant to clause 35 of the Agreement which is an entitlement to the benefit of a workplace instrument and/or the ability to initiate, or participate in, a process or proceedings under a workplace instrument; … (d) to request the nomination of an alternative supervisor in accordance with clause 19 of the Agreement which is an entitlement to the benefit of a workplace instrument; … (o) to have a grievance with another staff member dealt with in accordance with clause 44.1 of the First Agreement which is an entitlement to the benefit of a workplace instrument; (p) to be appraised annually in accordance with clause 62 of the First Agreement which is an entitlement to the benefit of a workplace instrument; … (r) to notify a dispute in respect to any matter arising under the Second Agreement pursuant to clause 15 of the Second Agreement which is an entitlement to the benefit of, or a role or responsibility under a workplace instrument and/or the ability to initiate, or participate in, a process or proceedings under a workplace instrument; … (z) to be appraised annually in accordance with clause 60 of the Second Agreement which is an entitlement to the benefit of a workplace instrument; (aa) to be provided with academic and administrative leadership by a nominated supervisor in accordance with clause 61 of the Second Agreement which is an entitlement to the benefit of a workplace instrument; (bb) to be provided with a workplace by the First Respondent in accordance with section 19 of the Work Health and Safety Act 2011 (Qld) from 1 January 2012 which is an entitlement to the benefit of a workplace law; (cc) to be provided with a workplace by the First Respondent in accordance with sections 28 and 30 of the Workplace Health and Safety Act 1995 (Qld) from 1 April 2010 until 31 December 2011 which is an entitlement to the benefit of a workplace law; (dd) to make a complaint or inquiry in relation to his employment; (ee) the responsibility pursuant to s28 of the Work Health and Safety Act 2011 (Qld) from 1 January 2012 to take reasonable care of his own health and safety which is a role or responsibility under, a workplace law; and (ff) the responsibility pursuant to s36 of the Workplace Health and Safety Act 1995 (Qld) from 1 April 2010 until 31 December 2011 to not wilfully place at risk the workplace health and safety of any person which is a role or responsibility under, a workplace law.

Existence of workplace rights 103 The respondents admit that the workplace rights alleged, other than those numbered (p), (z), (aa) and (dd), are "workplace rights" within s 341 of the FWA. 104 As to (p) and (z), Dr Lamont relies upon cl 62 of the University of Queensland Enterprise Agreement 2010-2013 (the 2010 Enterprise Agreement) and cl 60 of the University of Queensland Enterprise Agreement 2014-2017 (the 2014 Enterprise Agreement) respectively. These clauses are substantially in the same terms, and state: This clause is designed to provide a mechanism to assess the performance of academic staff. The main objectives of academic staff supervision and appraisal are to: (a) Implement developmental/growth opportunities for Academic staff; and (b) Provide assistance to any academic staff member whose performance is assessed as requiring improvement. Each academic staff member will meet annually with his/her supervisor to conduct a formal review. An Achievements and Objectives Form will be provided to the supervisor by the staff member. 105 The respondents accept that the 2010 and 2014 Enterprise Agreements are "workplace instruments" for the purposes of s 341(1)(a) of the FWA. However, they submit that the relevant clauses only require academic staff members to meet annually with their supervisor, and do not give them a "benefit" within s 341(1)(a) of the FWA. 106 I do not accept the respondents' submission. The clauses provide a mechanism for assessment of the performance of academic staff. The clauses indicate that the objectives are to implement developmental and growth opportunities for academic staff and provide assistance to academic staff members whose performance is assessed as requiring improvement. The clauses envisage that the annual review will identify strengths and areas for development and thereby assist academic staff to develop and improve. That provides a benefit to employees, as well as to the University. I find that employees are entitled to an annual performance review, and that this is a workplace right within s 341(1)(a) of the FWA. 107 The workplace right pleaded at (aa) relies upon cl 61 of the 2014 Enterprise Agreement. Clause 61 states: Each Academic staff member shall have a nominated supervisor, and shall be advised in writing of the name and position of the nominated supervisor. Academic staff may request the nomination of an alternative supervisor. Supervisors shall provide academic and administrative leadership and are responsible for monitoring the performance of academics and for providing assistance to Academic staff whose performance is assessed as requiring improvement. Wherever possible supervisors shall be competent in the broad areas of expertise of the Academic staff for whom they are responsible. 108 The respondents submit that this clause does not give academic staff members a benefit for the purposes of s 341(1)(a) of the FWA. They submit that the clause merely places an obligation on the University to nominate a supervisor. They submit that even if the clause does provide a benefit, that benefit is only to have a supervisor nominated and nothing more. 109 Clause 61 of the 2014 Enterprise Agreement requires the University to nominate a supervisor. The role of a supervisor includes providing academic and administrative leadership and providing assistance to staff whose performance is assessed as requiring improvement. In my opinion, leadership and assistance are benefits. Dr Lamont had, pursuant to s 341(1)(a) of the FWA, an entitlement to be provided with the benefit of academic and administrative leadership by a nominated supervisor in accordance with cl 61 of the 2014 Enterprise Agreement. 110 The workplace right alleged at (dd) is a right, "to make a complaint or inquiry in relation to his employment". This allegation follows the words of s 341(1)(c)(ii) of the FWA, which provides that, "A person has a workplace right if the person…is able to make a complaint or inquiry…in relation to his or her employment". However, as Shea at [29] and PIA Mortgage Services at [12]-[14] make clear, the ability must be underpinned by an entitlement or right, and there must be an identifiable source of that entitlement or right. The provision does not contemplate a freestanding right to make a complaint or inquiry in relation to employment of the type pleaded. I find that Dr Lamont had no workplace right, "to make a complaint or inquiry in relation to his employment".

Exercise of workplace rights 111 The respondents deny that Dr Lamont exercised any of the workplace rights pleaded. 112 Dr Lamont's employment was covered by the University of Queensland Enterprise Agreement (Academic Staff) 2006 (the 2006 Enterprise Agreement). The allegation at (a), that Dr Lamont exercised his right "to notify a dispute about the matter under the Agreement pursuant to clause 35 of the [2006 Enterprise] Agreement", is central to much of his case. It is necessary to consider whether he in fact notified a dispute under that clause. 113 On 12 April 2010, Dr Lamont made a complaint to Prof Fotheringham alleging that Prof Moore had engaged in behaviour that constituted harassment over the previous six months. The complaint was expressed to be made in accordance with cl 4, Step One of the University's Staff Grievance Resolution Policy. The complaint made no reference to the 2006 Enterprise Agreement. 114 There were, relevantly, three potential sources of an entitlement for Dr Lamont to raise a grievance or make a complaint. 115 First, cl 24.1 of the 2006 Enterprise Agreement provided that where, relevantly, a supervisor receives a complaint of misconduct or serious misconduct against an academic, the supervisor may conduct or commission an investigation. The remainder of cl 24 dealt with the conduct of the investigation, notification to the academic under investigation, review of the decision made and procedural and other matters. 116 Second, cl 35.2 provided that "any dispute as to the application of the Agreement" was, in the first instance, to be raised and discussed by an academic staff member with the relevant senior manager. Under cl 35.3, where a dispute was not resolved, it was required to be referred to the relevant Senior Executive, who was to arrange a conference to discuss the matter. Clause 35.4 provided that the University would make a decision and inform all those involved within five working days. 117 Third, the Staff Grievance Resolution Policy allowed a grievance to be raised or a complaint to be made. Schedule 1B of the 2006 Enterprise Agreement listed a number of policies, including the Staff Grievance Resolution Policy. Clauses 10.2 and 10.3 provided that the policies listed in Schedule 1B did not form part of the 2006 Enterprise Agreement, but were designed to give effect to and detailed support for the matters covered by the Agreement and should be read in conjunction with the Agreement. 118 Clause 4.1 of the Staff Grievance Resolution Policy provided that before initiating grievance procedures, the complainant should try to resolve the problem directly with the person concerned if at all possible. The Policy provided for three steps. Under cl 4.4, Step One required that the complainant seek resolution of the problem at the earliest time and at the lowest organisational level wherever possible, which might take the form of a direct approach. Under cl 4.5, once notified of a grievance, a supervisor was required to: initiate discussions with the staff member as soon as practicable, with a view to determining whether a genuine grievance existed; gather information required to assist with the resolution of the grievance; and determine the appropriate course of action to resolve the grievance. Clause 4.7 provided that if the complainant felt that the matter had not been resolved at Step One, they could initiate formal proceedings under Step Two. 119 Under cl 4.8, Step Two required that the complainant state the nature of the grievance in writing to the appropriate University officer in the area to which the grievance related and outline details of the grievance, the efforts to resolve the grievance and the desired outcome/resolution. Clause 4.10 provided that the University officer responsible should ensure that each party and other relevant persons were interviewed separately in the first instance and, where appropriate, further meetings with both parties could be arranged. Clause 4.11 provided for, inter alia, the exploration of alternatives for resolution of grievances, including mediation. Under cl 4.12, at the conclusion of the investigation, the parties were to be advised of the University officer's findings and proposal to resolve the issue and that any proposals for resolution would be implemented only with the agreement of the parties. I will describe Step Three later in these reasons. 120 The question is whether, as the FASOC alleges, the grievance against Prof Moore was made under cl 35 of the 2006 Enterprise Agreement. Under cl 35, "any dispute as to the application of the Agreement" could be raised and dealt with. However, Dr Lamont's complaint of harassment cannot be described as a dispute as to the application of the 2006 Enterprise Agreement. The complaint was not expressed to be made, and was not made, under cl 35. Therefore, the workplace right pleaded at (a) was not exercised. 121 Further, the complaint was not expressed to be made under the 2006 Enterprise Agreement at all. Therefore, there is no question of a mere typographical error being made by referring to cl 35 instead of cl 24. 122 Dr Lamont's grievance was expressed to be made under Step One of the Staff Grievance Resolution Policy. If Dr Lamont had made his complaint under cl 24 of the 2006 Enterprise Agreement, under cl 10.3, the Staff Grievance Resolution Policy would have been used to give detailed support for the investigation. However, he made his complaint directly under the Staff Grievance Resolution Policy. That course was open to him. In my opinion, the Staff Grievance Resolution Policy provided an entitlement, independently of the 2006 Enterprise Agreement, to lodge a grievance against another staff member. Dr Lamont was, within s 341(1)(c)(ii) of the FWA, able to make a complaint in relation to his employment under the Staff Grievance Resolution Policy. 123 It is a fundamental characteristic of the adversarial system that trials are conducted on the basis of the issues the parties agitate in the pleadings and, as a general rule, relief is confined to that claimed or available on those pleadings: Stefanovski v Digital Central Australia (Assets) Pty Ltd (2018) 368 ALR 607; [2018] FCAFC 31 at [63]; Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2019] FCAFC 71 at [249]. However, that general rule may be departed from where the trial has been conducted on a basis that is inconsistent with a particularised allegation. A practical assessment must be made to determine whether or not a case has proceeded in a manner that is fair to the parties: Bauer at [251]. In Stefanovski, the Full Court observed: 65. That is not to say that a judgment needs to be precisely within the scope of the "particulars" alleged in a pleading so long as judgment is given on the causes of action pleaded. A fair amount of tolerance can be justified so long as the circumstances are such that all parties to the action have had fair notice of what will be determined. Experience shows that it is not infrequently the case that the evidence adduced at trial diverges from the pleaded particulars to some degree. That is not unexpected given that pleadings are prepared well in advance of all of the relevant information becoming known. In this respect, in Water Board v Moustakas (1988) 180 CLR 491, 497, the majority of the High Court (Mason CJ, Wilson, Brennan and Dawson JJ) indicated that particulars are less confining than material facts… 124 In this case, the FASOC pleads that the University contravened s 340(1) of the FWA by taking adverse action against Dr Lamont because he exercised workplace rights which included making his complaint of harassment against Prof Moore. He wrongly particularised the source of his ability to make that complaint as being cl 35 of the 2006 Enterprise Agreement instead of the Staff Grievance Resolution Policy. That made no practical difference to the conduct of the trial. The respondents did not dispute that Dr Lamont had made his complaint of harassment against Prof Moore. The respondents' witnesses understood the complaint was made under the Staff Grievance Resolution Policy, as their relevant emails show. The contention raised by the respondents was merely that the complaint was not made under cl 35 of the 2006 Enterprise Agreement. 125 In these circumstances, it is not unfair to proceed on the basis that Dr Lamont alleges that he had a workplace right to make his complaint against Prof Moore under the Staff Grievance Resolution Policy and exercised that right. I find that he had such a workplace right within s 341(1)(c) of the FWA. I find that he exercised that right by making his complaint about Prof Moore on 12 April 2010. It is appropriate to mention that this issue provides one of many examples of sloppiness in the presentation of Dr Lamont's case that has resulted in wastage of time and effort. 126 The same position applies to a complaint made by Dr Lamont against Prof Fotheringham on 3 December 2010, a further complaint against Prof Moore made on 8 December 2010 and a complaint against Prof Keniger on 21 November 2011. Each of those complaints was made under the Staff Grievance Resolution Policy and was the exercise of a workplace right within s 341(1)(c) of the FWA. 127 Dr Lamont made a complaint against Prof Dowe and Prof Moore on 25 July 2012. The letter of complaint referred to retaliation in contravention of the University's Whistleblowers' Protection Management Policy (the Whistleblowers Policy) and also made more general complaints which I take to have been made under the Misconduct - Serious Misconduct Policy. I will regard Dr Lamont as having exercised a workplace right to make complaints under those policies. 128 I do not accept that Dr Lamont exercised the workplace right as pleaded at (o), which was to have a grievance dealt with in accordance with cl 44.1 of the 2010 Enterprise Agreement, or (r), which was to notify a dispute pursuant to cl 15 of the 2014 Enterprise Agreement. However, I accept that the complaints against Prof Keniger on 21 November 2011 and against Prof Dowe and Prof Moore on 25 July 2012 were made under the Staff Grievance Resolution Policy. I will treat the allegations at (o) and (r) as referring to grievances notified under the Staff Grievance Resolution Policy. 129 The Table and FASOC allege at (b) that Dr Lamont had the right to have his dispute processed pursuant to cl 35 of the 2006 Enterprise Agreement. I will proceed on the basis that this allegation should also refer to the Staff Grievance Resolution Policy. I accept that he had that right, and that he exercised his right to require that his complaint be processed under the procedures provided in the Staff Grievance Resolution Policy. 130 Dr Lamont requested the nomination of an alternative supervisor under cl 19 of the 2006 Enterprise Agreement. I accept that he exercised the workplace right pleaded at (d). 131 The workplace rights pleaded at (bb), (cc), (ee) and (ff) all relate to responsibilities upon the University for the health and safety of employees under the Workplace Health and Safety Act 2011 (Qld) (the WHS Act). I accept that Dr Lamont had a benefit under the WHS Act: cf Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [55]. The allegation seems to be that he exercised his entitlement to that benefit by making his complaint about harassment by Prof Moore and requesting a change of supervisor so that he would be protected from psychological injury. I am prepared to accept that Dr Lamont exercised the rights under the WHS Act he has identified, although it seems to add nothing to the other workplace rights. 132 I accept that by raising disputes about whether his annual performance appraisals were being dealt with in accordance with cl 62 of the 2010 Enterprise Agreement and cl 60 of the 2014 Enterprise Agreement, Dr Lamont exercised the workplace rights described at (p) and (z). 133 I accept that by complaining about his supervisor under cl 61 of the 2014 Enterprise Agreement, Dr Lamont exercised the workplace right described at (aa). 134 In summary, I find that Dr Lamont exercised the following workplace rights: Allegation of Adverse Action in FASOC Workplace Rights Exercised First allegation (a), (d), (cc), (ff) Second allegation (a), (d), (cc), (ff) Third allegation No workplace rights exercised Fourth allegation (a), (d), (cc), (ff) Fifth allegation (a), (d), (cc), (ff) Seventh allegation (a), (d), (cc), (ff) Ninth allegation (a), (cc), (ff) Tenth allegation (a), (cc), (ff) Thirteenth allegation (a), (d), (cc), (ff) Fifteenth allegation (a), (d), (cc), (ff) Twenty-second allegation (a), (b), (cc), (ff) Twenty-third allegation (a), (b), (cc), (ff) Twenty-fourth allegation (a), (b), (d), (o), (cc), (ff) Twenty-fifth allegation (a), (b), (o), (cc), (ff) Twenty-sixth allegation (a), (b), (o), (cc), (ff) Twenty-seventh allegation (cc), (ff) Thirty-first allegation (o), (bb), (cc), (ee), (ff) Thirty-second allegation (o), (bb), (cc), (ee), (ff) Thirty-fourth allegation (o), (p), (bb), (ee) Thirty-fifth allegation (o), (p), (bb), (ee) Thirty-seventh allegation (o), (p) Thirty-eighth allegation (o), (p), (r), (z), (aa), (bb), (ee) Thirty-ninth allegation (o), (p), (r), (z), (aa), (bb), (ee) Forty-first allegation (o), (p), (r), (z), (aa), (bb), (ee)

Witnesses who were not called 135 There were four University employees who had involvement in some of the decisions of which Dr Lamont complains, but who were not called to give evidence. These employees were Mr Dean Griffiths (the HR Manager for the Faculty of Arts), Mr Mark Croucher (the University's Legal Officer), Mr Anthony Lennon (the Deputy Director of HR) and Ms Jane Banney (the Director of HR from 2012 onwards). 136 Dr Lamont submits that as Mr Griffiths, Mr Croucher, Mr Lennon and Ms Banney were not called, the respondents have not discharged their onus of proving that the relevant decisions were not made for reasons that did not include his exercises of workplace rights. That submission is based upon the premises that, firstly, their reasons had a material effect on the reasoning process of the ultimate decision-makers and, secondly, s 361 of the FWA is engaged. It is necessary to examine the validity of those premises. 137 Mr Griffiths, Mr Croucher, Mr Lennon and Ms Banney are not identified in the FASOC as persons who materially contributed to the decisions and whose reasoning was affected by Dr Lamont's exercises of workplace rights. Dr Lamont's affidavits refer to each of these persons as having given advice to decision-makers, but do not assert that their advice was influenced by any proscribed reasons. 138 In these circumstances, it would be procedurally unfair to the respondents to allow Dr Lamont to pursue his claim that Mr Griffiths, Mr Croucher and Mr Lennon made material contributions to the decisions: cf CFMEU v BHP at [62]. 139 In any event, s 361 is not engaged and the onus of proof is not cast on the respondents: cf Hall at [18]-[19]. There is no evidence to suggest that Mr Griffiths, Mr Croucher or Mr Lennon were motivated to provide advice that was adverse to Dr Lamont because he had exercised any workplace rights. In circumstances where the relevant decision-makers were called and gave evidence as to their reasons for making their decisions, I would not draw any Jones v Dunkel inference from the absence of these witnesses: see Jones v Dunkel (1959) 101 CLR 298. Even if a Jones v Dunkel inference were drawn, it could not fill the evidentiary gap and lead to an inference that the advice of Mr Griffiths, Mr Croucher or Mr Lennon was motivated by proscribed reasons. 140 Ms Banney is in a slightly different position. Associate Prof Crotty gave evidence that he made a decision to take the disciplinary proceedings against Dr Lamont in 2016 jointly with Ms Banney. I will deal separately with that issue in the course of these reasons.

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

The evidence 142 On 12 April 2010, Dr Lamont wrote to Prof Fotheringham making a complaint against Prof Moore under the Staff Grievance Resolution Policy: I am writing to you in accordance with Section 4, Step 1 of the University's 5.70.8 Staff Grievance Resolution. I have attached a copy of a letter dated March 19, 2010 from Clive Moore to me and a copy of a letter dated April 9, 2010 in reply, from me to Clive. Although the letters do not give all the background information they are, nevertheless, long and detailed enough to give a clear indication of the matters of my concern. I believe that Clive's behaviour towards me, over at least the past 6 months, constitutes harassment. As you know our School has a sad history of harassment. Both the previous two Heads of School were sued by staff members for harassment resulting in large out-of-court settlements which cost our School dearly both in terms of reputation and money. Last year, a staff member, [name deleted], resigned, alleging harassment. In addition, we now have a history of one staff member, [name deleted], who was a friend of mine, being terribly stressed by his treatment in the School and dying of a heart attack; and now the tragic case of [Dr XY] committing suicide. All these matters have weighed heavily on my mind in the past, but it was mainly as a result of [Dr XY's] suicide and the subsequent visit to our School of the Staff Support and Rehabilitation Advisor that I finally decided to seek counseling for harassment from the University's Employee Assistance Service Provider, Davidson Trahaire Corpsych. These counseling sessions, which have provided me with strategies to cope with harassing behavior, have also helped me make the decision to bring this matter to your attention My hope is for this situation not to escalate - I have no desire to add to the sad public history of the HPRC School. Congruent with this intention, I am bringing this matter to your attention under "Step 1" and Section 4.1 of the University's HUPP 5.70.8 Staff Grievance Resolution Policy which states "The aim is to reach an acceptable outcome that minimises any potential detriment to ongoing workplace relationships." My grievance is that I have been the subject of harassing behavior by my supervisor, Clive Moore. To help you determine whether a genuine grievance exists (under 4.5(1)) I have provided you with the two letters which I believe provide ample evidence of harassing behavior. I am willing to elaborate further on any of these behaviors and other behavior not described in the letters, if you would like. Given that I am not proceeding under "Step 2" of the Policy, as I understand it, what is required of you is to "determine whether a genuine grievance exists" (4.5(1)). However, if you wish yourself to formally determine whether harassment has occurred under HUPP 1.70.6 please notify me and I would be willing to have the letters used as evidence in that determination and would be willing to provide further evidence if needed. However, if you are proceeding under "Step 1", which I have initially asked for, it requires that the staff member state "what a preferred outcome might be". In the spirit of not wanting to escalate this problem further, I need to express to you my preferred outcome. My preferred outcome is that Clive Moore cease harassing me and be replaced as my supervisor with William Grey, who is our Acting Deputy HOS. I have approached William about this matter and he has agreed to act as my supervisor if formally asked by you. Given that, in the circumstances, it would be completely inappropriate for Clive to conduct my annual appraisal, I ask that William Grey conduct it or, if he is not currently qualified, for Fred D'Agostino to do so. It is my hope, through this lowest level of intervention, to inhibit escalation of this situation. … (Errors in original.) 143 Dr Lamont's letter of complaint attached his email exchange with Prof Moore of 19 March 2010 and 9 April 2010. It is also relevant to mention that on 12 March 2010, Dr Lamont had written a lengthy email to Prof Moore complaining about a number of issues, including that: Prof Moore had recently told academic staff that the University's policy was that research and publications were more important than teaching and said he would implement a system where those whose research and publication rates were too light would be expected to carry a heavier teaching load. Prof Moore had not recognised the hard work and contributions to the School Dr Lamont and Dr Hyde had made, including that about 30% of their salaries were paid by the Science Faculty for teaching they did in the Bachelor of Science Degree. Their contribution should be reflected as "workload points", reducing their teaching load so that their research work would not suffer. In a dispute between Dr Lamont and the officer manager, Prof Moore had sided with the office manager, saying that Dr Lamont's tone was intemperate and directing him to desist from using that tone. In an incident when Dr Lamont was picking up his printing from the staff printer, Prof Moore berated Dr Lamont for not knowing whether Dr Hyde photocopied lecture notes for his students. Prof Brown should be supported for the position as the new Deputy Head of School. 144 On 19 March 2010, Prof Moore responded to Dr Lamont's email of 12 March 2010. On 9 April 2010, Dr Lamont replied, making it clear that he was unhappy with Prof Moore's response. Dr Lamont then made his complaint of 12 April 2010 to Prof Fotheringham. 145 Clause 3 of the Staff Grievance Resolution Policy contained "Policy Principles". Clause 3.1(d) stated that the principles of natural justice and procedural fairness were to be observed, including that: any person who was the subject of the grievance must be informed of all the allegations in relation to their behaviour; that they must have a full opportunity to put their case; that all parties to the complaint have the right to be heard; and that decision-makers must be impartial and fair in their dealings with the parties. Clause 3.1(e) provided that: Confidentiality will be respected and maintained at all times within the constraints of the need to fully investigate the matter, subject to any legal requirements for disclosure and consistent with the principles of natural justice. 146 On 12 April 2010, Prof Fotheringham sent an email to Dr Lamont acknowledging receipt of his complaint and asking him to confirm whether there were any other communications that might assist to understand the issues that he had raised. His email also said, "In the interest of natural justice I will of course ask Clive in [sic] likewise". 147 There was an exchange of emails between Prof Fotheringham and Dr Lamont. Prof Fotheringham deposes that he considered a number of emails provided by Dr Lamont, but could not identify anything that appeared, on its face, to constitute the six months of harassment that Dr Lamont had alleged in his complaint. 148 Prof Fotheringham's evidence is that, based on his understanding of the principles of natural justice, he considered it necessary to inform Prof Moore about the allegations Dr Lamont had made against him and give Prof Moore an opportunity to respond to those allegations. On 20 April 2010, Prof Fotheringham met with Prof Moore and advised him that he had received a complaint and provided him with a copy of the letter of complaint. He told Prof Moore that he should take some time to consider the complaint before providing his response, but should come back and discuss the matter as soon as possible, and that they should try to resolve the matter informally and quickly. Prof Fotheringham deposes that he provided the letter of complaint to Prof Moore with the expectation that Prof Moore would keep the complaint confidential. Prof Fotheringham gave evidence that he emphasised to Prof Moore that the matter was to be kept confidential. 149 On the same day, Prof Moore sent Dr Lamont's letter of complaint to Prof Almond and Associate Prof Hutch (the previous Heads of School). Prof Moore deposes that he provided the letter because he considered that in order to respond properly to the complaint, he needed to find out whether Dr Lamont's allegations were accurate. His evidence is that he did not give them the letter in order to bully or harass Dr Lamont. Prof Moore states that Prof Almond and Associate Prof Hutch each told him that the allegations made in the letter of complaint were untrue. 150 On 20 April 2010, Prof Almond wrote to Dr Lamont saying: It has been brought to my attention that you claim in a recent letter to the Executive Dean of the Faculty of Arts 'that both of the previous two Heads of School were sued by staff members resulting in large out-of-court settlements which cost our School dearly both in terms of reputation and money'. You should know that neither in my role as Head of School of HPRC nor previously as Head of the Department of Studies in Religion have I ever been sued for harassment (or anything else for that matter) by any member of that School or of that Department. I consider your claim to be damaging to my reputation at the University of Queensland and defamatory. I would be grateful if you would retract this claim in writing to the Executive Dean within a week of the receipt of this email. Should you not do so, I will take further advice with a view to legal action against you. 151 On 20 April 2010, Prof Fotheringham emailed Prof Moore stating that Prof Almond had just threatened to sue Dr Lamont for defamation, and that Associate Prof Hutch was similarly enraged. The email said that, strictly speaking, there had been a breach of confidentiality in relation to the complaint. 152 Prof Moore responded on the same day saying: Sorry for the breach. There was nothing on the letter that said confidential, and I felt that the past two Heads of School had a right to know what was being said about them; and I wanted to check details with them. Noone has a right to circulate such scurrilous and inaccurate material. I will react similarly to Phil and Richard to anyone who hints that I have any role in [Dr XY's] suicide. Julian needs to understand this very fast. While I understand that you are trying to bring this to a conclusion, I will not accept any personal battering or bad mouthing of the School in this way. The University needs to take action against staff who do this, and if they do not, individuals like Phil and Richard will. 153 Prof Fotheringham sent an email to Prof Almond on 20 April 2010 saying that he understood Prof Almond's concern, but asked him to stay his demand. Prof Fotheringham said that he was concerned about Dr Lamont's state of health, referring to Dr Lamont's rambling, erratic and unstructured emails, and said that a charitable view should be taken of his comments. 154 On 20 April 2010, Dr Lamont wrote to Prof Almond saying that he would be happy to retract the claim made against Prof Almond. Dr Lamont said that the belief he stated in his letter was one widely held within the School, but acknowledged that if it was false it should not continue to be repeated. Dr Lamont apologised for any offence. Dr Lamont deposes that he did so because he was afraid of Prof Almond's threat of legal action and other possible actions against him. Dr Lamont deposes that from that point on he avoided Faculty and School functions which he believed Prof Almond or Prof Moore may attend. 155 On the same day, Dr Lamont wrote to Prof Fotheringham saying that he was very concerned by the fact that Prof Almond had contacted him objecting to the contents of the complaint letter. Dr Lamont complained that the confidentiality of the complaint had been breached. 156 On 20 April 2010, Prof Almond emailed Prof Fotheringham saying, relevantly: Clearly my concerns are personal. I'm genuinely weary of this sort of foolishness, and (in the light of Julian's email) really irritated that this sort of damaging gossip should not only circulate but be believed and acted upon. But my concerns do go to larger HR issues within the University. For there does seem to be a pattern developing according to which any attempt by an HOS to exercise appropriate decision making authority is met by a hail of harassment accusations, by demands for changes of supervisor, and indeed in this case by quite false statements about former Heads of School. And I do worry that, at the first whiff of such, we run the white flag up the mast. Be that as it may, I am willing to hold off to see how it comes out after you've spoken to him. 157 On 20 April 2010, Prof Fotheringham sent an email to Prof Moore stating that Dr Lamont had emailed Prof Almond withdrawing his comments and apologising. Prof Fotheringham said he thought that Dr Lamont's letters were a product of stress and urged Prof Moore to exercise calm and understanding. 158 Under cross-examination, Prof Moore said that he was horrified and shocked when he found out about Dr Lamont's complaint against him. He denied that he was angry. He said that he decided to send a copy of the letter to Prof Almond because it said things about Prof Almond that he believed to be demonstrably untrue.

