Employment Dispute: Statutory Claims Rejected, Contractual Breach Upheld

OUTCOME: Allowed in Part

FEDERAL COURT OF AUSTRALIA

[NAME] v [RESPONDENT] (No 2) [2019] FCA 2192 [RESPONDENT] number: VID 876 of 2017

Judge: [NAME] of judgment: 23 December 2019

Catchwords: [NAME] Act 2009 (Cth) ("[NAME]"), ss 340, 348 and 355 – where in reliance upon s 348 union representative alleged to have made threats to take action against employer with intent to coerce employer to engage in industrial activity, being removal of employee from [NAME] and cessation of a project ("project") – where in reliance upon s 355 union representative also alleged to have made threats to take action against employer with intent to coerce employer not to allocate employee duties of his [NAME] – where employee removed from his [NAME] and duties by his employer and project cancelled – discussion as to what constitutes a "threat" for purposes of ss 348 and 355 of [NAME] – discussion of meaning of "intent to coerce" in ss 348 and 355 – discussion of 361(1) of [NAME]: presumption that action taken for a [NAME] reason or intent unless proven otherwise – to which elements or ingredients of a cause of action under ss 348 and 355 is s 361(1) applicable – the pre-conditions to the engagement of s 361(1) – whether s 361(1) can apply to a threat – discussion of standard of proof necessary for contravention of [NAME] – whether pleading admissions made by one party can be used against [NAME] party in a joint trial – whether threats, as alleged, made by union representative – whether applicant engaged s 361(1) by making requisite allegation regarding union representative's intent – whether threat made with intent to coerce – discussion of pleadings deficiencies – whether applicant discharged his onus to establish use of unlawful, illegitimate or unconscionable means by union representative – whether employer and manager accessorily liable under s 550 of [NAME] – adverse action – [NAME] s 340: where alleged that employee removed from [NAME] for reasons that include that employee had a workplace right – applicable legal principles discussed – whether adverse actions (removal of employee from his [NAME] and exclusion of employee from work) taken including because of employee's workplace right to a safe working environment CONTRACTS – where employee contracted to be employed in specific [NAME] – where contract provided that employer may require employee to occupy alternative "suitable" [NAME] – where removed from contracted [NAME] – whether employer removing employee from contracted [NAME] without placing employee into a suitable alternative [NAME] was a breach of contract – discussion of meaning of suitable alternative [NAME] – whether suitable alternative [NAME] offered to employee – where direction that employee excluded from work pending medical clearance – whether direction in breach of contract DAMAGES – contractual claim: principles regarding damages for breach of contract – principles of causation – whether loss should be characterised as a loss of chance or loss of bargain – whether loss of remuneration claimed flowed from breach of contract found – whether intervening events broke chain of causation – principles of remoteness – whether "least burdensome principle" invoked by employer's contractual capacity to terminate contract on giving notice – discussion of contingencies – whether employer would have terminated contract by giving notice had it not been for breach – discussion of principles of mitigation – whether employee's attempts to gain employment following termination involved a failure to mitigate loss – whether failure to accept [NAME] from [NAME] employer was a failure to mitigate loss – whether employee entitled to [NAME] damages

Legislation: Evidence Act 1995 (Cth), ss 83, 140(2)(c) [NAME] Act 2009 (Cth), ss 12, 340(1), 342, 343, 347, 348, 550, 355, 361, 363, 550, 793 [NAME] and [NAME] 2011 (Cth), s 19, s 28

Cases cited: [NAME] v [COMPANY] (1987) 9 NSWLR 310 [NAME] v [NAME] Commissioner [2018] FCAFC 191 [NAME] Commissioner v [NAME] ([ADDRESS]) (2018) 260 FCR 564 [NAME] Commissioner v [NAME] ([NAME]) [2017] FCA 1398 [NAME] Commissioner v [NAME] [2017] FCA 274 [NAME] Commissioner v [NAME] (2018) 261 FCR 347 [NAME] Commissioner v [NAME] (No 2) [2018] FCA 1611 [NAME] Commissioner v [NAME] (No 2) [2019] FCA 1014 [NAME] Commissioner v [NAME] (No 3) [2018] FCA 43 [NAME] Commissioner v Parker [2017] FCA 564 [NAME] Commissioner v [NAME] (The Gorgon Project Case) [2017] FCA 847 [NAME] Commission v [COMPANY] (2007) 160 FCR 321 [COMPANY] v [NAME] of Employees [2019] FCAFC 215 Baltic Shipping Co v Dillon (1993) 176 CLR 344 [NAME] En [NAME] v [COMPANY] (1990) 169 CLR 279 [NAME] v Director of the [NAME] [NAME] (2016) 242 FCR 46 Briginshaw v Briginshaw (1938) 60 CLR 336 C. [COMPANY] v Koufos [1969] 1 AC 350 [NAME] v Commissioner for Railways (1973) 128 CLR 99 [NAME] v [COMPANY] (2017) 256 FCR 306 Chappel v Hart (1998) 195 CLR 232 Clark v Macourt (2013) 253 CLR 1 [COMPANY] v Barbieri [2018] FCA 622 Commonwealth Bank of Australia v [NAME] (2013) 214 FCR 450 Commonwealth of Australia v [COMPANY] (1991) 174 CLR 64 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v [NAME] Commission (2007) 162 FCR 466 [NAME] v [NAME] ([COMPANY]) [COMPANY] (2015) 238 FCR 273 [NAME] v [NAME] and [COMPANY] (No 2) [2017] FCA 1046 [NAME], [NAME] v [COMPANY] [COMPANY] [2018] FCAFC 182 [NAME] v [COMPANY] (No 2) [2013] FCA 446 Director of [NAME] [NAME] v [NAME] ([NAME]) [2015] FCA 1125 Director of the [NAME] v [NAME] [2015] FCA 1293 Director of the [NAME] [NAME] v [NAME] [2015] FCA 225 Director of the [NAME] [NAME] v [NAME] (No 2) [2015] FCA 199 [COMPANY] v [NAME] (2017) 263 CLR 551 [COMPANY] v [NAME] (2016) 245 FCR 39 [COMPANY] v [NAME] [2015] FCA 758 [COMPANY] v [NAME] [2018] FCAFC 134 [NAME] v [NAME] [2017] FCA 528 [NAME] v [NAME] [2017] FCA 1363 [NAME] v [NAME] [COMPANY] [2017] FCA 833 [NAME] v [NAME] and [COMPANY] (2013) 39 VR 578 [NAME]-[COMPANY] v [NAME] (1976) 51 ALJR 235 [COMPANY] v [NAME]) [COMPANY] (2008) 234 CLR 237 Henville v Walker (2001) 206 CLR 459 [NAME] (1959) 101 CLR 298 [NAME] v Australian Broadcasting Tribunal (1990) 170 CLR 70 [NAME] v [NAME] [2015] FCAFC 120 [NAME] v [NAME] (2016) 247 FCR 154 [NAME] v [NAME] Commission (1982) 148 CLR 97 [NAME] v E and [COMPANY] (1991) 171 CLR 506 [NAME] v [NAME] Commission (1995) 182 CLR 1 [NAME] v [NAME] of Technology [2013] FCA 451 [COMPANY] [COMPANY] v Harrison [1985] ICR 668 [COMPANY] v [NAME] (1998) 195 CLR 1 [COMPANY] v [COMPANY] (1985) 157 CLR 17 [NAME] [COMPANY] v Smith [2015] SASCFC 160 [NAME] v Farstad Shipping (Indian Pacific) [COMPANY] (No 3) [2016] FCA 1453 R v Cornelissen [2004] NSWCCA 449 Robinson v Harman (1848) 1 Ex 850 [NAME] v [COMPANY] (No 7) [2019] FCA 496 [NAME] v [NAME] [2015] FCAFC 55 [COMPANY] v Lindley [2010] NSWCA 357 [NAME] v [NAME] (2013) 218 FCR 172 Tabet v Gett (2010) 240 CLR 537 [COMPANY] v [NAME] [COMPANY] [2019] VSCA 74 [NAME] (a bankrupt) v [NAME] (2006) 227 CLR 278 [COMPANY] v [COMPANY] (1998) 192 CLR 603 Walker v [NAME] Australia [COMPANY] [2006] FCAFC 101 Wenham v Ella (1972) 127 CLR 454 [NAME] v [NAME] [COMPANY] (2010) 26 VR 668 [COMPANY] [COMPANY] v Mitchell-Innes [2015] NSWCA 381

Date of hearing: 3-7 December 2018, 10-12, 20-21 December 2018

Registry: [NAME]: [NAME]

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 371

Counsel for the Applicant: [redacted]

Solicitor for the Applicant: [redacted]

Counsel for the First and Second Respondents: [redacted]

Solicitor for the First and Second Respondents: [redacted]

Counsel for the Third Respondent: [redacted]

Solicitor for the Third Respondent: [redacted]

Counsel for the Fourth Respondent: [redacted]

Solicitor for the Fourth Respondent: [redacted]

BETWEEN: [APPELLANT] [NAME] Applicant

AND: [NAME] First Respondent

[NAME] Respondent

COMMUNICATIONS, ELECTRICAL, [RESPONDENT], [NAME], INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA (and [NAME] named in the Schedule) Third Respondent

JUDGE: [NAME] OF ORDER: 23 December 2019

THE COURT ORDERS THAT:

1. On or before 24 January 2020, the applicant and the first respondent: [redacted] (ii) [RESPONDENT] a statement of agreed facts dealing with those matters; or in the further alternative (iii) should there be agreement on the quantum of damages and interest payable reflective of the findings made by the Court, [RESPONDENT] a minute of the orders those parties propose should be made.

2. Subject to any further order, the proceeding be listed for further hearing on a date to be fixed in the week of 3 February 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR

JUDGMENT sections 348 and 355 [NAME] – removal decision and cancellation of [NAME] [12] Relevant Legislation and Legal Principles [18] Elements of ss 348 and 355 [25] That "action" was threatened [25] Use of unlawful, illegitimate or unconscionable conduct [27] The actual existence of the circumstance said to be the subject of the coercive "action" organised, taken or threatened [31] State of mind elements [32] Engaging s 361(1) [36] When the rebuttal of the presumption falls to be determined [41] Can s 361(1) apply to a threat? [42] Standard of proof [53] Admitted Allegations [56] The Pleadings and the Admitted Allegations [60] The Facts [65] Consideration [113] Were threats/demands made by [RESPONDENT]? [113] Intent to coerce [168] Removal of [NAME] [168] Cancellation of [NAME] [178] Availability of a [NAME] inference [181] Accessorial Liability of [NAME] [182] section 340 claim – removal decision [191] Relevant Legislation and Legal Principles [191] Whether the Removal Decision Constituted Adverse Action [197] Workplace Right [198] State of Mind Element [199] contractual [NAME] [205] Alleged Contractual Breach Relating to the Removal Decision [215] First Period [235] Second Period [239] Third Period [245] Suitability of alternative positions proposed/offered [265] Suitability of the [NAME] [280] Suitability of the MPFS and MFWPA positions [290] Alleged Contractual Breach Relating to the Garden Leave Decision [294] section 340 claim – garden leave decision [302] relief [309] Loss of Remuneration Damages [311] Causation [313] Did an intervening event break the chain of causation? [328] Remoteness of damage [334] The Measure of Damages [340] The counter-factual [342] The factual [354] Mitigation [357] The need for updating [361] [NAME] [364] conclusion [368]

