Employment policies being contractual terms – take care

Gramotnev v Queensland University of Technology [2015] QCA 127

I refer to the earlier posting wherein McMeekin J’s decision was in the main upheld, save whether the policy regarding disciplinary action for misconduct and serious misconduct contained contractual terms, which Jackson J found it did (Margaret McMurdo P and Holmes JA agreeing):

[3] The question at the heart of these appeals is whether a contract of employment was made on terms incorporated from industrial instruments to which the respondent was a party or policy documents issued by the respondent. The appellant started a proceeding claiming damages for breach of contract on the basis that it was.

Terms and conditions of appointment

The terms and conditions of your appointment are prescribed by the relevant enterprise bargaining agreements applicable to the University. In addition, the University has developed a Manual of Policies and Procedures (MOPP) and makes Statutes and Policies from time to time. Your employment conditions include the provisions of the MOPP and relevant University Statutes and Policies as current from time to time. Current copies of these can be viewed at the Human Resources Department, or are available to staff through QUT’s home page on the World Wide Web (www.qut.edu.au). Should a variation to terms of your employment be necessary, such variation will be confirmed in writing by the Human Resources Director and shall not be binding until it is so confirmed. (This requirement for written advice shall not apply to variations arising from changes through enterprise bargaining, changes to the MOPP, or the making of new Statutes or Policies.)

Discussion

[43] A similar conclusion to that reached by the primary Judge was reached in Australian Workers’ Union v BHP Iron-Ore Pty Ltd.[4] In that case, individual plaintiff employees contended that a term of the relevant award obliged the respondent employer not to make a contract with any other employee that contained a term or condition inconsistent with or contrary to the provisions of the award.

[44] There was a letter of offer of employment. It was accompanied by a document headed “Joining Instructions to New Employees at Mt Newman.” The letter said that “[i]n general, the terms and conditions of employment are as prescribed” in the award and other agreements, including an enterprise bargaining agreement. The joining instructions stated that where there were inconsistencies, the conditions set out in the enterprise bargaining agreement shall prevail. The question was stated to be whether the terms of the award were incorporated as terms of the contract of employment.

[45] Kenny J referred by way of comparison to two other cases, and decided that:

“[i]n this case, in the context in which they appear, the words ‘are as prescribed’ do not indicate an intention to incorporate the terms of the Award into an employment contract.”[5]

[46] The primary Judge also referred[6] to Moama Bowling Club Ltd v Armstrong (No 1).[7] In that case, the text was that the agreement “shall be deemed to incorporate the whole of the provisions of the award”. That language was held to be enough to incorporate the terms of the award as terms of the contract.

[47] The primary Judge took the approach[8] set out in Goldman Sachs JB Were Services Pty Ltd v Nikolich as follows:[9]

“The principles to be applied in determining whether any, and if so what, parts of WWU were terms of the contract of employment are not in doubt. It is well established that if a reasonable person in the position of a promisee would conclude that a promisor intended to be contractually bound by a particular statement, then the promisor will be so bound. This objective theory of contract has been repeatedly affirmed as representing Australian law by the High Court. Thus, in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179, the Court said:

‘It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.’”[10]

[48] This approach is consistent with the recent cognate statement of principle of construction of commercial contracts in Electricity Generation Corporation v Woodside Energy Ltd:[11]

“The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding ‘of the genesis of the transaction, the background, the context [and] the market in which the parties are operating’. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption “that the parties … intended to produce a commercial result”. A commercial contract is to be construed so as to avoid it ‘making commercial nonsense or working commercial inconvenience’.”[12]

 

Senior Staff Disciplinary Policy

[133] This policy is identified as “MOPP B/-8.5 Disciplinary action for misconduct and serious misconduct – senior staff.”

[134] The policy provides the procedures to be followed where an allegation of misconduct or serious misconduct is made against a senior staff member.