Consideration 159 The respondents have not disputed that Prof Moore had an obligation under the Staff Grievance Resolution Policy to keep the complaint confidential. They argue that there was no breach of the obligation of confidentiality because Prof Moore genuinely believed that the letter was not confidential and that he needed to find out whether or not Dr Lamont's allegations were accurate in order to respond to the complaint. 160 Dr Lamont alleges that Prof Moore's breach of confidentiality was adverse action taken against him that caused him injury within Item 1(b) of s 342(1) of the FWA because: (1) Prof Almond accused Dr Lamont of defaming him, threatened legal action and demanded that Dr Lamont withdraw his allegations; (2) The breach of confidentiality negatively impacted upon Dr Lamont's relationship with Prof Almond in his employment. 161 The respondents deny that these matters amount to injury to Dr Lamont in his employment. 162 Dr Lamont's letter of 12 April 2010 made a complaint of harassment against Prof Moore. In the second paragraph of that letter, Dr Lamont said, "As you know our School has a sad history of harassment". He went on to allege that the previous two Heads of School were sued by staff members for harassment. Dr Lamont also referred to a staff member who had allegedly been harassed and to another who was "terribly stressed by his treatment" and died of a heart attack. Dr Lamont then referred to, "the tragic case of [Dr XY] committing suicide". In the next sentence Dr Lamont said that it was partly as a result of Dr XY's suicide that he decided to seek "counselling for harassment". He said that those counselling sessions provided him with strategies to cope with "harassing behaviour" and to help him to make his decision to make the complaint. As Prof Moore had been the Head of School when Dr XY committed suicide, Dr Lamont clearly implied that Prof Moore had harassed Dr XY, and that the harassment had contributed to his suicide. 163 Dr Lamont deposed that he made no allegation that Prof Moore had a role in Dr XY's suicide, and had merely raised that possibility. I consider Dr Lamont's evidence to be disingenuous in this respect. His letter did more than raise that possibility. Dr Lamont clearly implied that Prof Moore had harassed Dr XY and contributed to his suicide. 164 I find that Prof Moore was shocked, outraged and angry about the content of the letter of 12 April 2010, particularly the implication that he had contributed to the suicide of Dr XY. The depth of Prof Moore's anger is revealed in his email of 20 April 2010. Dr Lamont has placed in evidence the material he relied upon for his assertion about the suicide. That assertion seems to have been based on no more than rumour, innuendo and conjecture. Dr Lamont, perhaps fuelled by anger and resentment at how he perceived he had been treated, apparently felt his comment was justified. However, it was not. I have formed the impression that Dr Lamont, while acutely sensitive to his own perceived unfair treatment, still lacks insight into the unfairness and seriousness of implying that Prof Moore contributed to Dr XY's suicide. 165 Prof Moore was outraged and angry about the allegations made against the School generally and against him personally. I do not accept that Prof Moore merely provided the letter to Prof Almond and Associate Prof Hutch in order to find out if the allegations were true so that he could respond to the complaint. It was unnecessary for Prof Moore to obtain that information, since he believed the allegations to be untrue and could have simply said so in his response to the complaint. His email of 20 April 2010 is revealing. It said, inter alia: I will react similarly to Phil and Richard to anyone who hints that I had any role in [Dr XY's] suicide. Julian needs to understand this very fast…I will not accept any personal battering or bad mouthing of the School in this way. 166 It is probable that Prof Moore hoped and intended that Prof Almond and Associate Prof Hutch would react as Prof Almond did. I find that Prof Moore provided the letter to Prof Almond and Associate Prof Hutch because he was outraged and angry about the allegations Dr Lamont had made against Prof Moore and against the School. 167 Prof Fotheringham gave evidence that he informed Prof Moore on 20 April 2010 that the process was confidential. Prof Moore deposes that Prof Fotheringham did not so inform him. If Prof Fotheringham had told Prof Moore that the process was confidential, it is likely that he would have reminded Prof Moore of that in their subsequent email exchange. I find that Prof Fotheringham did not tell Prof Moore that the process was confidential. However, apart from merely asserting as much in his email of 20 April 2010, Prof Moore did not give evidence that he was unaware that the process was confidential. As Head of School, it is quite improbable that Prof Moore was unaware of the requirement to maintain the confidentiality of the complaint. He seems to have overlooked that requirement in his rage. I reject the submission that he genuinely thought the complaint was not confidential. 168 Ultimately, however, whether Prof Moore knew that the complaint was confidential makes no difference. Prof Moore disclosed the letter to Prof Almond and Associate Prof Hutch because he was outraged and angry about the allegations and wanted Dr Lamont to understand very fast that he could not get away with making such allegations. I find that he disclosed the letter because Dr Lamont had made the complaint against him. 169 Dr Lamont had a workplace right to make a complaint pursuant to the Staff Grievance Resolution Policy and exercised that right. I find that, even though Dr Lamont did not have an adequate basis for making the part of his complaint that implied that Prof Moore had contributed to the suicide of Dr XY, he had a genuine belief in the truth of his complaint. I find that Prof Moore disclosed the letter of complaint because Dr Lamont had exercised his workplace right. 170 The next issue is whether Dr Lamont was injured by the disclosure of the complaint to Prof Almond and Associate Prof Hutch. The FASOC does not plead that the disclosure of the complaint in breach of the obligation of confidentiality itself amounted to an injury. Rather, it pleads, firstly, that the injury consisted of Prof Almond accusing Dr Lamont of defaming him, threatening legal action and demanding the withdrawal of the allegations. 171 I accept that the threat by Prof Almond to consider an action for defamation amounted to an "injury" within s 342(1) of the FWA to Dr Lamont because it caused him substantial fear and distress, leading to his apology. However, I do not accept that it was an injury to Dr Lamont, "in his…employment". As I have said, not every injury that has a connection or relationship with employment is necessarily an injury "in employment". The threat to consider an action for defamation was certainly connected with his employment because Dr Lamont wrote the letter of complaint in his employment and about his employment. However, the fear and distress caused to Dr Lamont by the possibility of an action for defamation was because of the financial consequences and stress that litigation would have had on him in his personal life. The evidence does not establish that the threat had any consequences for his employment. I do not consider that the threat caused an injury to Dr Lamont in his employment. 172 The FASOC pleads, secondly, that Dr Lamont was injured "in his…employment" because the disclosure of the letter of complaint to Prof Almond negatively impacted upon Dr Lamont's relationship with Prof Almond in his employment. Prof Almond was also employed by the University. That Prof Almond made the threat and that Dr Lamont was forced to apologise, demonstrates that the disclosure did have a substantial negative impact upon their relationship. In Squires at 164, Ellicott J held that there may be an injury in employment where an employee is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial. The breach of confidentiality was substantially different treatment to the way Dr Lamont was entitled to be treated under the Staff Grievance Resolution Policy. That breach led to a detrimental impact upon the relationship between Dr Lamont and Prof Almond and, therefore, had a prejudicial impact upon Dr Lamont. The detriment was not only to their personal relationship, but to their relationship as fellow employees, since Dr Lamont avoided Faculty and School events which he thought Prof Almond might attend. A detriment of that kind can, in my opinion, amount to an injury in employment. That can be demonstrated by using a more extreme example of where an employer deliberately poisons the workforce against a particular employee, who is then ostracised and isolated by his workmates - that would clearly amount to an injury in employment. In this case, I find that the breach of confidentiality injured Dr Lamont in his employment because it caused a substantial deterioration in his relationship with a fellow employee. 173 Therefore, I find that the disclosure of the confidential complaint by Prof Moore was adverse action taken against Dr Lamont. 174 The University is a body corporate pursuant to s 4(2)(a) of the University of Queensland Act 1998 (Qld) (the UQ Act). The respondents did not argue that s 793 of the FWA would not operate to make Prof Moore's action attributable to the University. I find that by disclosing that information, the University contravened s 340(1) of the FWA. 175 If Prof Moore was knowingly concerned in the contravention, he is, under s 550(1) of the FWA, also taken to have contravened s 340(1) of the FWA. In Yorke v Lucas (1985) 158 CLR 661, it was held at 667-670 that in order for a person to have been knowingly concerned in a statutory contravention, that person must have been an intentional participant, with actual knowledge of the essential elements constituting the contravention. However, it is not necessary that the person know that those elements amount to a contravention. Prof Moore knew that Dr Lamont was entitled to make a complaint under the Staff Grievance Resolution Policy but disclosed it to Prof Almond and Associate Prof Hutch, intending that Dr Lamont would be caused detriment or harm. I find that he was knowingly concerned in the University's contravention. 176 The second aspect of Dr Lamont's first allegation is that Prof Moore disclosed the complaint to Prof Elson and as a result Dr Lamont was injured in his employment as Prof Elson was subsequently appointed to conduct his performance appraisal. Prof Elson cannot recall Prof Moore telling him about the complaint and, further, his evidence was that he did not know any details about the grievance prior to a performance review meeting with Dr Lamont on 30 April 2010. It may be noted that Dr Lamont included references to his complaint against Prof Moore in his performance assessment documentation. Prof Moore expressly denies telling Prof Elson about Dr Lamont's complaint, and I accept his evidence in that regard. I find that the allegation that Prof Moore took adverse action against Dr Lamont by disclosing his complaint to Prof Elson has not been established. 177 For these reasons, I uphold the first allegation in part.

The second and third allegations 178 The second allegation is that Prof Moore failed to step aside as Dr Lamont's supervisor and maintained his involvement in Dr Lamont's performance appraisal, his SSP application and leave processes. 179 It is convenient to deal with the third allegation at the same time, which is that Prof Fotheringham denied Dr Lamont's request for a new supervisor and maintained Prof Moore's involvement in his performance appraisal, SSP application and leave processes. 180 In respect of the third allegation, Dr Lamont relies only upon a workplace right described as a right to make a complaint or inquiry in relation to his employment. I have ruled that this is not a workplace right within s 341(1) of the FWA, and the allegation must fail for that reason alone. In case I am wrong, I will consider the other issues involved in the third allegation.

The evidence 181 The role of a supervisor was dealt with in cl 19 of the 2006 Enterprise Agreement, which has the heading "Academic Staff Supervision". The clause provided, relevantly: 19.1 Each academic shall have a nominated supervisor, and shall be advised in writing of the name and position of the nominated supervisor. Academic staff may request the nomination of an alternative supervisor. 19.2 Supervisors shall provide academic and administrative leadership and are responsible for monitoring the performance of academics and for providing assistance to academics whose performance is assessed as requiring improvement. Wherever possible supervisors shall be competent in the areas of expertise of the academics for which they are responsible. … 19.4 The supervisor shall be the head of the academic unit in which the academic is employed, provided that the Vice-Chancellor may delegate in writing another academic staff member classified at Level C or above to be the supervisor of one or more academics or group of academics. 182 Prof Moore was Dr Lamont's supervisor. In Dr Lamont's complaint of 12 April 2010, he sought that Prof Moore be removed as his supervisor. Prof Fotheringham deposes that he needed more information about the alleged harassment in order to better understand Dr Lamont's complaint. In particular, the material provided by Dr Lamont did not support Dr Lamont's claim of six months of harassment. Ultimately, Prof Fotheringham decided on 3 June 2010 that there was no genuine grievance. 183 Under cl 19.1 of the 2006 Enterprise Agreement, the Head of School was usually to be the nominated supervisor of the academic staff in the School. Under cl 17.2, the duties of a supervisor included conducting annual performance reviews (the witnesses tended to use the expressions "review" and "appraisal" interchangeably). However, it was common practice for a Head of School to delegate senior academic staff members to undertake performance reviews, subject to an exception that the Head of School would perform that duty personally when a staff member was applying for SSP leave. In 2010, Prof Moore delegated that responsibility to four different academics within the School. 184 On 22 April 2010, Dr Lamont sent an email to Prof Fotheringham raising further concerns about the breach of confidentiality, requesting that his correspondence be referred to HR for a determination of whether confidentiality had been breached and requesting that Associate Prof Grey, the Acting Deputy Head of School, be appointed to undertake his performance review. 185 On 23 April 2010, Prof Fotheringham emailed Dr Lamont saying that he had discussed his request for a different supervisor with Prof Moore. Prof Fotheringham said that they proposed, without conceding that there had been any harassment, and solely in the spirit of goodwill and conciliation, that Prof Elson conduct Dr Lamont's performance appraisal. 186 It may be noted that some of the witnesses, including Prof Fotheringham, tended to inaccurately use the word "supervisor" when they meant "performance appraiser". It was inaccurate because the duties of a supervisor included, but were not limited to, performance appraisal. In light of the nature of the allegations, the difference is not merely semantic. 187 Dr Lamont replied on the same day saying that, given his claims against Prof Moore, he was surprised that Prof Fotheringham had decided to take Prof Moore's suggestion over the obvious choice of Associate Prof Grey, the Acting Deputy Head of School. 188 Prof Fotheringham's evidence was that he agreed it was preferable for another senior staff member to assume Prof Moore's duties as Dr Lamont's supervisor while the complaint was being dealt with. However, he did not agree with Dr Lamont's suggestion that Associate Prof Grey be appointed as he was concerned that Dr Lamont was attempting to "cherry pick" a supervisor to obtain a more favourable assessment of his research performance. Prof Fotheringham deposed that he discussed the appointment of an alternative supervisor with Prof Moore because Prof Moore would ordinarily undertake the performance review personally since Dr Lamont was expected to be applying for SSP leave. Prof Fotheringham considered that the University's requirement that SSP applicants be ranked meant that it was necessary for the Head of School to personally appraise all the SSP applicants for a particular year. Prof Fotheringham states that he asked Prof Moore who the most senior member of the School qualified to undertake staff appraisals was, and Prof Moore advised him that it was Prof Elson. Prof Fotheringham states that he advised Prof Moore that Prof Elson should become Dr Lamont's supervisor. I understand Prof Fotheringham's references to "supervisor" to be intended to mean "performance appraiser". 189 On 23 April 2010, Prof Fotheringham sent Dr Lamont an email confirming that he had decided to appoint Prof Elson to conduct the performance appraisal. Dr Lamont met Prof Elson for the appraisal on 30 April 2010. 190 On 28 April 2010, Dr Lamont sent an email to Prof Fotheringham stating that Prof Elson had told him that it was necessary for Dr Lamont to meet and discuss his SSP application with Prof Moore as Head of School and seek his recommendation. Dr Lamont said it was highly inappropriate for that to occur in the circumstances. 191 The University's policy on SSP stated, relevantly: Approval of an SSP program is vested in the Executive Dean after receiving a recommendation from the relevant Head of School/Director of Centre who will provide a written comment on the worth of the proposed SSP and its potential contribution to the School/Centre and the Faculty. The Executive Dean may convene a Committee within the Faculty to make recommendations on SSP applications. In this case, the Executive Dean will determine the application after receiving the Committee's advice. The relevant Executive Dean chairs any Faculty committee convene to consider SSP issues. … In considering applications, the Executive Dean takes the following matters into account: a. the relevance of the proposed program to the interests of the University and the applicant, including any impact on research, teaching, and the relevant professional discipline; b. the record of the applicant as an academic, including research and teaching; c. where the applicant has previously undertaken a program, evidence of achievement judged against the approved plan for that program; d. the ranking given to the application by the Head of School; e. staffing and budgetary considerations, in particular, the existence of arrangements to deal with teaching commitments and postgraduate supervision… 192 On 29 April 2010, Prof Fotheringham sent an email to Dr Lamont saying that he would not have to meet with Prof Moore, but that meant it would be necessary to include all relevant details in his written submission. There was then a series of correspondence in which Dr Lamont objected to providing his completed annual review documentation to Prof Moore for the purposes of considering his SSP application. Dr Lamont apparently viewed Prof Moore's request for that documentation as victimisation. 193 On 4 May 2010, Prof Fotheringham wrote to Dr Lamont saying that any Head of School is entitled to the full portfolio of any member of the academic staff in their School, and that was particularly necessary when the Head of School was required to make decisions affecting the School's core operations. Prof Fotheringham asked him to forward the full portfolio to Prof Moore. Evidently exhibiting some frustration at the impasse, Prof Fotheringham said that if Dr Lamont failed to do so, and Prof Moore declined to support the application on the grounds that he did not have sufficient information, Prof Fotheringham would endorse the recommendation not to further consider the application for SSP. 194 On 5 May 2010, Prof Fotheringham wrote confirming his view that Dr Lamont should provide his full completed performance appraisal to Prof Moore. Dr Lamont provided a lengthy email in response. On 6 May 2010, Prof Fotheringham, obviously exasperated with the debate, wrote saying that he was not going to waste time reading Dr Lamont's email, and said that his approach was solely that he was trying to help Dr Lamont by ensuring that his application for SSP received due and proper consideration based on all the available information. 195 Dr Lamont provided the requested information to Prof Moore. On 24 May 2010, Prof Moore prepared a report (the SSP Appraisal Document) stating that four academic staff members had applied for SSP in 2011, and that would create a strain in the discipline of philosophy. He indicated that of the four, the least productive researchers were Dr Lamont and another named academic. Prof Moore said that if there was a choice that involved Dr Lamont or the other academic, someone else would have to make it. 196 Prof Fotheringham had established a Committee, which he chaired, to consider the applications for SSP. The other members of the Committee were Prof O'Regan and Prof Cryle. Prof Fotheringham decided not to participate in any discussion of Dr Lamont's application on the basis that he had been dealing with his complaint against Prof Moore and did not want there to be any perception of bias. Prof D'Agostino took Prof Fotheringham's place when Dr Lamont's application was considered. The Committee made a recommendation to Prof Fotheringham that Dr Lamont not be granted SSP. 197 On 18 August 2010, Prof Fotheringham wrote to Dr Lamont indicating that he had not been granted SSP for 2011. The letter noted that the Committee was unable, based on the outcomes of Dr Lamont's previous SSP, and his record of research productivity more generally, to have confidence that the program's outcomes would be delivered in a timely fashion. The Committee had noted that his foreshadowed outcomes for his previous period of SSP had not yet been delivered and that his five year record of publications was below expectations. The letter stated that Prof Fotheringham had accepted the recommendation of the Committee. 198 On 22 July 2010, Prof Moore, Prof Fotheringham and Ms Lorenzo agreed upon a proposal where, inter alia, Prof Brown would become Dr Lamont's supervisor for a year, to be reviewed at the end of that year. On 30 July 2010, Ms Lorenzo and Prof Keniger put that proposal to Dr Lamont, but he rejected it, on the basis that he wanted the arrangement in place for five years. On 30 July 2010, Prof Moore confirmed by email that he was still amenable to the proposal, and that his concern with a longer period was that the role of the Head of School would be weakened. 199 On 4 August 2010, Dr Lamont wrote to Ms Lorenzo indicating that he would accept Prof Brown as a temporary supervisor provided she was delegated full powers and authority. He said there was no point in having an alternative supervisor unless they were vested, in respect to him, with the full powers of a Head of School. On 5 August Ms Lorenzo replied saying that Prof Brown would have the "normal" range of authority of an academic staff supervisor, in accordance with cl 19 of the 2006 Enterprise Agreement. She said she could not give a definitive answer as to whether Prof Moore would have any residual powers affecting Dr Lamont. 200 On 6 August 2010, Dr Lamont responded, declining to accept a temporary supervisor on the terms offered, on the basis that Prof Moore would be left with residual powers which could be used to harass him. On 8 August 2010, Dr Lamont wrote saying that he would remain with Prof Moore as his supervisor, unsatisfactory though that was, until an arrangement was made to remove Prof Moore's powers to cause him harm. That response was illogical. 201 Prof Moore's evidence was that he would have stepped down as Dr Lamont's supervisor if so directed, but he was never directed to do so. However, he did not believe there were any grounds for him to step aside. 202 Prof Fotheringham deposes that he made the decision to replace Prof Moore with Prof Elson as Dr Lamont's performance appraiser in 2010. Prof Fotheringham states that while Prof Moore provided comments as to Dr Lamont's proposed SSP Plan and its potential contribution to the School, he considered it would have been inconsistent with the SSP Policy to remove Prof Moore from that process.

Consideration 203 Dr Lamont alleges that Prof Moore's failure to step aside as his supervisor, and the failure of Prof Fotheringham to remove Prof Moore as his supervisor, was adverse action taken against him because: (1) he was required to continue to report to and be managed by and have his SSP application assessed and a recommendation made by Prof Moore, who was biased against him; (2) he was denied the benefit of a change of supervisor contrary to cl 19.1 of the 2006 Enterprise Agreement. 204 Dr Lamont submits that maintaining Prof Moore in his supervisory role while biased amounted to a deterioration in the benefit enjoyed by an employee under cll 17 and 19 of the 2006 Enterprise Agreement to a supervisor who would support him in his career. He submits that his employment prospects were also substantially imperilled by the respondents' actions since Prof Moore remained his supervisor and was able to and did retaliate against Dr Lamont while carrying out his role as his supervisor. 205 Dr Lamont alleges that Prof Fotheringham's denial of Dr Lamont's request for a new supervisor was adverse action taken against him because he had exercised workplace rights. 206 The respondents submit that while Prof Moore did not step aside as Dr Lamont's supervisor, there was no obligation to do so. They submit that such conduct was not adverse action. Further, they submit that any such action was not taken because Dr Lamont had made complaints or otherwise exercised any workplace rights. 207 On 22 April 2010, Dr Lamont requested that Associate Prof Grey be appointed to undertake his performance appraisal. It was not strictly a request under cl 19.1 of the 2006 Enterprise Agreement for an alternative supervisor to be appointed, but only for someone else to perform one of the duties of a supervisor. However, the request might alternatively be regarded as being for the appointment of an alternative supervisor for the limited purpose of conducting a performance review. 208 Two things may be noted about cl 19.1. The first is that it gave an entitlement to academic staff to request an alternative supervisor - not a right to have an alternative supervisor appointed. Second, while one of the usual functions of a Head of School was to supervise the academic staff, an alternative supervisor would not acquire the non-supervisory functions of the Head of School. 209 The respondents accept that Prof Moore remained Dr Lamont's supervisor. However, Prof Fotheringham decided to appoint Prof Elson in place of Prof Moore to conduct Dr Lamont's 2010 performance appraisal. While the functions of a supervisor could be exercised by someone other than a Head of School, the assessment of an SSP application and the making of a recommendation under the SSP Policy was the function of the Head of School. While there would normally be an interview with the Head of School, Prof Fotheringham did not require Dr Lamont to attend an interview with Prof Moore. Prof Fotheringham's evidence was that he decided to maintain Prof Moore's involvement in making recommendations upon the SSP applications because he was best placed to assess the School's overall needs. Later, Prof Moore offered to stand down as Dr Lamont's supervisor, with the approval of Prof Fotheringham. This was rejected by Dr Lamont on the basis that, even if he were no longer his supervisor, Prof Moore could victimise him. 210 Prof Fotheringham removed Prof Moore from a major part of his role as Dr Lamont's supervisor by replacing him with Prof Elson as Dr Lamont's performance appraiser. Prof Fotheringham decided that it would be inappropriate to allow Dr Lamont to "cherry pick" his own appraiser. Dr Lamont's nomination of a particular academic, Associate Prof Grey, to conduct the review did give the appearance of "cherry picking". Dr Lamont had no entitlement to his own choice of performance appraiser. Prof Fotheringham asked Prof Moore for his recommendation as to the appropriate performance appraiser, and he suggested Prof Elson. I am satisfied that Prof Moore recommended Prof Elson only because he was the most senior staff member of the School qualified to undertake staff appraisals. 211 The fact that Prof Fotheringham removed Prof Moore as Dr Lamont's performance appraiser, and later agreed to a proposal that Prof Moore stand down as Dr Lamont's supervisor for at least a year, supports Prof Fotheringham's evidence that he did not remove Prof Moore as Dr Lamont's supervisor only because he saw no need to do so. I accept that evidence. 212 Further, while Dr Lamont's complaint of 12 April 2010 sought Prof Moore's removal as his supervisor, that could only occur if it was established that Prof Moore had harassed Dr Lamont as his complaint alleged. That was never established, since Prof Fotheringham decided that there was no genuine grievance. 213 I find that Prof Fotheringham did not decline to remove Prof Moore as Dr Lamont's supervisor because Dr Lamont had exercised his workplace rights to make a complaint against Prof Moore, or to request another supervisor, or otherwise. The most that can be said is that he declined to remove Prof Moore despite Dr Lamont's complaints. 214 I accept Prof Fotheringham's evidence that he decided to maintain Prof Moore's involvement in making recommendations upon the SSP applications because he was best placed to assess the School's overall needs. I find that he did not decline to remove Prof Moore from that role because Dr Lamont had exercised any workplace rights. 215 I accept that the reason why Prof Moore did not stand down as Dr Lamont's supervisor was that he was not asked to do so. I accept that if he had been asked to stand down, he would have done so, consistently with standing down as Dr Lamont's performance reviewer and with offering to stand down as his supervisor. I find that Prof Moore did not decline to stand aside as Dr Lamont's supervisor because Dr Lamont had made complaints against him or otherwise exercised workplace rights 216 Further, I do not accept that Prof Moore declining to stand down as Dr Lamont's supervisor, and Prof Fotheringham declining to remove Prof Moore as his supervisor, caused any injury to Dr Lamont in his employment. Dr Lamont was left with a supervisor he was unhappy and dissatisfied with. That Prof Moore remained as Dr Lamont's supervisor contrary to Dr Lamont's wishes does not, of itself, amount to injury to Dr Lamont. Dr Lamont alleges separately that Prof Moore took adverse action by giving him an unfavourable SSP assessment, refusing part of his annual leave and victimising him by querying his telephone expenses. I reject those allegations for reasons I will address later. I do not accept that there was any injury to Dr Lamont. 217 For these reasons, I reject the second and third allegations.

The fourth allegation 218 The fourth allegation is that the University failed to conduct Dr Lamont's 2010 performance appraisal in accordance with the 2006 Enterprise Agreement because he exercised workplace rights. 219 The allegation is that the University failed to comply with its obligations under cll 17.1, 17.2, 17.3, 19.1 and 19.2 of the 2006 Enterprise Agreement in: (1) deciding who should conduct the 2010 performance appraisal; (2) deciding how the appraisal and determination should be conducted; and (3) deciding which documents/recommendations would be sighted and signed by Dr Lamont, as this disadvantaged Dr Lamont by not providing him with a proper opportunity to respond to the matters raised in the appraisal process. 220 Clause 17 of the 2006 Enterprise Agreement dealt with "Performance Review". It provided, relevantly: 17.1 Each academic staff member with the exceptions listed in 17.4 below, will submit annually to his/her supervisor, a portfolio covering achievements in the broad areas of - • teaching and supervision; • scholarship, research and original achievements; and • service to the University and the community. 17.2 The supervisor will conduct a formal review with each staff member after the presentation of the portfolio. This review will address issues of staff development and personal planning, assessment of achievements and recommendations relating to other formal processes in the University such as continuing appointment, promotion, special studies programs (SSP) and incremental progression. 17.3 The outcomes from the review will be one or more of the following, as relevant to the particular circumstances of the academic staff member: • The supervisor's assessment of progress of probationary staff; • The supervisor's assessment of performance; • A personal and professional development plan, completed and agreed by the staff member and the supervisor. (This document will remain confidential to the staff member, the supervisor and the head of School/Organisational Unit.); • A statement of the development requirements for the staff member, which cannot be met from the organisational unit's resources. For development requirements that cannot be met within the organisational unit's resources, a document is completed advising the University Staff Development Committee of the need; • The supervisor's recommendation concerning incremental progression where required; and/or • The supervisor's recommendation in relation to mid-term and final review for continuing appointment, or for promotion, or for SSP as appropriate. These documents/recommendations will be sighted and signed by the staff member and submitted to the relevant University process at the appropriate time. 221 I have already set out cll 19.1 and 19.2 of the 2006 Enterprise Agreement. Under cl 19.1, a supervisor had to be nominated for each member of the academic staff, and academic staff could request the nomination of an alternative supervisor. Under cl 19.2, supervisors had responsibilities that included, but were not limited to, monitoring the performance of academics. 222 The allegation that the University failed to comply with its obligations in deciding who should conduct the 2010 performance appraisal seems to be that cl 17 required that Dr Lamont's supervisor perform his annual performance review, but it was instead conducted by Prof Elson, who was not his supervisor. 223 When Dr Lamont made his complaint of 12 April 2010, Prof Moore was his supervisor. Dr Lamont objected to Prof Moore conducting his 2010 performance review and sought that Associate Prof Grey conduct that review. Prof Fotheringham acceded to Dr Lamont's view that Prof Moore should not conduct the review, but decided to appoint Prof Elson to do so. 224 In my opinion, there is nothing in cll 17 or 19 of the 2006 Enterprise Agreement that prohibits the delegation of the supervisor's responsibility for the annual performance review to another academic. In my opinion, that scenario is envisaged by the fact that under cl 24, an academic may raise a grievance against his or her supervisor, so that there may well be circumstances in which the conduct of the performance review by the supervisor will create a conflict of interest and be inappropriate. Further, Prof Fotheringham gave evidence of a practice of delegation of performance reviews. It is unlikely that cl 19 intended to prohibit the continuance of that practice implicitly. If there was an intention to end the practice, it would have been done expressly. 225 There is nothing in cll 17 or 19 of the 2006 Enterprise Agreement that required that Dr Lamont be given his choice of performance appraiser. I have already concluded that Prof Fotheringham did not make a decision to appoint Prof Elson because Dr Lamont had exercised any workplace right, but for other genuine and legitimate reasons. I am also satisfied that Prof Moore recommended Prof Elson because of his seniority, and not because Dr Lamont exercised any workplace rights. 226 In these circumstances, I cannot see that there was any breach of cll 17.1, 17.2, 17.3, 19.1 or 19.2 in Prof Fotheringham's decision as to who should conduct the performance appraisal. 227 It is somewhat difficult to understand the second and third aspects of Dr Lamont's allegation. They seem to reflect evidence contained in his first affidavit that: At the commencement of the performance appraisal, Prof Elson said words to the effect, "I don't know what complaint you have against [Prof Moore] but I think he is doing a great job as Head of School" which caused Dr Lamont distress, such that he did not discuss Prof Moore's harassment or his handling of workload issues that were affecting his work and other matters. Prof Elson did not ask Dr Lamont when his "in press" publications referred to in his Form A would be published. Prof Elson did not provide Dr Lamont with the opportunity to address any concerns or any recommendation about his SSP application. Dr Lamont did not see Section 3 of the Form B in the performance appraisal meeting because Prof Elson had not completed his comments for that section at the time. Dr Lamont was not provided with a signed copy of the Form C which required the "approval of Head of Organisation Unit". Prof Elson did not evaluate Dr Lamont's teaching and service contributions to the Bachelor of Science Degree in the Form B. 228 Prof Elson deposes that he does not recall making a statement to the effect that he did not know what complaint Dr Lamont had against Prof Moore but thought he was doing a great job as Head of School. Prof Elson states that he cannot think of any reason why he would have made such a statement. 229 Dr Lamont wanted the performance appraisal to be conducted by Associate Prof Grey, and evidently considered that Prof Elson was appointed as part of his victimisation by Prof Moore and Prof Fotheringham. I accept that Prof Elson had no reason to make the comment attributed to him. In my view, this is an example of Dr Lamont's recollection being skewed by his conviction that he was being victimised when he did not get the outcome he sought. I find that the comment was not made. 230 During the performance appraisal meeting, there was discussion about Dr Lamont having "in press" publications. Prof Elson does not recall asking Dr Lamont specifically about when his "in press" publications would be published. He deposes that in matters of this kind, his focus was generally on those publications which had actually appeared in print. I find that Prof Elson did not refrain from asking about when the "in press" publications would be published because Dr Lamont had exercised any workplace rights. 231 It was not Prof Elson's role to assess Dr Lamont's SSP application. That was because Prof Elson's role was limited to the performance review, and Prof Moore was responsible for making a recommendation upon the SSP application. Prof Elson made that clear to Dr Lamont. Accordingly, Prof Elson did not address Dr Lamont's SSP application during the performance review meeting. The absence of any consideration of the SSP application by Prof Elson was not because Dr Lamont had exercised any workplace rights, but because it was not Prof Elson's role to do so. 232 Prof Elson deposes that he completed Section 3 of the Form B after the performance appraisal meeting had taken place. He says that was consistent with the usual process for performance appraisals. I accept that evidence. The Form B was signed by Dr Lamont and Prof Elson on 5 May 2010. I find that Dr Lamont was not deprived of seeing Section 3 of the Form B in the performance appraisal meeting because Dr Lamont had exercised any workplace rights. 233 Dr Lamont alleges that he was not provided with a signed copy of the Form C which required the "approval of Head of Organisation Unit". I cannot see that he was required to be provided with a signed copy. What was required was that Dr Lamont sight the relevant documents and that he sign them. I do not accept that Dr Lamont was not provided with the signed copy because he had exercised any workplace rights. 234 Prof Elson states that he did discuss Dr Lamont's contribution to the Bachelor of Science Degree and evaluated Dr Lamont's performance. I find that Prof Elson did not fail to evaluate Dr Lamont's teaching and service contributions to the Bachelor of Science Degree in the Form B. 235 I accept Prof Elson's evidence. I find that he did not take any of the actions complained of by Dr Lamont because Dr Lamont exercised any of the workplace rights alleged. 236 In any event, Dr Lamont has not demonstrated that he was injured by either the appointment of Prof Elson as his performance reviewer or any actions taken by Prof Elson. I am satisfied that Prof Elson performed his role dispassionately and competently. There were three categories for the rating of performance levels, "Not applicable", "Satisfactory" and "Not Satisfactory". Dr Lamont was rated "Satisfactory" in each category of performance. I find that Dr Lamont was not injured as he alleges. 237 I reject the fourth allegation.

