Case: Lewis v Qantas Airways Ltd (1981) 54 FLR 101 
Outcome: referred to
Generally as to the eighth series of breaches , ANSTO's concluding responses were that Mr Lever's submissions did 'not identify any injury to [Mr Lever] in his employment or alteration of his position to his prejudice by reason of [ANSTO's] access to emails stored on one of its computers used by [Mr Lever]', that '[ANSTO] had good reasons related to the security of its premises for accessing the emails', and that '[e]ven if there had been an injury to [Mr Lever] in his employment or an alteration of his position to his prejudice, it was manifestly for reasons that are not prohibited by s 298L(1)'. By way of amplification, ANSTO pointed to the following circumstances: (i) the concern of ANSTO's managers over the way Mr Lever was performing his role as a union delegate, and also its interference with the performance of his duties as an employee, needed to be understood in a context whereby Mr Lever '... appear[ed] to believe he had free rein as a union delegate to perform little or none of the work for which [ANSTO] was paying him', and further that '... he was immune from close supervision and disciplinary action if his performance as an employee was unsatisfactory', being a belief that could not be sustained in any such terms; I was referred by ANSTO to Lewis v Qantas Airways Ltd (1981) 54 FLR 101 at 112-114 (Morling J), where earlier principles enunciated in Re Dispute at Broken Hill Pty Co Ltd Steel Works, Newcastle (No. 2) [1961] AR (NSW) 48 at 66 (Richards, Beattie and Kelleher JJ) were cited with approval; (ii) included within those statements of principle in Broken Hill , which had been cited in Lewis , were the following of potential operation in the present proceedings: '... no man [should] be unjustly penalised for his participation in legitimate activity as a representative of his union [and] [i] t is basic to our system that employees should be organised in industrial unions... Men who are willing to play a part in the affairs of an industrial union are entitled to expect that they will not be prejudiced in their employment because of any legitimate actions they take in any union office they assume ... [W] hile this Commission will be vigilant to protect the position of any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak conferring on the wearer immunity from liability from wrongful actions.' 181 It was pointed out by ANSTO that Mr Lever did not here complain of dismissal, as in the case of the Qantas employee involved in Lewis , and it was submitted by ANSTO, in a sense conversely, that Mr Lever was '... very prone to see evidence of victimisation when none existed', and further that he seemed to believe that upon being appointed as a delegate, he received '... a magic cloak conferring on the wearer immunity from liability from wrongful actions'. Mr Davies defended his managerial conduct as to maintaining observation from time to time upon Mr Lever and his activities whilst he was physically present at the ANSTO workplace. ANSTO contended accordingly that there was '... no evidence that [Mr Davies' conduct]... injured [Mr Lever] in his employment'; in that regard, Mr Lever did not testify as to any intimidating conduct on ANSTO's part per medium of any of its officers. Moreover it was pointed out by ANSTO that '[m]atters such as Mr Davies' observations of [Mr Lever] at work, and a letter to the CPSU expressing concern about [Mr Lever's] conduct as a delegate are not alleged to have constituted a breach of s 298K(1)'. 182 As to Mr Davies' conduct in making observations of Mr Lever's behaviour at the workplace, ANSTO asserted his reasonable entitlement for so doing in his capacity as a holder of managerial office at ANSTO, and further that there was no apparent evidence that any such conduct injured Mr Lever in his employment at ANSTO within par (b) of s 298K(1). ANSTO complained generally to the effect that in his presentation of submissions, Mr Lever made 'egregious misstatements of the evidence and unsupportable assumptions of malicious intent by [ANSTO's] supervisory employees'; certainly in my view some of his contentions are susceptible to criticism for misstatement, as I have at least partly recorded. It was submitted by Mr Lever nevertheless that it was his case that his 'e-mails were accessed due to his involvement with [Person X] as a union delegate', but the counter submission of ANSTO was however to refer to the affidavit evidence of Messrs Davies and Cullen to the effect that access was undertaken in the course of an investigation into a breach of security at ANSTO's premises. 183 ANSTO next addressed Mr Lever's assertion that ANSTO accessed his emails in order '... to prosecute a malicious breach of duty process', and contended that there was no evidence to any such effect, nor was there any explanation as to 'why the Court should prefer [Mr Lever's] persecution theory to the credible evidence of [ANSTO's] witnesses'. I would observe that there was evidentiary support for ANSTO's contention that the testimonies of each of Messrs Davies and Cullen tended to evince genuine and not contrived grounds upon which ANSTO commenced and pursued its investigation into Mr Lever's conduct the subject of ANSTO's security concerns. As to the matter of the loss of certain documents under Person X's control and the restrictions placed on Person X's access to ANSTO's premises, I think that caution on the Court's part is appropriate. On the one hand, that particular focus of events might be thought to have been occasioned by an exaggerated concern with security. On the other hand, the circumstances of the high level scientific functions (inclusive of matters related to nuclear energy) undertaken by ANSTO at Lucas Heights were not to be understated, much less discarded.