[NAME]: 1 In this proceeding the applicant ("[APPELLANT]") seeks various remedies against [NAME] in relation to alleged contraventions of ss 340(1), 348 and 355 of the [NAME] Act 2009 (Cth) ("[NAME]"). He also seeks damages with respect to alleged breaches of his contract of employment by the first respondent ("[NAME]"). 2 The second respondent, [RESPONDENT] ("[RESPONDENT]") was, at all material times, the [NAME] Director and Group Chief Executive Officer ("CEO") of [NAME]. [NAME] and [NAME] filed a joint defence and were jointly represented. Where convenient (and appropriate) I will refer to them together as the "[NAME]". The third respondent is the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the "CEPU"). The fourth respondent, [NAME] ([NAME]) [RESPONDENT] ("[RESPONDENT]"), was at all material times the Branch Secretary of the New South Wales Postal and Telecommunications Branch of the CEPU and an "officer" of the CEPU within the meaning of s 12 of the [NAME]. 3 On 24 [NAME] 2014, [NAME] commenced employment at [NAME] as its National [NAME] Manager pursuant to a contract of employment executed on 13 [NAME] 2014. In that role, [NAME] reported to [NAME] ("[NAME]"), Head of [NAME] [NAME], who in turn reported to [NAME] ("[NAME]"), [NAME] Manager, Group Executive, [NAME] and [NAME]. [NAME] reported to [NAME] ("Blake"), [NAME] Manager, [NAME]. [NAME] reported to [NAME]. 4 One of [NAME] key responsibilities was to drive "[NAME]" outcomes. This was weighted at 20% of his overall performance evaluation in the mid-year performance plan for the 2015/16 financial year. [NAME] was an internal project that assumed some significance in the proceedings, the status of the project and the level of executive oversight over it are matters in dispute. Broadly speaking, it was a project designed to change the way in which [NAME] dealt with some 3,000 injured employees who were receiving [NAME] and not performing full duties. [NAME] was worked on by a team with members from different areas within [NAME] and its executive sponsors were [NAME] and [NAME] ("[NAME]"), the [NAME] Manager, [NAME] and [NAME]. 5 Broadly stated, the alleged contraventions of the [NAME] and the contractual breaches are said to arise from two events which occurred in 2016: (1) when [NAME] was removed from his [NAME] as National [NAME] Manager at [NAME] on 5 February 2016 (the "Removal decision") and [NAME] was cancelled; and (2) when [NAME] was prohibited from attending work and allegedly placed on "garden leave" on 27 April 2016 (the "Garden leave decision"). 6 [RESPONDENT] alleges that [RESPONDENT] contravened ss 348 and 355 of the [NAME] on 5 February 2016 during a telephone conversation with [NAME] which led to the Removal decision and the cancellation of [NAME]. It is alleged that the CEPU is liable for those contraventions by operation of ss 363 and 793 of the [NAME]. It is further alleged that [RESPONDENT] was "involved in" the contraventions by [RESPONDENT] within the meaning of s 550 of the [NAME], and that [NAME] is liable for these contraventions under s 793 of the [NAME]. 7 [NAME] alleges that the Removal decision was a breach of s 340(1) of the [NAME] by [NAME]. [NAME] is alleged to have been "involved in" the contravention by [NAME] within the meaning of s 550 of the [NAME]. 8 [NAME] also alleges that by the Garden leave decision [NAME] also contravened s 340(1) of the [NAME]. 9 Finally, [NAME] alleges that the Removal decision and the Garden leave decision were in breach of his contract of employment with [NAME]. There is no dispute that on 11 August 2016, [NAME] was terminated from his employment with [NAME]. [NAME] does not contend that [NAME]'s act of terminating his contract of employment was itself a breach of that contract. He maintains, however, that the termination of his employment contract was a "consequence" of [NAME]'s contractual breach in giving effect to the Removal decision. 10 By way of remedy for his statutory breach [NAME], [NAME] seeks orders for reinstatement, and orders for [NAME] and penalties. [NAME] seeks damages for his breach of contract [NAME]. 11 These reasons are broadly divided into two sections – the first deals with the statutory [NAME] made by [NAME] ([NAME] than relating to the Garden leave decision) and the second deals with his contractual [NAME]. Many of the facts are relevant, at least by way of background, to both the statutory and the contractual [NAME] as well as the statutory claim made in respect of the Garden leave decision. Nevertheless, given the chronological order of the most significant events, it is convenient that I record those facts primarily of relevance to the statutory [NAME] ([NAME] than the Garden leave decision) in the first section of these reasons and likewise deal with the facts of primary relevance to the remainder of the [NAME] in the second section of these reasons. The overlapping relevance of many of the facts recorded should not, however, be overlooked.

sections 348 and 355 [NAME] – removal decision and cancellation of [NAME] 12 [NAME] alleges three separate contraventions of ss 348 and 355 of the [NAME] by [RESPONDENT] and the CEPU. What was communicated by [RESPONDENT] to [NAME] when they spoke by telephone on 5 February 2016 is critical to [NAME] success on these [NAME]. 13 [RESPONDENT] alleges that [RESPONDENT] said that he would: (1) leak documents about "[NAME]" to the [NAME] and [NAME]; (2) arrange protest rallies about "[NAME]"; (3) take [NAME] to the cleaners; (4) take serious industrial action; and (5) take legal action unless [NAME] cancelled [NAME] and removed [NAME] from his role as National [NAME] Manager. 14 The contraventions of ss 348 and 355 of the [NAME] are alleged on the basis that [RESPONDENT] said to [NAME] that, unless [RESPONDENT] cancelled [NAME] and removed [NAME] from his [NAME] as National [NAME] Manager, [RESPONDENT] would carry out the threatened actions detailed above. The alleged contraventions are said to be as follows: (1) A contravention of s 348 by reason of [RESPONDENT] making threats to take action against [NAME] with intent to coerce [NAME] to engage in "industrial activity", namely, complying with a lawful request (s 347(b)(iv)) or, alternatively, an unlawful request (s 347(e)) made by the CEPU to [NAME] for [NAME] to be removed from his [NAME] as National [NAME] Manager. (2) A contravention of s 355 of the [NAME] by reason of [RESPONDENT] threatening to take action with intent to coerce [NAME] not to allocate to [NAME] the duties and responsibilities or not to designate [NAME] as having the duties and responsibilities of the role of National [NAME] Manager. (3) A contravention of s 348 of the [NAME] by reason of [RESPONDENT] making threats to take action against [NAME] with intent to coerce [NAME] to engage in "industrial activity", namely, complying with a lawful request (s 347(b)(iv)) made by the CEPU to [NAME] for [NAME] to be cancelled. 15 Insofar as the CEPU is concerned, and in reliance on ss 363(1)(b) and 793(1)(a) of the [NAME], [RESPONDENT] alleges that the actions of [RESPONDENT] were the actions of the CEPU and that therefore the CEPU contravened ss 348 and 355 on each occasion that those provisions were contravened by [RESPONDENT]. Insofar as [NAME] and [RESPONDENT] are concerned, and in reliance on s 550 of the [NAME], [RESPONDENT] alleges that they were "involved in" each of [RESPONDENT]'s contraventions set out above, such that they themselves are taken to have contravened those provisions. 16 [RESPONDENT] and the CEPU resist any findings of any primary contraventions of ss 348 or 355 of the [NAME]. 17 The [NAME] resist any findings of any contraventions of ss 348 or 355 of the [NAME] on the following alternative bases: (1) none of the primary contraventions are made out (for a number of reasons); and (2) in the alternative, [NAME] and [NAME] were not "involved in" any contraventions.

Relevant Legislation and Legal Principles 18 Section 348 of the [NAME] is in the following terms: [NAME] must not organise or take, or threaten to organise or take, any action against [NAME] with intent to coerce the [NAME], or a third person, to engage in industrial activity. 19 The phrase "engage in industrial activity" used in s 348 is defined in s 347 to include complying with a "lawful request made by, or requirement of, an industrial association" (s 347(b)(iv)) and complying with "an unlawful request made by, or requirement of, an industrial association" (s 347(e)). 20 Section 355 of the [NAME] also deals with coercive conduct but is directed at protecting [NAME]'s capacity to employ or not employ a [NAME] and the allocation of duties and responsibilities to a [NAME]. Relevantly, s 355 provides: [NAME] must not organise or take, or threaten to organise or take, any action against [NAME] with intent to coerce the [NAME], or a third person, to: … (c) allocate, or not allocate, [NAME] duties or responsibilities to a [NAME] employee or independent contractor; or (d) designate a [NAME] employee or independent contractor as having, or not having, [NAME] duties or responsibilities. 21 Because ss 348 and 355 are found in Pt 3-1 of the [NAME], s 361(1) can have application if it is engaged. Section 361 of the [NAME] is in the following terms: (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that [NAME] took, or is taking, action for a [NAME] reason or with a [NAME] intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 22 Section 361(1) creates a rebuttable presumption. The operation of s 361 was described by [NAME] [NAME], [NAME], [NAME] and [NAME] in [COMPANY] v [NAME] (2017) 263 CLR 551 ("[NAME]") at [58] as follows: Section 361 of the [NAME] Act relevantly provides that where it is alleged that [NAME] took action for a [NAME] reason or with a [NAME] intent, and taking the action for that reason or with that intent would constitute a contravention of Pt 3-1 (which includes ss 343 and 348), it is presumed that the action was taken for that reason or with that intent unless the person proves otherwise. Thus the burden of proof was on the [NAME] to establish the absence of coercive intent in relation to ss 343 and 348. 23 Questions arise in this proceeding as to who it is that bears the onus of proof and whether the presumption in s 361(1) of the [NAME] has application and if so to which elements or ingredients of the causes of action under ss 348 and 355 of the [NAME]. Whether that provision was here engaged because the pre-conditions to its engagement were satisfied is also at issue, as is a question as to whether s 361(1) has any application to conduct constituted by a threat. 24 Both ss 348 and 355 are made up of a number of elements or ingredients that need to be proved, these include both "state of mind" elements and [NAME] elements which I will call "objective elements". In considering questions about onus of proof the starting point is that, ordinarily, the applicant bears the onus of proof for each and every element of a contravention. However, as I will explain, if s 361(1) applies and is engaged, then the onus of proof in relation to the "state of mind elements" in ss 348 and 355 is altered and it falls upon the respondent to rebut the presumption applied by s 361(1). In order to address these questions, I will first address the applicability of s 361(1) to each of the elements that make up ss 348 and 355 relevant to this proceeding. I will then separately discuss the question of the engagement of s 361(1) and its applicability to conduct constituted by a threat.

Elements of ss 348 and 355

That "action" was threatened 25 Each of ss 348 and 355 requires that it be proved that "action" was organised, taken or threatened. Relevant to this proceeding is the prohibition that [NAME] must not "threaten to…take, any action against [NAME]". An issue arises as to what constitutes a threat of a kind capable of engaging ss 348 or 355 of the [NAME]. The phrase "threatening to take action" appears in s 342(2) of the [NAME] as part of the meaning of "adverse action". In [NAME] v [NAME] [2017] FCA 528 at [53]-[54], I surveyed the authorities on the meaning of that phrase. There is no reason, in my view, as to why the phrase "threaten to…take…action" in ss 348 and 355 should bear a different meaning. At [54] of [NAME] I said this: [54] A number of principles may be drawn from the authorities I have just outlined. First, 'threatening to take action' must involve the communication of a threat directed at an ascertainable person which is received or is likely to be received by that person. That a [NAME] outcome is threatened by existing or prospective circumstances is not a threat of the requisite kind. Second, to threaten means to communicate an intent to inflict harm or, in [NAME] words, a warning of an intention to inflict harm. Third, the essence of a threat is that it is made for the purpose of intimidating [NAME].