The fifth allegation 238 The fifth allegation is that the University failed to assess Dr Lamont's SSP application in accordance with the 2006 Enterprise Agreement because he exercised his workplace rights. It is alleged that Dr Lamont was injured in his employment by the University: (1) denying him the right to have his SSP application assessed in accordance with the 2006 Enterprise Agreement; (2) denying him the opportunity to enhance his academic profile through having his SSP application assessed on merit by fully informed University officers; (3) failing to conduct the performance review and SSP processes in such a way as to ensure his ability to further his career at the University would not be permanently stalled as a result of his complaints against University officers. 239 Clause 17.3 of the 2006 Enterprise Agreement required that the supervisor's recommendation relating to SSP applications be sighted and signed by the academic staff member and submitted to the relevant University process at the appropriate time. The University's SSP policy required the Head of School to provide written comment on the worth of the proposed SSP and its potential contribution to the School and the Faculty. 240 Prof Moore prepared the SSP Appraisal Document dated 24 May 2010 commenting about Dr Lamont's SSP application and partially ranking the applications. Prof Moore stated that Dr Lamont had made slow research progress, which was unsatisfactory. Prof Moore said that, given this, there must be some doubt about whether Dr Lamont's promised research output during his proposed SSP would eventuate. Prof Moore said that Dr Lamont's proposed SSP program would be of benefit to the philosophy discipline, the School and University. However, he was concerned that four staff from the philosophy discipline had applied for SSP and that there would be a strain upon the resources of that discipline. Prof Moore said that Dr Lamont and one other staff member were the least active researchers of the four who applied for SSP, and if there was a choice to be made between Dr Lamont and that other staff member, someone else would have to make that decision. 241 Dr Lamont deposes that he was not provided with the SSP Appraisal Document. He submits that was a contravention of cl 17.3 of the 2006 Enterprise Agreement, which required that he sight and sign his supervisor's recommendation about his SSP application. Dr Lamont submits that this meant that he had no opportunity to address a number of the comments Prof Moore had made about his research progress which he disagrees with. 242 Dr Lamont's SSP application was considered by a Committee consisting of Prof D'Agostino, Prof Cryle and Prof O'Regan. Each of them gave evidence that the letter dated 18 August 2010 from Prof Fotheringham to Dr Lamont reflects the Committee's reasons for concluding that the SSP application should not be granted. The material before the Committee included Dr Lamont's application and a supplementary report he provided upon the outcomes of his previous SSP leave. The SSP Appraisal Document was also before the Committee. 243 There was a peculiar combination of circumstances in play. Usually the Head of School would conduct both the annual performance review of an SSP applicant required under cl 17.3 of the 2006 Enterprise Agreement and the appraisal required under the SSP Policy. On this occasion, Dr Lamont's complaint about Prof Moore led to his annual performance review being conducted by Prof Elson, while the SSP appraisal was conducted by Prof Moore. While the performance review would usually contain a recommendation about any SSP application, Prof Elson did not address Dr Lamont's SSP application. The SSP Appraisal Document contained Prof Moore's comments about Dr Lamont's application and his partial ranking of the applications. Prof Moore refrained from making a recommendation about Dr Lamont's application, saying that someone else would ultimately have to make a decision. Prof Moore did so on the basis that, in view of Dr Lamont's complaint, he had a conflict of interest. It might be thought that Prof Moore should have refrained from making any comment about Dr Lamont's application in the circumstances, but it must also be recognised that Prof Moore's role under the SSP Policy extended to consideration of the interests of the whole of the School. 244 Dr Lamont's submission is that he was denied the opportunity required under cl 17.3 of the 2006 Enterprise Agreement to sight Prof Moore's recommendation about his SSP application. However, I consider that Prof Moore made no recommendation about Dr Lamont's SSP application. He also said that if there was a choice to be made between Dr Lamont's application and the application of another staff member, someone else would have to make it. 245 Even if the SSP Appraisal Document should be interpreted as containing a recommendation as envisaged under cl 17.3 of the 2006 Enterprise Agreement about Dr Lamont's SSP application, I would not accept that Prof Moore refrained from providing the document to Dr Lamont because he had made a complaint about Prof Moore or otherwise exercised workplace rights. In Hall, it was held that in order to take advantage of s 361(1), an applicant must plead the relevant reason and all the material facts concerning the contraventions alleged against the respondent. The FASOC does not clearly allege that Prof Moore took adverse action by deliberately refraining from providing what I have called the SSP Appraisal Document to Dr Lamont because Dr Lamont exercised his workplace rights. Accordingly, s 361(1) of the FWA does not operate to engage the presumption and it is necessary for Dr Lamont to prove that any such adverse action was taken because he exercised workplace rights. 246 Any allegation that Prof Moore took adverse action by refraining from providing the SSP Appraisal Document to Dr Lamont because he had exercised workplace rights ought to have been put to Prof Moore in cross-examination because it was not otherwise clear that such an allegation was being made. It was not put, and Prof Moore did not, therefore, address the allegation directly. Prof Moore's evidence was that the SSP Appraisal Document was ordinarily provided to the Committee. It seems unlikely that such a document would ordinarily be provided to the SSP applicants as it would contain the Head of School's comments upon all the applications and a ranking of them. It therefore seems more probable that the SSP Appraisal Document was not provided to Dr Lamont because that was not the ordinary practice. I do not accept that this occurred because Dr Lamont had exercised any workplace rights. 247 I accept that Prof Moore held considerable animosity towards Dr Lamont as a result of his complaint. However, I consider that the views Prof Moore expressed in the SSP Appraisal Document were reasonable, even though Dr Lamont disagrees with them. They were consistent with views expressed in Prof Moore's letter of 19 March 2010 to Dr Lamont. I find that Prof Moore expressed the views contained in the SSP Appraisal Document because he genuinely held them, and not because Dr Lamont had exercised any workplace rights. 248 I accept that there was a breach of cl 17.3 of the 2006 Enterprise Agreement because, while it required that Dr Lamont's supervisor give a recommendation in relation to his SSP application and that he be allowed to sight the recommendation, no recommendation was given. However, it has not been pleaded or argued that Prof Moore took adverse action by refraining from giving such a recommendation. 249 I am not satisfied that Prof Moore's failure to provide Dr Lamont with a copy of the SSP Appraisal Document caused any injury to Dr Lamont in his employment. While he did not have the opportunity to address the specific comments about the outcomes of his previous SSP application and his lack of research, Prof Moore had previously indicated his views about Dr Lamont's research in his letter of 19 March 2010 and the SSP Policy indicated that evidence of achievement judged against the approved plan for any previous SSP leave would be taken into account. Therefore, Dr Lamont must have been aware that these would be issues for the SSP Committee. Dr Lamont in fact addressed the outcomes of his previous period of SSP leave and his research record in his application to the Committee. I am not satisfied that if Dr Lamont had sighted Prof Moore's SSP Appraisal Document sand addressed it, the Committee's recommendation would have been any different. In my opinion, the mere absence of an opportunity to address Prof Moore's proposal was not itself an injury, since it did not ultimately make any difference to the outcome of the application: cf Jones v QTAC at [122]. I therefore conclude that there was no adverse action taken against Dr Lamont in this respect. 250 Dr Lamont submits that Prof Fotheringham has failed to explain why he asked the Committee to consider the application without any recommendation being sighted and signed by Dr Lamont. However, it was not put to Prof Fotheringham that he took any such action because Dr Lamont had made a complaint or otherwise exercised workplace rights. Again, that should have been put to him because no such allegation was clearly made on the pleadings or in the affidavits. Section 361(1) of the FWA does not apply. I am not satisfied that Prof Fotheringham took any such action because Dr Lamont exercised any workplace rights. Further, I am satisfied that Prof Fotheringham rejected Dr Lamont's SSP application solely for the reasons set out in his letter of 18 August 2010. 251 I am satisfied that the members of the Committee made their recommendation based solely upon their views of the merits of Dr Lamont's application and for the reasons set out in Prof Fotheringham's letter of 18 August 2010. While they may have been influenced by Prof Moore's views, I have found that Prof Moore genuinely held the views he expressed. 252 I reject the fifth allegation.

The seventh allegation 253 The seventh allegation is that Prof Moore took adverse action against Dr Lamont by threatening to sue him because he exercised workplace rights. 254 It is alleged that Dr Lamont was injured in his employment by being threatened with being sued based upon his workplace grievance and by a contravention of ss 11(1) and (2) of the Whistleblowers Protection Act 1994 (Qld). It is also alleged that Dr Lamont was injured by a failure to comply with cl 5.1.2 of the University's Whistleblowers Policy, such that Dr Lamont was treated substantially differently to the way he would ordinarily be treated. 255 On 5 May 2010, Prof Moore wrote to Prof Fotheringham referring to Dr Lamont's complaint of 12 April 2010. Prof Moore stated that Dr Lamont's letter carried an inference that he was responsible for the suicide of Dr XY and was, in this and other ways, defamatory. Prof Moore asked that Dr Lamont retract that inference by removing the second paragraph of his letter and rewriting the third paragraph. The email concluded, "Should Dr Lamont not do so I will take further advice on my best future action". 256 On 6 May 2010, Prof Fotheringham wrote to Dr Lamont saying he had received a letter from Prof Moore alleging that the letter of 12 April 2010 was defamatory and asking that he retract the statements made in the second paragraph. The email indicated that Dr Lamont would be provided with a copy of Prof Moore's letter. It was in fact provided to Dr Lamont. 257 I do not accept that Prof Moore made any threat to sue Dr Lamont. Prof Moore alleged that parts of Dr Lamont's letter of complaint were defamatory and indicated that if they were not retracted, he would seek advice as to his best course of action. That was intended to indicate that he would seek legal advice about the alleged defamation. However, it fell short of a threat to sue Dr Lamont. Therefore, insofar as the allegation is that Prof Moore threatened to sue Dr Lamont in his email of 5 May 2010, it is not established. 258 In a letter to Mr Byrom dated 28 March 2011, Prof Moore stated that he had requested that Dr Lamont withdraw the offending paragraphs and apologise. He said that Dr Lamont had not done so and, "until he does may yet face legal action". That raised a possibility that Dr Lamont may be sued, but fell short of a threat to sue. Further, there is no evidence that this statement was communicated to Dr Lamont by Mr Byrom. Accordingly, even if it was a threat, it was not a threat made to Dr Lamont. As Dr Lamont was unaware of the alleged threat, it could not be or cause an injury to him. 259 The seventh allegation must be rejected.

The ninth allegation 260 The ninth allegation is that the University refused to remove Prof Fotheringham from managing the various complaints Dr Lamont had made. That is alleged to have occurred because Dr Lamont exercised workplace rights. 261 The particularised complaints are Dr Lamont's complaint of 12 April 2010 against Prof Moore, his complaint of 22 April 2010 to Prof Fotheringham about the investigation, his complaint of 21 June 2010 to Ms Lorenzo about Prof Fotheringham's alleged bullying and harassment and his complaints of 7 July and 4 August 2010 to Ms Lorenzo about the University's handling of the grievance procedure. 262 It is alleged that Dr Lamont was injured in his employment: (1) since he was refused a resolution of his grievance by a decision-maker abiding by the duty of confidentiality and impartiality contrary to the Staff Grievance Resolution Policy; (2) by the University failing to comply with its occupational health and safety responsibilities when Dr Lamont notified Ms Lorenzo of his deteriorating mental health, impacting on his work performance; (3) by not providing Dr Lamont with the protections afforded a person who had lodged a grievance or made a complaint contrary to cll 1.1, 4.1 and 4.2 of the University's Discrimination and Harassment Policy; (4) by not providing Dr Lamont with special protections against reprisal contrary to ss 11(1) and (2) of the Whistleblowers Protection Act. 263 It is also alleged that the University's conduct delayed the processing of Dr Lamont's complaints, such that Dr Lamont was treated substantially differently to the manner in which he would ordinarily be treated, and that amounted to a deterioration in the advantages enjoyed by him under the University's policies.

The evidence 264 On 20 April 2010, Dr Lamont wrote to Prof Fotheringham alleging that the confidentiality of his complaint had been breached by Prof Fotheringham having provided a copy to Prof Moore. Prof Fotheringham replied, acknowledging that he had supplied Prof Moore with a copy of the complaint. 265 On 22 April 2010, Dr Lamont sent an email to Prof Fotheringham stating again that the confidentiality of his complaint had been violated, and that he could see no way to advance the process without the issue of confidentiality being resolved, and asking for a legal opinion on the issue. 266 On 23 April 2010, Prof Fotheringham made a request to the University's Legal Office for a determination as to whether confidentiality had been breached in the way alleged by Dr Lamont. 267 On 6 May 2010, Dr Lamont sent an email to Prof Fotheringham saying he had no confidence in Prof Fotheringham's ability to competently and impartially investigate his allegation of harassment. 268 On 2 June 2010, Mr Croucher wrote to Dr Lamont saying that the Legal Office could not provide an opinion on the issue of confidentiality because it was in a position of conflict. The understanding of Ms Lorenzo, the Human Resources Director, was that this was because the Legal Office's role was to advise the University and it could not simultaneously advise staff members where there was contention about an issue. 269 On 3 June 2010, Prof Fotheringham wrote to Dr Lamont in response to his letter of complaint of 12 April 2010. Prof Fotheringham summarised Dr Lamont's complaints as being a complaint about alleged excessive academic workload, a complaint about matters raised by Prof Moore in relation to his research record and a number of other complaints, including about financial returns from his teaching in the Bachelor of Science course, photocopying and what he perceived to be a history of harassment in the School. 270 In his letter, Prof Fotheringham stated that he could only intervene if it was clear that the School's academic workload policy had been implemented in a manner that was so discriminatory to Dr Lamont as to constitute harassment of him. Prof Fotheringham said that before he could consider that matter further, Dr Lamont needed to provide evidence that his workload was consistently manifestly excessive relative to other academic staff to an extent that could not be explained by normal variation. 271 Prof Fotheringham concluded that Dr Lamont's research performance was well below the minimum expected for a teaching and research academic at Dr Lamont's level. Prof Fotheringham said that since the alleged excessive workload and disagreement about Dr Lamont's research records were the major issues upon which the grievance was based, he did not intend to consider the other "minor matters" that had been raised. Prof Fotheringham found no evidence of harassment. He found that Prof Moore acted properly and responsibly and in accordance with his duties as Head of School and with care and consideration for Dr Lamont as an individual and as a valued staff member of the School. Prof Fotheringham went on to urge Dr Lamont to accede to Prof Moore's request that he rewrite his letter and apologise. 272 On 21 June 2010, Dr Lamont wrote to Ms Lorenzo making a number of complaints about Prof Fotheringham's conduct. These included Prof Fotheringham's provision of Dr Lamont's letter of 12 April 2010 to Prof Moore, that he was not impartial, that he had attempted to intimidate Dr Lamont and that he had mischaracterised Dr Lamont's grievance. 273 On 22 June 2010, Ms Lorenzo met with Dr Lamont. She states that the purpose of the meeting was to see if there was a resolution of Dr Lamont's grievance that could be achieved informally and cooperatively. 274 However, on 24 June 2010, Dr Lamont sent an email to Ms Lorenzo, which confirmed that the only formal grievance he had on foot at that time was his initial grievance of 12 April 2010 against Prof Moore. He foreshadowed the possibility of further complaints against Prof Moore and Prof Fotheringham. 275 On 1 July 2010, Ms Lorenzo emailed Prof Fotheringham saying that Dr Lamont had concerns about the way he had managed Dr Lamont's grievances and, given the delay in managing Dr Lamont's grievance, an option was for the grievance to be managed by the HR Department. Ms Lorenzo discussed with Prof Fotheringham the possibility of Prof Brown being appointed as Dr Lamont's supervisor. 276 On 1 July 2010, Prof Fotheringham sent Ms Lorenzo a memorandum indicating that Dr Lamont had not provided material he had requested that was required at Step Two of the Staff Grievance Resolution Policy, that he did not consider the appointment of a new supervisor to be available under that policy and that Prof Brown was not an appropriate supervisor. Prof Fotheringham was concerned that Prof Brown was not the best qualified person and that it might be inappropriate as she had a close personal friendship with Dr Lamont. 277 On 1 July 2010, Prof Fotheringham wrote to Dr Lamont noting that before he could proceed further with the complaint, he required further evidence in relation to his allegation of inequitable or unreasonable academic workload, further evidence in relation to his claims about his research record and/or postgraduate supervision load and a response to his request that he apologise to Prof Moore and to Associate Prof Hutch for making false and damaging accusations about them. 278 On 1 July 2010, Ms Lorenzo sent Dr Lamont an email which confirmed that Prof Fotheringham had not agreed to Dr Lamont's proposal for Prof Brown to be his supervisor, and that Prof Fotheringham would continue to manage Dr Lamont's grievance at Step Two of the Staff Grievance Resolution Policy. 279 On 7 July 2010, Dr Lamont emailed Prof Fotheringham saying that he had initiated a grievance under Step One of the Staff Grievance Resolution Policy, not Step Two. Dr Lamont said he understood Prof Fotheringham's email of 3 June 2010 to be a determination that there was no genuine grievance. He said that accordingly he was not required to provide further material in response to Prof Fotheringham's email of 1 July 2010. 280 On the same day, Dr Lamont wrote to Ms Lorenzo saying that Prof Fotheringham seemed to be labouring under a false belief that he was operating under Step Two. Dr Lamont said that he had not yet decided to initiate formal proceedings under Step Two. 281 On 8 July 2010, Prof Fotheringham wrote to Dr Lamont stating that as Dr Lamont had not sought to resolve his grievance in accordance with Step One, he had concluded that Dr Lamont considered that dealing with the matter under Step One was not appropriate and had wished to initiate formal Step Two proceedings. Prof Fotheringham's email also stated that he required a response to his letter of 1 July 2010 and that if Dr Lamont failed to provide that response (including to make amends for allegations made against the Heads of School), Prof Fotheringham intended to conduct an investigation under the University's Misconduct - Serious Misconduct Policy into Dr Lamont's refusal to carry out a lawful and reasonable instruction. 282 On 9 July 2010, Ms Lorenzo wrote to Prof Fotheringham cautioning him against any disciplinary proceedings because of the risk that it might be a breach of the FWA, as it might be seen to be penalising Dr Lamont because he had lodged a grievance. Prof Fotheringham replied on the same day saying that he would not consider Dr Lamont's proposal for appointment of a new supervisor to resolve his complaint. Prof Fotheringham added that he had no intention of penalising a staff member for lodging a grievance, but that Dr Lamont's failure to cooperate reasonably in the grievance resolution process and his making of false claims was a different issue and potentially justified disciplinary consequences. 283 On 12 July 2010, Dr Lamont sent an email to Prof Fotheringham saying that he found it extraordinary that Prof Fotheringham was threatening disciplinary action if he did not reply to the email of 1 July 2010, when he had in fact already replied. Dr Lamont made a number of complaints about Prof Fotheringham's handling of the grievance and rejected a number of the assertions made in the email of 8 July 2010. Dr Lamont said that he would write to Ms Lorenzo, asking that Prof Fotheringham no longer have any role in managing his grievance. 284 On the same day, Prof Fotheringham replied saying he understood that Dr Lamont was requesting that he no longer manage the grievance. Prof Fotheringham said he would seek advice about the procedure. 285 Ms Lorenzo received an email from Dr Lamont on the same day requesting that she direct Prof Fotheringham to have no further role in managing the grievance. Dr Lamont expressed concern at the threat of disciplinary action against him. 286 Ms Lorenzo then sent an email to Prof Fotheringham strongly suggesting he not initiate misconduct procedures as indicated in his email of 8 July 2010, as doing so could be construed as a fundamental breach of the aims of the Staff Grievance Resolution Policy. 287 Dr Lamont met with Ms Lorenzo and Prof Keniger on 14 July 2010 to discuss proposals for the resolution of his complaint. 288 Ms Lorenzo met with Prof Fotheringham and Prof Moore on 22 July 2010. They reached agreement upon a proposal that Prof Brown be appointed Dr Lamont's supervisor for one year and that the agreement be reviewed at the end of that year. Further, Prof D'Agostino would take over the responsibilities of Executive Dean with respect to Dr Lamont for the remainder of the term of Prof Fotheringham's appointment. In addition, the University would provide assurances to Dr Lamont that he would not be victimised as a result of pursuing his grievance. Prof Moore continued to request an apology. 289 In late July 2010, Ms Lorenzo advised Dr Lamont that Prof Fotheringham was not going to take any disciplinary action against him. 290 On 30 July 2010, Prof Keniger and Ms Lorenzo made an offer on behalf of the University to resolve Dr Lamont's grievance on the terms which she had agreed with Prof Moore and Prof Fotheringham. However, Dr Lamont did not agree to the proposal and said that he would be making an updated grievance. 291 On 30 July 2010, Ms Lorenzo sent an email to Dr Lamont asking him to confirm that no resolution had been reached and the matter had to be referred to the Senior Executive responsible for academic employee relations. Professor Alan Rix was usually the Senior Executive responsible, but it was proposed that Prof Keniger fulfil that role, apparently because Dr Lamont had an objection to Prof Rix. 292 On 6 August 2010, Dr Lamont refused to accept a proposal that Prof Brown be appointed as his supervisor while his grievance was managed.

Consideration 293 The FASOC alleges that the University refused to remove Prof Fotheringham from managing Dr Lamont's grievance. Dr Lamont's submissions focus on the failure of Ms Lorenzo to recommend to Prof Keniger that Prof Fotheringham be removed. 294 Ms Lorenzo states that the University did not ask Prof Fotheringham to remove himself from managing Dr Lamont's complaints prior to 12 July 2010 because there was no basis upon which to remove him from the role. Ms Lorenzo states that Prof Fotheringham had been working with her to try to continue to resolve the grievance. 295 Dr Lamont submits that Ms Lorenzo's evidence should be rejected and it should be concluded that Prof Fotheringham was not removed from managing Dr Lamont's complaints because of Dr Lamont's exercise of his workplace rights. The allegation seems to be that a decision was made that Prof Fotheringham would not be replaced because Dr Lamont had made complaints about Prof Moore and Prof Fotheringham and exercised other workplace rights. 296 It should be accepted that a number of aspects of Prof Fotheringham's management of the complaint against Prof Moore were ill-considered and unwise. These include an unwarranted contention that Dr Lamont's complaint had progressed to Step Two, demanding a response to his correspondence of 1 July 2010 when Dr Lamont had already responded and making a threat to investigate him for misconduct. These matters in combination gave rise to at least a perception of bias. There were grounds for Prof Fotheringham to be removed from the management of Dr Lamont's complaint from 12 July 2010 when Dr Lamont asked that this happen. However, I do not accept that the University was aware of such grounds prior to that date, particularly as Dr Lamont had confirmed on 24 June 2010 that he did not have a grievance at that stage against Prof Fotheringham. 297 Prof Fotheringham apparently recognised that he could not continue to manage the complaint and ceased to do so from 12 July 2010, his role from then being confined to input on Ms Lorenzo's efforts to resolve the matter. Ms Lorenzo also seems to have recognised that it was inappropriate for Prof Fotheringham to continue to manage the complaint. She met with Prof Fotheringham on 22 July 2010 and secured his agreement that, inter alia, the responsibilities of Executive Dean in respect of Dr Lamont would be taken over by Prof D'Agostino. 298 The premise of the allegation is that the University refused to remove Prof Fotheringham from managing Dr Lamont's complaints. There was no such refusal. When Dr Lamont requested his removal, Prof Fotheringham stepped down from that role. Ms Lorenzo, together with Prof Keniger, then stepped into the role of managing the complaint. 299 Ms Lorenzo was in the difficult position of attempting to negotiate between Dr Lamont, Prof Moore and Prof Fotheringham. I accept the only reason why she did not recommend that Prof Fotheringham be removed from managing Dr Lamont's complaints, and the University did not remove him, prior to 12 July 2010 was because she saw no basis on which to remove him from his role. I do not accept that Ms Lorenzo did not recommend that Prof Fotheringham be removed earlier because he had exercised workplace rights. I find that Dr Lamont's exercise of workplace rights was not part of the University's reasons for not removing Prof Fotheringham from managing Dr Lamont's complaint. 300 The ninth allegation must be rejected.

The tenth allegation 301 The tenth allegation is that Prof Fotheringham, on behalf of the University, threatened disciplinary action against Dr Lamont on 8 July 2010 because he exercised workplace rights. 302 In his email of 8 July 2010, Prof Fotheringham threatened that, unless Dr Lamont responded to his letter of 1 July 2010, he would have Dr Lamont 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 under HUPP5.70.8 involves informal attempts to resolve a grievance through, e.g., a meeting with the person concerned (4.1), or an oral discussion with the next most senior officer (me, in this instance) (4.4). 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 Clive; • 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, as per clause 4.5, 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 (4.3) 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 HUPP 5.70.10 Misconduct - Serious Misconduct as to whether you have refused to carry out a lawful and reasonable instruction in respect of a significant matter (clause 3.2.1). 303 In an email of 9 July 2010 to Ms Lorenzo, Prof Fotheringham 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. 304 The pleading alleges that Prof Fotheringham's threat was to take disciplinary action against Prof Fotheringham, when in fact the threat was to initiate an investigation into his actions under the Misconduct - Serious Misconduct Policy. While the respondents have pointed out the discrepancy, they have also made submissions that the threat that was made was not adverse action and was not made because Dr Lamont exercised any workplace rights. I do not consider that they have been disadvantaged by the discrepancy. I will proceed on the basis that the threat was to investigate Dr Lamont's actions under the Misconduct - Serious Misconduct Policy. 305 Prof Fotheringham's email contained a clear implication that he considered that Dr Lamont 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. Prof Fotheringham referred to the power under cl 3.2.1 of the Misconduct - Serious Misconduct Policy, which provided that, where a supervisor, relevantly, forms the view that an academic's behaviour could constitute misconduct or serious misconduct, the supervisor may conduct or commission an investigation. The powers available to Prof Fotheringham if he decided to conduct such an investigation included suspension following the investigation and recommendation of censure, demotion, withholding of an increment, suspension or termination. 306 The email was calculated to intimidate Dr Lamont into complying with Prof Fotheringham'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. Dr Lamont feared the consequences for his employment, as is indicated by his email to Ms Lorenzo on 12 July 2010 indicating that the threat had caused him to experience enormous distress, such that he was intending to seek medical advice. As I will discuss later in these reasons, the making of the threat aggravated Dr Lamont's psychiatric condition to a minor extent. In my view, the making of the threat caused injury to Dr Lamont in his employment. 307 Prof Fotheringham's evidence is that he sent the email of 8 July 2010 and refused to withdraw the threat of investigation for disciplinary action because he considered he had given Dr Lamont a lawful and reasonable workplace direction to respond to his correspondence and wanted him to understand the possible consequences of failing to comply with that direction. Prof Fotheringham deposes that there were no other reasons for his actions. 308 On 1 July 2010, Prof Fotheringham had written to Dr Lamont referring to his letter of 3 June 2010 and saying that before he could proceed further with the complaint he needed a formal response to the three matters on which he had requested further information or action namely: • further evidence in relation to your allegation of inequitable or unreasonable academic workload, or else withdraw that allegation; • further evidence in relation to your claims about your research record and/or postgraduate supervision load, or else withdraw those claims; • a response to my request that you apologise to Professor Moore and to Associate Professor Hutch for making false and damaging accusations about them. 309 In his email of 1 July 2010 to Ms Lorenzo, Prof Fotheringham confirmed that Dr Lamont should, inter alia, provide further evidence in relation to his allegation of inequitable or unreasonable workload and should provide further evidence in relation to his claims about his research record and/or postgraduate supervision load, or else withdraw those allegations. 310 Prof Fotheringham's further email to Ms Lorenzo of 1 July 2010 is telling. In that email, Prof Fotheringham referred to Prof Almond's email of 20 April 2010 which referred to the University running up a "white flag" at the first whiff of a Head of School who exercised decision-making authority being met by harassment allegations, and continued: I believe it is because this perception is shared widely across the university that similar statements were made during the debate at Coolum and have now led to the proposed round of briefings for Heads in each faculty. For my part I am determined to ensure that all Heads of School in the Faculty of Arts, whoever they are, are given the authority and support they need to carry out the duties the University requires of them. To return to specifics: to allow Dr Lamont to by-pass his HOS and then, when he doesn't get satisfaction from the Executive Dean, to attempt to by-pass that decision-maker in turn, both in relation to the original grievance and by starting a new grievance, and being allowed to appeal directly to HR Division before all procedures at earlier steps in the first grievance process are exhausted, is to undermine both Head and Exec Dean. 311 In an email dated 28 March 2011 to Mr Byrom, Prof Fotheringham stated: I believe there is a prima facie case that Dr Lamont has committed serious academic misconduct by attempting to avoid being required to undergo a fair and dispassionate annual appraisal of his academic performance by making extreme, defamatory, unsupported, and at least in some instances demonstrably false comments, and by refusing to apologise for or withdraw these allegations. I recommend that he should be so investigated. 312 Prof Fotheringham's letter of 1 July 2010 to Dr Lamont did not request or require him to respond or provide any further material. Contrary to Prof Fotheringham's statement in his email of 8 July 2010, Dr Lamont had responded to his letter of 1 July 2010. Dr Lamont's email of 7 July 2010 made it quite clear that: he had responded to Prof Fotheringham's letter of 3 June 2010; that letter had not requested that he provide any documents; he understood that Prof Fotheringham must have concluded that there was no genuine grievance; and he was considering whether to initiate a grievance under Step Two. There was merit in Dr Lamont's views. In particular, Prof Fotheringham's letter of 3 June 2010 appears to have been a determination under Step One of the Staff Grievance Resolution Policy that there was no genuine grievance and, accordingly, that stage of the grievance process was at an end. Even if Prof Fotheringham did not accept the views expressed in Dr Lamont's letter, he could not reasonably have failed to see that there were opposing views available. At that stage, Prof Fotheringham could not genuinely have thought that Dr Lamont was or might have been committing misconduct or serious misconduct by failing to respond to his correspondence or failing to provide him with further material. Despite that, he made, and did not withdraw, the unjustified threat. It was left to Ms Lorenzo to advise Prof Fotheringham not to institute disciplinary proceedings, and to advise Dr Lamont that she did not expect Prof Fotheringham to take such action. Prof Fotheringham's failure to withdraw the threat when he must have realised it was unjustified provides a further indication that the threat had been motivated by reasons other than that he genuinely thought that Dr Lamont was disobeying his workplace direction. 313 I do not accept that Prof Fotheringham genuinely thought that Dr Lamont was disobeying a lawful and reasonable workplace direction to respond to his correspondence of 3 June 2010. I consider that Prof Fotheringham's correspondence reveals that his view was that Dr Lamont'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 Dr Lamont could not provide further evidence about his claims, he should withdraw them. His email of 3 June 2010 indicates that he wanted Dr Lamont to apologise to Prof Moore and Associate Prof Hutch. I consider that Prof Fotheringham made the threat in order to intimidate Dr Lamont into withdrawing his claims if, as Prof Fotheringham expected, he could not provide further evidence, and to apologise to Prof Moore and Associate Prof Hutch. The threat was made because Dr Lamont had made his complaint of 12 April 2010. 314 I have already found that Dr Lamont's complaint of 12 April 2010 was genuine and that he exercised a workplace right by making his complaint. 315 Prof Fotheringham's threat against Dr Lamont was, by the operation of s 793 of the FWA, adverse action taken by the University against Dr Lamont in contravention of s 340(1) of the FWA. 316 Prof Fotheringham, being aware that Dr Lamont had made his complaint, made the threat that caused the injury constituting the adverse action. Prof Fotheringham was knowingly concerned in the contravention. Prof Fotheringham is taken under s 550(1) of the FWA to have contravened s 340(1) of the FWA 317 I uphold the tenth allegation.

The thirteenth allegation 318 The thirteenth allegation is that Prof Moore refused to authorise Dr Lamont's request for recreational leave, when it had previously been approved, because he exercised workplace rights. 319 On 30 March 2010, Prof Moore approved recreational leave for Dr Lamont from Monday, 19 July to Friday, 23 July 2010. 320 On 23 June 2010, Prof Moore notified the School's staff of a planning retreat to be held on 23 July 2010. 321 Dr Lamont decided that he wanted to work on Monday, 19 July 2010 and no longer wanted to take leave on that day. The electronic leave system, known as Aurion, required that Dr Lamont apply to reverse the whole five days leave he had been granted and then apply for four days leave. 322 On 16 July 2010, Dr Lamont sent a message to Prof Moore saying: I'm changing my leave next week from 5 days to 4 days so I have to reverse all 5 days now and then send a separate request for the 4 days to be reinstated. 323 Dr Lamont had to wait until Prof Moore approved the reversal before his application for reinstatement of four days leave could be submitted. 324 On 16 July 2010, Prof Moore sent a message to Dr Lamont saying: Which four days? Now that we have the Retreat on Friday 23rd I was hoping that you could attend. I sincerely hope that you are feeing up your Friday as I would value you participation. The information provided does not tell me this. (Errors in the original.) 325 Prof Moore responded, indicating that he intended to work on Monday, 19 July 2010 and would not be able to attend the retreat on Friday, 23 July 2010. 326 Later on 16 July 2010, Prof Moore sent an email to the School staff confirming that the retreat would be held on Friday, 23 July 2010 and saying that it was important that as many staff as possible attend and all staff not on leave were expected to attend. 327 On 17 July 2010, Prof Moore sent a message to Dr Lamont saying: While I must honour any previous leave applications, given that we now have an important Retreat for the whole School on Friday 23rd I cannot authorize any leave for that day once the day is set. My suggestion would be that you make a new application that does not include the Friday. Perhaps Tuesday to Thursday? 328 Prof Moore then proceeded to process Dr Lamont's application for the reversal of all five days of his recreation leave. 329 On 19 July 2010, Dr Lamont sent an email to Ms Lorenzo complaining about Prof Moore's actions. Ms Lorenzo considered that, on the face of it, it did not seem reasonable for Dr Lamont to be, in effect, denied a leave day that had previously been approved. Ms Lorenzo advised Prof Moore that it was unwise to take that position in relation to Dr Lamont's leave and that leave ought to be approved. Prof Moore took Ms Lorenzo's advice and approved Dr Lamont's leave as requested. 330 Prof Moore's evidence was that Ms Lorenzo had explained to him that Dr Lamont had made arrangements to be away from Brisbane during his period of leave, and he was not previously aware of that. Prof Moore states that once this was explained, he accepted that Dr Lamont was not in a position to attend the retreat and he approved Dr Lamont's leave request. 331 Prof Moore's evidence is that he would have acted in the same way in respect of any staff member as it was important to have as many staff as possible attend the retreat. He states that the alleged exercise of workplace rights was not a reason for sending his email of 17 July 2010 to Dr Lamont. 332 In his email of 17 July 2010, Prof Moore stated that he intended to refuse Dr Lamont leave on 23 July 2010. The situation was resolved before it got to the point of leave actually being refused. If leave had been refused, that would have been an injury to Dr Lamont in his employment. However, I do not accept that the mere indication that Prof Moore intended to refuse the leave was, or caused, injury in circumstances where Prof Moore then approved the leave when asked to do so. I do not consider that Dr Lamont's level of distress could have been such as to amount to an injury. 333 Further, even assuming that there was adverse action taken against Dr Lamont, I do not accept that this was done because Dr Lamont had exercised workplace rights. I accept that Prof Moore retained animosity towards Dr Lamont because of the complaint he had made against Prof Moore. However, I do not accept that simply because Prof Moore engaged in conduct contrary to Dr Lamont's interests, that the conduct must be ascribed to the making of Dr Lamont's complaint. 334 Prof Moore had responsibilities for the management and administration of the School as a whole. He was concerned that as many staff as possible attend the retreat. Prof Moore saw Dr Lamont's application for a different period of leave as an opportunity to, in effect, force him to attend the retreat. That was an opportunistic and churlish act in circumstances where Prof Moore had previously approved leave for the relevant day. It reflects poorly upon Prof Moore as a manager. However, I accept that he thought his conduct was for the benefit of the School. I accept that he would have acted in the same way towards any other staff member in the same situation. I do not accept that Prof Moore targeted Dr Lamont because he had made his complaint or otherwise exercised workplace rights. 335 I reject the thirteenth allegation.