[135] Paragraph 114m of the ASOC alleges that the defendant breached the policy through the lack of any action to discipline particular high ranking administrators for their participation in an ongoing campaign of bullying and harassment against the appellant for years. Many paragraphs of the purported particulars are referred to by way of cross-reference. The substance of most of them is not that allegations of misconduct or serious misconduct were made to the Vice-Chancellor or his delegate against the nominated individuals. It is that the respondent did not itself pursue such allegations. However, the purported particulars allege the following communications by the appellant:

  • (a) email from the appellant to the Vice-Chancellor sent on 5 April 2007;
  • (b) email from the appellant to the Vice-Chancellor sent on 18 August 2007;
  • (c) email from the appellant to the Vice-Chancellor sent on 10 January 2008;
  • (d) email from the appellant to the Vice-Chancellor sent on 1 June 2008;
  • (e) complaint by the appellant to the Chancellor made on 17 November 2008; and
  • (f) complaint by the appellant to the Chancellor made on 3 April 2009.

[136] The appellant alleges in the purported particulars that his 17 November 2008 complaint was dealt with by the Chancellor who decided not to take any further action. That is an outcome provided for by the policy. But the appellant alleges that his 3 April 2009 complaint was not dealt with.

[137] On 8 May 2009, the appellant alleges in the purported particulars, the respondent initiated disciplinary action against the appellant. On 3 July 2009, the appellant alleges, he was dismissed from employment as a result of that action. The appellant alleges that the policy was not followed because the Vice-Chancellor did not refer the allegations against him to a Misconduct Investigation Committee.

[138] There are two points to be made about these complaints. First, they are not within the appellant’s allegations of breach of contract by lack of any action to discipline the high ranking administrators in par 114m of the ASOC. Second, cl 8.5.7 of the policy provides the Vice-Chancellor with an alternative to referring allegations to a Misconduct Investigation Committee, subject to certain conditions being satisfied, in the case of serious misconduct. When the Vice-Chancellor believes on reasonable grounds that serious misconduct has occurred and it would be unreasonable to require the university to continue employment of the staff member, he or she may terminate the staff member’s employment in some circumstances.

[139] The appellant submitted to the primary Judge that the text of the policy results in a contractual obligation of the respondent to comply with the policy and that failure to identify, acknowledge and act upon acts of bullying by senior staff is a breach of that contractual obligation.

[140] The primary Judge rejected the latter part of the alleged obligation.[75] I agree. The policy does not impose an obligation upon the respondent to seek out any misconduct or serious misconduct of senior staff. It provides for how allegations against such staff will be dealt with.

[141] However, that conclusion does not deal with the appellant’s submission that the respondent is contractually obliged to follow the policy where allegations of bullying and harassment are made by a staff member. As to that, the primary Judge referred to some of the terms of the policy as aspirational.[76] That may be accepted. However, the policy expressly provides for detailed procedures to manage allegations of misconduct or serious misconduct against senior staff in four phases: first, consideration of the allegation by the Vice-Chancellor and notification of the staff member; second, action by the Vice-Chancellor as to how to proceed, by taking no action, counselling or censuring the staff member, referring the matter to a Misconduct Investigation Committee or in some cases terminating employment without referral; third, where the allegations are referred to a Misconduct Investigation Committee proceedings before that committee; and fourth, following a report by a Misconduct Investigation Committee, decision on the action to be taken by the Vice-Chancellor. In my view, there is no reason why those procedures could not operate as contractual terms.

[142] The primary Judge considered that these procedures do not contain promises about outcomes.[77] In my view, they do provide for how an outcome will be reached. If the Vice-Chancellor is to terminate a staff member’s employment without first referring the allegations to a Misconduct Investigation Committee, he or she must act reasonably and fairly, have regard to all surrounding facts and circumstances, including mitigating circumstances, and must have regard to and give appropriate weight to the results of any existing investigation. If the matter proceeds to hearing before a Misconduct Investigation Committee, the committee must observe a number of procedural requirements and must take into account a number of identified factors.

[143] The primary Judge considered that the policy left the decision whether misconduct or serious misconduct has occurred and what action to take to the Vice-Chancellor, whose decision is final.[78] So much may be accepted. But I cannot agree that it constitutes a clear general statement of intent that contractual remedies are not contemplated.[79] Nothing suggests that the parties objectively contemplated that if the respondent refused to comply with the procedures of the policy, a staff member who suffered loss or damage could not claim damages for breach of contract.

[144] However, as previously mentioned, the appellant’s alleged breach of the policy is not that the respondent failed to follow the policy in dismissing him. Rather, it is that the appellant failed to follow the policy in failing to act upon bullying by senior staff or to discipline them for bullying. The question is whether the policy operates as a contractual promise by the respondent to an aggrieved staff member who makes an allegation of misconduct or serious misconduct against a senior staff member that the procedures of the policy will be followed.

