Case: Finance Sector Union of Australia v Australian &amp; New Zealand Banking Group Ltd [2002] FCA 631 ; (2002) 120 FCR 107
Outcome: referred to
Further as to pars 20 to 22 of Mr Lever's points of claim the subject of the first series of breaches , ANSTO submitted that Mr Lever 'has not established that any conduct of [ANSTO] caused him to miss an opportunity to seek a review of Dr Doherty's decision to promote him', maintaining that Mr Lever had produced 'no evidence that he intended to seek a review at the time of the relevant discussions with Dr Doherty', and accordingly that Mr Lever 'has not established that the conduct of [ANSTO] was the reason for his failure to seek such a review'. It was further submitted by ANSTO in that regard that '[i]f [Mr Lever's] failure to seek a review could constitute an injury to him in his employment or an alteration of his position to his prejudice, it was caused by the actions or inactions of [Mr Lever] subsequent to the conduct of Dr Doherty', and furthermore that '[i]f [Mr Lever] knew of the availability of a review, it was his own decision to forebear from pursuing one'. It was contended by ANSTO also that '[e]xcept in the circumstances described in s 298L(2), attempting to induce or discourage an employee from a course of action cannot be conduct of the kind described in s 298K(1)(b) or (c)', and moreover '[i]f the attempt succeeds and the employee is discouraged', so the ANSTO submission continued, 'the status quo is preserved, [but if] the attempt fails, the employer's conduct has not affected the employee's exercise of his free will, [and] [i]n either case, the conduct has not injured the employee in his employment or altered the employee's position to his prejudice'. Reference was made by ANSTO in that context to Finance Sector Union of Australia v Australia &amp; New Zealand Banking Group Ltd [2002] FCA 631 ; (2002) 120 FCR 107 where at [195] in relation to a s 298M claim by a union for an imposition of penalties, Wilcox J found as follows: 'Ms Howell argued her s 289M [ sic ] claim by reference to conduct by Mr Inglis which, she contended, had the effect of putting pressure on Ms Buckland to choose between her job and her position in the FSU. Mr Inglis may have applied such pressure and, perhaps, this might be described as an attempt to induce Ms Buckland to resign. But s 298M does not cover attempts.' It must be said at once that there is force in those further submissions as to relevant statutory operation. 138 ANSTO emphasised that '[n]one of the four [foregoing] representations menaced or warned of an intention to inflict harm', and asserted that the same '... were simply not threats at all'. For that reason and also because the prohibited reason alleged by Mr Lever in relation to this conduct of Dr Doherty was contended to be not a reason of the kind described in s 298L(2)(b), ANSTO submitted that s 298L(2) was inapplicable. ANSTO further argued in any event that '[t]he evidence shows that [ANSTO] did address [Mr Lever's] complaints about his classification over a lengthy period', but that ANSTO 'was never persuaded that the decisions of Dr Doherty were wrong'. ANSTO postulated that Mr Lever 'seems to believe that [ANSTO's] failure to capitulate to his claims means that the issue was not "addressed" by [ANSTO]', and hence he 'refuses to acknowledge [ANSTO's] decision that he was correctly classified', being a postulation having reasonable justification. As to Mr Lever's allegation that the conduct of Dr Doherty was prohibited by s 298L(1)(h), ANSTO rejoined by asserting the need, as I have already indicated, for Mr Lever to have established some rational basis for the imputation of a prohibited reason to ANSTO.