The fifteenth allegation 336 The fifteenth allegation is that Prof Moore micro-managed Dr Lamont's telephone usage, cautioned him about excessive telephone usage, imposed conditions upon his conference leave and accused him of failing to comply with the Workload Assessment Policy because Dr Lamont had exercised workplace rights.

Telephone usage 337 On 8 September 2010, Prof Moore wrote to Dr Lamont saying: I monitor the phone bills each month and yours has gone over $50.00 which is the cut-off (it's only $51.18). I contact anyone who exceeds $50, and most bills are much less. This may be a one-off thing as I can't remember you ever going over before, but please try to keep your calls down. The School monthly bill for August is $432, which has the potential to be $5000 per year. These days with email there is rarely a reason for a high bill. 338 Dr Lamont deposes that he was unaware of any practice of Prof Moore writing to staff if their phone bill exceeded some undisclosed limit. Prof Moore's evidence is that there was a long-standing School policy that staff should not make more than $30 worth of phone calls (increased to $50 in 2010) in a month without prior indication or reasonable explanation. Prof Moore said that it was his practice to monitor staff phone bills and to contact any staff members whose bills had exceeded $50. He did this because he was concerned that if staff regularly exceeded the upper limit, these costs had the potential to become a burden to the School. There are in evidence emails sent by Prof Moore to other staff about excessive telephone usage. 339 Prof Moore deposes that he sent his email of 8 September 2010 because his usual practice was to send an email to any staff member who exceeded the limit. Prof Moore states that he did not send the email because of any previous dealings with Dr Lamont, or because of the allegations he had made. 340 Prof Moore's email was not accusatory or intimidatory, but was a reasonable request, made in the course of fulfilling his responsibilities for the budget of the School, that Dr Lamont be careful of his phone usage. I accept Prof Moore's evidence. I find that Prof Moore did not send the email of 8 September 2010 because Dr Lamont had exercised any workplace rights. 341 In any event, the email did not cause injury to Dr Lamont in his employment. I do not accept that he could have been distressed by the moderately worded email to such an extent that it would constitute an injury.

Conference leave 342 On 28 October 2010, Dr Lamont sent an email to Prof Moore saying that there were two matters that had arisen that he needed to consult Prof Moore about. The first was that Dr Lamont was seeking conference leave from 16 to 25 March 2011, as he had been invited to speak at an overseas philosophy symposium. He said that the scheduling of the conference meant that he would have to miss a lecture in each of two subjects, but said that those lectures could readily be covered by guest lecturers or cancelled for that week. The second matter was that Dr Lamont sought the allocation of additional workload points for a subject Dr Lamont was teaching in the School of Biomedical Sciences. 343 On 29 October 2010, Prof Moore sent an email to Dr Lamont congratulating him on being invited to speak at the conference and saying that he supported Dr Lamont going. He agreed to Dr Lamont's leave. Prof Moore went on to say that he did not encourage staff to attend international conferences during semester, particularly in the early weeks of the semester. He said that the lectures could not be cancelled, as students would still be able to withdraw at that stage. Prof Moore said that Dr Lamont would need to provide a suitable guest lecturer at no cost to the School. On 1 November 2010, Prof Moore formally approved the conference leave. 344 Dr Lamont's evidence is that as it was difficult to find people to lecture for free, and given that there were no permanent philosophy staff who had equivalent expertise in the area he was lecturing in, the condition imposed by Prof Moore that he find a replacement lecturer would likely have resulted in him being refused approval. Fortuitously, he was able to find someone who agreed to swap lectures with him. 345 Prof Moore deposes that Dr Lamont had a responsibility with respect to his teaching commitments. Prof Moore's evidence is that he did not generally allow staff to travel during teaching weeks, particularly during the first few weeks of semester because that was when students were most likely to withdraw from a course. He had refused similar requests in the past from other staff members. 346 Prof Moore states that his request for Dr Lamont to provide a replacement guest lecturer at no cost to the School was a standard request he had made to other staff members. He deposes that ordinarily when an academic is looking for a replacement lecturer, they will ask another academic to cover them and reciprocate by covering the other academic's lectures. Prof Moore states that it was reasonable for him to not use casual teaching money to cover Dr Lamont's absence because the casual staffing budget was significantly overrun. 347 I accept Prof Moore's evidence. It seems an entirely reasonable requirement that if Dr Lamont wished to remove himself from his teaching commitments, he should find a replacement without cost to the School. The reasonableness of the requirement suggests that it was genuine. I find that this requirement was not imposed because Dr Lamont had exercised workplace rights. 348 Further, I cannot see that the reasonable request made by Prof Moore amounted to an injury to Dr Lamont in his employment. It could not have caused Dr Lamont to experience distress at a level that constituted an injury. 349 When Prof Moore approved Dr Lamont's conference leave, he also flagged that Dr Lamont would need to arrange to cover any tutorials he would miss. On 2 November 2010, Dr Lamont sent Prof Moore an email stating that he expected to receive casual teaching relief given his workload, and that he would organise the tutorial programme for the next semester when that issue was decided. On the same day, Prof Moore responded saying that the School would be very short of casual money in 2011, that he could not authorise casual teaching money for his conference absence and that he would need to cover his tutorials some other way. Prof Moore went on to say that they should leave it until next year and see how it worked out, as other staff might be able to cover for him. Prof Moore deposes that the provisions in respect of teaching relief under the School's Workload Assessment Policy did not cover a situation where a staff member wanted to travel overseas during the semester. 350 It is not entirely clear whether the requirement for Dr Lamont to find a replacement to cover his tutorials is part of his allegation of imposing conditions upon his conference leave. Assuming it is, I accept that Prof Moore genuinely thought the Workload Assessment Policy did not cover the situation and the School could not afford causal relief. The request that Dr Lamont find someone to cover him was reasonable. I do not accept that Prof Moore imposed the condition because Dr Lamont had made his complaint or otherwise exercised workplace rights. Nor do I accept that Dr Lamont suffered any injury. 351 On 23 November 2010, Prof Moore sent an email to Dr Lamont requesting further information from Dr Lamont concerning conference leave and regarding his intention to visit a collaborator, saying: I would need to be certain that this extension of your conference leave was indeed more crucial than being available to teach. 352 On 30 November 2010, Dr Lamont responded in an email alleging that Prof Moore was threatening to reverse his leave and that this was part of a pattern of systematic harassment, bullying and victimisation of him. On 1 December 2010, Prof Moore sent an email to Dr Lamont clarifying he was not threatening Dr Lamont, or suggesting he would reverse his leave, but was simply seeking further information from him to substantiate his application for conference leave, which Prof Moore understood was consistent with the leave procedures that all academic staff had to comply with. 353 I find that Prof Moore was making a request for information which he considered Dr Lamont had not yet supplied about the conference. Unfortunately, he did so in an unnecessarily assertive, confrontational tone, which seems consistent with his usual style of communication. However, I do not accept that he was threatening to reverse the leave or harassing or victimising Dr Lamont. I do not accept that Prof Moore's conduct was engaged in because Dr Lamont had made a complaint or otherwise exercised workplace rights. Further, I do not accept that Dr Lamont was distressed to a level where he could be said to be injured by Prof Moore's conduct.

Workload Assessment Policy 354 It is unclear what the FASOC is referring to when it alleges that Prof Moore accused Dr Lamont of failing to comply with the Workload Assessment Policy because Dr Lamont had exercised workplace rights. That issue was not addressed in submissions. There were lengthy exchanges between Dr Lamont and Prof Moore in November 2010 about the School's Workload Assessment Policy, but I cannot see that any such accusation was made. Even if it was made, it is difficult to see how it could have injured Dr Lamont. 355 The fifteenth allegation must be rejected.

The twenty-second and twenty-third allegations 356 The twenty-second allegation is that the University set aside the findings of the Byrom Report. The twenty-third allegation is that the University refused to provide the Byrom Report to Dr Lamont. It is alleged that this occurred because Dr Lamont exercised his workplace rights to, inter alia, make complaints against Prof Moore and Prof Fotheringham 357 It is alleged that Dr Lamont was injured in his employment because he was: (1) denied management of his grievances in accordance with cl 4.13 of the Staff Grievance Resolution Policy, since the University failed to bring the parties together and advise them of the findings and a proposal to resolve the issues; (2) denied the benefit of the findings of the Byrom Report, which meant that he had to continue to raise his complaints with the University; (3) denied the opportunity to have his complaints vindicated; (4) denied the opportunity to pursue accountability for misconduct or serious misconduct against Prof Moore and Prof Fotheringham; (5) still exposed to bullying and harassment from Prof Moore and Prof Fotheringham.

The evidence 358 On 3 December 2010, Dr Lamont made a complaint against Prof Fotheringham. The complaint was made under the Staff Grievance Resolution Policy and was expressed to be under Step Three, or, if that was not applicable, Step Two. Dr Lamont alleged that Prof Fotheringham's conduct towards him since he lodged his complaint against Prof Moore constituted systematic bullying, harassment, intimidation and victimisation. 359 On 8 December 2010, Dr Lamont made a further complaint against Prof Moore. It was made under Step Three of the Staff Grievance Resolution Policy. Dr Lamont alleged that Prof Moore had victimised and bullied him as a result of making his previous complaint of harassment. 360 In December 2010, there were negotiations between Dr Lamont and the University concerning the possible resolution of Dr Lamont's grievances. Ms Lorenzo and Prof Keniger, the Senior Deputy Vice-Chancellor, represented the University in the negotiations. The negotiations were unsuccessful. 361 On 23 December 2010, Ms Lorenzo sent an email to Dr Lamont saying that the University would appoint an appropriate person to manage his grievances. On 8 February 2011, she informed him that Mr Byrom had been appointed. 362 In February 2011, Ms Lorenzo telephoned Mr Byrom. She told Mr Byrom that Dr Lamont had made complaints and asked him to deal with them at Step Three of the Staff Grievance Resolution Policy. Mr Byrom was asked to undertake an investigation and provide a report. He understood that he was to investigate the complaints made by Dr Lamont against Prof Fotheringham and Prof Moore on 3 and 8 December 2010. He understood that he was not investigating the complaint of 12 April 2010. The only written confirmation seems to have been an email from Ms Lorenzo to Mr Byrom dated 8 February 2011 saying that Mr Byrom had been appointed to manage Dr Lamont's grievances. 363 Mr Byrom requested that Dr Lamont provide what he called "further and better particulars" regarding each complaint, which set out the particulars of his grievances against Prof Moore and Prof Fotheringham. Mr Byrom provided Prof Moore with a copy of Dr Lamont's further and better particulars relating to him, and Prof Fotheringham with a copy of the further and better particulars relating to him. Mr Byrom interviewed a number of persons, including Dr Lamont and Prof Moore. He did not interview Prof Fotheringham, but received a written response from him. Prof Almond was not interviewed. 364 In June 2011, Mr Byrom produced a report entitled, "Report and Recommendations into Grievances by Dr Lamont Against his Head and Dean under Step Three of UQ's Staff Grievance Resolution Policy" (the Byrom Report). In his report, Mr Byrom noted that he had attempted to conciliate the matter as envisaged by cl 4.19 of the Staff Grievance Resolution Policy, but concluded that could not be done. Accordingly, he had proceeded to prepare his report and make recommendations to the Senior Deputy Vice-Chancellor, Prof Keniger. Mr Byrom delivered his report to Ms Lorenzo. 365 Mr Byrom noted that Dr Lamont had provided 15 particulars of his grievance against Prof Moore and 13 in respect of Prof Fotheringham. In respect of Prof Moore, Mr Byrom found there had been two cases of victimisation, five of harassment and two of mistakes not involving victimisation or harassment. In respect of Prof Fotheringham, Mr Byrom found three cases of victimisation, five of harassment and two cases of mistakes not involving victimisation or harassment. Mr Byrom also found that Prof Almond had victimised Dr Lamont. Mr Byrom concluded that the victimisation was official misconduct under the Whistleblowers Protection Act, which the University should report to the Crime and Misconduct Commission (the CMC). 366 Mr Byrom recommended that no action be taken against Prof Fotheringham, apart from reporting him to the CMC, as he was in the process of retiring. He recommended that consideration be given to bringing misconduct proceedings against Prof Moore and Prof Almond. 367 Mr Byrom recommended that the University apologise to Dr Lamont for the way his first grievance had been handled, and should negotiate fair compensation. He said he did not see how the University could properly direct Dr Lamont to work under the supervision of Prof Moore and recommended that the University should either secure Dr Lamont's movement from the School, or "buy out" Dr Lamont, or remove Prof Moore. 368 Mr Byrom received no further contact from Ms Lorenzo after he delivered his report. 369 On 14 July 2011, Prof Keniger wrote to Dr Lamont saying that the University was not able to use the Byrom Report for the purpose for which it was intended. The letter read: I refer to the proposed meeting this week between you, myself and Shard Lorenzo Director, Human Resources which you felt it appropriate not to attend. I now write to confirm what we had intended to discuss with you. As you know Ms Lorenzo communicated with you on 8 February 2011 in relation to your grievances lodged in December 2010. She informed you that the University had appointed an investigator to manage grievances and that this role would be to investigate the grievances and as a result write a report including recommendations for the Senior Deputy Vice-Chancellor. The investigator has submitted the report to Ms Lorenzo. I have considered the report and formed the view that the University is not able to use it for the purpose for which it was intended: namely, to manage your two grievances of 3 and 8 December 2010 under the Staff Grievance Resolution Policy, by investigating them and reporting with recommendations, if possible, to the University's Human Resources Director and myself. This has come about because the investigator considered that your original grievance in April 2010 under the Staff Grievance Resolution Policy was a protected disclosure under the Whistleblowers Protection Act and he carried out the investigation on that basis. The University believes that the investigator erred in taking this view and that this error has, or could reasonably be perceived as having, affected the premise of investigation and the efficacy of the report. In addition, you and the respondents to your grievances and other individuals were not made aware of the investigator's characterisation of the nature of the allegations he was investigating. The principles of natural justice would have required that an appropriate form of notice be given. I also further note that the investigator's role was to investigate and report. It was not to attempt a conciliation which he reports that he did. I regret that the time taken to reach this point in the management and attempted resolution of your grievances has been considerable and will be further extended. I ask for your continued patience as we actively attempt to resolve these matters. We are open to continuing dialogue as to how we may reach a mutually satisfactory resolution of these matters. Ms Lorenzo will contact you shortly in relation to these matters, and the ongoing management and resolution of your grievances. 370 On 21 July 2011, Dr Lamont emailed Prof Keniger protesting about the decision to not use or provide him with the Byrom report. 371 On 28 July 2011, Prof Keniger replied saying: For the reasons I have previously outlined, I am not in a position to release the report to you. For present purposes though I will restate our position. The University is not able to use the report for the purpose for which it was intended: namely, to manage your two grievances of 3 and 8 December 2010 under the Staff Grievance Resolution Policy, by investigating them and reporting with recommendations, if possible, to Ms Lorenzo and myself. The investigator considered that your original grievance in April 2010 under the Staff Grievance Resolution Policy was a protected disclosure under the Whistleblowers Protection Act and he carried out the investigation on that basis. The investigator erred in taking this view and this error has, or could reasonably be perceived as having, affected the investigation and the report. In addition, you and the respondents to your grievances and other individuals were not made aware of the investigator's characterisations of the nature of the allegations he was investigating. The principles of natural justice would have required that an appropriate form of notice be given. 372 Mr Byrom disagreed with the way the University was handling the matter and decided to contact the CMC. On 19 January 2012, the CMC wrote to Mr Byrom saying that the matter raised a suspicion of official misconduct. The CMC considered it appropriate for the University to take responsibility for dealing with the matter, subject to the CMC's monitoring role. 373 On 14 June 2012, the CMC wrote to Mr Byrom saying that it had decided to take no further action in relation to the matter. The CMC noted that while it had some concerns about the way the matter was dealt with by the University, it considered that further investigation would be unproductive. The CMC said that while it was of the view that the matter had been poorly managed by the University, it had not identified any conduct that would amount to either a criminal offence or a dismissible disciplinary breach. 374 Ms Lorenzo deposes that she had several areas of concern about Mr Byrom's conclusions. The first was that Mr Byrom had concluded that Dr Lamont's original grievance to Prof Fotheringham was a "public interest disclosure" for the purposes of the Whistleblowers Protection Act and, in association with that finding, made adverse findings in relation to Prof Fotheringham and Prof Moore's conduct which were outside the terms of reference which he had been asked to follow in relation to the investigation. She said she was not aware of any prior suggestion that Dr Lamont intended his grievance to be a public interest disclosure. She was also concerned that Prof Fotheringham and Prof Moore had not been advised that there was a prospect of findings of this kind, which had potentially serious implications for them. 375 Ms Lorenzo said her second concern was that adverse findings had been made about Prof Almond even though the terms of reference did not provide for any consideration of misconduct by him and he had not been advised that such findings could be made. 376 Ms Lorenzo said her third concern was some of the language used by Mr Byrom in making his findings, which suggested to her a potential lack of objectivity. She also thought that his advice to the University to the effect that it should attempt to "buy out" Dr Lamont was inappropriate and inconsistent with the terms of reference given to him. 377 Ms Lorenzo deposes that Prof Fotheringham had expressed concern about the proposed findings in relation to the Whistleblowers Protection Act and had indicated that he would get legal advice. 378 Ms Lorenzo deposes that Prof Keniger decided that it would not be appropriate or consistent with the interests of all stakeholders for the University to proceed on the basis of the Byrom Report because of the flaws that she had referred to. Under cross-examination, she said Prof Keniger had made the decision based on advice received from her. 379 Prof Keniger accepted that it was his decision that the Byrom Report was unusable for the purpose it was commissioned. Under cross-examination, Prof Keniger said that he did not read the Byrom Report. He then said he had no recollection of reading it. Later in his evidence, he was a little more equivocal, saying he had, "considered the report, in terms of the advice given to me." He was taken to the passage from his letter to Dr Lamont where he said, "I have considered the report and formed the view that the University is not able to use it for the purpose for which it was intended…", and was asked whether he was saying he had considered the report without reading it. Prof Keniger responded that, "I considered the report in terms of the advice given to me." 380 Prof Keniger said he would have received advice from Ms Lorenzo and the University's Legal Office concerning the validity of the report. Overall, the effect of his evidence seems to be that he did not read the Byrom Report himself, but made his decision, and wrote (or at least signed) the letter based upon advice he received about the report. 381 When Prof Keniger was asked why, having come to the conclusion that the report was not suitable for its purpose, he did not commission another report, he answered that there were two options, one being to try to revive negotiations about an informal solution and the other to commission a further report. He assumed that Dr Lamont wanted to resolve the matter as quickly and expeditiously as possible and decided to negotiate. 382 When Prof Keniger was asked why he did not commission a report when the negotiations failed, he said that he just proceeded with the process of negotiation, which became more and more difficult until there was no way of moving ahead. He said it also got to the position where he was effectively removed from the process. That occurred as a result of a complaint about Prof Keniger's handling of the process by Dr Lamont and then his resignation from his position in October 2012. 383 When Prof Keniger was asked why he could not have provided Dr Lamont with a copy of the report with the offending parts removed, his answer was unresponsive. 384 Ms Lorenzo could not remember why she did not commission another report. 385 The Staff Grievance Resolution Policy provides in relation to Step Three: 4.18 In the event that the grievance relates to a senior manager, OR the grievance has not been resolved in Step 2, the matter should be referred by the complainant to the Office of the HR Director. All documentation related to the grievance and previous attempts to reach a resolution should be passed on to that Office. A relevant senior manager in the HR division (Director, Deputy Director or Associate Director) who has not previously been involved in the matter will attempt, in consultation with the relevant Executive Dean or Director where they were not the University Officer responsible for resolution of the grievance at Step 2, to resolve the grievance by interviewing the complainant and respondent and gathering any relevant information. 4.19 The senior manager in the HR division will recommend a resolution and attempt to obtain the consent of all parties. If the matter cannot be conciliated it in this way, the senior manager will make a recommendation to the Executive Director (Operations) or the Senior Executive responsible for academic employee relations who will determine the matter and advise both parties of the actions which they need to take in the workplace. That decision will be final. 4.20 At the time of the recommendation from the senior manager in HR division, the complainant and the respondent will also receive a copy of the recommendation and may, within 10 days of receiving the report from the senior manager in the HR division, provide an additional report to the Executive Director (Operations) or the Senior Executive responsible for academic employee relations for consideration prior to determination of the matter. 4.21 Complainants will be informed that any further action on the matter may be by way of reference to a relevant authority external to the University, including the Office of the Queensland Ombudsman. The Ombudsman's Office () should be contacted for specific advice regarding particular circumstances.

Consideration 386 Mr Byrom was appointed to act in accordance with Step Three of the Staff Grievance Resolution Policy. Ms Lorenzo's evidence refers to some of Mr Byrom's findings being, "outside the terms of reference which he had been asked to follow in relation to the investigation". The only written terms of reference were an email from Ms Lorenzo dated 8 February 2011 saying simply that Mr Byrom had been appointed to manage Dr Lamont's grievances. The only other terms of reference seem to be those orally communicated to Mr Byrom by Ms Lorenzo in a telephone conversation in February 2011. Those terms were to the effect that he deal with the grievances of 3 and 8 December 2010 under Step Three of the Staff Grievance Resolution Policy, investigate the grievances and provide a report. I infer that Mr Byrom was delegated the functions of the "relevant senior manager in the HR division" described in cll 4.18 and 4.19 of the Staff Grievance Resolution Policy. 387 Mr Byrom's role was, under cl 4.19, to attempt to conciliate the matter and, if that failed, to make recommendations to, relevantly, Prof Keniger, the Senior Deputy Vice-Chancellor. The complainant and the respondents were, under cl 4.20, to receive a copy of the recommendations and would be given an opportunity to provide their own "reports" (which I take to mean submissions). Prof Keniger would then determine the matter and advise the parties of the actions which they needed to take in the workplace. That decision would be final. 388 The situation was that Dr Lamont had made complaints against Prof Moore and Prof Fotheringham which were accepted by Ms Lorenzo to be made at Step Three of the Staff Grievance Resolution Policy. The University asked Mr Byrom to perform the functions of a Senior HR Manager and to investigate the complaints and provide a report. Dr Lamont and other persons were interviewed for the purposes of the report. Mr Byrom provided the report to Prof Keniger. The next step was for Prof Keniger to provide Dr Lamont, Prof Moore and Prof Fotheringham with the report. However, Prof Keniger made the decision to not provide them with the report. The process envisaged under cll 4.19 and 4.20 ground to a halt at that point, except to the extent that the University then sought to further conciliate the matter. 389 Clauses 4.19 and 4.20 of the Staff Grievance Resolution Policy required that the complainant and the respondent to the dispute receive a copy of the report, be provided the opportunity to respond and for the matter to be determined having regard to the report and the responses. By being refused a copy of the Byrom Report and the University refusing to use the report for the process under the Staff Grievance Resolution Policy, Dr Lamont was treated substantially differently to the manner in which he was entitled to be treated. The deprivation of the entitlement provided under that policy was prejudicial and injurious to him, since a number of the findings were in his favour and, subject to further submissions, could be expected to have been adopted by the decision-maker. I find that the University's refusal to provide Dr Lamont with a copy of the Byrom Report was an injury to Dr Lamont in his employment. So too was the University's "setting aside" of the report by refusing to use it for the process under the Staff Grievance Resolution Policy. 390 Although Prof Keniger made the decision not to use the Byrom Report, he seemed to attempt to distance himself from the decision to some extent, indicating that he had acted upon advice he received and not upon his own assessment of the report. His evidence was that he did not read the report. It is implausible that Prof Keniger, as the Senior Executive handling such a delicate and difficult dispute, and making a decision that was certain to inflame the dispute, would not even bother to read the report he was asserting was unusable. It is implausible that he would put his signature to a detailed letter setting out his position without making his own assessment. When cross-examined about the reference in his letter to having, "considered the report and formed the view that the University is not able to use it…", Prof Keniger's explanation was, "I considered the report in terms of the advice given to me". That explanation is implausible, since the letter said he had considered the report, not that he considered advice about the report. I do not accept that he did not read the report. This aspect of his evidence, together with his other unpersuasive answers under cross-examination described earlier, causes me to doubt the reliability of his evidence. 391 I accept that Prof Keniger's decision was influenced by the advice provided by Ms Lorenzo. Prof Keniger said he also received advice from the University's Legal Office, but he could not remember who the advice came from. The content of that advice is not before the Court. 392 Ms Lorenzo's evidence was that she considered that the University could not use the Byrom Report because, firstly, Mr Byrom had made adverse findings based upon the conclusion that Dr Lamont's original grievance was a public interest disclosure under the Whistleblowers Protection Act and that was outside the terms of reference he had been asked to follow; secondly, Prof Fotheringham, Prof Moore and Prof Almond had been denied natural justice; and, thirdly, she was concerned that Mr Byrom had demonstrated a lack of objectivity and had given inappropriate advice that the University should attempt to "buy out" Dr Lamont. It may be noted that the first two of these concerns found their way into the letter to Dr Lamont, but not the third. 393 In his letter to Dr Lamont of 14 July 2011, Prof Keniger also indicated that it was not part of Mr Byrom's role to attempt to conciliate the dispute. In the absence of another explanation, I infer that Prof Keniger adopted this as part of his reasoning for declining to give a copy of the report to Dr Lamont or use it in the resolution process. 394 Dr Lamont's complaints of 3 and 8 December 2010 included allegations that he had been victimised because he had made his complaint of 12 April 2010 against Prof Moore. Clause 3.1(j) of the Staff Grievance Resolution Policy stated that: Victimisation of either a complainant, respondent or any other person with a legitimate involvement in a grievance process will not be tolerated by the University (see Whistleblowers Protection Management Policy 1.60.3). 395 The Whistleblowers Policy referred to the Whistleblowers Protection Act and described the scheme under that Act as protecting public interest disclosures. It went on to say that public interest disclosures may be made by employees of the University about matters including, relevantly, maladministration, such as administrative action which is unlawful, oppressive, improper, improperly discriminatory and which adversely or substantially affects a person's interests. It noted that under the Whistleblowers Protection Act, reprisals are unlawful. It provided for the investigation of public interest disclosures. It was clear, particularly under cl 5.3.1 of the Whistleblowers Policy, that there may well be an overlap between reprisals for the making of a public interest disclosure and retaliation for making a complaint about administrative action. 396 In this case, the investigation and report were obtained under Step Three of the Staff Grievance Resolution Policy. The University did not make a decision to conduct an investigation under the Whistleblowers Policy. Nevertheless, an allegation of victimisation that is being investigated under the Staff Grievance Resolution Policy could also amount to a reprisal that was prohibited under the Whistleblowers Policy and the Whistleblowers Protection Act. There was no necessary distinction between the two. 397 In these circumstances, there was nothing in the terms of reference given to Mr Byrom that would require him to refrain from making findings that Prof Moore and Prof Fotheringham had contravened the Whistleblowers Protection Act. In fact, cl 3.1(e) of the Staff Grievance Resolution Policy expressly stated that victimisation would not be tolerated and referred to the Whistleblowers Policy, which refers to prohibitions against reprisals under the Whistleblowers Protection Act. I do not accept that Mr Byrom's conclusion that Dr Lamont's original grievance was a public interest disclosure was outside the terms of reference he had been asked to follow. Nor do I accept that there was a basis upon which Ms Lorenzo and Prof Keniger might have genuinely come to such a view. 398 I accept that when Mr Byrom made adverse findings against Prof Almond he was denied natural justice, and Prof Moore and Prof Fotheringham may have been denied natural justice in respect of conclusions concerning breaches of the Whistleblowers Protection Act. Ms Lorenzo's concerns about denial of natural justice were reasonably held. 399 I do not accept that there was any genuine basis for Ms Lorenzo's asserted view that Mr Byrom's language indicated that he had lost objectivity. Mr Byrom's conclusions, whether for or against Dr Lamont, were expressed firmly, but his language was unexceptional. Mr Byrom's findings went both ways, and he rejected a number of Dr Lamont's complaints. Mr Byrom was quite critical of Dr Lamont's perception of his research output. The findings that he made against Prof Moore and Prof Fotheringham were reasonably open. With the benefit of detailed written and oral evidence, I have reached different conclusions in respect of some of Dr Lamont's allegations, but that is not to say that Mr Byrom's conclusions were not open or demonstrate any lack of objectivity. 400 The only specific passage Ms Lorenzo refers to critically is Mr Byrom's recommendation that an option for the University was to "buy out" Dr Lamont. She seems to suggest that there is some sinister connotation in the use of that phrase. However, in context, it could only refer to offering a financial settlement involving Dr Lamont leaving his employment with the University. Ms Lorenzo could not reasonably have understood the use of that phrase to imply that the University should do something corrupt or dishonest. 401 Ms Lorenzo's asserted view that Mr Byrom appeared to have lost objectivity was not disclosed in Prof Keniger's correspondence with Dr Lamont. In my opinion, Ms Lorenzo's statement has an air of simply trying to find reasons to bolster the decision not to utilise the Byrom Report. In these circumstances, I do not accept that this was genuinely a reason for the advice she gave Prof Keniger. 402 I have substantial doubts about the reliability of Ms Lorenzo's evidence as to the reasons why she advised Prof Keniger not to make use of the Byrom Report. 403 The further reason given in Prof Keniger's letter that it was not part of Mr Byrom's role to conciliate the dispute is not supportable. Clause 4.19 of the Staff Grievance Resolution Policy indicates that it is part of the function of the Senior HR Manager to attempt to conciliate the grievance. It is telling that neither Prof Keniger, nor Ms Lorenzo attempted in their evidence to justify that asserted criticism of Mr Byrom's conduct. 404 It is probable that Ms Lorenzo and Prof Keniger were disturbed by both Mr Byrom's conclusions that Prof Moore and Prof Fotheringham had engaged in victimisation and harassment of Dr Lamont and that the victimisation was official misconduct which should be reported to the CMC. While I accept that the issue of denial of natural justice formed part of Ms Lorenzo and Prof Keniger's reasoning, I consider that they were principally concerned about the adverse findings and recommendations made by Mr Byrom. If they were only concerned about natural justice, then there were several ways in which those concerns could have been addressed. They could have asked Mr Byrom to rewrite his report to omit the offending parts. They could have redacted the offending parts. They could have commissioned a new report from a different external investigator. They provided no satisfactory explanation for failing to do so. 405 Prof Keniger and Ms Lorenzo provided no satisfactory explanation for why they ceased to comply with the procedure under cll 4.19 and 4.20 of the Staff Grievance Resolution Policy. They focussed upon trying to reach a settlement with Dr Lamont, but largely ignored the other requirements of cll 4.19 and 4.20. The recommendations of an investigator were only part of the process. When Dr Lamont rejected the offers made by the University, it was ultimately necessary for Prof Keniger to determine the matter and advise the parties of the actions they needed to take in the workplace. That had not occurred by 21 November 2011 when Dr Lamont made a complaint about Prof Keniger's handling of his complaints. Prof Keniger said he assumed that Dr Lamont wanted to resolve the matter as quickly and expeditiously as possible and decided to negotiate instead of commissioning another report, but there is no suggestion that he asked Dr Lamont what his preference was. That no new investigation report was commissioned or offered suggests that Prof Keniger was concerned by the findings that might have been made even by a new external investigator. 406 I am satisfied that the substantial and operative reasons for the advice given by Ms Lorenzo, and the subsequent decision of Prof Keniger, to not provide the Byrom Report to Dr Lamont in accordance with cl 4.20 of the Staff Grievance Resolution Policy, included that they were concerned about the substance of the findings the report made against Prof Moore and Prof Fotheringham and its recommendations. 407 I find that the refusal to provide Dr Lamont with a copy of the report, and to set it aside in respect of the grievance process, occurred because Dr Lamont had exercised his workplace right to make his complaints about Prof Moore and Prof Fotheringham. 408 The respondents did not argue that s 793 of the FWA would not operate to make the actions of Ms Lorenzo and Prof Keniger attributable to the University. I find that the University contravened s 340(1) of the FWA. 409 I uphold the twenty-second and twenty-third allegations.

