Case: Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1
Outcome: referred to
Mr Davies testified by affidavit to having participated in a conversation with Mr Muffatti on or about 22 September 2005, in the course of which he complained about Mr Lever's refusal to comply with ANSTO's direction to attend a specialist doctor for examination in the context of the time of Mr Lever's absence from work for reasons allegedly of incapacity. Mr Davies testified to having said in particular on that occasion, '[e]veryone needs to understand that a continued failure to comply with a reasonable request constitutes a serious breach of duty. If it continues, I'll have to take legal advice on what options are open, including termination. Can't you get Ron to see some sense?' Mr Davies' said letter of 28 September 2005 contained words to similar effect on its third page. It was submitted by ANSTO that '[i]f this was a threat at all, it was a threat to get legal advice', and '... was not a threat to do anything forbidden by s 298K(1)'. There was clear force in that ANSTO contention. It was further submitted by ANSTO moreover that '... an announcement of an intention to act in a particular way in the future is not forbidden by s 298K(1)', and I was referred in that regard to what was recently said by Tracey J in Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1 at [26], as follows: 'The first difficulty which confronts the applicant is that, in February 2006, the respondent did no more than announce an intention to provide four airbuses to Jetstar at times prior to March 2007 so that Jetstar could commence international operations and that those aircraft would not be crewed by the respondent's employees, who in February 2006, flew them on domestic routes. No contemporaneous action to implement the announced decision was taken. Counsel have not directed my attention to, nor have I found, any authority which supports the proposition that a mere announcement of an intention to act in a particular way at some time in the future can constitute conduct of the kind to which s 298K(1) is directed. Each of the cases to which my attention was directed, in which a contravention of the section was found, involved the making of a decision by an employer which was immediately operative even though the consequences of the decision may not have had an immediate effect on particular employees. ... The approach to the construction of s 298K which is evident in these cases is explicable in part by reference to the language of the section. The various paragraphs in s 298K(1) which identify proscribed conduct speak in the active voice ("dismiss", "injure", "alter the position", etc). The employer must do something to prejudice an employee not merely foreshadow some future action which might or might not prove to be prejudicial.' Between those two passages extracted above from within [26] of his Honour's reasons, there was cited several authorities, including Geraldton Port Authority and BHP Iron Ore v AWU . Mr Lever's case in the present context did not come proximately or at all within the scope of those principles.