[145] The primary Judge found that the policy is not contractual in nature and does not form a term of the contract.[80] I cannot agree to the extent that the policy operates as a promise by the respondent to the appellant that an allegation of misconduct or serious misconduct against him will be dealt with according to the procedures of the policy. However, when it comes to a promise to an aggrieved staff member that their complaint against another staff member will be dealt with in accordance with the policy, in my view, the considerations as to whether the policy operates as a contractual term are not so clear. Overall, I am not persuaded to differ from the conclusion of the primary Judge on this point.

Implied term of good faith and implied term of trust and confidence

[157] The primary Judge dealt with these two implied terms together. The appellant relied on the same facts as constituting alleged breaches of the terms, including over 400 paragraphs of purported particulars. In pleading terms, the allegations and particulars of the breach or breaches of either term are grossly embarrassing.

[158] However, any difficulty occasioned by that defective form of pleading may be put to one side. After the decision of the primary Judge in this case, the High Court decided Commonwealth Bank of Australia v Barker.[88] From that case, it is clear that under the common law of Australia a term or duty of trust and confidence requiring an employer to take steps in the interests of an employee is not generally a term implied by law into a contract of employment, because it is unnecessary.

[159] As well, I agree with the analysis of the primary Judge of the particular factors that affect the contract in this case.[89] There is no implied term of trust and confidence by reason of which the appellant can seek review, as a breach of contract, of his allegations as to the respondent’s dealings with him over the period of his alleged grievances.

[160] However, although Commonwealth Bank of Australia v Barker is binding authority in support of the rejection of the alleged implied term of trust and confidence in the contract in this case, it does not answer the question whether there is an implied term of good faith. After rejecting the implied term of trust and confidence, the plurality of the High Court said:

“The above conclusion should not be taken as reflecting upon the question whether there is a general obligation to act in good faith in the performance of contracts.”[90]

[161] And Kiefel J said:

“The question whether a standard of good faith should be applied generally to contracts has not been resolved in Australia.”[91]

[162] There is authority at the intermediate appellate court level in Australia that there is an implied term or duty of good faith in commercial contracts. It is unnecessary to canvass the rise of the term here.[92] And in CGU Workers Compensation (NSW) Ltd v Garcia[93] Santow JA said:

“[W]hile the duty to act in good faith may be implied in certain contractual contexts such as employment…”[94]

[163] This Court has not had occasion to decide the existence of a term of good faith in an employment contract or a similar context since Laurelmont Pty Ltd v Stockdale & Leggo (Qld) Pty Ltd,[95] when it rejected the contention that an implied term of good faith qualified the conduct of business of a franchisor under a franchise contract.[96]

[164] In Russell v The Trustees of the Roman Catholic Church Archdiocese of Sydney[97] Rothman J held that there is a separate implied term that an employer will act in good faith in and about the administration of a contract of employment.[98] In the Court of Appeal of New South Wales, the Judges either assumed the existence of the term[99] or treated it as being one with an implied term of trust and confidence.[100]

[165] The reasons of Buchanan JA in the Court of Appeal of Victoria in Intico (Vic) Pty Ltd v Walmsley[101] did not confirm or deny the existence of such a term.

[166] In United Group Rail Services Ltd v Rail Corporation New South Wales,[102] the New South Wales Court of Appeal said of good faith as part of the law of performance of contracts that:

“It is fair to say that caution (in some cases a lack of enthusiasm) has been expressed by some, for example: Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5(2002) 76 ALJR 436 at 445 [40], 452 [88] and 463 [155]; [2002] HCA 5186 ALR 289 at 301 [40], 312 [88] and 327 [155]; Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 at [183] and following; Service Station Association Ltd v Berg Bennett & Associates Pty Ltd [1993] FCA 445(1993) 45 FCR 84 at 91–98; NT Power Generation Pty Ltd v Power and Water Authority [2001] FCA 334(2001) 184 ALR 481 at 574; (2001) ATPR 41–814 at 42,933; Asia Television Ltd v Yau’s Entertainment Pty Ltd [2000] FCA 254(2000) 48 IPR 283Central Exchange Ltd v Anaconda Nickel Ltd[2001] WASC 128(2001) 24 WAR 382 at 391 [16]–[22]; on appeal Central Exchange Ltd v Anaconda Nickel Ltd (2002) 26 WAR 33 at 48 [45]–[55]; Wenzel v Australian Stock Exchange Ltd [2002] FCAFC 400(2002) 125 FCR 570 at 586 [80]–[81]; Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228; and Jobern Pty Ltd v BreakFree Resorts (Victoria) Pty Ltd(2008) Aust Contract Reports 90–269.

