Case: Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34
Outcome: referred to
It will be recalled that par 54 of Mr Lever's points of claim purportedly picked up reference to two events alleged by Mr Lever to have taken place in September 2003, being events which ANSTO described as 'separate'. The first such event related to an offer alleged by Mr Lever to have been made by Mr Davies to him during a telephone conversation on 3 September 2003, in the course whereof Mr Davies was said to have stated that 'I have spoken to Ian Cullen', and that '[h]e has authorised me to offer to set your objectives for promotion in the 2003/2004 year as long as you don't proceed with the Reference Panel'. Mr Davies denied having said words to the effect of '... as long as you don't proceed with the Reference Panel'. In any event, ANSTO submitted that '... even if [Mr Lever's] version of Mr Davies' statement is preferred, it amounts merely to an offer which [Mr Lever] was free to accept or reject', and '[i]t was not a threat to injure him in his employment or alter his position to his prejudice'. I was referred in that context to Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34, where at [244] of the reasons for judgment of Nicholson J the following appears: 'It is not necessary to proceed to detailed fact finding on these propositions because I consider s 298K(1)(b) has the following effect in respect of voluntary redundancies: (1) An offer of voluntary redundancy is not a threat to injure an employee in his or her employment. It is an offer the employee may accept or reject.' 168 It was next submitted by ANSTO that Mr Lever 'put his version of Mr Davies' "offer" in an email', to which Mr Cullen replied immediately 'I don't recall making such an offer ... for the record'. That conversational version was said by ANSTO to 'corroborate Mr Davies' denial of the words put in his mouth by [Mr Lever]'. ANSTO next submitted that the second event alleged in par 54 of Mr Lever's points of claim, namely as to ANSTO having allegedly '... "threatened" to carry out a role analysis in relation to [Mr Lever's] position, for the purpose of dissuading or preventing him from pursuing a reference panel in resolution of his classification dispute', appeared to be 'the second event alone that is alleged to constitute a breach of s 298K(1)'. ANSTO indicated that Mr Lever's present complaint, as related to 'this second event', appeared to be a telephone conversation which Mr Lever said he had conducted with Mr Davies on 11 September 2003, and in relation to which the alleged 'threat' on that day could only have been contained within one or more of the following statements attributed to Mr Davies by Mr Lever on that occasion: (i) 'Before we have a Reference Panel we would like to do a role analysis of your role'; (ii) 'A role analysis could be of benefit to you in a reference panel'; (iii) 'I'll have to formally record that you refused to have a Role Analysis done'; (iv) 'Are you sure you don't want to reconsider having a role analysis?' 169 ANSTO submitted that '[n]o reasonable person could construe any of those statements as a threat to carry out a role analysis', and further that the same 'read like offers' and '[i]ndeed the responses [Mr Lever] says he made to these statements are consistent with his treating them as offers' which he declined. I would observe that the third version would be perhaps the more controversial. In any event, ANSTO made the submission further that '[i]t is even more bizarre to infer from these statements that Mr Davies' purpose was to dissuade or prevent [Mr Lever] from pursuing a reference panel'. Mr Lever did not appear to testify that he was dissuaded from pursuing the reference panel process by reason of any of those statements attributed by him to Mr Davies. Be that as it may, ANSTO submitted further that it would have been 'remarkable' if any of those statements in reality had any such effect, and further that in any event, '... attempting to dissuade an employee from such a course of action cannot be conduct of the kind described in s 298K(1)(b) and (c)', since '[i]f the attempt succeeds and the employee is dissuaded, the status quo is preserved', but '[i]f the attempt fails, the employer's conduct has not affected the employee's exercise of his free will'. There was clear force in those ANSTO responses. 189 ANSTO added for completeness that the initiation of the investigation could not constitute a threat to and did not injure Mr Lever in his employment, nor did it alter Mr Lever's employment position to his prejudice, and hence contended that such initiation did not fall within pars (b) or (c) of s 298K(1). ANSTO pointed out that had the investigation 'implicated [Mr Lever] in misconduct and disciplinary action ensued against him, that would constitute an injury or alteration' within those respective paragraphs, but those stages of the investigation had not been reached. Moreover the initiation of the investigation was described by ANSTO as neither forbidden conduct nor a threat of forbidden conduct, since '[a]ny injury to [Mr Lever] in his employment or alteration of his position to his prejudice would have been a step subsequent to the investigation itself'. I was referred in that regard once more to Geraldton Port Authority, this time at [261], where R D Nicholson J observed as follows: 'I do not consider the conduct by the [Authority] in advising the second applicants and the MUA employees that they had been moved to irregular shift work ... could be characterised as action which "threatened" injury or prejudicial alteration. Rather, the injury and prejudicial alteration are the consequences of that action and accordingly I find no action was taken to threaten the relevant employees in that respect pursuant to s 298K(1).' The initiation of the investigation was further described by ANSTO as not constituting a communication to Mr Lever to the effect ' that proscribed action will be taken ', reference to dictum in Telstra being repeated. ANSTO emphasised in that regard that any '[s]uch action would depend on the outcome of the investigation'. 220 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.