Accordingly, 'threatening to take action' must involve an expression of an intimidatory purpose. Fourth, it is not necessary that a subjective intent to carry out the threat be established. Fifth, the notion of a threat is not confined to an intent to inflict harm which was unlawful or unjustified. Sixth, the presence of malice or some [NAME] injurious motive is not a prerequisite. Lastly, a threat to take action may be conditional (in the sense that X will occur if Y does not). 26 Whether or not what was done constitutes a threat is to be determined objectively: [NAME] Commissioner v [NAME] (No 2) [2018] FCA 1611 at [149] ([APPELLANT[NAME]). This is an element that must be proved by the applicant and to which s 361(1) has no application.

Use of unlawful, illegitimate or unconscionable conduct 27 Both ss 348 and 355 prohibit [NAME] from taking or threatening to take action against [NAME] with "intent to coerce" that [NAME]. Relevant principles as to the meaning of the phrase "intent to coerce" find their source in the legal meaning of the common law concepts of coercion and duress and are now "settled": [NAME] v [NAME] (2013) 218 FCR 172 at [70], [72] ([NAME] [NAME]). The expression "intent to coerce" has been held to comprise two discrete elements. First, a state of mind element, being, the negation of choice (which I will discuss in more detail below), and second an objective element – the use of unlawful, illegitimate or unconscionable conduct. This distinction was helpfully summarised by [NAME], [NAME] [NAME] in relation to s 355 and s 343(1) (which also deals with coercive conduct), in [NAME] Commissioner v [NAME] (2018) 261 FCR 347 at [25]: [25] It is well-established that the expression 'intent to coerce' in ss 343 and 355 carries within it a requirement to establish two discrete elements: the negation of choice; and the use of unlawful, illegitimate or unconscionable conduct to do so (see [COMPANY] v [NAME] (2016) 245 FCR 39 at [174] ([NAME], with whom Siopis J agreed at [1])). We interpose that this conclusion and the line of authorities relied upon to reach it do not appear to have been affected by the recent High Court judgment on appeal from that judgment (see [COMPANY] v [NAME] (2017) 92 ALJR 106; 350 ALR 404 at [61] ([NAME], [NAME] and [NAME] [NAME])). 28 In relation to the objective element, the use of unlawful, illegitimate or unconscionable conduct, [NAME], [NAME] and [NAME] said the following in [NAME] v [NAME] Commissioner [2018] FCAFC 191 at [157]-[159] (citations omitted): [157] The notion of unconscionability, as imposing a standard of right behaviour formed around conscience, will take its content from the values and expected conduct in an industrial setting. It is a word best understood in its practical application to real life settings where there can be an articulation and expression of why, in an employment and industrial context, the pressure sought to be exerted should be ascribed such a description of departing from right behaviour. [158] Although illegitimacy can be seen to be a similar conception to unconscionability as a word connoting a degree of right behaviour, illegitimacy has emerged (rightly or wrongly) as its own separate category of behaviour … [159] The notion of proportionality has been said to inform the concept of illegitimacy, in an assessment whether there is a reasonable or justifiable connection between the nature of the demand made and the nature of the pressure exerted. 29 This element is concerned with the nature of the "action" threatened, organised or taken and operates to require that that action be shown to have been unlawful, illegitimate or unconscionable. As I said in [NAME] at [63]-[68] and also in [NAME] Commissioner v [NAME] ([ADDRESS]) (2018) 260 FCR 564 at [100]-[103], this is an objective factor that must be proved by the applicant. Section 361(1) therefore has no application to this element. 30 Although not an issue put in contest, it is worth noting that in [NAME] at [62]-[63], [NAME] [NAME], [NAME], [NAME] and [NAME] [NAME] ([NAME[NAME] agreeing at [65]) left open whether this requirement also includes a subjective or state of mind consideration, namely, whether the respondent "had a subjective understanding of the factual circumstances that, viewed objectively, would be seen as rendering the ['action'] unlawful, illegitimate or unconscionable". Relevantly to the scope of s 361(1), an issue to which I will return, their [NAME] noted that if that subjective understanding was necessary to be proved, s 361(1) would have application.

The actual existence of the circumstance said to be the subject of the coercive "action" organised, taken or threatened 31 A further objective element that an applicant must prove and to which s 361(1) has no application, is the factual existence of the circumstance said to be the subject of the coercive "action" organised, taken or threatened: [NAME] at [15]-[16]. It is far from clear, however, what the relevant circumstance or circumstances that need to be proved are. I discussed that issue at [69]-[81] of [NAME]. Without reaching a concluded view, I there observed that it may be necessary for an applicant to prove the factual existence, at the time that the coercive "action" was taken, of the choice or capacity which is sought to be protected by the provision in question. In the case of s 348 that choice or capacity is the ability to engage or not engage in the [NAME] "industrial activity" which the applicant relies on. In the case of s 355 it will be one or more of the capacities enumerated at paras (a)-(d) of that provision. That is not a matter I need to consider further. Save for one reservation, it was not in contest that at the time the action here alleged was taken, the protected choices – relevantly, [NAME]'s capacity to engage in the "industrial activity" alleged (s 348) or its capacity to allocate or not allocate [NAME] duties or responsibilities to [NAME] (s 355), existed. In so far as, in relation to s 348, [NAME] relied upon the "industrial activity" specified by s 347(b)(iv) of complying with a "lawful request", the [NAME] and the CEPU relied upon the reservation expressed in my judgment in the [ADDRESS] at [82]-[85] to formally reserve their [NAME]. The same reservation was made by the [NAME] in relation to [NAME] reliance upon s 347(e). I note, however, that that provision was not the subject of the view I expressed in the [ADDRESS] that a "request" within the meaning of s 347(b)(iv) is to be construed as limited to a request made to associate with or participate in the activities of the industrial association that made the request.

State of mind elements 32 The state of mind elements of ss 348, 355 (and s 343) arise from the fact that a contravention of those provisions depends upon action being taken, organised or threatened with a [NAME] state of mind. As [NAME], [NAME] and [NAME] [NAME] said in [COMPANY] v [NAME] of Employees [2019] FCAFC 215 at [75]: one of the evident purposes of a section like s 361(1) as described by [NAME[NAME] in [NAME] is to place the onus of proving a mental state on the person best able to prove it, being the person whose mental state is in issue. It would be odd if the applicant bore the onus of proving part of the decision-maker's mental state. 33 There are two components to the state of mind elements required to be proved under ss 348 and 355 (and s 343). The first goes to the respondent's intent and the second to the respondent's reason. Section 361(1) is applicable to each. In [NAME] v [COMPANY] (No 2) [2013] FCA 446 at [230] and in relation to s 343, which is relevantly in the same form, I said this: Section 343(1) is a provision which, in the words of s 361, depends upon action taken 'for a [NAME] reason or with a [NAME] intent'. The intent which s 343(1) deals with has two aspects. The first aspect is addressing the nature or character of the intent. The [NAME] intent required is an intent to coerce. The second aspect of the requisite intent is addressing the purpose or reason of the action taken. The purpose or reason for the taking of the action must be to have the [NAME] (or third person) do or not do one of those things specified by paragraphs (a) and (b) of s 343(1). The first aspect may be characterised as a '[NAME] intent' and the second as a '[NAME] reason' within the meaning of those terms in s 361(1). 34 On appeal, that approach to s 361(1) was left undisturbed with apparent approval: [NAME] v [NAME] at [82] ([NAME] [NAME]). In [NAME] (at [24]) [NAME], [NAME] [NAME] expressly endorsed the reasoning in [NAME]. 35 Accordingly, to establish a contravention, both the requisite nature of the intent (an intent to negate choice) (as discussed above at [27] and see [NAME] at [25]-[27]) and that a reason or purpose of the action taken, organised or threatened was the engagement in "industrial activity" (for s 348) or, the engagement in the [NAME] conduct specified by paras (a)-(d) of s 355 (for s 355), must be proved. As stated, s 361(1) is applicable.

Engaging s 361(1) 36 In order to engage s 361(1), there are two pre-conditions that need to be met. 37 First, as is stated by s 361(1)(a) itself, to engage the benefit of s 361, an applicant must make the allegation that "[NAME] took, or is taking action for a [NAME] reason or with a [NAME] intent": [NAME] v [COMPANY] (2017) 256 FCR 306 at [147] ([NAME] with whom [NAME] agreed at [167]); [COMPANY] at [65] ([NAME] and [NAME] [NAME]). In [NAME] (at [14]) the [ADDRESS] emphasised that the allegation "must precisely and distinctly identify the alleged reason or the alleged intent, for contravening conduct". As discussed at [35], a contravention of ss 348 and 355 requires the respondent to have both a "[NAME] intent" (an intent to negate choice) and a [NAME] reason (for s 348, engagement in one or more of the industrial activities defined in s 347 and, for s 355, one or more of the matters addressed by paras (a)-(d) thereof). Both the [NAME] intent and the [NAME] reason will need to be precisely and distinctly conveyed in the allegation made: [NAME] [40]. In identifying the "[NAME] intent" an applicant must, by the allegation made, "convey the relevant [NAME] intent required for a contravention of [ss 348 or 355], namely an intent to negate choice": [NAME] at [41]. To merely allege an "intent to coerce" may not suffice, a matter further discussed at [169] below. 38 Second, the evidence must be consistent with the hypothesis that the respondent was actuated to take the impugned action by the reason or intent alleged. I discussed the relevant authorities on that issue in [NAME] at [155]-[157] ([NAME[NAME] agreeing) and see [COMPANY] at [67]-[74] ([NAME] and [NAME] [NAME]). As [NAME] and [NAME] [NAME] sought to emphasise by reference to the discussion in [NAME], it is not necessary for the applicant to establish a prima facie connection between the alleged action and the impugned reason or intent but only that the connection is not so remote as to be fanciful. 39 A second pre-condition to the engagement of s 361(1) was referred to in [NAME] at [15] and at [19] where the [ADDRESS] said: an applicant wishing to take advantage of the presumption in s 361, in addition to making the allegation in a form that meets the requirements of s 361(1)(a), must provide sufficient information about the action, and the related reason or intent (or both) for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of Pt 3-1 of the FWA. 40 In my respectful view, that observation is not intended to raise a third precondition but should be understood consistently with the second pre-condition to the engagement of s 361(1) articulated in [NAME] and [COMPANY] and the authorities there discussed.

When the rebuttal of the presumption falls to be determined 41 Lastly, as was mentioned in [NAME] at [18] by reference to observations made by the [ADDRESS] in [NAME] v [NAME] ([COMPANY]) [COMPANY] (2015) 238 FCR 273 at [27]-[28], whether the presumption in s 361(1) has been displaced falls to be determined at the end of the trial and its answer would depend on "the assessment of all of the facts by the trier of fact, including, most importantly in the conventional case, his or her assessment of the evidence given by the decision-maker acting on behalf of the [respondent]".