The twenty-fourth allegation 410 The twenty-fourth allegation is that the University failed to manage Dr Lamont's grievances against Prof Fotheringham and Prof Moore of 3 and 8 December 2010 respectively in accordance with the 2006 Enterprise Agreement and the 2010 Enterprise Agreement. 411 Dr Lamont was given leave to file an amended version of the Table after judgment had been reserved. However, the Table that was filed went beyond the terms of that leave by adding further submissions in respect of the twenty-fourth allegation. That is impermissible, and I have not considered those further submissions. 412 It is alleged that Dr Lamont was injured in his employment since he: (1) did not have his disputes addressed in accordance with the Staff Grievance Resolution Policy; (2) was denied the opportunity to have his complaints vindicated; (3) was denied the opportunity to pursue accountability for misconduct or serious misconduct; (4) was still exposed to bullying and harassment from Prof Moore and Prof Fotheringham. 413 The allegation assumes that there was an obligation for the University to manage Dr Lamont's complaints of 3 and 8 December 2010 in accordance with the 2006 Enterprise Agreement and the 2010 Enterprise Agreement. There are difficulties in accepting those premises. 414 The 3 and 8 December 2010 complaints were made before the 2010 Enterprise Agreement came into effect. Dr Lamont has not attempted to demonstrate how or why the 2010 Enterprise Agreement is applicable to the complaints. 415 The 3 and 8 December 2010 complaints could possibly have been made under cl 24.1 of the 2006 Enterprise Agreement, which provided for investigation and resolution of complaints against academics for misconduct and serious misconduct. However, the complaints were expressed to be made under the Staff Grievance Resolution Policy. Clause 10.3 made it clear that the University's policies did not form part of the 2006 Enterprise Agreement. Further, the FASOC does not allege that Prof Moore and Prof Fotheringham were covered by the 2006 Enterprise Agreement. Therefore, the complaints cannot be seen as made under the 2006 Enterprise Agreement. 416 It follows that the University was not required to manage the 3 and 8 December 2010 complaints in accordance with the 2006 Enterprise Agreement. It was obliged to manage the complaints in accordance with the Staff Grievance Resolution Policy, but that is not what is pleaded in the twenty-fourth allegation. The reference to the Staff Grievance Resolution Policy in the allegation of injury does not change the premise of the allegation. I do not consider that it is appropriate to allow a departure from the pleading. There are, in any event, specific complaints of breaches of the Staff Grievance Resolution Policy made in the twenty-fifth allegation. 417 The twenty-fourth allegation must be rejected.

The twenty-fifth allegation 418 The twenty-fifth allegation is that the University breached the Staff Resolution Grievance Policy by: (1) determining Dr Lamont's complaints of 3 and 8 December 2010 without bringing the parties together and advising them of the relevant officer's findings, contrary to cl 4.13 of the Staff Grievance Resolution Policy; (2) not conducting a valid investigation contrary to cll 4.11 and 4.13 of the Staff Grievance Resolution Policy; (3) failing to regularly communicate with Dr Lamont about the management and progress of his complaints and keep him informed contrary to cll 4.1(d), (e) and (f) of the Complaints Management Policy; (4) failing to be impartial and fair contrary to cl 3.1(d), failing to conduct the process as expeditiously as possible and ensure that each step was finalised within two weeks contrary to cll 3.1(c) and 4.3 and failing to bring the parties together at the conclusion of the investigation to advise them of the findings and proposal to resolve the issue contrary to cl 4.13. 419 The allegations of injury to Dr Lamont in his employment are the same as for the twenty-fourth allegation. 420 The first part of the allegation is that the University determined Dr Lamont's complaints of 3 and 8 December 2010 against Prof Fotheringham and Prof Moore respectively without bringing the parties together and advising them of the relevant officer's findings, contrary to cl 4.13 of the Staff Grievance Resolution Policy. There are several difficulties with accepting this allegation. 421 Firstly, the University did not determine Dr Lamont's complaints. On 30 November 2011, Dr Lamont wrote to Professor McManus, Mr McNarn, Ms Lorenzo and Mr Croucher, saying: It is clear to me that the University is not, and has not, handled my grievances in accordance with the University policies and natural justice. I have today asked the Chancellor, Mr Story, to undertake a full investigation of my case. I hereby suspend my involvement in the Grievance process and ask you to secure all materials associated with my file, including Mr Byrom's report, for forwarding to the Chancellor. 422 By that time, Prof McManus was responsible for dealing with Dr Lamont's complaints against Prof Fotheringham and Prof Moore. On 14 December 2011, Prof McManus wrote to Dr Lamont noting that Dr Lamont had withdrawn from the grievance process, and said he would not be making any recommendations to Prof Terry, the Acting Deputy Vice-Chancellor. Dr Lamont did not respond disputing that he had withdrawn from the grievance process. The process under cl 4.19 and 4.20 of the Staff Grievance Resolution Policy came to an end. The University made no determination of Dr Lamont's complaint. 423 Secondly, Dr Lamont expressed his complaint against Prof Fotheringham to be under Step Three of the Staff Grievance Resolution Policy, or if that was not appropriate, Step Two. His complaint against Prof Moore was expressed to be under Step Three. Ms Lorenzo accepted both complaints as being under Step Three and engaged Mr Byrom on that basis. Clause 4.12 required that at the conclusion of the investigation, the parties to the complaint should be brought together and advised of the relevant finings and proposal to resolve the issue (cl 4.13 indicated only that the parties would be asked whether they accepted the proposal). However, cl 4.12 was applicable only at Step Two, not Step Three. Accordingly, it had no application to the complaints of 3 and 8 December 2010. 424 The second part of the allegation is that the University did not conduct a valid investigation contrary to cll 4.11 and 4.13 of the Staff Grievance Resolution Policy. Clauses 4.11 and 4.13 were applicable only at Step Two and, therefore, had no application to Dr Lamont's complaints. 425 The third part of the allegation is that the University failed to regularly communicate with Dr Lamont about the management and progress of his complaints and keep him informed contrary to cll 4.1(d), (e) and (f) of the Complaints Management Policy. I do not accept that there was such a failure. Ms Lorenzo met with Dr Lamont on 9 December 2010 to discuss his complaints. Ms Lorenzo emailed Dr Lamont on 10, 17, 20, 22, 23 and 24 December 2010 and 2 and 8 February 2011 to respond to his queries and provide updates. Mr Byrom, who had been given the functions of a Senior HR Manager of the University, met with Dr Lamont twice. There was correspondence between Prof Keniger and Dr Lamont about the Byrom Report. There were offers made to resolve the dispute, which must be considered part of the conciliation function under cl 4.19 of the Staff Grievance Resolution Policy. I do not accept that the University failed to regularly communicate with Dr Lamont about the management and progress of his complaints and keep him informed. 426 The fourth part of the allegation is that the University failed to be impartial and fair contrary to cl 3.1(d), failed to conduct the process as expeditiously as possible and ensure that each step was finalised within two weeks contrary to cll 3.1(c) and 4.5 and failed to bring the parties together at the conclusion of the investigation to advise them of the findings and the proposal to resolve the issue contrary to cl 4.13. 427 As I have said, cl 4.13 (and cl 4.12) of the Staff Grievance Resolution Policy was irrelevant to Dr Lamont's complaints, which were at Step Three. 428 It is true that cl 4.3 provided that the University officer responsible shall ensure that each step of the grievance was finalised within two weeks, and that was not done. However, it was simply not practicable to finalise Dr Lamont's complaints within that period because of their complexity and the process adopted to resolve them. For example, after Ms Lorenzo met with Dr Lamont on 9 December 2010 and offers to resolve the grievance were made and rejected on 20 and 22 December 2010, the Christmas break meant that Mr Byrom was not engaged until February 2011. Mr Byrom then took some four months to investigate and prepare his report. There can be no criticism of him for taking that length of time. I do not accept that any University officer failed to ensure that Step Three was finalised within two weeks because Dr Lamont had made his complaints or otherwise exercised workplace rights. It was not finalised within that time because of the complexity of the complaints and the processes engaged in to attempt to resolve them. 429 Clause 3.1(d) of the Staff Grievance Resolution Policy required that the decision-maker must be impartial and fair in their dealings with the parties. The decision-maker in respect of Dr Lamont's complaints was to be Prof Keniger. I have already accepted that Prof Keniger, based on advice from Ms Lorenzo, set aside and refused to give Dr Lamont a copy of the Byrom Report for reasons which included concern about those findings and recommendations which favoured Dr Lamont. To that extent, Prof Keniger was not impartial and fair. Further, cl 3.1(c) required that the grievance resolution process be conducted as expeditiously as possible. Prof Keniger's conduct meant that the processes under cl 4.19 and 4.20 of the Staff Grievance Resolution Policy were delayed and, to that extent, he did not conduct the process as expeditiously as possible. 430 I find that Prof Keniger's conduct contravening cl 3.1(c) and (d) of the Staff Grievance Resolution Policy was engaged in because Dr Lamont exercised his workplace right to make his 3 and 8 December 2010 complaints. I find that Dr Lamont was injured in his employment by such contraventions since he was treated in a way contrary to that required under the Staff Grievance Resolution Policy and that operated to his detriment or prejudice since he was denied the benefit of the Byrom Report. 431 I uphold the twenty-fifth allegation in part. However, in practical terms, this adds very little, if anything, to the twenty-second and twenty-third allegations, which I have already upheld.

The twenty-sixth allegation 432 The twenty-sixth allegation is that the University failed to manage Dr Lamont's grievance of 21 November 2011 in accordance with the Staff Grievance Resolution Policy. 433 It is alleged that Dr Lamont was injured in his employment as he was deprived of the benefit of having his grievance managed in accordance with the Staff Grievance Resolution Policy. 434 The submissions focus upon the conduct of Mr McNarn and his communications with Ms Lorenzo in dealing with Dr Lamont's complaint made on 21 November 2011. 435 On 21 November 2011, Dr Lamont lodged with Mr McNarn a complaint against Prof Keniger in respect of his handling of his complaints against Prof Moore and Prof Fotheringham. 436 The complaint was made under Step Three of the Staff Grievance Resolution Policy. The letter of complaint was very lengthy, detailed and dense. It could be expected to take anyone unfamiliar with the issues quite a long time to read, digest and understand the allegations. 437 On 22 November 2011, Dr Lamont wrote to Mr McNarn asking whether he had received a complaint. Mr McNarn responded on the same day saying that he had received it and would respond further once he had an opportunity to read the material. 438 On 24 November 2011, Dr Lamont emailed Mr McNarn referring to cl 4.3 of the Staff Grievance Resolution Policy, which provided that the University officer responsible shall ensure that each step of the grievance procedure is finalised within two weeks. Dr Lamont asked Mr McNarn to acknowledge that he would not violate the requirement and would complete the procedure by 5 December 2011. 439 On 28 November 2011, Mr McNarn wrote to Dr Lamont, saying, inter alia, that it would be very difficult to complete the process required under Step Three within two weeks. He said he would like to meet with Dr Lamont as soon as possible. 440 On 28 November 2011, Dr Lamont wrote to Mr McNarn saying, inter alia, that he had sought the appointment of an independent investigator, not someone associated with the University. He did not address Mr McNarn's request for a meeting. 441 On 29 November 2011, Dr Lamont wrote to Mr McNarn complaining that he had not yet received a reply to his email of the previous day. He said that he was concerned that Mr McNarn was not taking his grievances seriously enough. He repeated that he wanted an independent investigator appointed. 442 On 29 November 2011, Dr Lamont wrote to Mr McNarn again complaining that he had not received a reply. He raised further points about Mr McNarn's email of 28 November 2011. 443 On 30 November 2011, Mr McNarn wrote to Dr Lamont indicating that they were operating under cl 4.20 of the Staff Grievance Resolution Policy and saying that his role was to decide what he believed would be an appropriate resolution and to make recommendations to the Acting Deputy Vice-Chancellor, Prof Terry. He said that his role was not to act as an investigator. He asked Dr Lamont to indicate what he was seeking in order to resolve his grievances. Dr Lamont responded to Mr McNarn's letter sent that day saying that he had not been willing to wait any longer for a reply and matters had moved on. 444 On 30 November 2011, Dr Lamont wrote to Mr Story, the Chancellor of the University, asking him to commence an investigation. On the same day he wrote to Mr McNarn and others saying that he had suspended his involvement in the grievance process. 445 On 30 November 2011, Mr McNarn wrote saying that he understood that Dr Lamont was willing to attend a meeting with him on 5 December 2011. 446 On 2 December 2011, Mr McNarn wrote to Dr Lamont saying that the appropriate way to deal with the grievances was under the Staff Grievance Resolution Policy and not any other way, and that is how they would proceed. Mr McNarn stated that he still wished to meet with Dr Lamont but if he chose not to attend the meeting, Mr McNarn would proceed on the basis that he was unwilling to cooperate in trying to resolve his grievance. Mr McNarn said that the result would be that it was not possible for the University to sustain any action to resolve his complaint. 447 On 2 December 2011, Dr Lamont wrote to Mr McNarn saying, inter alia, that any assertion that cancelling the meeting would be in breach of cl 4.19 of the Staff Grievance Resolution Policy because it demonstrated an unwillingness to cooperate to try to resolve the grievance was misconceived. He continued: I believe it is consistent with the University's policies that a complainant who does not believe natural justice and the policies governing the Grievance Process are being adhered to, can withdraw from that process. I have withdrawn from the Process for this reason. Given my withdrawal you do not have a "basis" upon which to proceed with respect to my grievance at all. 448 On 13 December 2011, Mr McNarn wrote to Dr Lamont saying that, given Dr Lamont's advice that he had withdrawn the grievance, he would take no further action in relation to it. That was the last correspondence between Mr McNarn and Dr Lamont upon the complaint of 21 November 2011. 449 I am unable to see that Mr McNarn failed to manage Dr Lamont's complaint of 21 November 2011 in accordance with the Staff Grievance Resolution Policy. Mr McNarn acknowledged that it would be difficult to comply with the two week period under cl 4.13, but, given Dr Lamont's insistence on compliance with that timeframe, expressed a willingness to do so. Within the two week period, Dr Lamont indicated that he was suspending his involvement with the grievance process and then withdrew his complaint. At that point, there was nothing more Mr McNarn could do. I find that he did not fail to manage Dr Lamont's complaint in accordance with the Staff Grievance Resolution Policy. 450 Mr McNarn could not specifically recollect whether he discussed the complaint with anyone, but he said that he would normally discuss it with the Head of HR, Ms Lorenzo. Mr McNarn indicated that the discussion would have been in order to get the documents and an understanding of the process that had occurred. Dr Lamont seems to submit that Mr McNarn's actions were somehow infected by Ms Lorenzo's views. Ms Lorenzo's involvement in Mr McNarn's investigation of the complaint against Prof Keniger was peripheral. It was not put to Mr McNarn that he was somehow influenced by Ms Lorenzo. Nor has Dr Lamont pointed to some action by Mr McNarn which demonstrates that there was some kind of improper influence. I do not accept that Ms Lorenzo made any material contribution to Mr McNarn's conduct. 451 In my opinion, Mr McNarn seems to have been attempting to do his best in the face of unreasonable demands made by Dr Lamont about the timeframe for dealing with his complex complaint. Even if there were some failure by Mr McNarn to manage Dr Lamont's complaint in accordance with the Staff Grievance Resolution Policy, I would not accept that was done because Dr Lamont had made his complaint or otherwise exercised workplace rights. 452 Further, I cannot see that there was any injury to Dr Lamont in his employment in circumstances where he withdrew his complaint. 453 The twenty-sixth allegation must be rejected.

The twenty-seventh allegation 454 The twenty-seventh allegation is that the University, through the Chancellor, Mr Story, failed to investigate Dr Lamont's allegations against Prof Keniger and Mr McNarn because he exercised a workplace right. The workplace right relied on is the making of a complaint to Mr Story on 30 November 2011. 455 It is alleged that the failure to investigate the allegations injured Dr Lamont in his employment since it deprived Dr Lamont of redress in accordance with the Staff Grievance Resolution Policy. 456 On 30 November 2011, Dr Lamont wrote to Mr Story saying that he had been trying to have allegations of harassment and victimisation investigated and addressed for two years, but through systematic failures of various University officers to carry out their duties, those matters had still not been addressed. Dr Lamont said that in November 2011, the University appeared to have unilaterally decided to start the grievance process all over again and appoint Prof McManus as an investigator, but that he was not qualified to undertake that task. He noted that on 21 November 2011, he had lodged a grievance against Prof Keniger with Mr McNarn. He said that Mr McNarn was not taking his complaints seriously or dealing with them appropriately. Dr Lamont said that the only way of effectively detecting and investigating his complaints were if Mr Story, as Chancellor, commissioned an independent investigation. He asked Mr Story to undertake such an investigation. 457 On 30 November 2011, Dr Lamont also wrote to Mr McNarn, Prof McManus, Ms Lorenzo and Mr Croucher, copied to Mr Story, saying that it was clear to him that the University had not handled his grievances in accordance with University policies and natural justice. He said he had asked Mr Story to undertake a full investigation of his case. He said that he was suspending his involvement in the grievance process and asked them to secure all materials associated with his file for forwarding to the Chancellor. 458 Dr Lamont sent another email to Mr Story on 30 November 2011 saying that he intended to deliver some further material to him and suggesting that he may wish to obtain a copy of the Byrom Report directly from Mr Byrom. 459 On 2 December 2011, Dr Lamont forwarded his exchanges with Mr McNarn to Mr Story. 460 On 13 December 2011, Mr McNarn wrote saying that given Dr Lamont's advice that he had withdrawn the grievance, he would take no further action in relation it. Mr McNarn also noted that Dr Lamont had requested that the Chancellor undertake an independent investigation. Mr McNarn said that he had previously advised Dr Lamont that the Chancellor did not have a role to play in the University's grievance process. Mr McNarn said that the Chancellor did not intend to conduct an independent investigation into his case. 461 Mr Story deposes that Dr Lamont's first two emails of 30 November 2011 were sent to the Chancellor's email address at the University. Mr Story did not have direct access to that email account. The practice was that his executive assistant would monitor that email address and would forward some, but not all, emails to his personal email address. Given the lapse of time, he does not have a recollection of what particular emails were or were not forwarded to him in 2011. Mr Story does not recall seeing the two emails from Dr Lamont before it was provided to him for the purposes of his affidavit. 462 Mr Story recalls seeing Dr Lamont's third email of 30 November 2011 informing him that Dr Lamont would be delivering a brief of material to his office. That email was sent to Mr Story's personal email address. 463 Mr Story recalls speaking to Mr McNarn about Dr Lamont. He recalls being aware that Dr Lamont had made various complaints. Mr Story indicates that he agreed with Mr McNarn that he should not become involved. The reason was that it was not the role of the Chancellor to deal with management of staff complaints or grievances. He believes that he would have had further discussions with Mr McNarn about the matter, but cannot recall the details. 464 Mr Story received an email from Mr McNarn stating that it was his recommendation that Mr Story respond to Dr Lamont saying that he did not intend to conduct an investigation. On 12 December 2011, Mr Story wrote to Mr McNarn saying that he agreed with the course of action proposed by Mr McNarn and his suggested wording. 465 Mr Story states that he is aware that Dr Lamont has claimed that his correspondence to him dated 30 November 2011 constituted a complaint against Mr McNarn. He does not recall seeing the correspondence and was not, therefore, aware of any reason why he should not take the advice of Mr McNarn. 466 Mr Story states that he adopted what he considered was the appropriate course, taking into account Mr McNarn's advice. He considers that it was not consistent with the role of the Chancellor to be involved in any way with the management or investigation of internal staff grievances or complaints. He said there were established procedures within the University, and these matters did not call for the intervention of the Senate or the Chancellor. Mr Story denies that he took any action in respect of Dr Lamont's correspondence for the reasons alleged by Dr Lamont. 467 Under cross-examination, Mr Story was pressed about whether he had played a role in respect of an investigation into the conduct of Prof Keniger and another senior member of the University's executive, Professor Greenfield, and why he had not taken a similar role in investigating Dr Lamont's matters. Mr Story said that information had been provided to him which suggested the possibility of misconduct on the part of Prof Keniger and Prof Greenfield. He said the distinction was that those two individuals were senior officers, so the people who would be undertaking the investigation were responsible, and accountable, to those officers. Mr Story considered that it was not appropriate for an investigation to be undertaken by the University in these circumstances, and that is why an external investigation was initiated. Mr Story did not consider that the allegation against Prof Keniger of mishandling a grievance was equivalent to the nature of the allegations in the other matter. 468 Mr Story is correct to say that as Chancellor of the University, it was not his role to instigate an investigation into Dr Lamont's complaints. Under s 27(1) of the UQ Act, his role was to preside at meetings of the Senate. Under s 9(1) and (2)(b) of the UQ Act, the Senate's powers may include a power to investigate, but the Senate was not asked to investigate, and there is no suggestion that any such power was delegated to Mr Story. 469 I accept Mr Story's evidence. I accept that he did not investigate or commission any investigation into Dr Lamont's complaints because he considered it was not his role to do so, and that it would be inappropriate to do so. Mr Story took advice from Mr McNarn about dealing with Dr Lamont's request, but I find that Mr Story exercised his own independent judgment in deciding not to investigate. I find that his decision to not investigate Dr Lamont's complaints was not made because Dr Lamont had exercised any workplace rights. 470 To the extent that Mr Story's decision was influenced by Mr McNarn's advice, I accept that Mr McNarn's reason for providing the advice was that he considered that it was inappropriate for Mr Story to investigate. I find that such advice was not given because Dr Lamont had exercised any workplace rights. 471 Further, Dr Lamont did not have any entitlement to make a complaint to the Chancellor and to have such a complaint investigated by the Chancellor, whether under any legislation, or industrial instrument, or policy. As there was no such entitlement, Dr Lamont was not treated differently to the manner in which he could ordinarily be expected to be treated by the refusal to investigate it. While a decision by Mr Story to investigate the complaint might have conferred a benefit on Dr Lamont, the decision to not investigate did not cause him detriment or prejudice. The refusal of Mr Story to investigate the complaint did not cause any injury to Dr Lamont in his employment. 472 The twenty-seventh allegation must be rejected.

The thirty-first allegation 473 The thirty-first allegation is that the University failed to manage Dr Lamont's complaints made on 25 July 2012 in accordance with its Complaints Management Policy and Whistleblowers Policy. The particulars of that allegation are that the University: (1) failed to regularly communicate with Dr Lamont about the management and progress of his complaints and ensure that he was kept informed about the complaints process and anticipated timeframes, contrary to cll 4.1(d), (e) and (f) of the Complaints Management Policy; (2) did not handle Dr Lamont's complaints fairly and appropriately and adhere to principles of natural justice and good governance, including clearly explaining the factors considered in making a decision and the reasons for the decision, contrary to cll 4.1(j) and (k) of the Complaints Management Policy; (3) failed to comply with s 11(1) and (2) of the Whistleblowers Protection Act; (4) failed to comply with cll 5.2 and 5.3 of the Whistleblowers Policy. 474 The University's actions are alleged to have injured Dr Lamont in his employment because he: (1) was deprived of the benefit of having his grievance addressed in accordance with the Staff Grievance Resolution Policy; (2) was denied the opportunity to have his complaints vindicated in his employment; (3) was denied the opportunity to pursue accountability for misconduct or serious misconduct against Prof Moore and Prof Fotheringham as set out in the 2006 Enterprise Agreement, the 2010 Enterprise Agreement and the Misconduct - Serious Misconduct Policy.

The evidence 475 On 20 July 2012, Prof Dowe sent an email to Dr Lamont saying, inter alia, that certain designated roles concerning teaching in the Science Faculty had been terminated and that the workload points allocated to those roles would be replaced with a points allocation for general coordination. In a second email sent on the same day, Prof Dowe, inter alia, rejected Dr Lamont's request to "buy out" teaching commitments for a particular course in Semester 2 on the basis that his request had come after casual funds had already been allocated, so to grant his request would mean reversing other decisions already made and communicated, and this would occur too close to the beginning of the semester. 476 On 25 July 2012, Dr Lamont wrote to Prof D'Agostino, who was then the Acting Executive Dean of the Faculty of Arts, alleging that Prof Dowe's emails revealed serious bullying by Prof Dowe, which had been facilitated by Prof Moore. He alleged that this was part of a pattern of systematic bullying by Prof Moore. Dr Lamont said that the Workloads Review Committee would not have the power to unilaterally change the school workload formula and made other complaints about changes to the Workload Policy. He alleged that these changes smacked of bullying and reprisal. He said that Prof Moore's bullying and reprisals against him and other staff in the School over the last three years constituted conduct that was serious misconduct, official misconduct and maladministration. He also said the changes in his workload constituted a reprisal against him in violation of the Whistleblowers Protection Act. He said he believed the HR Office, the Legal Office and Mr McNarn's office were in a position of conflict with respect to his case and may also have been involved in wrongdoing. 477 Prof D'Agostino understood Dr Lamont's letter to make specific allegations that Prof Moore's bullying and reprisals constituted serious misconduct, official conduct, maladministration and reprisals in violation of the Whistleblowers Protection Act, as well as more general complaints. 478 Prof D'Agostino referred the matter to Mr Croucher in the University's Legal Office, with a copy to Mr McNarn, as the authorised CMC Liaison Officer. Prof D'Agostino, acting on their advice, decided to refer the allegations of misconduct, maladministration and reprisals to the Acting Vice-Chancellor, Prof Terry, as a public interest disclosure. On 27 July 2012, Prof D'Agostino sent Dr Lamont an email informing him of his intention to do so. On 30 July 2012 he sent Prof Terry a copy of Dr Lamont's letter. He considered from that point on that the allegation of bullying and reprisals and contravention of the Whistleblowers Protection Act were being dealt with by Prof Terry. 479 Prof D'Agostino's next involvement with those allegations was that he received a letter from Mr McNarn dated 9 October 2012 saying that the University had referred Dr Lamont's letter to the CMC. 480 Prof Terry wrote a letter to Dr Lamont dated 5 November 2012. The letter stated; This letter documents the actions that have been taken in relation to the matters that you have raised in recent weeks. I am replying on behalf of the Vice-Chancellor, Professor Peter Høj. I have not replied earlier because the actions being taken in response to the issues were still in train. This remains the case. However, I take this opportunity to provide you with an update: 1. As required, the allegations of misconduct against Professor Clive Moore that were raised by you in your correspondence to Professor D'Agostino on 25 July 2012 were referred to the Crime and Misconduct Commission (CMC). We have now received correspondence from the CMC indicating that they are of the view that no new concerns have been raised by you. They also believe, on the basis of the documentation provided, that your concerns relate to internal workload issues and are not related to any disclosure you have previously made. Further, the CMC does not believe that the content of the emails from Professor Phil Dowe to yourself amounts to bullying or reprisal but rather that they provide advice on pending changes to the workload policy. Mr Maurie McNarn has communicated this advice to Professor D'Agostino. 2. I understand that you have raised issues concerning your supervisory arrangements. On this issue, Professor D'Agostino has advised Associate Professor Deborah Brown that the arrangements put in place by the previous Executive Dean, Professor Nancy Wright, should continue. That is, that Associate Professor Brown should undertake the role as your supervisor and, in this role, act as the Head of School. It is understood that Associate Professor Brown will need access to the full range of staff data (e.g., workload data) held by the Head of School to enable her to fully undertake the role of supervisor. Any such information that is held by the Head of School will be provided to Associate Professor Brown through the Executive Dean. You will be provided with the details of Associate Professor Brown's supervisory authority in due course if you have not already. 3. In relation to your application for SSP, I understand that you believe that your application should be considered "relative to opportunity". This is appropriate. I also understand that in your case, "opportunity" includes reference to your ongoing dispute with the University and the effects of this on your research productivity. Since you wished these matters to be treated as confidential, you have asked that Professor D'Agostino consider your application "executively", i.e., without the advice of the small committee. I support Professor D'Agostino's proposal that a small committee should consider your application. This accords with usual practice in the Faculty of Arts. Moreover, I support his proposal that you should provide a statement outlining the consequences of your circumstances on your research productivity, without being required to identify these circumstances. 4. I note that you have enclosed in your correspondence to the Vice-Chancellor an RTI application seeking correspondence to the University from the Crime and Misconduct Commission (CMC) in relation to the handling of the investigation into allegations of harassment you made. I have reviewed your application and do not believe the Right to Information and Privacy Coordinator is conflicted in relation to this application as the documents you are seeking were produced by an external body, that is the CMC. Therefore in accordance with the Right to Information Procedures (PPL 1.60.01, accessible from ), I will forward your application to the University's Right to Information and Privacy Office. Please let me know by close of business Thursday 8 November if you do not wish for this to occur. Any further correspondence about your application needs to be made directly to the Right to Information Privacy Coordinator who can be contacted as follows… 5. In relation to your RTI application of February 2012, I note that a review was undertaken in May 2012 on how the University handled your application. The review found no evidence that your privacy was breached. If you remain dissatisfied with the way your RTI application was handled, you will need to contact the Queensland Ombudsman. Information on making a complaint to the Ombudsman can be accessed at…