Whilst this necessarily incomplete review of authorities reveals that the law in Australia is not settled as to the place of good faith in the law of contracts, this Court should work from the position that it has said on at least three occasions (not including Renard Constructions) that good faith, in some degree or to some extent, is part of the law of performance of contracts. It is unnecessary to go beyond this proposition to gain assistance in the construction of this particular clause of this contract. Many issues arise in respect of any implication (whether as a matter of fact or by law) of any term requiring performance of a contract, or the exercise of contractual rights, in good faith. Those issues need not be explored here…”[103]

[167] In my view, in order to decide the present case, it is unnecessary to essay the subject matter of the possible scope of or existence of a generally expressed implied term of good faith, either in this or other contexts.

[168] The appellant’s alleged implied term of good faith, is of a particular duty of good faith “to exercise honest[y] fairness, prudence, caution and diligence in the performance [of the] contract”. It stems from the judgment of Rothman J in Russell that:

“In the context of an employment relationship, if there exists a duty to act in good faith it ‘imports a requirement that the person doing the act exercise prudence, caution and diligence’, which would mean due care to avoid or minimise adverse consequences to the other party.”[104]

[169] I cannot agree. In my view, that language is the language of a duty of care. It is not apt to describe the obligations of an employer in exercising contractual rights or performing contractual obligations. No other case clearly supports a formulation of an implied term of good faith in those particular terms.[105]

[170] In Yousif v Commonwealth Bank of Australia (No 2),[106] North J said:

“Counsel for Ms Yousif also contended that there was a term implied by law that the Bank would act in good faith. An authority cited in support of the implication of such a term was the judgment of Rothman J in Russell v Trustees of the Roman Catholic Church, Archdiocese of Sydney [2007] NSWSC 104(2007) 69 NSWLR 198; 167 IR 121. However, there is a preponderance of authority against the implication of such a term: Aldersea v Public Transport Corporation [2001] VSC 169(2001) 3 VR 499Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678(2005) 226 ALR 114;McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903(2007) 168 IR 375.

[171] In State of New South Wales v Shaw,[107] the Court of Appeal of New South Wales considered the question. Ward JA, with whom Beazley P agreed, said:

“At [117], Rothman J concluded that, in the context of an employment relationship, if (my emphasis) there existed a duty to act in good faith it was one that “ … ‘imports a requirement that the person doing the act exercise prudence, caution and diligence’, which would mean due care to avoid or minimise adverse consequences to the other party”. That language was clearly drawn from Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16 ; (2004) 135 FCR 105 at [143] and [144] where Lee J considered the meaning of the words “good faith“ as contained in s 18D of theRacial Discrimination Act 1975 (Cth).

In Russell, Rothman J concluded that it was impossible to imagine that the particular contract of employment there in question could operate without a duty of good faith, in circumstances where, with the exception of terms relating to wages and an initial trial period, there were no express terms of the contract which would allow the parties to regulate an employment relationship that the parties envisaged would be a continuing, indefinite period of employment.

The present case is distinguishable on its facts from that which led Rothman J in Russell to conclude that it was necessary for the efficacy of the employment contract there under consideration that the alleged terms be implied. Here, there is a statutory and industrial regime which regulated the respondents’ employment contract. Section 25 of the Act provides that, “except in so far as provision is otherwise made by law, the conditions of employment of members of the Teaching Services shall be as may be determined from time to time by the Secretary. It has not been shown to be necessary, to give the probationary contracts effective operation, that a term of good faith be implied.

Nor is it necessary that such a term be implied as an adjunct to the exercise of other contractual rights. Certainly, the respondents did not identify any power exercised by the principal to which an implied duty of good faith was said to attach other than, in oral submissions, to suggest that the principal would presumably have perceived himself to be exercising a management prerogative at the time he handed the documents to Ms Salt.”[108]

[172] In my view, there is no implied term of good faith of the contract in the present case in the terms that the appellant alleges.