Can s 361(1) apply to a threat? 42 An issue arises as to whether the reference in s 361(1) to the need to allege that "[NAME] took, or is taking, action" extends to an allegation that action is or was threatened. The respondents assert that a threat is not "action" within the meaning of that term in s 361(1) and that therefore s 361 can have no application where the making of a threat is the conduct alleged against the respondent. 43 There is authority for the proposition that s 361(1) does not apply in relation to an alleged contravention of s 355 where the alleged conduct is a threat: Director of [NAME] [NAME] v [NAME] ([NAME]) [2015] FCA 1125 at [111] ([NAME[NAME]). In [NAME] and for the same reasons, [NAME[NAME] also determined that s 361(1) does not apply in relation to an alleged contravention of s 355 of the [NAME] where the alleged conduct was the organising of action taken by others (at [114]). [NAME] said that s 361(1) applies "only to the mental element involved in taking action. In terms, it does not apply to a threat to take action" (at [111]). 44 If that reasoning in relation to s 355 is correct, it would also apply to the [NAME] provision here in question, s 348 of the [NAME]. [NAME] has been followed by a number of authorities to which I will shortly refer. There are [NAME] authorities which are inconsistent with the reasoning in [NAME]. 45 In my view, an allegation that [NAME] made a threat or organised action is an allegation that "[NAME] took, or is taking, action" within the meaning of that phrase in s 361(1). 46 First, on the natural meaning of the word "action" it means the "process or condition of acting or doing": Shorter Oxford English Dictionary (6th ed, Oxford University Press, 2007) Vol 1 p 22. "Action" is a word of broad application and as [NAME] said in Director of the [NAME] v [NAME] [2015] FCA 1293 at [102] "[t]he word 'action' is used in s 361(1) without qualification". Its intended broad application is confirmed by the definition of "action" in s 12 of the [NAME] as including "an omission". The term plainly extends to the act of making a threat or the act of organising someone else to do or not to do an act. To threaten or to organise is to do an act and engage in an "action" and to make an allegation that [NAME] has made a threat or has organised others, is to allege that "[NAME] took, or is taking action". 47 Second, s 361(1) serves a beneficial purpose and ought not be narrowly construed. Third, if resort is to be had to the context and purpose of s 361, as [NAME[NAME] explained in [NAME]-[COMPANY] v [NAME] (1976) 51 ALJR 235 at 241, the "plain purpose" for a reverse onus provision such as s 361 is that a respondent's reason for engaging in the impugned conduct "lies peculiarly within his [or her] own knowledge": see further [NAME] at [148], ([NAME]) and [COMPANY] at [69]-[70] and [75] ([NAME] and [NAME] [NAME]). Bearing in mind its purpose, there is no discernible reason why s 361(1) should be regarded as not intended to have application to the state of mind elements required to be proved where action is organised or threatened. Further, the Explanatory Memorandum to the [NAME] 2008 (Cth) at [1459]-[1461] supports the proposition that the term "action" includes threatened action. So much is expressly referred to at [1461] and the content of [1459] makes good the proposition that, when the word "conduct" used in the legislative predecessor to s 361 (s 809 of the Workplace Relations Act 1996 (Cth)) was replaced with the word "action", there was no intention to narrow the scope of the provision: see further Director of the [NAME] at [103] ([NAME[NAME]). 48 The reasoning in [NAME] purports to construe the plain words of s 361(1) not by reference to s 361(1) itself, but through the prism of s 355 and the phrase "[a] person must not organise or take, or threaten to organise or take, any action". That provision, like others to which s 361(1) has application, can provide context but the focus of the constructional exercise must be the words of s 361(1). In any event, each of the words "organise", "take" and "threaten" used in s 355 are verbs which, like all verbs, are words which are used to describe an action. The phrase "any action" is used in s 355 to clarify the broad nature of the prohibition. It is not being used to deny that to "threaten" or to "organise" is a form of action. 49 There are a number of authorities which support the view I prefer: I have already mentioned the judgment of [NAME] in Director of the [NAME] [NAME] at [101]-[104]. Although the issue was not there in contest, [NAME] is an example of a case where s 361 was applied in relation to an allegation of threatened action (see at [229]). As outlined above at [34], the approach I took in [NAME] was endorsed in [NAME] in a passage which expressly referred to s 361(1) having application in relation to "action…threatened to be taken". Section 361(1) has also been applied to threatened action in Director of the [NAME] [NAME] v [NAME] [2015] FCA 225 at [264]-[265] ([NAME[NAME]); Director of the [NAME] [NAME] v [NAME] (No 2) [2015] FCA 199 at [100] ([NAME]). 50 Furthermore, and with respect to Jessup J, [NAME]'s approach in [NAME] is at odds with the approach that [NAME] took in [COMPANY] v [NAME] [2015] FCA 758 at [167] where, in relation to the organising of (and not the taking of) industrial action, [NAME[NAME] held that s 361 applied. On appeal [COMPANY] v [NAME] (2016) 245 FCR 39 ("[NAME]") [NAME] (with whom Siopis J agreed) also held (at [172]-[173]) that s 361(1) applied. That approach was not disturbed in the High Court when the operation of s 361(1) was addressed in the passage set out at [22] above. The reference I have made to [NAME] in the last sentence of [30] above, also supports the view that s 361 has application to all of the possible state of mind elements in ss 348, 343 and 355. 51 Having said all that, I appreciate that [NAME] has been followed by a number of authorities, although not necessarily in circumstances where the approach there taken was in contest: [NAME] Commissioner v [NAME] ([NAME]) [2017] FCA 1398 at [70]; [NAME] Commissioner v [NAME] (No 3) [2018] FCA 43 at [128]; [NAME] Commissioner v Parker [2017] FCA 564 at [105]-[106]. In [NAME] Commissioner v [NAME] (The Gorgon Project Case) [2017] FCA 847 at [119], [NAME[NAME] did not regard the reasoning in [NAME] as "plainly wrong"; [NAME] applied this reasoning in [NAME] [2018] FCA 1611 at [137]-[147] with which [NAME] agreed in [NAME] Commissioner v [NAME] (No 2) [2019] FCA 1014 at [175]. In [NAME] v [COMPANY] (No 2) [2017] FCA 1046 (at [364]) [NAME[NAME] expressed reservation about the correctness of [NAME] but followed it in circumstances where its correctness was not there challenged. 52 There is, in my view, a conflict in the authorities on this issue. For the reasons stated, the better view is that s 361(1) can have application to an allegation that [NAME] has organised or has threatened action. I will proceed on that basis.

Standard of proof 53 The respondents emphasised the gravity of the allegations made against them by [NAME]. They characterised the allegations as allegations of unlawful conduct deliberately taken and involving intentional impropriety. They relied upon s 140(2)(c) of the Evidence Act 1995 (Cth) as embodying the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 and contended that the allegations made by [NAME] cannot be proved on the strength of "inexact proofs, indefinite testimony or indirect inferences": [NAME] at 362 ([NAME[NAME]). 54 I accept that any contravention of the [NAME] must be "clearly established": [NAME] v Director of the [NAME] [NAME] (2016) 242 FCR 46 at [45] ([NAME], [NAME] and [NAME]). Nor is a finding of contravention to be lightly made: [NAME] Commissioner v [NAME] [2017] FCA 274 at [20] ([NAME]). In [NAME], the [ADDRESS] referred to the applicable standard as "the Briginshaw standard" (at [100]). However it must always be appreciated, as [NAME[NAME] helpfully observed in [NAME] v [NAME] [2017] FCA 1363 at [20], that: The standard of proof is on the balance of probabilities. Section 140(2)(c) does not alter the standard of proof in a civil matter. It speaks to the process of reasoning by which a finder of fact may be satisfied that the evidence reaches or does not reach the standard. In that process, due recognition must be given to the fact that some events are inherently more or less likely than others. 55 I have adopted that process of reasoning in carrying out the fact finding task required in relation to each of the statutory [NAME] made by [NAME]. Furthermore many of the facts sought to be established by [NAME] rely on the Court drawing inferences from the evidence. In the approach to inferential fact-finding which I am bound to take, I will need to be satisfied that the circumstances appearing in the evidence give rise to reasonable and definite inferences and not merely to conflicting inferences of equal degrees of probability: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v [NAME] Commission (2007) 162 FCR 466 at [38] ([NAME], [NAME] and [NAME]) citing [NAME] (a bankrupt) v [NAME] (2006) 227 CLR 278 at [34] ([NAME] [NAME], [NAME] and [NAME] [NAME]).

Admitted Allegations 56 I will shortly refer to the pleadings and, in [NAME], to allegations made by [NAME] that were admitted in the Amended Defence of the [NAME] but not admitted by [RESPONDENT] or the CEPU. 57 It is not in contest that [RESPONDENT] is, as against the [NAME], entitled to rely upon the allegations admitted by those parties. The admitted allegations concern factual matters and the effect of the admissions is to put the facts alleged out of dispute. A court is not bound to act on admissions ([NAME] Commission v [COMPANY] (2007) 160 FCR 321 at [42] and [49], [NAME]), but in the absence of any contention to the contrary, I intend to treat the factual allegations admitted by the [NAME] as binding and as establishing against them the existence of those facts. 58 However, it is necessary to observe that the allegations admitted by the [NAME] are not received as evidence. Particularly where, as here, pleadings are not required to be directly verified by the party on whose behalf they are made, admitted allegations are not to be treated as though they are evidentiary admissions made by the party making a pleadings admission: [NAME] v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 86 ([NAME] and [NAME]). That the allegations admitted by the [NAME] through their pleadings should be treated as evidentiary admissions was the premise upon which [NAME] contended that, in the context of the conduct of "several trials that have been joined", the admissions made by the [NAME] can also be relied upon by [NAME] as against [RESPONDENT] and the CEPU. That submission must be rejected. 59 That contention is rejected because, first as already stated, pleadings admissions are not evidentiary admissions even against the party whose pleadings contain the admission. Second and by analogy, in the absence of consent, even evidentiary admissions are not admissible as against a party to the proceeding where the admission is made by evidence adduced by [NAME] party: s 83 of the Evidence Act. Third, [NAME] reliance on the conduct of a joint trial is misplaced A joint trial involving multiple respondents is not one trial but several trials in which, putting aside exceptions not presently relevant, admissions made in the trial of one respondent are not admissible as evidence in the trial of [NAME]. For an example of the application of that principle see R v Cornelissen [2004] NSWCCA 449 at [110]-[115] ([NAME], with whom [NAME] and [NAME] agreed).

The Pleadings and the Admitted Allegations 60 Before referring to the evidence, it is both necessary and convenient to set out the critical conversation between [RESPONDENT] and [NAME] on 5 February 2016 as pleaded in [RESPONDENT] of Claim ("[NAME]") and as dealt with in the Amended Defence of the [NAME]. [RESPONDENT] pleaded that:

41. On 5 February 2016, [RESPONDENT] spoke to [NAME] by telephone. During the conversation, [RESPONDENT] told [NAME] that: a. [RESPONDENT] had in his possession leaked [NAME] documents about '[NAME]' ([NAME] documents); b. He was opposed to [NAME]' s implementation of '[NAME]'; and c. He could not work with [[NAME]] any more. 41A. By telling [NAME] that he could not work with [[NAME]] any more, [RESPONDENT] was in effect demanding that [[RESPONDENT]] be removed from his role as National [NAME] Manager. 41B When [NAME] was told by [RESPONDENT] that he ([RESPONDENT]) could not work with [[RESPONDENT]] any more, [RESPONDENT] understood that this was in effect a demand by [RESPONDENT] that [[NAME]] be removed from his role as National [NAME] Manager.