Consideration 481 The difference between the thirty-first and the thirty-second allegations appears to be that the former deals with the University's handling of the part of Dr Lamont's complaint of 25 July 2012 involving the allegations of contraventions of the Whistleblowers Protection Act, while the latter deals with the other aspects of that complaint. 482 Prof D'Agostino's evidence was that he did not take any steps in respect of the Whistleblowers Protection Act allegations after he referred the matter to Prof Terry because he considered that she was dealing with the matter. Dr Lamont submits that evidence should be rejected and the Court should find that his exercise of workplace rights was at least part of the reason why Prof D'Agostino failed to act. 483 Dr Lamont submits that Prof Terry did not follow the Complaints Management Policy. He submits that her evidence that she considered the matter had been appropriately managed, should be rejected. Dr Lamont submits that the Court should reject Prof Terry's claim that his exercise of workplace rights did not play a role in her conduct. 484 Dr Lamont criticises Mr McNarn's conduct on the basis that he sought a copy of the complaint from Prof D'Agostino even after concerns were expressed about the appropriateness of doing so, and informed the CMC that he had not been able to identify any new concerns from Dr Lamont's complaint even though he did not meet with Dr Lamont or attempt to gather any evidence. 485 Under cl 4.1 of the Whistleblowers Policy, an assessment was required to be made of a public interest disclosure and a determination to be made of the appropriate action to take. The assessment included consideration, under cl 4.3, of any obligations under the Crime and Misconduct Act 2001 (Qld). 486 Clause 4.1 of the Complaints Management Policy provided, relevantly: 4.1 …The University's complaints management system is based on the following principles: … (d) All University staff are expected to communicate to other staff, students and the community how to access the University's complaints processes. (e) The University uses a straightforward and timely complaints process, which includes reasonable timeframes for the management of complaints and regular communication with complainants about the management and progress of their complaints. (f) The University acknowledges that complaints can be sensitive, complicated and take time to resolve. The University will ensure that complainants are kept informed about the complaints process, anticipated front timeframes and any other factors likely to affect the progress of the complaint. … (j) Decisions about complaints will be made as soon as possible following assessment or investigation of the complaint, and the decision will be communicated to the complainant as soon a practicable. (k) The University will handle complaints fairly, and appropriately adhere to principles of natural justice and good governance. This includes the requirement for staff to clearly explain to the complainant the factors considered in making a decision and the reasons for the decision. (Errors in original.) 487 The first particular of the thirty-first allegation is that the University failed to regularly communicate with Dr Lamont about the management and progress of his complaints and ensure that he was kept informed about the complaints process and anticipated timeframes, contrary to cll 4.1(d), (e) and (f) of the Complaints Management Policy. Dr Lamont alleges that he received no communication between 27 July 2012 when he lodged his complaint and 7 November 2012 when he was notified about the outcome. He was not told the University was going to refer any of his complaints, and which ones, to the CMC. 488 The respondents submit that the Complaints Management Policy does not apply to a public interest disclosure. 489 The Complaints Management Policy seems to be a general, overarching policy which applies to all complaints that come within its reach, even if another policy applies more specifically. Clause 2.1 states that, "A complaint is an expression of dissatisfaction with a product or service offered or provided by the University, whether voiced by a member of the public, an employee or a student". In my view, the Complaints Management Policy would apply to a complaint by an employee about conduct of a manager relating to the provision by the University of the services of teaching and research. I consider that it applied to the complaint made by Dr Lamont on 25 July 2012. 490 I accept that the University failed to tell Dr Lamont that it was going to refer his complaints to the CMC, or that it had referred them to the CMC until the CMC had made its decision. I accept that its failure to keep Dr Lamont informed about the complaints process was a contravention of cll 4.1(e) and (f) of the Complaints Management Policy. 491 However, I do not accept that the contravention of the Complaints Management Policy occurred because Dr Lamont exercised any workplace rights. I accept Prof D'Agostino's evidence that he handed over management of the public interest disclosure to Prof Terry. Prof Terry handed over dealings with the matter to Mr McNarn. It was not suggested to Mr McNarn in cross-examination that he refrained from complying with the Complaints Management Policy because Dr Lamont had exercised any workplace rights. As it was not apparent from the FASOC and the evidence that it was being alleged that Mr McNarn failed to comply with the Complaints Management Policy, that is a matter that should have been put. As the matter was in fact referred to the CMC there was no apparent motivation to withhold that fact from Dr Lamont. Prof D'Agostino, Prof Terry and Mr McNarn were frank and straight-forward witnesses. I accept that their failure to communicate with Dr Lamont occurred through mere oversight and that it was not because Dr Lamont exercised any workplace rights. 492 The second particular is that the University did not handle Dr Lamont's complaints fairly and appropriately and adhere to principles of natural justice and good governance, including the requirement to explain to Dr Lamont the factors considered in making a decision and the reasons for the decision contrary to cll 4.1(j) and (k) of the Complaints Management Policy. Dr Lamont complains that in its letter of 5 November 2012, the University indicated that the bases for its decisions were letters from the CMC and the beliefs of the CMC, but that the University did not provide him with a copy of the CMC's letters. Further, the University did not provide him with copies of its correspondence to the CMC. 493 As I understand it, the complaint is that Prof Terry should have provided Dr Lamont with the correspondence between the University and the CMC. In my opinion, there was no requirement under cll 4.1(j) and (k) of the Complaints Management Policy to provide Dr Lamont with such material. There is no allegation that the right to information applications were refused on the basis of Dr Lamont's exercises of workplace rights. Even if there were some breach of cll 4.1(j) and (k) of the Complaints Management Policy by Prof Terry, I would find that was not done because Dr Lamont had exercised any workplace rights. 494 The third particular is that the University failed to comply with s 11(1) and (2) of the Whistleblowers Protection Act. Dr Lamont has not particularised how the University failed to comply with the provisions. It may be that he is alleging that the University, within s 11(2), caused or attempted to cause him a detriment because of a public interest disclosure. If so, he has not demonstrated that the University, by its failure to comply with the Complaints Management Policy, caused him detriment because he made a public interest disclosure. The evidence simply fails to establish any such proposition. 495 The fourth particular is that the University failed to comply with cll 5.2 and 5.3 of the Whistleblowers Policy. Clause 5.2 stated that the Whistleblowers Protection Act was designed to protect disclosers from reprisals and to provide that a staff member who makes reprisals against a discloser may be disciplined or dismissed. Clause 5.3 dealt with strategies for protection, including that, in a given case, it may be necessary for a supervisor or section head to be told of the disclosure and charged with a responsibility to monitor workplace conduct and report any conduct that might be construed as a reprisal. I accept that cl 5.3 implied that the University should take reasonable steps to protect the discloser from reprisals. 496 The University did take reasonable steps to protect Dr Lamont in respect of his complaint of 25 July 2012. These included determining that Prof Brown should continue to have all the supervisory powers of a Head of School in relation to Dr Lamont and clarifying that those powers included issues of workload. In addition, Prof D'Agostino was informed by Prof Terry that, if necessary, he should direct Prof Moore to allocate funds from the School budget to assist with management of workload. 497 Even if there was some non-compliance with the Whistleblowers Policy or the Whistleblowers Protection Act, I would have found that it was inadvertent. I would not have accepted that Prof D'Agostino, Prof Terry or Mr McNarn took action against Dr Lamont because he exercised any workplace rights. 498 Further, I cannot see that Dr Lamont suffered any injury of the kinds he has alleged. 499 The thirty-first allegation must be rejected.

The thirty-second allegation 500 The thirty-second allegation is that, because Dr Lamont exercised workplace rights, the University failed to manage those complaints of 25 July 2012 which were internal grievances, in accordance with the Policy Principles in cl 3 and the Procedures at Step Two in cl 4 of the Staff Grievance Resolution Policy. 501 It is alleged that Dr Lamont was injured in his employment by the University not resolving his grievance in accordance with cl 44.1 of the 2010 Enterprise Agreement and the Staff Grievance Resolution Policy. 502 The allegation relates to those parts of Dr Lamont's complaint of 25 July 2012 which were not public interest disclosures, but internal grievances. Prof Dowe had sent Dr Lamont two emails on 20 July 2012. The first related to a decision that the workload points which had previously been allocated to Dr Lamont and others for certain roles associated with teaching in the Science Faculty were to be replaced with workload points for general coordination. The second email indicated, inter alia, that Dr Lamont would be required to coordinate and lecture a particular subject in Semester Two, 2012. Dr Lamont's dissatisfaction with these decisions concerning his workload allocation, including who was entitled to make the decisions, appears to be what the FASOC refers to as "internal grievances". 503 On 27 July 2012, Prof D'Agostino wrote to Dr Lamont saying that he had referred Dr Lamont's allegations against Prof Moore to the Acting Vice-Chancellor. While he did not say in his email that he would investigate the workload allocation and supervision issues, he in fact began to deal with them. 504 On 6 August 2012, Prof D Agostino sent a letter to Prof Terry saying that he did not propose to treat the workload allocation issues as a grievance. Prof D'Agostino had been approached by both Prof Moore and Prof Brown about the alternative supervision arrangement in place for Dr Lamont's supervision. Professor Nancy Wright, who had succeeded Prof Fotheringham as Executive Dean, had written to Prof Moore on 23 March 2012 saying that all supervisory responsibilities for Dr Lamont had been transferred to Prof Brown and she would exercise all responsibilities that customarily reside with a supervisor who is the Head of School. Prof D'Agostino said he was satisfied that it was Prof Wright's intention that Prof Brown act as Dr Lamont's supervisor with respect to matters including workload. Prof D'Agostino noted that Dr Lamont had raised with him, both directly and through Prof Brown, at least three issues about workload allocation. Prof D'Agostino also mentioned the question of Dr Lamont's proposed SSP application for 2013. Prof D'Agostino raised proposals for dealing with the issues and sought Prof Terry's advice. 505 Prof D'Agostino met with Prof Terry on 16 August 2012 to determine how to proceed with the matter, including the supervision and workload allocation issues. A decision was made, that Prof Brown would remain as Dr Lamont's supervisor and deal with matters including his workload. On 18 August 2012, Prof D'Agostino communicated the proposed arrangements to Prof Brown and Prof Moore. 506 On 3 September 2012, Prof D'Agostino received a letter from Dr Lamont. It stated that Dr Lamont was on sick leave and was not accessing his work emails and asked that any correspondence be forwarded to his home address. He asked to be informed who was occupying the positions of Head of School and Deputy Head of School. 507 On 12 September 2012, Dr Lamont sent a further letter to Prof D'Agostino saying he had not received a response to his letter of 3 September 2012. He said he had now accessed his emails and noted that he had not received any correspondence from the Vice-Chancellor's office or anyone else with respect to his public interest disclosures. He said that he was hoping to return to work on 17 September 2012. He raised a number of issues about Prof Moore's actions. 508 On 21 September 2012, Prof D'Agostino wrote to Dr Lamont saying that he had confirmed the arrangement put in place by Prof Wright under which Prof Brown exercised, as his supervisor, the powers of the Head of School in respect of his activities. He said that Prof Brown was undertaking a calculation of his workload under the arrangement. Prof D'Agostino said that he would, as Executive Dean, retain and exercise as appropriate his normal supervisory powers in order to ensure a coordination of activities within the School. Prof D'Agostino offered to meet with Dr Lamont regarding his workload and supervision issues. 509 Dr Lamont responded on 19 October 2012. He raised a number of issues about the arrangements. He said that he did not find the confirmation in Prof D'Agostino's letter reassuring. He did not respond to Prof D'Agostino's offer to meet with him. 510 On 10 December 2012, Prof D'Agostino responded, noting that his delay in responding had been due to the need to take advice. Prof D'Agostino clarified which of the responsibilities of the Head of School had been transferred to Prof Brown. 511 Dr Lamont has not particularised which of the Policy Principles in cl 3 and which of the Procedures at Step Two in cl 4 of the Staff Grievance Resolution Policy the University failed to comply with. So far as I can see, the only aspect of the Staff Grievance Resolution Policy not complied with was the requirement under cl 3.1(c) to conduct the process, "in accordance with the agreed timeframe specified within the procedure". Clause 4.3 required that the University officer responsible, "shall ensure that each step of the grievance procedure is finalised within 2 weeks". The requirement was expressed in absolute terms. Assuming, as Dr Lamont seems to assert, that the complaint was made under Step Two, it was simply not possible to complete the Step Two procedure within two weeks because of the nature and complexity of the complaint. However, Prof D'Agostino did, in compliance with the first part of cl 3.1(c), proceed as expeditiously as possible. 512 I consider that the failure to complete the process at Step Two within two weeks was not an injury to Dr Lamont in his employment. In my view, no complaint of such a kind, no matter who it was made by, could be concluded within two weeks. In the circumstances, Dr Lamont's treatment did not amount to substantially different treatment to the manner in which he would ordinarily be treated in respect of a complaint of that kind. Further, I am not satisfied that he was prejudiced or suffered detriment as a result of the delay. By taking a longer period, Prof D'Agostino was able to resolve the complaint in a way that achieved a favourable outcome for Dr Lamont, namely that Prof Brown would be responsible for aspects of his supervision which included allocation of workload. If the process had been completed within two weeks, the outcome may well have been less favourable to Dr Lamont. In these circumstances, I do not accept that the delay caused injury to Dr Lamont. 513 Further, the delay occurred because it was necessary for Prof D'Agostino to examine the historical material and consult with persons including Prof Terry, Prof Moore and Prof Brown, before making a determination. I find that Prof D'Agostino did not delay because Dr Lamont exercised any workplace rights. 514 I do not consider that Prof D'Agostino failed to comply with the Staff Grievance Resolution Policy by failing to interview the parties to the complaint pursuant to cl 4.10. The clause stated that the University officer responsible, "should ensure that each party to the complaint and other relevant persons are interviewed separately at first instance…". In my view, it did not require that the parties be interviewed, but only that, if they are interviewed, they be interviewed separately. In this case, there was no need for Prof D'Agostino to interview the parties because, as he indicated in his letter of 21 September 2012, they had already talked to him about the issues involved in the supervision arrangement. 515 I do not consider that Prof D'Agostino failed to comply with the Staff Grievance Resolution Policy by not following the procedures in cll 4.12 and 4.13. Again, they were not mandatory. It might be expected that in some cases, for example, the parties do not wish to be brought together. 516 Even if there were some non-compliance with cll 4.10, 4.12 or 4.13, I consider that Prof D'Agostino was an honest witness and would not accept that the non-compliance occurred because Dr Lamont exercised any workplace rights. 517 The thirty-second allegation must be dismissed.

The thirty-fourth allegation 518 The thirty-fourth allegation is that the University and Prof Høj failed to manage Dr Lamont's complaints in accordance with cll 15 and 41 of the 2010 Enterprise Agreement, the Complaints Management Policy, and the Principles in cl 3 and the Procedures for Step Three in cl 4 of the Staff Grievance Resolution Policy. This is alleged to have occurred because Dr Lamont exercised his workplace rights. 519 The allegation is particularised as follows: (1) In his letter, dated 5 February 2013, Prof Høj dismissed Dr Lamont's complaints against Prof Terry and Mr McNarn without providing cogent and proper reasons and, further, stated he would be unwilling to consider or instigate an investigation into any further submissions concerning alleged wrongdoing by them; (2) Prof Høj failed to comply with the requirements of the Complaints Management Policy and Staff Grievance Resolution Policy concerning communication about the complaints process, to handle the complaints fairly and to adhere to the principles of natural justice and good governance, including explaining clearly the factors considered in making the decision and the reasons for the decision; (3) Prof Høj did not investigate Dr Lamont's complaints at all, or, alternatively, did not do so in accordance with requirements in the Complaints Management Policy to communicate about the complaints process, to handle the complaints fairly and to adhere to principles of natural justice and good governance, including clearly explaining the factors considered in making the decision and the reasons for the decision. 520 Dr Lamont alleges that these actions caused injury to him in his employment since he was refused a resolution of his grievances in accordance with cl 44.1 of the 2010 Enterprise Agreement, the Complaints Management Policy and the Staff Grievance Resolution Policy and, further, he was denied the benefits of his SSP leave and had to withdraw from the program to the detriment of his career prospects for promotion.

The evidence 521 Prof Høj commenced as Vice-Chancellor and President of the University on 8 October 2012. 522 On 19 October 2012, Dr Lamont wrote to Prof Høj. In that letter Dr Lamont noted that he had made his complaint of 25 July 2012 and had been notified by Prof D'Agostino that he had referred the complaint to Prof Terry, as Acting Vice-Chancellor. He alleged that there had been further bullying and reprisals since then. He also indicated concerns about the processing of his Right to Information application lodged in February 2012 requesting access to the Byrom Report and information concerning the CMC investigation. 523 On 7 November 2012, Dr Lamont sent a further letter to Prof Høj saying that he and other staff members in the School had been subject to further bullying and reprisals by Prof Moore. He urged Prof Høj to follow the Whistleblowers Policy in relation to these matters. He asked that Prof Brown be charged with responsibility to report any reprisals to Prof Høj. 524 Prof Høj asked Prof Terry to respond to Dr Lamont's letter of 19 October 2012. She responded on 7 November 2012 in the terms set out earlier, including saying that the allegations against Prof Moore had been referred to the CMC and indicating the CMC's response. 525 On 14 November 2012, Dr Lamont sent Prof Høj a letter expressing concern about the fact that he had provided Dr Lamont's correspondence to Prof Terry, as he believed she had a conflict. He requested that Prof Høj directly manage correspondence and that Prof Terry have no further involvement. He requested that Prof Høj determine a fair and equitable way for consideration of his SSP application to proceed and raised concerns about his Right to Information application. 526 On 4 December 2012, Prof Terry wrote to Dr Lamont stating that she did not believe that Mr McNarn had any conflict, asking for any information concerning his allegation that the Freedom of Information Officer had improperly dealt with his information, and saying that he could contact the Queensland Information Commissioner. 527 On 30 November 2012, Dr Lamont sent a letter to Prof Høj in which he enclosed a letter he had sent to Prof D'Agostino stating that he was taking recreation leave due to stress induced by delays in having the matters raised in this correspondence to Prof D'Agostino addressed. 528 As Dr Lamont had objected to Prof Terry dealing with his complaints, Prof Høj decided to instead ask Mr McNarn to respond to Dr Lamont's letter of 30 November 2012. Mr McNarn wrote on 10 December 2012 stating that he considered that between the correspondence from Prof Terry and Prof D'Agostino, Dr Lamont's issues had been addressed and that his most recent issues should be dealt with by the Faculty of Arts. 529 On 10 January 2013, Dr Lamont wrote to Prof Høj saying that he had previously made serious allegations against Prof Terry and asking that he personally respond to his correspondence. 530 On 11 January 2013, Prof Høj wrote to Dr Lamont saying, inter alia, that as the Chief Executive Officer of a very large University, it was important that he rely on professional staff to manage the numerous issues that were brought to his attention on a daily basis. He said he proposed to involve Mr David Lavell, Associate Director of the University Investigations Unit, to seek advice about Dr Lamont's correspondence, even though he did not consider that Prof Terry or Mr McNarn were conflicted. 531 On 18 January 2013, Dr Lamont responded saying that he had no objection to Prof Høj's action in seeking advice from Mr Lavell, but would object to Mr Lavell taking any investigative role, given that he reported to Mr McNarn. The letter also provided further details of Dr Lamont's concerns with respect to Prof Terry and Prof D'Agostino. 532 Prof Høj deposes that it appeared that Dr Lamont had very little trust in almost all senior members of the University from whom he would ordinarily seek assistance in resolving a staff grievance issue. He thought it might help if he met personally with Dr Lamont. On 5 February 2013 he advised Dr Lamont that he would be willing to meet with him on the condition that Mr Lavell would be present as well. He also said that he had reviewed the materials Dr Lamont had provided and was not convinced that there was any evidence to support his allegations involving Prof Terry or Mr McNarn, but had nevertheless decided to refer Dr Lamont's letter of 10 January 2013 and his proposal to deal with his issues to the CMC. He said he was prepared to ask Mr Lavell to look with fresh eyes at Dr Lamont's issues from inception up to the point where he made allegations against Mr McNarn and Prof Terry. He said that if Dr Lamont did not wish to meet with him, there was nothing more that he could do to assist him. 533 On 5 February 2013, Prof Høj sent a letter to the CMC referring Dr Lamont's matters. He noted that Dr Lamont persisted with claims that particular management actions were reprisals or examples of bullying and harassment, but that his assessment was that they were reasonable management actions that had been made in accordance with University protocols. He stated he was not referring the matter to the CMC as a reportable matter as he did not believe that any new information existed and that, in fact, it involved matters that had previously been dealt with and reported on. 534 In his letter of 5 February 2013, Prof Høj wrote to Dr Lamont saying: I have personally reviewed the materials and I am not convinced that there is any evidence to support your recent assertions in respect of the COO (Mr McNarn) and SDVC (Prof Terry). However as this matter has been the subject of a significant volume of correspondence and both fiscal and human resources, I do not propose to engage in debate on my views in this letter. Despite my personal view of the status of your issues, I have nevertheless referred your letter of 10 January 2012 (sic) and advice about how I propose to deal with your issues, which includes offering to meet with you, to the CMC. 535 On 12 February 2013, Dr Lamont sent a letter to Prof Høj saying that he believed his findings with respect to the conduct of Prof Terry and Mr McNarn were completely unsatisfactory, but he recognised that his pursuit of matters through the University's internal mechanisms were now exhausted. He agreed to meet with Prof Høj and Mr Lavell, but disagreed with the proposal to appoint Mr Lavell to an investigation on the basis that it would involve him being conflicted. 536 On 22 March 2013, the CMC advised that it was satisfied that the University was taking appropriate action to deal with Dr Lamont's continuing concerns. 537 On 23 April 2013, Dr Lamont wrote seeking answers to questions he had raised, copies of his staff files, a copy of the Byrom Report and copies of the CMC correspondence. There was further correspondence between Dr Lamont and Prof Høj. 538 Prof Høj and Mr Lavell met with Dr Lamont on 21 May 2013. Prof Høj subsequently received correspondence from Dr Lamont enclosing a proposed Settlement Deed. 539 On 26 June 2013, Prof Høj responded saying he was disappointed with the settlement proposal put forward by Dr Lamont and that the University did not agree with his characterisation of many of the events. He said he considered the correspondence between him and the University to be closed. He said that there would be no change to Dr Lamont's supervision arrangements until 1 July 2013, but as of that date his supervisor would be the new Head of School. Prof Høj said that all matters relating to Dr Lamont's employment should be managed at a School level and he should not expect further correspondence from him in relation to these issues. His expectation was that he would engage with the Head of School and his colleagues in a collegiate and cooperative way. He said that Dr Lamont had the normal rights to resolve issues and grievances which may arise in the future using the University's processes and procedures. 540 Prof Høj states that he decided to take no further action in relation to Dr Lamont's grievances and to write to him in these terms because it had become clear to him that it would not be possible to resolve the matter in a way that was satisfactory to Dr Lamont without requiring the University to commit to obligations that were unsatisfactory to it. Prof Høj had been advised that Dr Lamont had withdrawn from his participation in the University's internal grievance process and it seemed apparent that he was determined to pursue his concerns in an external court or tribunal. Prof Høj believed that was now the appropriate, and almost certainly the only, forum for Dr Lamont's grievances to be resolved. He considered that Dr Lamont had progressively escalated his concerns within the University to the extent that most University executives had been involved in attempting to address those concerns. However, at the point when Dr Lamont would become dissatisfied as to how they dealt with his concerns, he would assert that they were conflicted with the result that they, and the people who reported to them, should not continue to be involved. Prof Høj believed this was a significant obstacle to any further attempt at internal resolution. Further, a new Head of School, Associate Prof Crotty, had recently been appointed and he considered the best chance Dr Lamont and the University had to normalise the relationship was for them to establish a normal supervisory relationship in accordance with normal University procedures. 541 Prof Høj's evidence is that in his letter of 5 February 2013, he did not elaborate on the reasons why he did not consider there to be evidence to support Dr Lamont's allegations because he had not made any findings regarding the allegations. However, he had not seen any evidence which persuaded him that there had been any wrongdoing on the part of Mr McNarn or Prof Terry or that they were conflicted in a way which would have prevented them from carrying out their normal roles, including in relation to Dr Lamont's grievances. He had referred the matter to the CMC for advice and was aware the matter had already been the subject of a significant volume of correspondence. He deposes that there were no other reasons why he did not elaborate upon his reasons, and it was not because of any alleged exercises of workplace rights by Dr Lamont. Prof Høj denies that he refused to manage Dr Lamont's complaints in accordance with the University's policies and procedures.

Consideration 542 The first particular of the thirty-fourth allegation is that Prof Høj dismissed Dr Lamont's complaints against Prof Terry and Mr McNarn in his letter of 5 February 2013 without providing cogent and proper reasons. It is also alleged that Prof Høj said that he would be unwilling to consider or instigate an investigation into any further submissions from Dr Lamont with respect to alleged wrongdoing by Prof Terry and Mr McNarn. 543 Dr Lamont's letter of 7 November 2012 referred to the University's Whistleblowers Policy and urged Prof Høj to adhere to the policies. He said that cll 5.2 and 5.3, which set out the University's responsibilities with respect to protection from reprisals and strategies for achieving this protection, had not been adhered to. 544 In Dr Lamont's letter of 10 January 2013 to Prof Høj, he referred to his letter of 7 November 2012 and said that he had made an allegation of non-compliance with the Whistleblowers Policy, particularly cll 5.2 and 5.3. He said that as Prof Terry was the responsible University officer, his allegation thereby included a serious allegation that Prof Terry had violated the University's policy through her inaction. The letter went on to indicate why Prof Terry and Mr McNarn were alleged to have conflicts of interest in respect of his matters. His letter of 18 January 2013 to Prof Høj also referred to conflicts of interest. 545 The assertion that seems to be made in the first particular is that in his letter of 7 November 2012, or perhaps in his letter of 10 December 2012, Dr Lamont had made a complaint under Step Three of the Staff Grievance Resolution Policy. It is true that in the email of 10 January 2013, Dr Lamont alleged that Prof Terry had failed to comply with two clauses of the Whistleblowers Policy. However, there was no reference to the Staff Grievance Resolution Policy and I do not accept that any complaint was made against Prof Terry under that policy. To the extent that it may have been an allegation of reprisal because Dr Lamont had made a public interest disclosure, Prof Høj dealt with it by referring Dr Lamont's correspondence to the CMC. In these circumstances, cl 41 of the 2010 Enterprise Agreement and the Staff Grievance Resolution Policy had no application. 546 The "decision" in Prof Høj's letter of 5 February 2013 that seems to be complained about is his statement that he was not convinced that there was any evidence to support his assertions that Mr McNarn and Prof Terry had conflicts of interest. The context in which that statement was made was the issue of whether Prof Høj should deal with Dr Lamont's correspondence personally. I do not consider that Dr Lamont was raising any new complaint about Mr McNarn and Prof Terry. Further, Prof Høj made no decision, but indicated his view upon the issue raised. Accordingly, the Complaints Management Policy had no application. Further, assuming it applied and that there was a decision, I consider that Prof Høj complied with cl 4.1(k), which required him to clearly explain the factors considered in making a decision and the reasons for the decision. His reasons were that he was not convinced that there was any evidence to support Dr Lamont's assertions. In my opinion, that was an adequate explanation. 547 In his letter of 5 February 2013, Prof Høj did not say that he would be unwilling to consider or instigate an investigation into any further submission from Dr Lamont with respect to alleged wrongdoing by Prof Terry and Mr McNarn. 548 The second particular is that Prof Høj failed to manage Dr Lamont's complaints against Prof Terry and Mr McNarn in accordance with the Staff Grievance Resolution Policy and the Complaints Management Policy. As I have indicated, there was no complaint to Prof Høj about Prof Terry or Mr McNarn that engaged those policies. 549 The third particular is that Prof Høj refused to manage Dr Lamont's complaints about ongoing bullying from January to May 2013 in accordance with the 2010 Enterprise Agreement, the Complaints Management Policy and the Staff Grievance Resolution Policy. The complaints that Dr Lamont made about Prof Moore's ongoing conduct to Prof Høj were, on their face, allegations of reprisals for public interest disclosures. They were not asserted to be made under the Staff Grievance Resolution Policy. Prof Høj dealt with the allegations under the Whistleblowers Policy by referring them to the CMC. He complied with the Complaints Management Policy by informing Dr Lamont of that action and, later, of the outcome. 550 I therefore do not accept that Prof Høj failed to manage Dr Lamont's complaints in accordance with the 2010 Enterprise Agreement, the Complaints Management Policy and the Staff Grievance Resolution Policy. 551 Even if there was some failure of that kind, I accept Prof Høj's evidence as to the reasons he acted as he did, and would find that he did not take any action against Dr Lamont because he exercised workplace rights. 552 Further, I do not accept that Dr Lamont suffered any injury of the kinds he alleges. 553 The thirty-fourth allegation must be rejected.

The thirty-fifth allegation 554 The thirty-fifth allegation is that Prof Høj labelled and treated Dr Lamont as "paranoid" and shared this view with Associate Prof Crotty and ceased to properly address Dr Lamont's grievances. 555 Dr Lamont alleges that he was injured in his employment: (1) since Associate Prof Crotty was subsequently maintained, against Dr Lamont's request, as Dr Lamont's supervisor; (2) since the opinion of Prof Høj and his communication to Associate Prof Crotty negatively impacted upon Dr Lamont's relationship with Associate Prof Crotty; (3) since Prof Høj terminated all future discussions and investigations concerning Dr Lamont's grievances and instructed him to raise any new complaints at the local level; (4) since Prof Høj directed Dr Lamont not to make lengthy written complaints in the future. 556 Dr Lamont deposes that on 28 May 2013, he met Associate Prof Crotty, who was to take over from Prof Moore as Head of School from 1 July 2013. Dr Lamont alleges that Associate Prof Crotty said words to the following effect: I've met with the VC. Greenfield has gone. Keniger has gone. All of Almond's power base has gone. They are the ones who had the power. I think you have to bear that in mind. The VC said to me, "Julian seems to be paranoid". 557 Associate Prof Crotty had a meeting with Prof Høj on 28 May 2013. He deposed that at no point did Prof Høj refer to Dr Lamont as "paranoid". Associate Prof Crotty stated that when he met with Dr Lamont on the same day, Dr Lamont said words to the effect that he believed the University and the senior leadership was out to get him and would come through the Head of School, and that Dr Lamont wanted to protect him from that. Associate Prof Crotty stated that he told Dr Lamont that he had no interest in being part of a "get Lamont" agenda, and that he did not believe that such an agenda existed. He deposed that he said something to the effect, "I think you're being paranoid" or "I think they think you're being paranoid". He said he did not intend to suggest that Prof Høj had said he felt Dr Lamont was being paranoid. 558 However, in his oral evidence, Associate Prof Crotty said that he now accepted, on the basis of evidence he had been presented with, that he did tell Dr Lamont that Prof Høj said he felt Dr Lamont was being paranoid. The discrepancy demonstrates that Associate Crotty's memory concerning this issue was unreliable, but it does not affect my assessment that he was otherwise a credible witness. 559 Prof Høj denies that he told Associate Prof Crotty that he thought Dr Lamont was "paranoid". Prof Høj says he may have told Associate Prof Crotty that Dr Lamont was mistrustful of the University's treatment of him. He says he thought it was important for Associate Prof Crotty to be aware of and sensitive to that fact. 560 I accept that Prof Høj told Associate Prof Crotty that Dr Lamont was being "paranoid". That was certainly Associate Prof Crotty's eventual recollection. Prof Høj struck me as a man who is direct in his speech and does not waste words. It is more likely that Prof Høj said Dr Lamont was being paranoid than that Dr Lamont was mistrustful of the University's treatment of him. 561 I consider that Prof Høj was justified in forming the impression that Dr Lamont was being paranoid and in conveying that impression to Associate Prof Crotty. The use of that expression conveyed that Dr Lamont was mistrustful of senior staff dealing with his complaints without that mistrust having any reasonable foundation. By that stage, Dr Lamont was acting in a way which demonstrated mistrust of anyone who did not immediately accede to his demands. For example, Dr Lamont had unreasonably insisted on Mr McNarn completing his investigation of Prof Keniger's conduct within two weeks and then withdrew his complaint within that time on the basis that he thought that Mr McNarn was not taking it seriously. He was critical of Prof D'Agostino's dealings with his complaint of 25 July 2012, when Prof D'Agostino was simply doing his best to try to assist Dr Lamont. He objected to Mr Lavell dealing with his complaints even though Mr Lavell had no previous involvement with them. It is true that Dr Lamont was displaying a degree of paranoia. In part, this was explicable by experiences that he had legitimate cause for complaint about, such as the failure to provide him with the Byrom Report. However, his mistrust of almost everyone who was dealing with his complaints was unwarranted. It was legitimate for Prof Høj to convey his impression so that Associate Prof Crotty became aware of Dr Lamont's mistrust. That would warn Associate Prof Crotty to approach his dealings with Dr Lamont with appropriate circumspection and sensitivity. 562 The context in which Associate Prof Crotty told Dr Lamont that Prof Høj thought he was being paranoid was to assure Dr Lamont that there was no need to be mistrustful of him and that he would be making independent decisions. It was not intended to be insulting or offensive. 563 The first particular of the adverse action alleged is that Associate Prof Crotty was maintained, against Dr Lamont's request, as his supervisor. It is apparent that Dr Lamont wanted Prof Brown retained as his supervisor, and did not want Associate Prof Crotty to assume that role. I do not accept that Dr Lamont was injured merely by virtue of not having his wish acceded to. The normal practice was for the Head of School to become the supervisor of academic staff within the School. Dr Lamont had not previously made any complaint to the University about Associate Prof Crotty. A decision was made that it was appropriate that he become Dr Lamont's supervisor. That did not amount to treatment of Dr Lamont in a way that he would not ordinarily be treated. Nor did it amount to any detriment or prejudice to Dr Lamont. 564 I do not accept that Prof Høj conveying the impression that Dr Lamont was being paranoid adversely affected Dr Lamont's relationship with Associate Prof Crotty. That communication was in the context of saying that Dr Lamont had been mistrustful of the University's senior staff in circumstances where that mistrust was without foundation. It was not intended to be offensive, but informative of Dr Lamont's apparent state of mind. The communication from Associate Prof Crotty to Dr Lamont was made in the same vein and could not have been understood otherwise. I do not accept that Dr Lamont's relationship with Associate Prof Crotty was adversely impacted by Prof Høj's statement. Dr Lamont was not injured in his employment. 565 I do not accept that a reason why Prof Høj conveyed his impression to Associate Prof Crotty that Dr Lamont was being paranoid was because Dr Lamont had exercised workplace rights. Dr Lamont had written to Prof Høj in respect of his complaints of 25 July 2012 against Prof Moore and Prof Dowe. Dr Lamont objected to Prof Terry and Mr McNarn having any dealings with his complaints. Prof Høj could see no basis for Dr Lamont's objections to Prof Terry and Mr McNarn, and conveyed that to Dr Lamont. That was at least part of the reason why Prof Høj considered that Dr Lamont was being paranoid. He conveyed his impression to Associate Prof Crotty because it was relevant to his future dealings with Dr Lamont. I find that Prof Høj did not convey his impression to Associate Prof Crotty because Dr Lamont had exercised any workplace rights. It is true that Prof Høj would not have obtained and conveyed that impression but for matters arising out of Dr Lamont's exercises of workplace rights. However, the mere satisfaction of a "but for" test is not enough for the purposes of s 342(1) of the FWA. In my opinion, Dr Lamont's exercise of workplace rights was not a substantial and operative reason for the statement. 566 The second part of Dr Lamont's allegation appears to be that Prof Høj ceased to properly address Dr Lamont's grievances because he thought that Dr Lamont was paranoid because he exercised his workplace rights. Prof Høj denies this, saying that he ceased dealing with Dr Lamont's complaints because it appeared that they could not be resolved in a way that the University could accept and that Dr Lamont appeared determined to pursue his concerns externally. Dr Lamont's complaint of 25 July 2012 had been resolved. His other complaints had been withdrawn. Prof Høj considered that his involvement was unnecessary and inappropriate and that future complaints should be dealt with at a School level in accordance with the relevant University policies. I accept Prof Høj's evidence. I find that Prof Høj did not decide to cease his involvement with Dr Lamont's grievances because he had exercised workplace rights. 567 Further, I do not accept that Dr Lamont was injured in his employment by Prof Høj terminating all future discussions and investigations concerning Dr Lamont's grievances and instructing him to raise any new complaints at the local level and not to make lengthy written complaints in the future. In his letter of 26 June 2013, Prof Høj considered, correctly in my view, that Dr Lamont's grievances had come to an end. Prof Høj made it clear that Dr Lamont had the normal rights to resolve issues and grievances which may arise in the future using the University's processes and procedures. There was no obligation under those processes and procedures for the Vice-Chancellor to deal personally with such grievances, rather than being dealt with at a School level. That did not amount to treatment of Dr Lamont in a way that he would not ordinarily be treated. Nor did it amount to any detriment or prejudice to Dr Lamont. 568 The thirty-fifth allegation must be rejected.