Implied term of health and safety

[173] The primary Judge rejected that the alleged term was an implied term of the contract. His Honour was right to do so, and for the reasons he gave.[109]

[174] This was an aspect of the appeal where the appellant’s lack of understanding of relevant laws and legal principle caused him to elide distinct legal rights and principles. Although sometimes overlooked because there is a corresponding duty of care in tort, it is uncontentious that an employer owes a contractual duty to take reasonable care for the safety of an employee. The question was settled before 1959 when Davie v New Merton Board Mills Ltd[110] was decided. Keane JA referred to it in Wylie v The ANI Corporation Ltd[111] as a duty “which may properly regarded as a contractual duty”[112] and McHugh J, who was a recognised expert in this field of discourse,[113] said in Tame v New South Wales:[114]

“… the employer’s duty of care arises from an implied term of the contract as well as from the general law of negligence… 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.”

[175] It is also elementary that a claim by an employee against an employer for damages for personal injury caused by a breach of that term is regulated by statute. At the time of the alleged breaches in this case the relevant Act was the Workers Compensation and Rehabilitation Act 2003 (Qld), ch 5.

[176] At relevant times, there were statutory duties in relation to workplace safety owed by employers. The Workplace Health and Safety Act 1995 (Qld) was in effect at the time when the contract was made, but is now repealed.[115]

[177] The rights, obligations and remedies of employees in these contexts are well developed and stable. Against that background, the appellant alleges an additional implied term that the respondent would create, maintain and not breach [a] healthy and safe workplace environment for the plaintiff.

[178] As the primary Judge said, this is more onerous than the contractual obligation acknowledged by the existing cases.[116]

[179] In my view, the alleged term fails because it is unnecessary to give business efficacy to the contract.

Conclusion

[186] With one exception, these reasons support the answers given by the primary Judge to the separate questions.

[187] The exception is that under the Senior Staff Disciplinary Policy, the respondent contractually promised the appellant that an allegation of misconduct or serious misconduct against him would be dealt with by the procedures of the policy.

[188] I would make the following orders:

  1. Order that the appeals are allowed, in part.
  2. Set aside the order made on 19 June 2014 as to the answer to the first question.
  3. In lieu thereof answer the first question as follows:
    • (a) Whether the provisions of the defendant’s Enterprise Bargaining Agreements and/or Manual of Policies and Procedures and/or the defendant’s statutes and policies constituted a term or terms of the employment contract between the plaintiff and the defendant entered (sic) on or about 23 November 1999 (“the employment contract”)?

Answer: No, except that that under the Senior Staff Disciplinary Policy the respondent contractually promised the appellant that an allegation of misconduct or serious misconduct against him would be dealt with by the procedures of the policy.

  1. Set aside the judgment dismissing the proceeding.
  2. Direct that the parties make submissions on costs in writing not to exceed two pages in length within seven days of the date on which the reasons for judgment are published.

David Cormack – Brisbane Barrister & Mediator

 NB: Further to this saga –

Gramotnev v Queensland University of Technology [2018] QSC 37

Flanagan J

The plaintiff was employed by the defendant, Queensland University of Technology (QUT), as a lecturer since January 2000.  The defendant terminated the plaintiff’s employment for “serious misconduct” in July 2009.  The plaintiff sought damages for breach of contract, alleging four specific breaches, relevantly:

  • two breaches of QUT’s Enterprise Bargaining Agreement 2005 – 2008 (EBA); and
  • two breaches of QUT’s Manual of Policies and Procedures 2005 Policy A/8.5 “Grievance resolution procedures for discrimination related grievances (Grievance Policy)

First alleged breach of contract – clause 44.2.2(i) of the EBA

By letter dated 8 May 2009, the defendant wrote to the plaintiff advising of two allegations and requesting the plaintiff’s response.  The allegations, as stated in the letter, concerned whether the plaintiff was the author various correspondence sent to QUT staff allegedly embarking on a deliberate, public campaign against their leadership.