42. During the conversation, [RESPONDENT] also said that he would: a. leak the [NAME] documents to the [NAME] and [NAME]; b. arrange protest rallies about '[NAME]'; c. take [[NAME]] to the cleaners; d. take serious industrial action; and e. take legal action. unless [NAME]: i. cancelled [NAME]; and ii. removed [[NAME]] from his [NAME] as National [NAME] Manager. 43. [NAME] agreed with [RESPONDENT] that [NAME] would: a. cancel '[NAME]'; and b. remove [[NAME]] from his [NAME] as National [NAME] Manager. Particulars The agreement was made orally on 5 February 2016 during a telephone conversation between [RESPONDENT] and [NAME]. 61 The [NAME] jointly filed an Amended Defence. They admitted para 41 of the [NAME] subject to disputing that [RESPONDENT] described the slides in his possession as "leaked". Importantly, the [NAME] admit that [RESPONDENT] told [NAME] that he could not work with [RESPONDENT] anymore. However, in answer to para 41A of the [NAME], [NAME] and [NAME] deny that by saying that he could not work with [NAME], [RESPONDENT] was in effect demanding that [RESPONDENT] be removed from his role as National [NAME] Manager. They also deny para 41B of the [NAME] that, from the statement made by [RESPONDENT] that he could not work with [RESPONDENT] understood that the demand was made. They say that the alleged demand was not made either expressly or impliedly. 62 The alleged threatened actions are the subject of para 42 of the [NAME]. The [NAME] admit the content of the statements alleged by [NAME] to constitute the "threats", but say that those words were not said in the context of [RESPONDENT] asking, requesting or requiring of [RESPONDENT] that [RESPONDENT] be removed from his [NAME] as National [NAME] Manager. In so far as they admit that the threats were conditional upon [NAME] taking any action, the [NAME] only admit that they were conditional upon [NAME] cancelling [NAME]. 63 The [NAME] denied the allegations in para 43 of the [NAME] that [NAME] agreed with [RESPONDENT] that [NAME] would cancel [NAME] and remove [RESPONDENT] from his [NAME] as National [NAME] Manager. 64 Further in pleading [NAME] reason for removing [NAME] from his [NAME] as National [NAME] Manager, the [NAME] say that during the course of the phone call on 5 February 2016, [RESPONDENT] said to [NAME] words to the effect that "[[RESPONDENT]] had a personal zealotry to hurt injured workers the subject of [NAME] and that [[RESPONDENT]] was angry with [[RESPONDENT]]" and "that [[RESPONDENT]] was the cause of problems that [[RESPONDENT]] perceived with [[NAME]'s] [NAME] function". The pleadings of the [NAME] also state that during the phone call, [RESPONDENT] expressed anger and volatility, including specifically towards [NAME].