The thirty-seventh allegation 569 The thirty-seventh allegation is that Prof Dunne directed Dr Lamont to delete references to his grievances from his performance appraisal documentation and threatened disciplinary action if he refused to delete the references. 570 It is alleged that Dr Lamont was injured in his employment since: (1) he was denied the right to have the University comply with cll 62.1 and 62.4 of the 2010 Enterprise Agreement and use the criteria for a Level B academic as set out in the criteria for cll 5 and 6 of the Academic Performance Policy in his performance appraisal; (2) the performance appraisal was detrimental to his career and prospects for promotion; (3) he was threatened with disciplinary action; (4) he had to spend inordinate amounts of time and energy trying to get the University to comply with its own procedures and policies to the detriment of his research and career. 571 On 5 June 2014, Dr Lamont met with Associate Prof Crotty for his annual appraisal. Following that meeting, Associate Prof Crotty sent Dr Lamont his Form B comments on 11 June 2014. Dr Lamont deposes that he was disturbed by these comments as they did not describe his performance relative to the Criteria for Academic Performance Policy. Associate Prof Crotty had also commented, "You have not mentioned promotion, which at this stage is probably appropriate…", but there was no description of Dr Lamont's performance relative to the Level C criteria, which is the standard to be applied when deciding upon promotion to Level C. Dr Lamont believed he had met these criteria. 572 On 17 June 2014, Dr Lamont sent an email saying that he was disappointed that Associate Prof Crotty's comments in the Form B were substantially unchanged from those he had read during the appraisal meeting and took into account almost nothing Dr Lamont had said in response. He urged Associate Prof Crotty to reconsider whether he had carried out the assessment in accordance with the University's policies for assessment. 573 Associate Prof Crotty responded on 17 June 2014 saying that he had followed the University procedures and that he believed that he had amended the comments in light of their discussion, and that they had agreed on the content. He said he did not see where the problem was and suggested that they meet later in the week. 574 On 19 June 2014, Dr Lamont wrote to Associate Prof Crotty saying that during the meeting he had put forward significant objections to the draft, but could see no significant change in the tone or content of the comments. He said he could see no point in meeting again and had provided a detailed response in accordance with the University's procedure. 575 The Form B contained a Section 5 for "Staff Member's Comments". The form stated: This section is available to record any further comment which the staff member wishes to make. If the staff member is not satisfied with the outcomes of the review process, including concerns about work allocation, assessment of performance, timing of a proposed change of category or pre-retirement/succession planning, then he or she can make the desired comments and forward Form B and the Academic Portfolio to the Executive Dean or the Institute Director, with a brief covering letter which clearly explains the point over which there is no consensus. 576 Dr Lamont completed Section 5 in considerable detail. He said he did not agree with the comments of the Head of School and in particular the assessment of his performance. He said he agreed with the "outcomes" of the appraisal in the limited sense that he agreed that all levels of his performance were satisfactory. He disagreed that the Head of School had followed University procedures. Some of Dr Lamont's criticisms concerned the substance of Associate Prof Crotty's comments, and others concerned the wording of his comments. 577 On 20 June 2014, Dr Lamont wrote to Prof Dunne, who had been appointed the Executive Dean of the Faculty of Humanities and Social Sciences (HASS). Dr Lamont said that he was writing in accordance with Section 5 of the Form B. He said he did not agree with comments of the Head of School in Section 3 of the Form B. 578 On 19 June 2014, Associate Prof Crotty sent Dr Lamont an email asking him for a meeting. The next day, Dr Lamont asked what the meeting was to be about. Associate Prof Crotty responded saying that the meeting would be about the nature of the appraisal process, an apparent misunderstanding of the tone of his comments, his response to the comments Dr Lamont had included in his form and, more generally, about how they related. Dr Lamont responded saying that the appraisal process had finished and he had no desire to participate in anything that would drag the process out further. 579 Associate Prof Crotty replied saying that he would still like to meet Dr Lamont and asked him to nominate a suitable time. He said he had assumed that Dr Lamont would check the comments and alert him to any areas of disagreement, and they could then discuss and amend the forms where necessary and where agreed. Associate Prof Crotty said he was still happy to do this and did not regard the appraisal process as over. 580 On 23 June 2014, Dr Lamont said that he wished to follow the process. He assured Associate Prof Crotty that he had every intention of continuing to relate to him in a completely professional and straightforward manner. Associate Prof Crotty responded saying that he would still like to meet with Dr Lamont, as there were larger issues than simply the contents of the appraisal document. 581 On 24 June 2014, Dr Lamont wrote to Associate Prof Crotty saying that it appeared to him that his request to make a time to meet him had now turned into a directive. He said that he was following the appropriate course of action, which was to refer disputes about the process or outcomes of the annual review to the Executive Dean for resolution. 582 On 24 June 2014, Associate Prof Crotty wrote to Dr Lamont accepting that they would not meet. He said the whole matter could have been sorted out with a phone call or a relatively quick meeting, all within the University processes. He said he would send Dr Lamont's appraisal documents to Faculty HR, but would be placing on file, "a number of concerns I have surrounding the appraisal". 583 On 30 June 2014, Prof Dunne wrote to Dr Lamont saying that based on information he had at hand, and in an effort to reach a resolution of these matters and/or to assist a mutual understanding of perspectives, he thought it was reasonable or sensible for the Head of School to seek further discussions with Dr Lamont. He noted that Associate Prof Crotty had requested to meet with Dr Lamont and had not, to his knowledge, issued a direction to attend the meeting. Prof Dunne said he believed it was the intent of the policy and procedures that supervisors and staff participate in good faith and professionally and attempt to seek resolution of any differences where possible. Prof Dunne asked Dr Lamont to reconsider his participation in a further meeting with Associate Prof Crotty. 584 Dr Lamont responded on 11 July 2014 explaining, inter alia, why he did not intend to meet with Associate Prof Crotty. 585 On 27 August 2014, Prof Dunne wrote to Dr Lamont noting that Dr Lamont had raised no issue with respect to the outcome of the appraisal, in that his performance was confirmed as "satisfactory". He said that the purpose of the Form B "Achievements and Objectives" section was to provide a record of a staff member's objectives for the period under review and the period ahead, the staff member's self-appraisal and the supervisor's assessment of accomplishments and performance, the agreed development plan and any issues relating to career planning (including changes in personal circumstances, interests and objectives). Prof Dunne said that Dr Lamont, however, had sought to record a range of matters on the Form B which were inconsistent with the intent of the appraisal process. These included difficulties in respect of his 2012 and 2013 appraisals, his ongoing grievance against the University, his allegations that violations of University policies, victimisation and misconduct had not been investigated and that Prof Høj had not corresponded with him to his satisfaction. In respect of Dr Lamont's indication that he had a grievance in train at present, he referred Dr Lamont to the letter from Prof Høj of 26 June 2013 in which he said, inter alia, that Dr Lamont had withdrawn from the grievance process. He said that in light of Prof Høj's clear enunciation of the University's position, it was not productive, appropriate or warranted for Dr Lamont, Prof Dunne and/or Associate Prof Crotty to engage in discussion of, or correspondence in relation to, any of the matters alleged in the Form B which were the subject of the earlier correspondence with Prof Høj. Prof Dunne said that neither he nor Associate Prof Crotty would acknowledge or respond to any future correspondence in relation to those matters. He also said that it would be inappropriate to allow references in the current Form B relating to what he considered to be an ongoing grievance against the University and allegations of violations of University policies, victimisation and misconduct. He said that the Form B should only contain material and commentary relating to Dr Lamont's performance. Prof Dunne directed Dr Lamont to remove all such references. He said he could see no evidence that Associate Prof Crotty had not complied with the relevant University policies and procedures, nor any evidence that Associate Prof Crotty had undertaken an appraisal which intentionally contained systematically misleading statements and key omissions. He also confirmed his advice that it was appropriate for Dr Lamont to meet with Associate Prof Crotty to address any other outstanding matters. 586 On 11 November 2014, Dr Lamont replied to Prof Dunne asking him to reconsider his direction. He said that he had not withdrawn his grievances. He said that his complaint of 25 July 2012 had not been investigated by the University. He said that he had told Prof Høj on 25 July 2013 that his grievances had not been withdrawn. He said that the Form B stated that, "You should mention any particular difficulties encountered in carrying out your duties and responsibilities and any special factors". He said that was what he had done as the factors he listed had a serious effect on his work and health. Dr Lamont said the violations of University policies, victimisation and failure to resolve his grievance had affected his performance. 587 On 18 December 2014, Prof Dunne replied saying that it remained his position that the Form B should only contain material and commentary relevant to Dr Lamont's performance. He said that his direction to remove particular references stood. He said he did not see the need to alter the performance outcome, which was noted as satisfactory. He said that failure to remove the material from the Form B by 9 January 2015 would result in the University considering taking steps that were necessary and appropriate to resolve the matter. He said that Associate Prof Crotty had conducted the academic appraisal in a manner consistent with the intent and expectations of both the academic appraisal process and the University's Code of Conduct. Prof Dunne said that Associate Prof Crotty had his full confidence in continuing as Dr Lamont's supervisor. 588 On 9 January 2015, Dr Lamont replied, saying that he understood that Prof Dunne had threatened him with disciplinary action if he did not remove the material as directed, so he had removed the comments which he believed he had been directed to remove. He said that he did not have confidence in Associate Prof Crotty as his supervisor. He said that Prof Høj had forced him, against his will, to have Associate Prof Crotty as his supervisor and acknowledged that Prof Dunne was continuing to do so. 589 On 2 February 2015, Prof Dunne wrote to Dr Lamont saying that he acknowledged that Dr Lamont had, in a fashion, removed the material which did not relate to his performance from the Form B, but he had included in the form commentary as to the removal of the material. Prof Dunne said that in the interests of moving the matter forward he would not object to the inclusion of the commentary, but did not agree with the assertions made within the commentary. He said that he was concerned by the allegation made in Dr Lamont's email that Associate Prof Crotty had engaged in an unlawful act against a staff member. He said that the making of such allegations against a colleague without substantiation could amount to a breach of standards outlined in the University's Code of Conduct and he strongly cautioned Dr Lamont against making any further allegations which may be unfounded. 590 In his email of 9 January 2015, Dr Lamont said that when a supervisor, as Associate Prof Crotty did, engaged in an unlawful act against an academic who was, in good faith, acting in compliance with University policies, there was every reason not to have confidence in that supervisor continuing to supervise the academic. On 12 February 2015 Dr Lamont sent another email saying that he acknowledged what appeared to be a veiled threat of disciplinary action under the University's Code of Conduct. He said that he had been referring to Associate Prof Crotty having refused his request for recreational leave on 25 July 2014 and requiring him to instead meet with him. Dr Lamont said he had asked Prof Dunne twice to overturn that refusal, which he did on 12 August 2014. 591 Prof Dunne deposes that he directed Dr Lamont to remove the references in his Form B to the history of grievances for the reasons outlined in his correspondence of 27 August 2014, being that the form recorded a range of matters that were irrelevant to the performance appraisal process and the Form B was only meant to include information and commentary relevant to Dr Lamont's performance in the 12 month period being reviewed. Prof Dunne said that his view was that the historical information Dr Lamont had incorporated was irrelevant to his performance appraisal, and was in contravention of Prof Høj's direction of 26 June 2013. 592 I accept that Prof Dunne threatened disciplinary proceedings against Dr Lamont if he failed to delete references to his grievances from his performance appraisal documentation. I accept that the threat caused injury to Dr Lamont. 593 However, I do not accept that Prof Dunne gave the direction that Dr Lamont remove references to the grievances, and made the threats to take disciplinary action if he did not, because Dr Lamont 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 Dr Lamont had made those grievances. As I have said, the mere satisfaction of a "but for" test is insufficient. That Dr Lamont 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 Dunne considered that it was not productive, appropriate or warranted to allow references in the Form B relating to what Dr Lamont 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. 594 The thirty-seventh allegation must be rejected.

The thirty-eighth allegation 595 The thirty-eighth allegation is that Associate Prof Crotty refused Dr Lamont's request for a change of supervisor, refused to conduct his 2015 performance appraisal in accordance with the 2014 Enterprise Agreement and the Criteria for Academic Performance Policy and directed Dr Lamont to have his appraisal with Associate Professor Chris Dixon. 596 It is alleged that Dr Lamont was injured in his employment since: (1) he was denied the benefit of the right to request a change of supervisor contrary to cl 61.1 of the 2014 Enterprise Agreement; (2) he continued to be supervised by Associate Prof Crotty, who was biased; (3) he was denied the right to have his performance appraisal done by a supervisor who was willing to conduct it in accordance with cll 60.1, 60.2 and 60.4 of the 2014 Enterprise Agreement and the criteria for a Level B Academic as set out in the Criteria for Academic Performance Policy at cll 5 and 6; (4) his appraisal was not being conducted in accordance with the performance criteria, to the detriment of his career and prospects for promotion; (5) the actions necessitated him spending inordinate amounts of time and energy writing to obtain compliance with the University's own procedures and policies, to the detriment of his research and career; (6) he fell sick as a result of anxiety and depression caused by the University and Associate Prof Crotty's actions. 597 On 1 May 2015, Dr Lamont sent an email to Prof Dunne saying that, pursuant to cl 61.1 of the 2014 Enterprise Agreement, he was requesting that Associate Prof Crotty no longer be his supervisor, and that Prof Brown be appointed instead. On 14 May 2015, Dr Lamont wrote again, saying that he had good reasons to have no confidence in Associate Prof Crotty as his supervisor and was requesting that his supervisory role be transferred so that Dr Lamont was no longer denied a supervisor in whom he had confidence. 598 On 20 May 2015, Prof Dunne replied saying that he had considered the request for a change of supervisor on the basis of the reasons that Dr Lamont had provided, namely that he did not have confidence in Associate Prof Crotty and Prof Brown was familiar with his history of concerns. Prof Dunne said that he had full confidence in Associate Prof Crotty continuing as his supervisor. He did not agree to Dr Lamont's request for a change of supervisor. 599 Prof Dunne's evidence was that he decided to refuse the request for a change of supervisor because the Head of School is an academic staff member's supervisor unless there are exceptional circumstances that warrant a change. He considered that there were no exceptional circumstances. He said that Associate Prof Crotty had fulfilled his responsibilities as Dr Lamont's supervisor, and he was not minded to remove him as a supervisor in circumstances where he had been adequately performing the role. 600 I accept Prof Dunne's evidence as to the reasons why he refused Dr Lamont's request for a change of supervisor. I find that he did not refuse the request because Dr Lamont had exercised workplace rights. 601 Further, I do not accept that Dr Lamont was injured by the refusal of his request for a change of supervisor. He asserts that the injury was that he was denied the benefit of the right to request a change of supervisor. However, he was not denied that right and he exercised it by making a request. He had no right to a change of supervisor, but only the right to request a change. He also alleges that he was injured because he continued to be supervised by Associate Prof Crotty, who was biased. I do not accept that Associate Prof Crotty was biased against Dr Lamont. An action that might suggest some bias was that Associate Prof Crotty had indicated an intention to refuse Dr Lamont a day of recreational leave so that they could have a meeting. That indication was given in response to Dr Lamont's unreasonable refusal to meet with Associate Prof Crotty in a timely way. I consider that Associate Prof Crotty's indication that he would deny leave for one day was an indication of his frustration with Dr Lamont's unreasonable conduct. However, it was not an indication of bias against Dr Lamont. I will refer later in these reasons to actions taken by Associate Prof Crotty leading to the issuing of a warning to Dr Lamont. I do not consider that the evidence discloses that Associate Prof Crotty was biased against Dr Lamont. To the contrary, he treated Dr Lamont fairly. 602 On 4 June 2015, Associate Prof Crotty had an email sent to Dr Lamont indicating that as he had returned from leave with a heavy diary commitment, Associate Prof Dixon would be conducting his annual performance review for 2015. 603 On 9 June 2015, Dr Lamont wrote to Associate Prof Crotty requesting that Prof Brown be appointed to conduct his appraisal. Dr Lamont's asserted reasons were that: there was a gender imbalance in performance appraisers; Prof Brown had more administrative experience; her discipline was philosophy, whereas Associate Prof Dixon's was history; she had some knowledge of his concerns; and she was a person in whom he had confidence to talk about sensitive matters. 604 On 9 June 2015, Associate Prof Crotty wrote to Dr Lamont declining his request. He said that Associate Prof Dixon was qualified and perfectly able to do the appraisal. 605 On 11 June 2015, Dr Lamont applied for three days of sick leave, saying that Associate Prof Crotty's unreasonable behaviour had been causing him enormous stress and adversely affecting his health. On 11 June 2015, Associate Prof Crotty replied saying that he could see no good reason why Associate Prof Dixon could not conduct the appraisal. 606 On 15 June 2015, Dr Lamont wrote to Associate Prof Dixon urging him to withdraw from his appraisal so that it could be reassigned to Prof Brown. The reason he expressed was to rectify the gender bias in the conduct of appraisals. 607 On 15 June 2015, Dr Lamont wrote to Associate Prof Crotty asking him to reconsider his decision. On 15 June 2015, Associate Prof Crotty declined to do so, saying that Associate Prof Dixon was an experienced appraiser and that most appraisers worked across academic fields. He also said that maintaining Associate Prof Dixon as the appraiser would avoid him having to brief another member of staff on the appraisal process and how it had changed. 608 On 16 June 2015, Dr Lamont again raised arguments about the choice of the appraiser. He again requested a reconsideration of the decision. On 16 June 2015, Associate Prof Crotty responded again rejecting a change of approach. 609 On 18 June 2015, Dr Lamont wrote to Associate Prof Dixon objecting to his conducting the appraisal and asking him to withdraw from the appraisal process. On 18 June 2015, Dr Lamont wrote again to Associate Prof Crotty requesting that Prof Brown perform his appraisal. 610 On 30 June 2015, Dr Lamont wrote to Prof Dunne saying that he was concerned by the delay in having his annual appraisal. He noted that Associate Prof Crotty had referred the question of reassignment to Prof Dunne. He requested that Prof Dunne appoint Prof Brown without further delay. 611 On 3 July 2015, Prof Dunne wrote to Dr Lamont addressing the concerns he had raised. He said that the allocation to Associate Prof Dixon was appropriate. 612 On 9 July 2015, Associate Prof Dixon wrote to Dr Lamont saying that he understood that the decision to delegate his appraisal to him had been made by Associate Prof Crotty and, he understood, had been confirmed by Prof Dunne. He said his understanding was that the appraisal would go ahead as planned. 613 On 7 August 2015, Dr Lamont and Associate Prof Dixon met for the conduct of the performance appraisal. On 10 August 2015, Associate Prof Dixon sent Dr Lamont the Form B, along with his comments, saying if he had not accurately conveyed their discussions, Dr Lamont should advise. 614 On 17 August 2015, Dr Lamont sent Prof Dunne copies of his Form B and Form C. He said he signed the forms on the understanding that by doing so he was simply stating that he had seen Associate Prof Dixon's comments and the certification of his performance as satisfactory. He said he did not agree that the appraisal process had been carried out in accordance with the University's policies. 615 Associate Prof Crotty deposes that his reasons for not granting Dr Lamont's request for Prof Brown to conduct Dr Lamont's performance appraisal were those set out in his emails. In addition, he states that he had already met and allocated the performance appraisers and did not want to have to restart that process. He says that this was the only time a staff member had objected to a performance appraiser who had been allocated to them and he was concerned that allowing the request could set a precedent for staff members to select their own performance appraiser. He had also spoken to Prof Brown who had spoken about how busy and under pressure she was, and was concerned that she would not be available to take on Dr Lamont's performance appraisal. Associate Prof Crotty also says that he had no reason to believe there was any legitimate concern in relation to the allocation of Associate Prof Dixon as Dr Lamont's appraiser. 616 I accept Associate Prof Crotty's evidence. I accept that he declined to change the performance appraiser from Associate Prof Dixon to Prof Brown for the reasons he gave. I do not accept that the refusal was because Dr Lamont had exercised any workplace rights. 617 Further, I do not accept that Dr Lamont was injured in his employment by the refusal to change his performance appraiser. I do not consider that his disappointment at not having his choice of performance appraiser amounts to an injury. There is no allegation that Associate Prof Dixon acted improperly in conducting the performance appraisal. 618 The allegation that the performance appraisal was not conducted in accordance with the 2014 Enterprise Agreement seems to be that Associate Prof Crotty had no power to delegate Dr Lamont's 2015 performance appraisal to Associate Prof Dixon. Clause 61.1 of the 2014 Enterprise Agreement provides that each academic staff member shall have a nominated supervisor. Clause 60.2 states that each academic staff member will meet annually with his/her supervisor to conduct a formal review. Clause 61.3 provides that the supervisor shall be the head of the academic unit in which the academic is employed, provided that the relevant Executive Dean or Institute Director may delegate in writing another academic staff member to be the supervisor. I do not consider that these clauses prevent a supervisor from delegating the conduct of the formal review. The evidence demonstrates that it was a common practice for the performance appraisal function to be delegated. It is likely that if the parties to the 2014 Enterprise Agreement intended to change that practice, they would have made that expressly clear. Indeed, it may be noted that Dr Lamont raised no objection to the delegation of that function, his complaint being merely that he wanted it delegated to the appraiser of his choice. 619 Even if it is assumed that the performance review or appraisal could not be delegated, I would not accept that it was delegated by Associate Prof Crotty, rather than being done personally by him, because Dr Lamont had exercised any workplace rights. I would accept that it was delegated for the reasons given by Associate Prof Crotty, namely the volume of his other commitments. 620 Further, I do not accept that there was any injury to Dr Lamont by reason of the delegation of the performance review. He does not dispute the outcome of the review, namely that his performance was assessed as satisfactory. 621 The thirty-eighth allegation must be rejected.

The thirty-ninth and forty-first allegations 622 The thirty-ninth allegation is that Associate Prof Crotty questioned the validity of Dr Lamont's absence on sick leave, accused Dr Lamont of behaviour in violation of the Code of Conduct and initiated a disciplinary process in relation to allegations of misconduct. 623 It is alleged Dr Lamont was injured in his employment and treated differently than other employees: (1) by the inference that he was not ill as medically certified; (2) by the allegation that he had deliberately failed to advise Associate Prof Crotty of the length of his absence on sick leave to obstruct the University's obligations to students; (3) by the allegation that Dr Lamont's behaviour had not been in line with the University's reasonable expectations and the requirements of its Code of Conduct; (4) by the allegation that Dr Lamont had made and continued to make unreasonable complaints; (5) by the allegation that Dr Lamont had acted inconsistently with the direction of Prof Høj; (6) by the University not requiring Associate Prof Crotty to step aside from his position as Dr Lamont's supervisor under cl 38 of the 2014 Enterprise Agreement while the truth or otherwise of his allegations against Dr Lamont was determined; (7) by the University failing to comply with the duty of natural justice contrary to cl 35.3 of the 2014 Enterprise Agreement in the initiation and determination of disciplinary proceedings; (8) by the threat of disciplinary action in relation to these matters; (9) by the imposition of a final warning occasioning damage to Dr Lamont's professional reputation, collegial relationships and prospects of promotion. 624 The forty-first allegation is that Associate Prof Crotty made a series of adverse findings against Dr Lamont and issued him with a warning letter under the 2014 Enterprise Agreement. It is alleged that this injured Dr Lamont in his employment by being provided with the warning letter and by the adverse findings. 625 I accept that Dr Lamont was injured in his employment by having disciplinary proceedings taken against him, by having adverse findings made against him and by being issued with a warning. 626 On 17 August 2015, Dr Lamont submitted an application for two weeks of sick leave from 17 to 28 August 2015. Dr Lamont did not supply a medical certificate with the application. As Head of School, Associate Prof Crotty was responsible for approving the leave application, and Dr Lamont was required to provide a medical certificate before it could be approved. 627 On 25 August 2015, Associate Prof Crotty sent Dr Lamont an email reminding him to send him his medical certificate so that he could approve the leave. 628 On 27 August 2015, Dr Lamont submitted an application for a further week of sick leave from 31 August 2015 to 4 September 2015. The application said that Dr Lamont had sent a medical certificate to the Faculty HR Manager, Mr Griffiths, on 25 August 2015. 629 On 27 August 2015, Associate Prof Crotty sent an email to Dr Lamont asking him to send the medical certificates to him because he was responsible for approving the leave. He also sent an email asking Dr Lamont to advise whether he had attempted to make any arrangements to cover his teaching or if he had let the discipline convener know about his absence. 630 On 1 September 2015, Associate Prof Crotty approved Dr Lamont's sick leave. On 4 September 2015, Dr Lamont submitted a further application for two weeks and three days of sick leave for the period from 7 to 23 September 2015. The application said that Dr Lamont would send a medical certificate to Mr Griffiths. Associate Prof Crotty sent an email asking Dr Lamont to send the medical certificate directly to him because he was responsible for approving the leave. 631 On 4 September 2015, Associate Prof Crotty advised Mr Griffiths that Dr Lamont had persisted in sending medical certificates to him and asked Mr Griffiths to forward any certificates once received from Dr Lamont. On 15 September 2015, Associate Prof Crotty approved Dr Lamont's further sick leave. 632 Dr Lamont then took a period of recreational leave from 24 September to 6 October 2015. On 7 October 2015, Dr Lamont submitted a further application for sick leave for that day. Associate Prof Crotty approved the application on the same day. Dr Lamont return to work on 8 October 2015. 633 Associate Prof Crotty's evidence was that during his absence on sick leave, Dr Lamont had made little or no effort to inform him of what alternative teaching arrangements, if any, he had put in place for his classes. He states that typically when academic staff are on leave, they provide suggestions for who can cover any lectures and tutorials. He states that he sought advice from the University's HR team and external advisors about the issue. 634 On 12 October 2015, Associate Prof Crotty sent Dr Lamont an email raising a number of issues. Associate Prof Crotty said that Dr Lamont had applied on 17 August 2015 for two weeks of sick leave, but a medical certificate was not obtained until 21 August 2015, and then it was sent to the Faculty HR Manager, instead of to himself as he had asked. He said that the next medical certificate was again sent to the HR Manager, despite his request. He said that Dr Lamont had not communicated with him regarding his teaching commitments or how they were to be addressed, his likely return dates and so on. Associate Prof Crotty said that his concerns included Dr Lamont's apparent failure to comply with his requests for the medical certificate until four days after the leave commenced, and that he had taken leave for similar periods in previous years which "does create an uncertainty about the validity of the leave application which I need to explore and resolve". He also said that his expectation was that Dr Lamont would take whatever steps were reasonable to communicate with him in relation to the best way to manage his workload while he was on leave. Associate Prof Crotty said that this was the latest in a number of incidents over the previous 18 months which he considered amounted to a pattern of uncollegial behaviour on Dr Lamont's part. He then described a number of incidents and events. Associate Prof Crotty said that he invited Dr Lamont to meet and have a full and frank discussion about the ways in which they could move forward in a more harmonious and collegial fashion. 635 On 14 October 2015, Dr Lamont responded, dealing with the issues raised by Associate Prof Crotty. He said that he had sent his medical certificates to the HR Manager because in a previous similar situation he was directed to do so, and had received no communication from him that this was not the correct protocol. Dr Lamont said that he did not receive Associate Prof Crotty's request to send the medical certificates to him until he read his emails on 8 October 2015. Dr Lamont said that Associate Prof Crotty's claim that he needed to explore and resolve the validity of the leave application was potentially the most serious of his allegations. He said that he had complied entirely with the University leave policy and his application was valid. He said he believed that his behaviour during his leave was reasonable. He rejected the other criticisms made by Associate Prof Crotty about his conduct, including in relation to the 2014 appraisal process, the 2015 appraisal process and the allegation of a general attitude of hostility and non-cooperation. He said that the labelling of his behaviour as hostile was simply another attempt to try to silence him. He said that he would meet with Associate Prof Crotty as requested, but with a union support person present. 636 On 20 October 2015, Associate Prof Crotty said that given the tone and content of his response, he no longer thought it was appropriate or useful to meet with him in an informal setting. He said he intended to seek advice about his concerns and would be in touch once he had the opportunity to do so. 637 On 30 October 2015, a firm of solicitors acting for Dr Lamont wrote to Associate Prof Crotty saying that it had been retained to act on behalf of Dr Lamont in relation to matters arising out of his employment with the University. It asked that all future correspondence concerning Dr Lamont be directed to that firm. It indicated that they assumed that Associate Prof Crotty's consultation with an unidentified adviser may be the first step in a disciplinary process and asked whether disciplinary proceedings were in contemplation. 638 On 4 November 2015, solicitors acting for the University responded, saying that no decision had been taken in relation to any disciplinary proceedings. 639 On 5 January 2016, Associate Prof Crotty sent Dr Lamont a letter saying that he had taken the opportunity to consult with the Director of HR, Ms Banney. He said that he had decided to proceed under cl 38.2 of the 2014 Enterprise Agreement which provided that he could take practical and appropriate measures to resolve a matter which may or may not constitute misconduct, rather than referring the matter to the relevant Senior Executive. Associate Prof Crotty said that he was considering whether to issue Dr Lamont with a written warning and a written statement of expectations. He said that before he made any decision as to whether to take steps under cl 38.2, he wanted to give Dr Lamont a further opportunity to meet and discuss his concerns in more detail. He also said that Dr Lamont was welcome to respond in writing. The letter went on to set out a number of concerns regarding Dr Lamont's conduct in respect of the 2014 and 2015 appraisals, his recent sick leave and his allegedly persistently rude and discourteous behaviour. 640 On 15 January 2016, Dr Lamont responded, alleging that Associate Prof Crotty was not complying with the requirements of natural justice in contravention of cll 38.1(d) and (f) of the 2014 Enterprise Agreement. He sought particulars of the allegations. He went on to address a number of the allegations made in Associate Prof Crotty's letter. 641 On 29 January 2016, Associate Prof Crotty responded saying that the concerns raised in his letter were not allegations of misconduct and that there was no investigation. He said that the purpose of his letter was to set out concerns regarding his behaviour. He said he had explained his view that Dr Lamont had consistently behaved in a matter which was not in line with the University's reasonable expectations and the requirements of its Code of Conduct. The letter went on to consider each of the allegations that had been made and to find the allegations had been sustained. Associate Prof Crotty said that he had decided to issue Dr Lamont with a written warning and a written statement of expectations. He said that the preliminary management action did not constitute a finding of misconduct. The letter, the warning and the statement of expectations would be kept on his staff file. 642 The letter enclosed a formal written warning which said that if the University became aware in the future that Dr Lamont had breached the Code of Conduct or University policies, procedures or guidelines, those matters may be treated as misconduct or serious misconduct under cl 38.1 of the 2014 Enterprise Agreement and would likely have more significant consequences for his employment. 643 Dr Lamont deposes that over the week of 15 and 16 August 2015 he had become more and more mentally distressed about what was happening in the workplace. On 17 August 2015, he submitted a sick leave application through the University's Aurion system to Associate Prof Crotty. The Aurion system is separate from the email system. He states that immediately after sending his sick leave application, he exited his University email account and did not access it again until he returned from leave. He states that he was having suicidal thoughts and was concerned about receiving any more communications from Associate Prof Crotty and Prof Dunne. Dr Lamont states that he attended his doctor on 21 August 2015, which was the earliest appointment he could arrange. He sent his medical certificates to the Faculty HR Manager as he believed that Associate Prof Crotty was in a potentially conflicted position in terms of deciding upon his sick leave application. Dr Lamont states that upon returning from leave on 8 October 2015, he discovered the emails that Associate Prof Crotty had sent. 644 This evidence persuasively addresses the issues raised by Associate Prof Crotty concerning Dr Lamont's conduct during his sick leave. In particular, Dr Lamont's evidence explains that he was in a very poor mental state and had decided not to contact Associate Prof Crotty and access his emails for that reason. It is unfortunate that Dr Lamont failed to adequately explain his conduct until he gave his evidence. 645 Associate Prof Crotty denies that he questioned the validity of Dr Lamont's absence on sick leave, accused him of behaviour in violation of the Code of Conduct and initiated a disciplinary process because Dr Lamont had exercised workplace rights. He states that he took the actions for the reasons he set out in his letters of 12 October 2015, 5 January 2016 and 29 January 2016. 646 In my opinion, it was reasonable for Associate Prof Crotty to hold the concerns he recorded in his letter of 12 October 2015. Those concerns included that Dr Lamont had not provided him with the medical certificates, despite repeated requests to do so and that there was an apparent discrepancy between applying for sick leave for two weeks on 17 August 2015, when he did not obtain a medical certificate until 21 August 2015. It was also reasonable for him to raise his concerns about Dr Lamont's conduct in respect of the 2014 performance appraisal. It is unnecessary to decide exactly what happened in the performance appraisal meeting, but Associate Prof Crotty and Dr Lamont clearly had different perceptions of what had occurred. It was not unreasonable for Associate Prof Crotty to maintain that his perception was correct. It was reasonable for Associate Prof Crotty to raise the issue of Dr Lamont's conduct in relation to the 2015 performance appraisal. Dr Lamont's correspondence had an air of manoeuvring to obtain the performance appraiser of his choice. It is unnecessary for me to decide whether that was Dr Lamont's intention, but it is certainly understandable that Associate Prof Crotty would have that perception. Associate Prof Crotty was also justified in concluding that Dr Lamont had exhibited a general attitude of hostility and non-cooperation. A number of Dr Lamont's emails were hostile, insulting and unnecessarily aggressive. In his letter, Associate Prof Crotty asked for a discussion to attempt to resolve the issues between them and move forward in a more harmonious and collegial fashion. I accept that Associate Prof Crotty was genuine in his offer to attempt to resolve matters and repair their relationship, as he had been when he had previously made offers to meet with Dr Lamont. Each of those offers was unreasonably met with mistrust and hostility and rejected. That said, I accept that Dr Lamont was in a poor psychiatric state and that no doubt contributed to the paranoia and hostility he was exhibiting. 647 Perhaps if Dr Lamont had been in a better mental state, he would have responded in a reasonable fashion to Associate Prof Crotty's correspondence of 12 October 2015. A reasonable response would have been to respond to each of the matters raised, explain his perspective and agree to meet with Associate Prof Crotty to resolve matters. Instead, in his email of 14 October 2015, he responded with hostility and aggression. That led to more formal action, including an ill-advised letter from his solicitors threatening to apply for injunctive relief. In my view, if Dr Lamont had responded reasonably and taken up Associate Prof Crotty's offer to meet and to attempt to amicably resolve matters between them, the ensuing disciplinary process is unlikely to have taken place. 648 I accept Associate Prof Crotty's evidence that he questioned the validity of Dr Lamont's absence and sick leave, alleged that Dr Lamont had engaged in behaviour in violation of the Code of Conduct, initiated the disciplinary process, made adverse findings and gave the warning for the reasons set out in his correspondence. I find that Associate Prof Crotty did not engage in this conduct because Dr Lamont had exercised any workplace rights. 649 Dr Lamont submits that the respondents have not discharged the onus of proof because Ms Banney was not called to give evidence. Associate Prof Crotty's evidence was that the decision to take the disciplinary actions was made jointly by him and Ms Banney. The FASOC makes no allegation that Ms Banney participated in conduct that injured Dr Lamont or contributed to injury to Dr Lamont. In these circumstances, s 361(1) is not engaged. 650 Ms Banney was the HR Director who had taken over from Ms Lorenzo. She had no involvement in the earlier events which were the subject of Dr Lamont's complaints. There is no reason to think she might have taken any action because Dr Lamont had exercised any workplace rights. I am prepared to draw a Jones v Dunkel inference that Ms Banney's evidence would not have assisted the respondents, but that does not permit a further inference to be drawn that she made her contribution to the decision for any proscribed reason. 651 The thirty-ninth and forty-first allegations must be rejected.