Clause 44.2.2(i) of the EBA required the defendant to “notify the staff member in writing and in sufficient detail to enable the staff member to understand the precise nature of the allegation(s) and to properly consider and respond to them”.  The plaintiff submitted that the defendant failed to identify and present any reasonable allegation of misconduct.  Of this, Flanagan J stated:

[117] The letter of 8 May 2009 was not a show-cause letter, but rather the written notification required by clause 44.2.2. The text of the 8 May 2009 letter is set out in [81] above. The letter sought a response from the plaintiff within 10 working days, which is the requirement identified in clause 44.2.2(ii). I have already determined that, upon a proper construction of clause 44.2.2, the allegation to be notified to the plaintiff is an allegation of conduct. The question is whether the letter of 8 May 2009 notified the plaintiff in sufficient detail to enable the plaintiff to understand the precise nature of the allegation and to properly consider and respond to it.

[118] The allegation in the letter that the plaintiff authored and sent the emails of 2, 6, 12 and 30 March 2009 cannot be divorced from the actual content of these emails. As stated by Professor Bowman in the letter of 8 May 2009, “[t]he correspondence speaks for itself”. Professor Bowman went further in the letter of 8 May 2009 by setting out his concerns in respect of the correspondence, including extracts from the various emails. In my view, the 8 May 2009 letter complied with clause 44.2.2(i) and gave the plaintiff sufficient detail to enable him to understand the precise nature of the allegation and to properly consider and respond to it.

Second alleged breach of contract – clause 44.2.7 of the EBA

As to the second breach of the EBA, his Honour stated:

[137] The second alleged breach is of clause 44.2.7 of the EBA which applies where a staff member either wholly or partly denies the allegation or has not responded to the allegation.

[138] The plaintiff’s case is that while he admitted authoring and sending the four emails he “wholly denied” any misconduct. In these circumstances the Vice-Chancellor or the Vice-Chancellor’s nominee had three options:

 “(i)         decide to take no further action; or

(ii)        counsel or censure the staff member in relation to the conduct in question and take no further action; or

(iii)        refer the matter to the Misconduct Investigation Committee.”[154]

[140] I have concluded that the reference in clauses 44.2.2(i), 44.2.6 and 44.2.7 to “the allegation” is an allegation of conduct, not of misconduct or serious misconduct. By admitting Allegation 1 identified in the letter from Professor Bowman dated 8 May 2009, the plaintiff admitted the relevant conduct. Professor Bowman was therefore entitled to proceed under clause 44.2.6 and was not required to proceed under clause 44.2.7.

Third and fourth alleged breaches of contract – the Grievance Policy

The Grievance Policy dealt with grievance resolution procedures for discrimination-related grievances.  Relevantly, by letter dated 1 June 2008, the plaintiff wrote to the defendant which it submitted was a complaint relating to bullying, intimidation and discrimination.  Accordingly, the plaintiff submitted that the complaint ought to have been investigated with the procedure outlined in the Grievance Policy.

Firstly, Flanagan J considered whether the Grievance Policy formed part of the plaintiff’s employment contract.  His Honour referred to Gramotnev v Queensland University of Technology [2015] QCA 127 where McMeekin J stated:

[181] The Policy sets out the procedures to be followed, determined by the nature of the grievance asserted. The complaint seems to be that the procedures were ineffective to prevent bullying and harassment. But there is no promise by the University that the procedures laid down will succeed. And the use of words such as will constitute’ or the ‘panel should’ do some action or other is not, without more, necessarily promissory in effect. What is absent from the Policy is any statement of entitlement directed to the employee.

Notwithstanding finding that the Grievance Policy was not contractual, Flanagan J found that the plaintiff had failed to establish breach:

[167] The evidence does not demonstrate that by his letter dated 1 June 2008, the plaintiff sought to engage the procedures under clause 8.5.6 of the Grievance Policy. The letter of 1 June 2008 on a fair reading, cannot be construed as a complaint concerning discrimination or harassment. By this letter, the plaintiff sought to have Dr Ayoko replaced as the Acting Head of the School. The letter only refers to “bullying” conduct in the context of the plaintiff alleging that Dr Ayoko “has demonstrated his complete failure and incapacity to reasonably manage staff in the school and their needs”. The plaintiff’s letter requested the Vice-Chancellor to take “decisive and prompt actions” directed to three matters all concerning the Head of School. Nowhere in the letter is found a request for “a formal investigation”.[180]The letter makes no reference at all to the Grievance Policy.

Similarly, in relation to the fourth alleged breach, his Honour found that the plaintiff’s further letter of 3 April 2009 did not seek to engage the procedures under the Grievance Policy.

Failing to establish any of the four alleged breaches, his Honour dismissed the plaintiff’s claim.

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