The Facts 65 The only [NAME] evidence of the conversation on 5 February 2016 between [NAME] and [RESPONDENT] was given by [NAME]. [RESPONDENT] was not called. At the time that he gave his evidence, [NAME] was no longer employed by [NAME] and was working as the [NAME] of a [COMPANY]. 66 [NAME] first commenced employment with [NAME] in February 2010 in the role of [NAME]. That was the role he held at the time of the conversation with [RESPONDENT]. Before dealing with the conversation itself, there are some background matters that [NAME] and others gave evidence about which provide a relevant context. 67 [NAME] utilised over 50,000 [NAME] and indirect employees. It had, at the time, a 4 level management structure with about 10 people on an executive committee and a second layer of 30-40 managers at a [NAME] level. [NAME] was at that level. There was a third level, the "senior leadership team" of about 200 managers, followed by a fourth level of some 1,000 managers. [NAME] was at that fourth level. [NAME] had regular contact with [NAME], he had no prior contact with or knowledge of [NAME] before 5 February 2016. 68 [NAME] deposed that in late 2013/early 2014, [NAME] began to develop a [NAME] ("[NAME] [NAME]") designed to save thousands of jobs and [NAME]'s business from looming significant financial loss. The [NAME] [NAME] was designed to transform [NAME] from being a letter delivery company to a parcel delivery company. It was described by [NAME] as the largest reform in [NAME]'s history. The [NAME] approved the [NAME] [NAME] in late 2015 and the implementation of those reforms began in January 2016. 69 Of the 30,000 or so employees directly employed by [NAME], [NAME] deposed of his understanding that around 22,000 were members of the CEPU. The primary contact with the CEPU was through its National Secretary but contact on State-based issues occurred with [NAME] officials. In relation to New South Wales, where the largest number of employees of [NAME] resided, the contact for him and [NAME] was largely with [RESPONDENT]. 70 [NAME] described his understanding of [RESPONDENT] as someone who had a very [NAME] history in the CEPU. He said that what struck him most about [RESPONDENT] when he met him was that he almost had an obsession with the everyday employee, those at the bottom of the income pile, for whom he felt a special connection. [NAME] considered that he had very professional dealings throughout most of the time he interacted with [RESPONDENT] until the [NAME] [NAME] began, when [RESPONDENT] seemed concerned about how management was going about the path of reform. He described [RESPONDENT] as "cynical". 71 [RESPONDENT] also felt that something happened in 2015 to [RESPONDENT] which changed the nature of his interaction with [NAME]. A number of communications were made by [RESPONDENT] on "regular issues" in which [RESPONDENT] seemed quite antagonistic and quite agitated. In about mid-2015, [NAME] was notified by the National Secretary of the CEPU that he would no longer deal with [RESPONDENT] who was taking a leave of absence and [RESPONDENT] "disappeared" for the second half of 2015. [RESPONDENT] understanding of that absence was described by him as "a medical absence" which he later suggested was mental [NAME] related. 72 [NAME] deposed that in late January 2016 he was conscious that pretty serious accusations were being made by [RESPONDENT] about [NAME] failing in its [NAME]. He was conscious of various communications forwarded by [RESPONDENT] on the issue. [RESPONDENT] became particularly involved in the case of Ms [RESPONDENT] [NAME] ("[NAME]"), which he viewed as a "primary case study to what [was] occurring within the [[NAME]] [NAME] department in how [NAME] are being managed". 73 From 22 January 2016 to 3 February 2016 email correspondence ensued between [RESPONDENT] and senior executives at [NAME], including [RESPONDENT], in relation to alleged defects in [NAME]'s [NAME] system, and concerns relating to [RESPONDENT] case. In that correspondence [RESPONDENT] repeated an intention to publicly expose [NAME] "in Canberra" in relation to those concerns and also the CEPU's intention to commence legal proceedings. 74 It is in the context of this communication that [NAME] emailed [NAME] on 3 February 2016 at 9.16am requesting that she get together with [COUNSEL], [NAME] Counsel and [NAME] Manager, Assurance ([COMPANY]) ("[NAME]"), [NAME], Chief [NAME] ("[NAME]"), [NAME], [NAME] and [NAME] Manager, Government Affairs ("[NAME]"), [NAME] and [NAME] [NAME], Group Executive, [COMPANY] and "lay out the allegations" made by [RESPONDENT] and propose a "very quick review". 75 The communication emphasised the urgency of the matter, requiring the review to "begin on Friday (very important that it is documented as beginning this Friday)". It stated that the questions "we need answered in the next 4 weeks" include the allegations made about [NAME] and payments, the current process for handling [NAME] and any improvements that can be made, whether there is any basis in the [NAME] case and also the best process "to handle Union escalation and deal with issues…distracting the whole Organisation". This "quick review" became what I will refer to as the "[NAME]". 76 Although chronologically out of order, it is desirable to here set out the conduct and findings of the [NAME]. 77 The [NAME] was carried out by [NAME], who chaired the committee and had management accountability for the performance of the Review, [NAME], Senior Manager, Internal Audit, [NAME], an external audit firm, and [NAME] ("[NAME]"), [NAME] of the Australian Council of [NAME] ("[NAME]"), who was engaged as an independent reviewer. 78 The review was to investigate two matters: first, the conduct of [NAME] [NAME] case, and second, to consider the management activities of [NAME]. The review involved conducting interviews with ten [NAME] personnel, including [RESPONDENT] and [RESPONDENT], interviews with [NAME] and [RESPONDENT], and the review of over 100 documents and over 200 emails. The final report was released on 20 April 2016 and was provided to a broader group of people, including [NAME], [RESPONDENT], [NAME] and [NAME]. 79 The report found that the management of her claim resulted in a "poor experience" for [NAME] and that she had experienced delays and errors, some of which resulted in "technical non-compliance with procedural requirements under the [[NAME], [NAME] 1988 (Cth)]", however none of which constituted a breach of that Act. The review found that all payments had been made to [NAME] and her sick and annual leave balances were correct and that there had in fact been a minor overpayment. 80 The report noted that the manner in which concerns had been raised by the CEPU "has often not been conducive to their resolution", and that the "volume, tone, timing and escalation of communications, along with demands for sometimes unreasonable timeframes for responses and regular threats of external action has hindered the ability for the claim to be effectively managed". The report further stated that this had also resulted in "significant negative personal impacts" to some [NAME] staff. 81 Returning to events of 3 February 2016, [NAME] agreed that he called for the [NAME], in part, because [RESPONDENT] was "ratcheting up his concerns" by raising his allegations with [NAME] union officials. [NAME] said that he was concerned about the escalation of the issue and, in circumstances where [NAME] was seeking to implement the [NAME] [NAME], the issue represented a "significant distraction". [NAME] considered that [NAME] may learn something from studying [NAME] case to see if there were any wider implications. 82 [NAME] decision to have a review of [NAME] practices occurred in the context that [NAME] was aware that, before he joined [NAME] and in 2009, [NAME]'s [NAME] [NAME] and [NAME] system was the subject of a Parliamentary review by the [NAME]. He described his understanding that that review had been preceded by a one-year campaign (presumably by the CEPU) which had made [NAME] about failures in the way [NAME] managed [NAME]. He said that [NAME] had agreed "to a bunch of undertakings" in relation to the Parliamentary review. In that context and in January 2016, when allegations made by [RESPONDENT] of failures in [NAME]'s [NAME] were being received, [NAME] deposed that he and [NAME] were "concerned deeply" because [NAME] had just received approval from the [NAME] for the [NAME] [NAME]. [NAME] said this: And, of course, in the back of my mind, I was deeply concerned about that, so what then I tried to do, without making this thing bigger than [NAME], rather than boiling the ocean, as such – what I suggested to [[NAME]] is this [NAME] [NAME] case seems to be becoming much bigger than what it really seems, but maybe we can learn something from that case by studying it to see if there's any wider implications. So we had developed, over time, this terms of reference to have a [NAME], sharp review so that when I did face the [NAME], I was in a [NAME] to be able to respond to the allegations if they were the case. 83 Earlier in his evidence, [NAME] deposed that he had anticipated that the allegations that were being made by [RESPONDENT] might find their way into the [NAME] program and that he had suggested that [NAME] had three or four weeks to prepare an answer to the allegations that he contemplated may be raised. That was a motivation for conducting the [NAME] and appears to have been the motivation for [NAME] requiring, in his 3 February 2016 email, that the review be conducted urgently with answers "in the next four weeks". 84 At 9.29am on 4 February 2016 [RESPONDENT] sent a further email to [RESPONDENT], this time copying in [RESPONDENT], in relation to [RESPONDENT] case. In that email [RESPONDENT] stated that he intended to present [RESPONDENT] and [NAME] sick and injured [NAME] workers as examples of how [NAME] treats its sick and injured workers and manages their [NAME], when in Canberra on the following Monday and Tuesday. 85 Later, on 4 February 2016, [RESPONDENT] attended a meeting of the [NAME] [NAME] via phone link from Sydney. [NAME] and [RESPONDENT] were in attendance. It was at this meeting that [RESPONDENT] informed [NAME] that he was in possession of [NAME] documents. [RESPONDENT] deposed that he told [RESPONDENT] that he was happy to coordinate [NAME] meeting to discuss [NAME] to which [RESPONDENT] laughed down the phone. [RESPONDENT] deposed that [RESPONDENT]'s comments caused a "flurry of activity" and a "sense of panic" at [NAME]. 86 At 9.03am on 5 February 2016, [RESPONDENT] sent an email to [RESPONDENT] detailing how [NAME] was taking proactive steps to address the complaints that he had been making regarding [RESPONDENT], and noting that [RESPONDENT]'s complaints about [RESPONDENT] and the [NAME] system generally were being taken seriously. In response to the email, at 10.48am [RESPONDENT] emailed [NAME] (copied to [RESPONDENT]) stating that [NAME] management and himself were "embroiled in a bitter brawl" over [NAME]'s [NAME] management systems. He concluded the lengthy email by stating that "[NAME]" had been leaked to him, and that [NAME] had confirmed to him that it existed, and further "this is all I needed to know to what is occurring with the present [[NAME]] strategy and attack on sick and injured workers by [[NAME]]." [RESPONDENT] concluded the email with a threat of exposing [NAME]. [NAME] deposed that he hadn't read this email. 87 At 11.54am on 5 February 2016 [NAME] sent [RESPONDENT] a letter attaching an explanation about the [NAME] and its Terms of Reference. 88 At 12.32pm, less than an hour after [RESPONDENT] sent his letter to [RESPONDENT] emailed [NAME]. He expressed his disappointment that the proposed [NAME] was only an internal review, during which "life goes on as normal". He then added the following line: In addition - [NAME] '[NAME]'! Got to be kidding me. 89 The email was signed off by [RESPONDENT] with: "Return to Sender". 90 [RESPONDENT] deposed that he read that email sometime between 12.32 and 2.17pm on the day it was sent. When he read it, he did not know who [NAME] was. Nor did he know what "[NAME]" was. He said that, at that time, he had never heard of "[NAME]". 91 At 2:17pm on 5 February 2016 [RESPONDENT] forwarded the email he had received from [RESPONDENT] to [NAME] asking her "Who is [RESPONDENT] and what is [NAME]?" 92 Later that afternoon, and before [NAME] had responded to [NAME], [RESPONDENT] and [NAME] spoke by phone. The call took place at some time between 2.17pm and 5pm. 93 Before recounting the evidence of the critical conversation between [NAME] and [RESPONDENT] on 5 February 2016, it is convenient that I express my reservations about the reliability of the evidence given by [NAME]. In [NAME], those concerns attend the evidence [NAME] gave about that critical conversation as well as the conversation [NAME] later had with [NAME] and the evidence given by [NAME] as to what motivated the actions he took on 5 February 2016, including his decision to remove [NAME] from his [NAME]. 94 In assessing the reliability of the evidence given, including that of [NAME], I have had regard to the following considerations conveniently collected by [NAME[NAME] in [NAME] v [COMPANY] (No 7) [2019] FCA 496 at [307]-[309]: [307] Witness demeanour is one consideration which may assist a judge to resolve conflicting evidence. Sometimes the demeanour of a witness while giving evidence about contentious issues may provide insight into whether the evidence given by the witness is either honest and reliable, or dishonest or unreliable. Signs that may indicate dishonesty or unreliability include evasiveness, nervousness, an apparent unwillingness on the part of the witness to make appropriate or obvious concessions and even, in some circumstances, overconfidence. [308] Even where a witness displays such traits when giving evidence, however, some caution must generally be exercised. That is because a witness may, for example, appear nervous or evasive for reasons that have nothing whatsoever to do with the honesty or reliability of their evidence. [NAME] witnesses may be able to give evidence in an appropriately confident and [NAME] manner and yet their evidence may be found to have been unreliable or, worse still, dishonest. Witness reliability is not always a reliable signpost. Indeed, judges have often cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability based solely or mainly on the appearance of witnesses. Scientific research has also cast doubt on the ability of judges to tell truth from falsehood accurately on the basis of such appearances: see [NAME] v [NAME] (2003) 214 CLR 118 at [30]-[31] and the cases there cited. [309] Aside from demeanour, there are [NAME] factors or considerations which may assist a judge in determining the credibility of a witness and the reliability of his or her evidence. Those considerations include: whether the witness has previously given an account of the events in question and, if so, whether that previous account is consistent or inconsistent with the evidence given by the witness; the plausibility and apparent logic of the events described by the witness; and the consistency of the account of the events described as compared with [NAME] objectively established events. Such considerations often turn out to be a much surer guide to the reliability of the evidence given by a witness about disputed events. As Atkin LJ observed in [NAME] ([NAME]) v [NAME] (The 'Palitana') (1924) 20 Ll L Rep 140 at 152; cited in [NAME] v [NAME] at [30]: … I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour. 95 The events [NAME] gave evidence of occurred some two and three quarter years prior to him giving that evidence. It would be understandable if the detail of what was said and the detail of [NAME] reactions and his own thought processes were lost or diminished by time. That is particularly so given that [NAME] was a very busy CEO of a [NAME] and, it may be assumed, most of the events in question were not of much significance to [NAME] in that [NAME] at the time they occurred. But my concern with [NAME] evidence is not about any professed inability to recall the detail. To the contrary, most of [NAME] evidence on these matters was given by [NAME] who gave the impression that he mostly had very good recall. However, the evidence was so plagued with implausibility and contradictions, including that the same events were described differently from one day to the next, that it was clear to me that the detail of these events was often being reconstructed rather than being accurately recalled. Many of the inconsistencies are recorded in the submissions made by [NAME]. I refer to some of those inconsistencies below. As will also be apparent shortly, there were [NAME] and substantial inconsistencies between [NAME] pleaded case and the evidence he gave about his critical conversation with [RESPONDENT] on 5 February 2016. I have reached my view about the reliability of [NAME] evidence without the need to rely on those inconsistencies. I accept, however, that in the absence of any attempt made to explain those inconsistencies (including, if it were relevant, some explanation as to why an explanation could not be given), [NAME] was entitled to rely on those inconsistencies to impugn the reliability of [NAME] evidence. 96 In my view, the evidence given by [NAME] was peppered with speculative and often self-serving reconstructions of the detail of conversations and motivations, many of which are critical to the issues I need to determine. I do not reject all of [NAME] evidence. Some of it I accept as reliable. To some extent documentary corroboration has assisted. In [NAME] respects, I have regarded some of the evidence as plausible. I have used the apparent logic of events as a strong guiding consideration in assessing the reliability of [NAME] evidence. My [NAME] approach has been to only accept [NAME] evidence where it is corroborated by [NAME] evidence or is sufficiently consistent with objectively established events for me to regard the evidence as plausible. 