ALLEGATIONS OF BREACH OF ENTERPRISE AGREEMENTS 652 Dr Lamont alleges that the University contravened a number of provisions of the 2006 Enterprise Agreement, the 2010 Enterprise Agreement and the 2014 Enterprise Agreement.

Clause 17 653 Clause 17.1 of the 2006 Enterprise Agreement required each academic staff member to submit annually to his or her supervisor a portfolio covering achievements in the broad areas of teaching and supervision, scholarship research and original achievements, and service to the University and the community. Clause 17.2 provided that, "The supervisor will conduct a formal review with each staff member after the presentation of the portfolio". 654 Dr Lamont submits that in 2011, his formal review was undertaken by Prof Elson, whereas Prof Moore remained his supervisor and so he was required to undertake the review. Dr Lamont alleges that this is a breach of cl 17.2. 655 I have already held that cl 17 of the 2006 Enterprise Agreement did not prohibit the delegation of the supervisor's responsibility for the annual performance review to another academic. In my opinion, there was no breach of cl 17.2.

Clause 19 656 Clause 19.2 of the 2006 Enterprise Agreement provided that, "Supervisors shall provide academic and administrative leadership". 657 Dr Lamont submits that Prof Moore provided no academic and administrative leadership to him in the period from April 2010 to June 2011. He submits that, instead, Prof Moore's actions were the opposite of what would be expected from a person providing academic and administrative leadership. In particular he submits that Prof Moore: (1) failed to conduct Dr Lamont's annual appraisal in 2010; (2) failed to step down as Dr Lamont's supervisor so that he could have the benefit of an appraisal with a non-conflicted supervisor; (3) did not discuss with Dr Lamont how to handle perceived bullying and victimisation by his Head of School; (4) did not discuss with Dr Lamont how to handle perceived victimisation by his Executive Dean; (5) did not provide supervision to Dr Lamont and ensured he did not receive any supervision from any person. 658 In my opinion, there is no substance to any of these allegations. Prof Moore did not conduct Dr Lamont's annual appraisal in 2010 because Dr Lamont opposed Prof Moore doing so. In July 2010, Prof Moore agreed to a proposal where he would step down, and Prof Brown would replace him as Dr Lamont's supervisor for a year, to be reviewed at the end of that year. On 8 August 2010, Dr Lamont rejected that proposal and said that he would remain with Prof Moore as his supervisor. Dr Lamont did not seek to have a meeting with Prof Moore about how to handle his perceived bullying and victimisation. Nor would it have been appropriate for Prof Moore to offer such advice in circumstances where Dr Lamont was alleging that Prof Moore had perpetrated the bullying and victimisation. In the meantime, Prof Moore remained the Head of School and provided academic and administrative leadership to the School as a whole. 659 I do not accept that Prof Moore failed to provide academic and administrative leadership to Dr Lamont. There was no breach of cl 19.2.

Clause 26 660 Clause 26.5 of the 2006 Enterprise Agreement provided: Should a staff member believe that the workload assigned by a Head is inequitable or unreasonable, the staff member may invoke the procedures set out in the Staff Grievance Resolution Policy. 661 Dr Lamont asserts that he believed the workload assigned by the Head of School was inequitable or unreasonable and he made his complaint known to Prof Fotheringham. He submits that contrary to cl 26.5, the University did not address the complaint as set out in the Staff Grievance Resolution Policy. 662 Clause 26.5 simply allowed a staff member to invoke the procedure set out in the Staff Grievance Resolution Policy. It did not impose any obligation on the University. As the clause imposed no obligation, it was not capable of being breached.

Clause 44 663 Clause 44 provided that grievances between staff members will ordinarily be dealt with in accordance with the Staff Grievance Resolution Policy. Dr Lamont submits that the University did not comply with cll 3.1 (c), (d), (g) and (j) of the Staff Grievance Resolution Policy. 664 The respondents correctly point out that Dr Lamont has not pleaded or particularised these allegations, which he made for the first time in his closing submissions. The only references to cl 44 of the FASOC make no mention of cl 3 of the Staff Grievance Resolution Policy. 665 The need for an applicant to clearly plead the case the respondents are required to meet is particularly acute in civil penalty proceedings: see Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263; [2011] FCA 803 at [13]. 666 In these circumstances, it is not appropriate to consider the allegation.

Clause 62 667 Clause 62.2 provided that, "Each academic staff member will meet annually with his/her supervisor to conduct a formal review". 668 In his closing submissions, Dr Lamont submitted that he was not appraised in 2011. That was met by the respondents' response that Dr Lamont did have a performance appraisal for the 2011 year, which was performed in January 2012 by his then supervisor, Prof Brown. 669 In his reply to the respondents' closing submissions, Dr Lamont submitted that his complaint was that he should have been appraised in 2011, and the appraisal by Prof Brown was approximately 18 months following his appraisal by Prof Elson in 2010. I consider that this allegation was not pleaded or particularised and the respondents have not had an adequate opportunity to answer it. 670 In any event, I note that on 21 December 2011, Dr Lamont emailed Prof Brown attaching his appraisal documents. He apologised for his delay in doing so. Accordingly, the fact that the appraisal did not take place during 2011 was due to Dr Lamont's delay. It was Dr Lamont who failed to meet with his supervisor in 2011. In these circumstances, it cannot be said that the University contravened cl 62.

Clause 63 671 Clause 63 provided that supervisors shall provide academic and administrative leadership to academic staff. 672 Dr Lamont alleges that Associate Prof Crotty, in contravention of the duty under cl 63, failed to revise Dr Lamont's 2014 performance appraisal in accordance with the criteria for a Level B academic as set out in cll 5 and 6 of the Criteria for Academic Performance Policy. 673 Associate Prof Crotty deposes that he did assess Dr Lamont's performance in accordance with the Criteria for Academic Performance Policy. He also deposes that he revised his initial comments after discussing them with Dr Lamont in the performance appraisal meeting. I accept Associate Prof Crotty's evidence. 674 I find that there was no breach of cl 63.

Clause 60 675 Clause 60.2 of the 2014 Enterprise Agreement provides that each academic staff member will meet annually with his/her supervisor to conduct a formal review. 676 Dr Lamont submits that in 2015, his formal review was undertaken by Associate Prof Dixon even though Associate Prof Crotty was his supervisor. Dr Lamont submits that the failure of Associate Prof Crotty to conduct the review was a breach of the 2014 Enterprise Agreement. 677 Clause 60.2 does not prohibit a supervisor from delegating the conduct of a performance review. It may also be noted that if Associate Prof Crotty had performed the annual appraisal in 2015, Dr Lamont would inevitably have objected, given his stringent criticisms of Associate Prof Crotty in respect of the 2014 performance appraisal. The objection raised at the time by Dr Lamont was not to Associate Prof Crotty's failure to perform the 2015 performance appraisal personally, but only that Prof Brown was not delegated to conduct it. There was no breach of the clause by the delegation of the role to Associate Prof Dixon. 678 Clause 60.4 provides that the Criteria for Academic Performance Policy will be used in reviewing performance. Dr Lamont submits that Associate Prof Dixon did not assess his strengths and any areas requiring improvement in the work undertaken during the last 12 months with reference to the policy. 679 There was no requirement for Associate Prof Dixon to explicitly refer to the Criteria for Academic Performance Policy. There is no evidence that Associate Prof Dixon failed to utilise those criteria. 680 I find there was no breach of cl 60.

Clause 61 681 Clause 61 of the 2014 Enterprise Agreement provides that a supervisor shall provide academic and administrative leadership. 682 Dr Lamont alleges that Associate Prof Crotty provided no supervision to him, provided no annual appraisal, provided no supervisory advice on advancing his research and promotion prospects through SSP and failed to ensure he received any supervision or advice from any person. 683 This allegation, like a number of the other allegations of breaches of enterprise agreements, is disingenuous. Associate Prof Crotty repeatedly invited Dr Lamont to meet with him in order to discuss how they could move forward in a more harmonious and collegial fashion. Associate Prof Crotty's invitations were repeatedly rejected by Dr Lamont. In circumstances where Dr Lamont rebuffed the attempts by Associate Prof Crotty to re-establish their professional relationship, he can hardly claim that Associate Prof Crotty failed to provide academic and administrative leadership to him. 684 To the extent that Dr Lamont alleges that Associate Prof Crotty failed to ensure that he received any supervision and advice from any person, the allegation is baseless. Dr Lamont informed Associate Prof Crotty in February 2016 that he saw no benefit in a formal mentoring relationship and that he had built a rich network of supportive relationships with colleagues who were willing to provide him with advice. 685 There is no substance in the allegation of contravention of cl 61.

ALLEGATIONS OF BREACHES OF CONTRACT 686 There is no allegation of breach of the contract of employment in the body of the FASOC. However, the body of the FASOC does plead some terms of the contract, and in the prayer for relief, damages are sought for breach of implied terms of the contract. 687 The allegations seem to be that the University breached implied terms of the contract of employment: (1) to provide Dr Lamont 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; (2) to cooperate with Dr Lamont; (3) to comply with its policies. 688 It may be noted that Dr Lamont's submissions do little more than assert that these were terms of the contract and they had been breached. I have not been provided with adequate assistance to understand and determine these allegations. I will interpret and deal with them as best I can.

Safe system of work 689 In Tame v New South Wales (2002) 211 CLR 317, McHugh J held at [140]: …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. 690 The FASOC appears to rely upon allegations that: (1) Prof Moore did not step aside as Dr Lamont's supervisor and maintained his involvement in his performance review, SSP and other leave processes; (2) Prof Fotheringham denied Dr Lamont's request for a change of supervisor and maintained the involvement of Prof Moore as Head of School in the performance review and leave processes; (3) the University refused to remove Associate Prof Crotty from managing Dr Lamont's grievances; (4) Prof Fotheringham, by email on 8 July 2010, threatened disciplinary action against Dr Lamont; (5) the University set aside the findings of the Byrom Report and failed to provide a copy of the Byrom Report to Dr Lamont; (6) Prof Dunne directed Dr Lamont to delete references to his grievances in his performance appraisal documentation and threatened him with disciplinary action if he refused to do so. 691 Presumably, Dr Lamont alleges that he was exposed to an unreasonable risk of psychiatric injury by reason of the conduct pleaded. 692 I have found that Prof Moore did offer to stand down as Dr Lamont's supervisor, but Dr Lamont refused the offer. Further, Prof Moore was relieved of one of his principal duties as Dr Lamont's supervisor, namely conducting the annual performance review. I have already rejected Dr Lamont's submissions that Prof Moore took adverse action against him in respect of his SSP application and approval for annual and conference leave. I find that Prof Moore acted reasonably and in good faith in his involvement with Dr Lamont's SSP and other leave processes. I also consider that Prof Fotheringham agreed to Dr Lamont's request for a change of supervisor, and acted reasonably and in good faith in maintaining Prof Moore's involvement in Dr Lamont's SSP and other leave processes. It has not been demonstrated that this conduct of Prof Moore and Prof Fotheringham exposed Dr Lamont to a risk of psychiatric injury. 693 I have found that Prof Fotheringham threatened to investigate Dr Lamont for misconduct in his email of 8 July 2010 and that this threat was a breach of s 340(1) of the FWA. As I will discuss later in these reasons, this conduct aggravated Dr Lamont's existing psychiatric illness to a minor extent. The conduct occurred in circumstances where Prof Fotheringham knew or believed that Dr Lamont's mental health was fragile, having expressed his concern for Dr Lamont's state of health in an email sent on 20 April 2010. I accept that Prof Fotheringham's conduct exposed Dr Lamont to unnecessary risk of psychiatric injury. This was a breach of the implied term requiring the University to take reasonable care for Dr Lamont's safety. 694 I have found that the University's refusal to provide a copy of the Byrom Report to Dr Lamont and setting aside the report for the purposes of the grievance process contravened s 340(1) of the FWA. Where the University represented that Dr Lamont's grievances would be dealt with by obtaining and using an independent report and then reneged on that representation, there was a foreseeable risk of psychiatric injury. Again, the conduct aggravated Dr Lamont's psychiatric illness. The conduct unreasonably exposed Dr Lamont to a foreseeable risk of psychiatric injury. This was also a breach of the implied term requiring the University to take reasonable care for Dr Lamont's safety. 695 I find that Prof Dunne's direction that Dr Lamont delete references to grievances in his performance appraisal documentation and his threat of disciplinary action if he refused to do so was a reasonable direction. It has not been demonstrated that this conduct exposed Dr Lamont to a risk of psychiatric injury.

Implied duty of cooperation 696 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 [37] and [61]. 697 In Regulski v State of Victoria [2015] FCA 206 at [211]-[213], 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. 698 Dr Lamont has not identified some particular failure of the University to cooperate in the doing of acts necessary to performance of the contract, or to enable him to secure a benefit provided by the contract. The allegation that the University breached such a term cannot be accepted.

The policies as implied terms 699 Dr Lamont alleges that the University's policies are incorporated into the terms of the employment contract. 700 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: Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403 at [34]-[35]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40]. 701 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 [33]-[63]. 702 A term will not be implied if to do so would contradict any express term of the contract: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 422. 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. 703 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: see Riverwood International Pty Ltd v McCormick (2000) 177 ALR 193; [2000] FCA 889; Foggo v O'Sullivan Partners (Advisory) Pty Ltd (2011) 206 IR 87; [2011] NSWSC 501 at [116]-[119]. 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: Yousif v Commonwealth Bank of Australia (2010) 193 IR 212; [2010] FCAFC 8 at [95]-[96]; Barker v Commonwealth Bank of Australia (2012) 229 IR 249; [2012] FCA 942 at [315]-[320]; Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62 at [37]-[38], [41], [298], [308]-[309]; Regulski at [213]. 704 Clause D of the employment contract is headed "Additional (Non-Contractual) Information" and states, "What follows is for your information. It does not form part of your contractual conditions". It is then followed by a reference to the University's Code of Conduct, relevant awards and enterprise agreements and the Handbook of University Policies and Procedures. 705 It is plain that there was no intention by the parties to be contractually bound by the University's policies and procedures. To incorporate the policies and procedures into the employment contract would be inconsistent with the express terms of the contract. For these reasons, the terms of the employment contract did not incorporate the University's policies.

RELIEF 706 I have found that the University contravened s 340(1) of the FWA as alleged in part of the First Allegation (Prof Moore disclosing Dr Lamont's letter of complaint); the Tenth Allegation (Prof Fotheringham threatening to initiate an investigation into Dr Lamont's conduct); the Twenty-Second and Twenty-Third Allegations (the University setting aside and refusing to provide Dr Lamont with the Byrom Report); and part of the Twenty-Fifth Allegation (Prof Keniger failing to act impartially, fairly and expeditiously). 707 The FASOC seeks, relevantly: (1) The imposition of penalties for the contraventions of s 340(1) of the FWA. (2) Compensation and damages. 708 I will hear the parties as to penalties on a later date, but will consider the question of compensation and damages at this stage. 709 Dr Lamont seeks compensation or damages for legal costs; loss of opportunity for career advancement; damage to his career prospects generally; damage to his professional and personal reputation; pain, suffering, stress, anxiety, humiliation and dislocation of life; and mental harm.

Compensation under s 545 of the FWA 710 Section 545 of the FWA provides, relevantly: (1) The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. ... Note 2: For limitations on orders in relation to costs, see section 570. … (2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following: (a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention; (b) an order awarding compensation for loss that a person has suffered because of the contravention; (c) an order for reinstatement of a person. 711 In Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526, Barker J observed at [423] that if compensation is to be awarded, one of the principal tasks is to ensure that there is the appropriate causal connection between the contravention and the loss claimed: see also Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 at 155. 712 In Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch (1995) 63 IR 1, Lee J, considering s 170EE of the Industrial Relations Act 1988 (Cth), said at 9, that the Court will: …have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened … The Court will consider 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. 713 Compensation may be awarded for non-economic loss such as hurt and humiliation, as well as for economic loss: Dafallah v Fair Work Commission (2014) 225 FCR 559 at [178]-[179]; Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd at [442]-[450]. 714 It may be said immediately that it is not appropriate to make any order under s 545(1) that the respondents pay Dr Lamont's legal costs. As Note 2 to s 545(1) indicates, s 570 contains limitations in relation to costs. Section 570 provides: (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. … (2) The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before the FWC; (ii) the matter arose from the same facts as the proceedings. 715 The broad power under s 545 of the FWA to make any order the Court considers appropriate is confined by the specific limitation in s 570 upon the Court's power to order a party to pay costs. In my opinion, the Court has no power to award costs as part of the compensation ordered under s 545. The power to award costs arises only in the circumstances provided for in s 570. This view is consistent with the distinction drawn in Gray v Sirtex Medical Ltd (2011) 276 ALR 267; [2011] FCAFC 40 at [15] between damages and legal costs, such that a successful applicant cannot recover its costs of the proceedings from the respondent as damages, even though the respondent's wrongful act caused the plaintiff to incur those costs. 716 Dr Lamont may be awarded compensation for those contraventions of s 340(1) of the FWA which I have found, namely contraventions arising from the First, Tenth, Twenty-Second, Twenty-Third and the Twenty-Fifth allegations. He may not be awarded compensation in respect of the remainder of his allegations. It is therefore necessary to identify the consequences of the proven contraventions. 717 Prof Moore provided Dr Lamont's confidential complaint to Prof Almond and Associate Prof Hutch. Dr Lamont deposes that he was afraid of Prof Almond's threat of legal action, resulting in Dr Lamont writing to Prof Almond and withdrawing his allegations against him. He deposes that from that point he tended to avoid Faculty and School functions, such as Faculty Board meetings, School celebrations and University Graduations, which he believed Prof Almond may attend. This meant that he had more restricted contact with his colleagues than in the past. I accept that Dr Lamont 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. 718 The respondents submit that the compensation that might otherwise be awarded to Dr Lamont should be reduced because of his own unreasonable conduct in making unfounded allegations that the two past Heads of School had been sued for harassment and that Prof Moore's harassment had contributed to the suicide of a member of the academic staff. While those allegations should not have been made, the compensation is to be awarded for consequences of the University's and Prof Moore's conduct in contravening s 340(1) of the FWA. To reduce the amount of compensation awarded would suggest that Dr Lamont contributed to the contravention. However egregious Dr Lamont's allegations may have been, they provided no justification for the contravention. I do not consider it to be appropriate to reduce the compensation to be awarded. 719 Prof Fotheringham threatened on 8 July 2010 to investigate Dr Lamont for misconduct or serious misconduct. Prof Fotheringham did not withdraw the threat. I accept that Dr Lamont was caused significant distress by Prof Fotheringham's conduct. 720 On 14 July 2011, Prof Keniger wrote to Dr Lamont saying that the University was not able to use the Byrom Report for the purpose for which it was intended. The University declined to provide a copy of the Byrom Report to him or to use that report in the grievance process. Prof Keniger did not act fairly and impartially. Further, he did not deal with the complaints expeditiously. I accept that Dr Lamont must have been caused substantial frustration and distress by that conduct. 721 Dr Lamont submits that he developed a psychiatric illness as a result of his mistreatment by the University. He relies upon two reports of a psychiatrist, Prof Middleton. 722 In his first report, dated 8 January 2018, Prof Middleton noted that he had first seen Dr Lamont on 23 May 2011. He diagnosed Dr Lamont with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Prof Middleton attributed that condition to the workplace matters mentioned in his report. Dr Lamont had described his "essential difficulty" as harassment by his Head of School, who had acted in a petty, controlling and harassing manner. Dr Lamont had referred to the disclosure of his complaint by Prof Fotheringham and the disclosure by Prof Moore to Prof Almond, who threatened to sue him. Dr Lamont had said he was stunned by what seemed like a coordinated retaliatory response. Other matters mentioned by Dr Lamont included that Prof Fotheringham had decided that there was no harassment, the lack of proper investigation of his complaints, a scandal involving Prof Keniger and Prof Greenfield and the treatment of Mr Procopis. Prof Middleton's report refers to Dr Lamont's, "own ongoing and evolving matters involving the University's administration, which had been the subject of a legal report commissioned by the University and never released". That appears to be a reference to the Byrom Report. 723 Prof Middleton provided a second report dated 5 March 2019. Prof Middleton had been provided with a copy of the Byrom Report and was asked to comment upon what might have been the state of Dr Lamont's mental health if it had been disclosed instead of being concealed and its recommendations had been acted upon. Prof Middleton said that Dr Lamont's emotional response to receiving the Byrom Report reflected his realisation that so much distress and struggle would not have been necessary had it been released and acted upon in June 2011. Prof Middleton did not directly answer the questions he was asked. 724 In his oral evidence, Prof Middleton placed greater emphasis on the role of the non-release of the Byrom Report, saying: Well, the…biggest issue of a continuation was…the lack of release…of the commissioned report that…had been sitting…with the university for years. And of all of the things that most weighed on Dr Lamont's mind, I would say, that over subsequent years was…the non-release of that report. And that's…the Byrom report. 725 Prof Middleton was asked about the lack of detailed reference in his report of 8 January 2018 to the Byrom Report. His answer was to the effect that he could have mentioned a whole range of things but was limited by time and space, and that the substance of what was in his report related to the sorts of issues that the Byrom Report covered. 726 I did not find Prof Middleton's answers persuasive. In his report of 8 January 2018, the Byrom Report was listed as just one amongst the many issues that Dr Lamont had reported. Much greater emphasis was given to matters such as harassment by his Head of School, the internal investigation of that harassment and the scandal affecting the University. Even in his report of 5 March 2019, there was no clear indication that the non-release of the Byrom Report was the single biggest factor in the continuation of Dr Lamont's condition. 727 The absence of emphasis on the Byrom Report in Prof Middleton's first report compared to his great emphasis on that issue in his oral evidence is striking. My impression is that Prof Middleton engaged in an exercise of reconstruction in which he attributed greater importance to the issue than he did at the time when Dr Lamont had first raised the issue. That may have been because of the great emphasis placed on the issue by Dr Lamont and his lawyers after the report was disclosed. I consider that Prof Middleton's first impression is more likely to be accurate, so that the Byrom Report was merely one of the many matters that affected Dr Lamont's psyche, rather than the most important factor in its continuance. 728 Prof Middleton described Dr Lamont's "essential difficulty" as being the harassment by Prof Moore, including some emphasis on the photocopying incident. That seems consistent with Dr Lamont's florid description of the incident, which seemed quite out of proportion to its apparently minor nature. For example, Dr Lamont deposed, "I had not, in my 20 years of professional life seen an academic act in such an aggressive and unreasonable way towards another academic over such an issue." Prof Middleton said that, as Dr Lamont relayed it, this incident, "was…at the end of a chain of…other difficulties". Dr Lamont had reported that the incident had precipitated him becoming depressed and anxious. The content and nature of Dr Lamont's emails before making his complaint about Prof Moore on 12 April 2010 suggest an already disturbed mind. The evidence demonstrates the conduct constituting the contraventions of s 340(1) of the FWA did not cause Dr Lamont's psychiatric condition, but I accept that each of these stressors aggravated his existing condition. 729 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. 730 I consider that Dr Lamont should be awarded a total of $15,000 for the mental and emotional distress he experienced as a result of the contraventions of s 340(1) of the FWA. 731 Dr Lamont submits 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 732 It is necessary to consider whether the contraventions have made any contribution to the lack of progression of Dr Lamont's career. 733 Dr Lamont 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. 734 Dr Lamont's evidence is that 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. 735 It may be accepted that Dr Lamont'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. 736 I accept that Dr Lamont's psychiatric condition has played some part in the lack of progression of his career. For example, since 2010, Dr Lamont 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. 737 It may be noted that Dr Lamont's career was already at a standstill before he made his initial complaint about Prof Moore on 12 April 2010, since he had been employed by the University as a lecturer for about eleven years without being promoted. 738 Dr Lamont's FASOC and his submissions attribute his lack of career progress to the many breaches of the FWA and the contract that he has alleged. I have only accepted several such contraventions. I consider that the minor contributions these contraventions made to his psychiatric condition have made no material contribution to Dr Lamont'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. 739 In making this assessment, I do not wish to sound harsh. The evidence shows that Dr Lamont 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. 740 Dr Lamont claims compensation for anti-depressant medication and psychiatric counselling. I am not satisfied that the minor contributions the contraventions have made to Dr Lamont's psychiatric condition have made any difference to his need for medication and counselling.

Damages for breach of contract 741 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: Ferrcom Pty Ltd v Commercial Union Assurance Company of Australia Ltd (1993) 176 CLR 332 at 340. 742 Dr Lamont 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 Dr Lamont $15,000 for those contraventions.

SUMMARY 743 I have found that the University committed the following contraventions of s 340(1) of the FWA: (1) The University, through Prof Moore, took adverse action against Dr Lamont by notifying Prof Almond and Associate Prof Hutch of the contents of Dr Lamont's letter of complaint against Prof Moore dated 12 April 2010 (part of the First Allegation). (2) The University, through Prof Fotheringham, took adverse action against Dr Lamont by threatening to initiate an investigation into his conduct on 8 July 2010 (the Tenth Allegation). (3) The University took adverse action against Dr Lamont by setting aside the findings of the Byrom Report (the Twenty-Second Allegation). (4) The University took adverse action against Dr Lamont by refusing to provide the Byrom Report to him (the Twenty-Third allegation). (5) The University, through Prof Keniger, took adverse action against Dr Lamont by failing to comply with the Staff Grievance Resolution Policy by not acting in a way that was impartial and fair and failing to act as expeditiously as possible (part of the Twenty-Fifth Allegation). 744 I have found that Prof Moore also contravened s 340(1) in respect of the First Allegation and that Prof Fotheringham contravened s 340(1) in respect of the Tenth Allegation. 745 I have also found that the conduct described at (2)-(4) of para 742 above breached the implied term of the employment contract to take reasonable care for Dr Lamont's safety. 746 I have found that the University did not contravene s 50 of the FWA. 747 I have decided that Dr Lamont should be awarded compensation of $15,000 for the mental and emotional distress he experienced as a result of the contraventions of s 340(1) of the FWA. I have decided that Dr Lamont should not be awarded compensation or damages for any economic loss. 748 I will hear the parties as to penalties, costs and any further orders. I certify that the preceding seven hundred and forty-eight (748) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

SCHEDULE OF PARTIES QUD 263 of 2018 Respondents Fourth Respondent: MARTIN CROTTY Fifth Respondent: PETER HØJ