97 The references to the evidence which [NAME] gave which now follow are not intended to necessarily suggest my acceptance of that evidence. So much of [NAME] evidence which I do accept, and which is necessary for me to make findings about, will be set out later in these reasons. 98 [NAME] evidence was that he was sitting in his car on the afternoon of 5 February 2016, possibly in Sydney, when he participated in the call with [RESPONDENT]. He was not sure who called whom and he did not know how [NAME] the call lasted. His evidence was that [NAME] and the proposed [NAME] [NAME], [NAME], [NAME] and the [NAME] reform process were all discussed. [NAME] deposed that the majority of the conversation was about "the [NAME] system". He said that [RESPONDENT] was obsessively concerned about what he perceived to be the injustice in relation to [NAME]. [NAME] then said that towards the back end of the call the conversation turned to [NAME] and [NAME]. Given the importance of the conversation it is best that the account given in chief by [NAME] be set out largely in full. For ease of reference I have emphasised some elements I consider to be most significant: he – he raised once again – he said – and really he said, 'You know, [[NAME]], you know, you've gotten through the [NAME] this [NAME] of yours and you've made all these promises about saving people's jobs and it's all about, you know, transferring them over and that's what your intention – that you told them was, but here you are in the background working out how you're going to hurt the most vulnerable of your employees and our members and those that are injured.' And I said, 'What are you talking about?' He said, '[NAME].' And I said – I said, 'Is this a joke? What is [NAME]?' He said, 'You know what it is.' I said, 'I have no clue. I haven't heard what it is. You know, I – I tried to get hold of [[NAME]] to find out and I have not been able to get an answer. So what are you talking about?' And what did he say?---Well, he said, 'You're – I've got some slides and it shows that you're planning, through this operation, to fire 3000 or so people so that you can save a tonne of money and you think by saving that money, you're going to save [[NAME]] but you're going to do it on the back of the most vulnerable, injured, hurt people in the company. These are the posties, the staff members.' He – and – and he said some, you know, some words against me. Doing the best you can, what can you remember the words – about the words he used and what he said?---Well, when – when Mr [RESPONDENT] is angry, his language can be quite vile and he was upset because he thought – he thought, and I might say completely wrongly, that I was somehow secretly plotting behind the scenes to – to – to fire the people that I have spent five years working on to help and support and to take care of. And he – he – he then said words to the effect, 'You know, do you not have any morals? Do you have any values? How could you do this to these people? These are – these have given their heart and soul to the company and look what you're doing to them', blah, blah, blah, blah, blah. And then the first time, you know, he mentioned any [NAME] name – then he said – then the next person he went after was [NAME] and he said, 'I've worked with her for all these years and I can't believe that she's turning her back, as the head of HR, on these injured people.' And did he mention anyone else from [[NAME]]?---He mentioned very much in passing – and he said something to the effect, 'And your henchman,' something – some word to that effect, [NAME] doing all your dirty work for you in this analysis that I've got here or in these spreadsheets that I've got here or these slides,' or something to that effect. And did you say anything in response to that?---I said, 'How can I have somebody doing my dirty work for me in the background when I don't even know who he is?' He said, 'You know who he is. He's done all this work for you.' And I said, 'I don't.' And then because he could see that I actually [sic] no answer, he then went back at that point to accusing [[NAME]] and I of all sorts of accusations that, quite frankly, are a bit unfair and, well, that are wrong, but just not very nice. Again, what can you recall about the words he used in making any accusations?---He was just really, really angry that we were lying, that we were deceiving the [NAME] about our true intention of how we were going to save [[NAME]]. He thought that we were going to fire and hurt the livelihoods of all these injured people who were the most vulnerable. He – he was deeply and emotionally – beyond anything I've ever seen in my life felt that he was the last man [NAME] to take care of these 3000 people. And I said to him, '[[RESPONDENT]], I remind you these are my staff and I don't need you to tell me this point. I will take care of my own people.' Can you recall anything else that he said during the call, anything else that you said to him?---I raised several times an opportunity to do this – this – the – a more thorough review about how we can do this, about how we can tackle the [NAME] review. And then, he said to me along the lines, you know, you –'You're about to launch this [NAME] and I'm going to make sure that I expose you and all your staff for what you're about to do.' And I said to him, 'I think you're exaggerating, and there's nothing going to occur about this because I don't know anything about it.' So he was very focused on – he thought there was something imminent that he had stumbled upon that we were about to do, and he couldn't be further from the truth. 99 [COUNSEL] was reminded by his Counsel about the evidence he had given that [RESPONDENT]'s language can be vile and was asked whether there was any swearing during the phone call. [NAME] confirmed that there was. He then gave the following evidence about [RESPONDENT]'s language and how the call ended (emphasis added): Well, you see, he – he was really, you know, you fucking bastards, you have – you're going to fuck these people over, and how fucking dare you, you know, treat injured people this way, you know. They're – they're hurt. They're at home and they can't pay their mortgages. You're going to fucking ruin their lives. You're going to – you're – you're going to send people to, you know, suicide and things like that. And it – it really – the language was one thing, but it was quite emotionally distressing. Really emotionally distressing actually. 100 Despite the admission made in his pleading, [NAME] denied that [RESPONDENT] had made a demand that he shut down or cancel [NAME], or said anything that he interpreted as a demand made by [RESPONDENT] that he shut down or cancel [NAME]. [RESPONDENT] denied that he had agreed with [RESPONDENT] that he would shut down or cancel [NAME]. He was also asked by his Counsel whether, during the phone call, [RESPONDENT] had demanded that he remove [RESPONDENT] from his [NAME] or from [NAME] or whether [RESPONDENT] had said anything which he had interpreted as being a demand to that effect. [NAME] denied that such a demand had been made or that so much was suggested by what [RESPONDENT] had said. He also denied that he agreed with [RESPONDENT] that he would remove [RESPONDENT] from his [NAME] or from the [NAME]. He added that one of the statements made by [RESPONDENT] was something along the lines of "I don't give a fuck what you do, you do what you do and I will do my job". 101 Although not mentioned by [NAME] in the initial account of the conversation given by him in chief and set out above, in cross-examination, [RESPONDENT] agreed that during the conversation [RESPONDENT] had made a number of "threats". [RESPONDENT] deposed that [RESPONDENT] said that he would do certain things, that he had uncovered this conspiracy and that he was going to stop it. One of the "threats" made by [RESPONDENT] was that he would organise protest rallies. [RESPONDENT] also threatened industrial action. [RESPONDENT] thought that [RESPONDENT] was referring to the taking of "legal" industrial action that [NAME] could not stop. He agreed, however, that it was most likely that all that [RESPONDENT] said were words to the effect "we are going to take industrial action". Based on that threat about industrial action, [NAME] came to the view that there was "an impending disaster looming from an industrial point of view". [NAME] threat raised by [RESPONDENT] was publicity that could be instigated – publicity about [NAME]. This threat made [RESPONDENT] concerned that [RESPONDENT] would spread misinformation about the [NAME] [NAME]. [RESPONDENT] also raised, as [NAME] threat, instigating legal action against [NAME]. [NAME] said that [RESPONDENT] mentioned "some legal threats, because he seemed to have some information that could prove that we had breached the Act". 102 Later in his cross-examination (on the next day of the trial) [RESPONDENT] sought to deny that [RESPONDENT] had uttered any "threats" saying that [RESPONDENT] "did offer a number of actions that he would take". Despite having himself used the word "threat" several times on the previous day, [NAME] disagreed with that characterisation on the basis that a threat meant "if you don't do A, I am going to do B", whereas he deposed that what [RESPONDENT] was saying was "I don't care what you do". [RESPONDENT] insisted that [RESPONDENT] had said he would do a number of things "anyway", irrespective of whatever [RESPONDENT] did. 103 In cross-examination, [NAME] described [RESPONDENT] as having got "extremely emotional" during the conversation. [RESPONDENT] accused [NAME] of lying and got "quite verbal. The language really escalated". [NAME] described [RESPONDENT] as being absolutely convinced that he and [RESPONDENT] and the management team "were up to some big, massive program to fire 3,000 people". To [RESPONDENT] protestations that [RESPONDENT] was wrong and that there was no conspiracy, no secret plan, [RESPONDENT] said "I've got slides". [RESPONDENT] described the issue that [RESPONDENT] "got most distressed about" was that he thought that [NAME] and his team were working to fire 3,000 people. It was then that [RESPONDENT] "got emotional and his voice really elevated. And he used some language which was quite profane". 104 [NAME] agreed that [RESPONDENT] had expressed very strong negative views about [NAME] and when asked whether it was clear to him that [RESPONDENT] didn't want [NAME] to proceed, [RESPONDENT] said "[h]e didn't tell me that. But I can assume that that's something he wouldn't want done." 105 When it was later suggested to [NAME] that [RESPONDENT]'s focus was on [NAME], [RESPONDENT] said that his focus was "on exposing me and [[NAME]]…that we were doing something – breaching the Act". [NAME] said that [RESPONDENT] had some legal action that he was going to take to expose [NAME] and that he was going to organise political rallies against [NAME]. [NAME] accepted that [NAME] was part of the focus but stated that the mismanagement of [RESPONDENT] case as well as [RESPONDENT]'s view that the [NAME] [NAME] "was flawed and not true" was also at the heart of the discussion. 106 [NAME] confirmed that [NAME] was mentioned during the conversation. He was reminded of his evidence that [RESPONDENT] had referred to [RESPONDENT] as "your henchman". [NAME] was asked what he understood by that. He said "I just assumed he meant he was the guy doing my dirty work" and that the "dirty work" was the secret plan to sack 3,000 employees. 107 [NAME] denied that [RESPONDENT] had said he would do "those things", unless [RESPONDENT] cancelled [NAME] or unless [NAME] removed [NAME] from his [NAME] as National [NAME] Manager. [RESPONDENT] also denied that [RESPONDENT] had said during the conversation, that he considered [NAME] to be the cause of the problems with [NAME]'s [NAME] system. 108 Despite the admission made by his pleading, when asked whether [RESPONDENT] had raised during the course of the telephone call that he could not work with [NAME] anymore, [NAME] said "I don't recall him saying those words". To the suggestion that [RESPONDENT] had said words to the effect that his working relationship with [NAME] had broken down, [NAME] said "No, he didn't say it like that". When asked if [RESPONDENT] had said anything about whether he was prepared to continue working for [RESPONDENT] said that what [RESPONDENT] said about [NAME] was that he was "your henchman". [NAME] stated that [RESPONDENT] described [NAME] as one of [RESPONDENT] underlings out there doing his dirty work for him, trying to fire 3,000 injured workers. [RESPONDENT] also denied that [RESPONDENT] expressed any dislike for [RESPONDENT]. 109 There was evidence of [RESPONDENT] reaction to his conversation with [RESPONDENT] and the actions he took in response to it. [RESPONDENT] deposed that once he was able to compose himself after the conversation with [RESPONDENT], he sat in his car and thought through "how do I avoid what seemed to be an impending disaster looming from an industrial point of view". He said that he was concerned that [RESPONDENT] was going to use a political rally, and that there was a political meeting of some sort in the lead up to "the [NAME] that was going to derail the reform". By that, I understand [NAME] to be referring to committee hearings held as part of the [NAME] process which he feared would be used to derail the [NAME] [NAME]. He also said that he had "the industrial actions looming" and that he thought about how "do I get this [[NAME]] review done". He said that he then called [NAME]. 110 [NAME] deposed that he told [RESPONDENT] of his conversation with [RESPONDENT]. He paused to ask her "who is [RESPONDENT]?" To that, [NAME] said that [NAME] described [NAME] as a mid to lower-level manager who works in [NAME]. [RESPONDENT] deposed that he then mentioned that [RESPONDENT] had said something about [NAME] and the firing of 3,000 injured workers and asked [NAME] what all that was about, to which [NAME] replied "its some desktop analysis that one of my staff, [NAME], is working on with the team to identify some opportunities of how can we deal with…the injured employees". [NAME] stated that he then told [NAME] that he did not know anything about it; that it had never been raised with him and it was the first time he had heard of it. He stated that [NAME] replied that "it's just some analysis that somebody is doing". [NAME] then said that he responded to [NAME] as follows (emphasis added): 'Okay. Well, that's useful to know.' I said, 'But it seemed to me, from what I gathered, [[RESPONDENT]] was very agitated, very concerned that we are secretly plotting to do this and that [NAME] was leading this analysis and he had it in for these 3000 people, it seems. That's my impression that I've gathered. And I'm concerned that if [NAME] [[NAME]] is just doing his job, that somehow, he's going to, you know, be targeted in ordinary course of doing his job and I'm really concerned about that.' 111 Asked whether in the phone call he gave [NAME] any instructions or directions, [NAME] referred to four things as follows (emphasis added): Well, after she had explained to me what was going on, I said to [[NAME]], 'Look, [[NAME]], I've thought this thing through, and I'm doing this a little bit on the fly, but I need to do something today because I'm worried about what's going to happen over the weekend, and misinformation is going to be spread about our [NAME] and this [NAME].' And I said, 'If this is just an analysis, the numbers don't sound right to me at all. As if we would ever, ever fire 3000 injured employees, let alone if it's even legal to do such a thing. We – this is completely in contrast. So do you agree with me that there is nothing to be lost by just stopping this analysis so that we can demonstrate unequivocally, at least to [NAME], the national secretary of the union, that there is no substance to this secret project to fire 3000 people?' And she said, 'That – that is no problem at all. We can easily close that analysis,' is what she said to me. So I said, 'Fine. Well, that's an easy decision.' The second one of what I communicated – and I think was very clear in my mind – I said, 'Look, it's really important that the [NAME] and wellbeing of the people who are surrounding this area is protected, including you, [[NAME]], because I've noticed you've been copping a lot with me, as you know, [[RESPONDENT]'s] fury, and I'm really worried about you and your [NAME] and wellbeing.' I said, 'I can handle it; I'm the CEO, and so, therefore, I can take this pressure. We've got 1000 things we're doing. I need you to get some help for yourself and any support, so let's talk about that.' So we talked about that. And then thirdly, I said, 'This review that we have to do on [NAME] that we need to do, given that this person whom I don't know, [NAME], is heading it, can we park him aside somewhere else just temporarily while we sort out what's going on here and how we handle this because I don't want him to cop any flak from [[RESPONDENT]] or anybody else. So just move him somewhere. Just don't let him be affected by this – this situation.' And then last, 'Can we catch up some stage early next week and talk about ideas that I've been developing of how we can do this [NAME] review so that we can get agreement with the union movement that we would do that.' They – they were the – essentially the four or five things that I had come up with on the spot to defuse and to protect the organisation and the individuals within the organisation to the best of my ability. 112 [NAME] also added that he asked [NAME] to "by the close of business to discuss this with her team and to cease this [NAME] analysis". He said that [NAME] agreed she would do that.

Consideration

Were threats/demands made by [RESPONDENT]? 113 For the reasons already discussed, [RESPONDENT] bears the onus of proving the "action" alleged under ss 348 and 355, namely that [RESPONDENT] made the threats alleged and recorded at [13] above. By reason of the principles expressed at [25] above, I reject the contention made by the [NAME] that because the alleged threats were conditional they were not "threats" of a kind which are capable of engaging ss 348 or 355 of the [NAME]. 114 The conditional nature of the threats as alleged is nevertheless important, the condition being that the threatened actions would be taken unless [NAME] cancelled [NAME] and removed [NAME] from his [NAME]. Those conditions are what [RESPONDENT] asserts was demanded of [NAME] by [RESPONDENT]. They form part of the "action" that [RESPONDENT] must demonstrate occurred. The trial was conducted on the basis that [RESPONDENT] accepted that it was his onus to prove that [RESPONDENT] demanded that [NAME] be cancelled and demanded [NAME] removal from his role as National [NAME] Manager. 115 Additionally and in support of his claim that [NAME] and [NAME] were accessorily liable, [NAME] has also alleged that in the 5 February conversation with [RESPONDENT], [NAME] responded to [RESPONDENT]'s threats and demands by agreeing to cancel [NAME] and remove [NAME] from his [NAME]. That is also an allegation that [NAME] must prove. 116 At the outset, I should say that the fact finding exercise in which I am here involved is not straightforward. It has been complicated by issues of credit and also by the fact that some matters have been admitted by some respondents but not others. Nevertheless, in the end, I have been able to reach the conclusions I have made with sufficient confidence. 117 There is [NAME] evidence from [NAME] which denies each of the two critical demands alleged to have been made by [RESPONDENT] in [RESPONDENT]'s conversation with [RESPONDENT] on 5 February 2016. [NAME] denied that [RESPONDENT] demanded that he cancel [NAME] or that he remove [NAME] from his [NAME]. If all that evidence was accepted, [NAME] fate on his ss 348 and 355 [NAME] would be sealed. However, as earlier indicated, the caution which I have determined to take with the evidence given by [NAME] means that I have not been prepared to accept his evidence as reliable unless it is corroborated by [NAME] evidence or there is a basis for believing the evidence to be plausible. 118 [NAME] best point in support of a finding that the demands for which he contends were made, is the uncontested fact that the decisions made by [NAME] to remove [NAME] from his [NAME] and to cancel [NAME] were made by [RESPONDENT] very shortly after his conversation with [RESPONDENT] and were likely to have been responsive to something said, done or appreciated in that conversation. On any view, the decisions taken by [NAME] to cancel [NAME] and remove [NAME] from his [NAME] were extraordinary decisions taken in great haste. It may be inferred that [NAME] was responding to an extraordinary circumstance which had imposed intense pressure upon him to act extraordinarily. 119 Objectively discerned, the decision to remove [NAME] from his [NAME] was extraordinary for many reasons. [NAME] must have known that such a decision was likely to have ramifications for [NAME] and for [NAME]. Such a decision would not ordinarily be made by a manager in [NAME] [NAME] without advice, including advice as to [NAME]'s contractual or [NAME] legal obligations to [NAME]. The ramifications for [NAME] and for [NAME] would ordinarily be carefully assessed. [NAME] decision to remove [NAME] was made with no apparent consideration of its potential ramifications for either [NAME] or for [NAME]. 120 On [NAME] account, the decision to remove [NAME] was made in circumstances where [NAME] knew nothing of [NAME] [NAME] than that [NAME] told him that he was a manager working for [NAME] in [NAME]. There is no suggestion in the evidence that when the decision was taken [NAME] knew anything at all about [NAME] contract of employment, or very much about the nature of the work he was doing within [NAME] or of its importance. A decision of that kind, particularly if it were taken, as [RESPONDENT] deposed, to protect [NAME] from [RESPONDENT] might be expected to have been taken after some consultation with [NAME]. There was no consultation. Nor was there any evidence of any significant attempt made by [NAME] to obtain information to enable an informed decision. The decision was obviously made with extraordinary haste, indeed as [NAME] told [NAME] in their conversation of 5 February 2016, he was acting "a little bit on the fly". [NAME] required that the decision be implemented immediately (before the close of business on 5 February 2016). All of that is demonstrative of the likelihood that [NAME] was acting under great pressure. 121 The decision to cancel [NAME] was also taken without [NAME] having any significant understanding of the nature, objective or importance of [NAME] and the ramifications, both legal and operational, of its immediate cancellation. I say that accepting [NAME] evidence that as at 5 February 2016 and prior to his interactions with [RESPONDENT] on that day, he knew nothing of [NAME], but not accepting [NAME] evidence that in his conversation with [NAME] she told him that it was "some desktop analysis" that [NAME] was working on. For [NAME] to have down-played the prominence of [NAME] in that way would have involved [NAME] substantially misrepresenting the [NAME] to [NAME]. Although still in a development phase, there was cogent evidence before me to which I have already referred, that by 5 February 2016 [NAME] was no "desktop analysis". Apart from the extensive attention given to its development by [NAME], [NAME] senior managers (including [NAME] and [NAME]) had had considerable input into [NAME]. [NAME] had a not insignificant history at [NAME]. Between January and June 2015 [NAME] and others were scoping the project which was formalised in June/July 2015. [NAME] then became a performance target for [NAME], with 20% of his performance review for the 2015/16 financial years relating to [NAME]. Further, as [NAME] deposed, and as the evidence suggests, [NAME] was approved at the [NAME] ("[NAME]") in September 2015, a [NAME] chaired by [NAME], where a noting paper on the Project was tabled and accepted as read. After receiving [NAME] approval, in January 2016 letters were being sent out as part of Phase 1 of [NAME] to [NAME]'s [NAME]-term [NAME] claimants. 122 Even if [NAME] had been misled into believing that [NAME] was of less significance than the reality, the lack of information he had or sought about [NAME] and about [NAME] circumstances, strongly suggests that [NAME] was of the view that whatever the ramifications were for [NAME] or for [NAME] of [NAME] being removed and [NAME] being cancelled, those ramifications were far less serious than the ramifications of not acting to remove [NAME] and cancel [NAME]. I readily infer, and it is not really in contest, that something highly consequential occurred in the conversation between [NAME] and [RESPONDENT], something which was sufficiently serious and substantial to have motivated [NAME] to take the extraordinary and urgent action that he did. 123 That all makes it likely that something that [RESPONDENT] said or did during the conversation or something that [NAME] appreciated as a result of that conversation was the impetus for [RESPONDENT] decision. 124 That [RESPONDENT] may have made forceful demands or threats would not, on the evidence, be out of character. The evidence suggested a significant history of antagonism and anger from [RESPONDENT] directed at [NAME] managers in relation to concerns [RESPONDENT] had for the plight of injured CEPU members and their treatment under [NAME]'s [NAME] system. [RESPONDENT] had expressed those concerns in strong, colourful terms and, at times, in terms that were open to be regarded as disrespectful. A range of examples were relied upon by [NAME] including comments made in various email exchanges relating to the [NAME] issue, to which I have referred earlier. The examples relied upon include [RESPONDENT] describing [NAME]'s [NAME] processes as a "broken system"; that he described himself as being "filthy angry" at [NAME]'s [NAME] and described that [NAME] as a "dam disgrace"; that he accused the [NAME] of being "incompetent" and that he accused [NAME] of lying to him. 125 To further support the characterisation of [RESPONDENT] as forceful and demanding, [RESPONDENT] relied on various records made by [NAME] employees. In [NAME] [NAME] made a complaint on 16 April 2016 to [NAME] (the "[NAME] complaint") in which she stated that [NAME] employees are repeatedly told that they have to tolerate or ignore "[RESPONDENT]'s tirades even when the attacks are incredibly personal". She described [RESPONDENT] as a bully and characterised [NAME]'s acceptance of his behaviour as amounting to "company sanctioned bullying". In [NAME] documentary evidence, [NAME] described [RESPONDENT] as a "bear" in observing that [NAME] employees dealing with [NAME] [NAME] were "well versed in not poking the bear". [NAME] nor [NAME] were called to give evidence. Their characterisations of [RESPONDENT] were not objected to or otherwise contested. 126 There was [NAME] evidence relied upon by [NAME] to portray [RESPONDENT] as the type of person likely to make threatening demands. As earlier recorded, shortly after [RESPONDENT] commenced his employment, he met with [RESPONDENT] in a meeting held on 1 April 2014 also attended by [NAME] and [RESPONDENT]'s son, [RESPONDENT]. [NAME] deposed that at the meeting [RESPONDENT] said words to the effect that nothing happened at [NAME] within its [NAME] without it going through him as otherwise there would be consequences, and further that [RESPONDENT] had had a previous manager dismissed and that the same would happen to [NAME] if [RESPONDENT] was not treated with respect. That those words were said was denied by [RESPONDENT]. It is, however, unnecessary to resolve that [NAME] conflict in the evidence [NAME] than for one purpose. In so far as that evidence was directed to persuading me that [RESPONDENT] was well capable of making threatening demands upon [NAME], and doing so forcefully, there is sufficient [NAME] evidence which has persuaded me to accept that proposition. In so far as that evidence was being relied upon by [RESPONDENT] to suggest that [RESPONDENT] had previously demanded that a manager be sacked and was thus predisposed to make a demand of that kind, I do not accept the evidence to be reliable. [NAME] had contemporaneous notes which he recorded during the course of the meeting. However, the line in his note concerning [RESPONDENT] having had a previous manager dismissed was not written during the meeting like the rest of the note. [NAME] deposed that it was written into his note when he was in a taxi after the meeting. [RESPONDENT] explained that he did not bother to record [RESPONDENT]'s comments, in [NAME] the threat in relation to [RESPONDENT] [NAME] during the meeting because [RESPONDENT]'s bad behaviour was tolerated by [NAME]. He also said that he did not take the claim seriously. It is difficult to accept [NAME] claim that shortly after the meeting he added a reference to [RESPONDENT]'s asserted claim. Why he did that after the meeting in circumstances where he was not motivated to do that during the meeting was not explained and caused me to doubt the reliability of the evidence in circumstances where [RESPONDENT] denied that the assertion was ever made. In any event, [RESPONDENT] evidence that he did not take the claim made by [RESPONDENT] seriously diminishes the potency of that evidence, even if I had accepted it. 127 Although I accept [RESPONDENT] contention that [RESPONDENT] had a history of making threats and demands and that [NAME] was inclined to tolerate his behaviour and be responsive to his demands, I think it is also important to notice [RESPONDENT]'s modus operandi. The threats made by [RESPONDENT] which were in evidence and which were made prior to 5 February 2016, were not threats of disruption, whether by way of industrial action or otherwise, or threats of any unlawful conduct. The threats made by [RESPONDENT] that he or the CEPU would take action unless his complaints about the [NAME] system were addressed, were threats about the CEPU publicly and politically exposing the way in which injured workers were being treated by [NAME]. An important example is contained in an email mentioned at [84] and sent by [RESPONDENT] to [NAME] and [RESPONDENT] (copied to the CEPU National Office officials) on the day before his conversation with [NAME], in which [RESPONDENT] informed [NAME] and [RESPONDENT] that (emphasis added): I intend to present Ms [NAME] and [NAME] sick and injured workers of [[NAME]] as examples to [sic] how sick and injured workers are treated by [[NAME]] and their [NAME] are being managed under the [NAME] systems of [[NAME]] when in Canberra on Monday and Tuesday next week. 128 [NAME] is a major government business [NAME]. It is also a prominent entity whose activities, although diminished in the modern era, remain important to all Australians and attract political attention. [NAME] expected that negative information about a government business [NAME] like [NAME] would be communicated to [NAME] in the [NAME] by the [NAME]. That [NAME] was frequently subject to or likely to be subjected to parliamentary oversight through [NAME] processes was apparent from [NAME] evidence. [NAME]'s sensitivity to political scrutiny and potential criticism was manifest in the evidence [NAME] gave on that issue, evidence which I regard as plausible. Even prior to receiving the 4 February 2016 email in which [RESPONDENT] expressly told [NAME] that he would raise his complaints "when in Canberra", [NAME] had anticipated that allegations were being made by [RESPONDENT] that might find their way to the [NAME] program. For that reason, as discussed at [74]-[75], on 3 February 2016, he instigated the [NAME] requiring that the review be conducted urgently so that [NAME] would have an answer at [NAME] for the allegations [NAME] contemplated would there be raised. 129 [NAME]'s appreciation that political exposure would be [RESPONDENT]'s weapon of choice and [NAME]'s sensitivities to that eventuality is also demonstrated in an email dated 23 January 2016 which was sent to various [NAME] managers, in which [RESPONDENT] stated that "[[RESPONDENT]] has gone off again about a [NAME] issue and has now made a number of serious threats about having a very public outing of the [[NAME]] [NAME] system flaws…at [NAME], in the [NAME] or potentially a [NAME]". [NAME] stated that the [NAME] issue that had driven the "current escalation" was whether [NAME] was required to pay public holidays to its employees on [NAME] and at what rate. She stated that she feared that whatever [NAME] [NAME] took, [RESPONDENT] was "so unwell and irrational at the moment" that he would nevertheless "still play this out at [NAME] or call for a [NAME] inquiry". [NAME] then suggested that [NAME] should do some background lobbying with the "[NAME]" so that [NAME] could try to get on the front foot and "prevent this going down the [NAME] path". 130 In my view, it is highly likely that [RESPONDENT]'s threats that he would take his complaints to Canberra were made with an appreciation of [NAME]'s sensitivity to political scrutiny of its activities. It is likely that a [NAME] [NAME] senior and experienced union representative of [NAME] employees well understood [NAME]'s sensitivity to public and political scrutiny. It is likely, that [RESPONDENT] considered that the threat of political exposure was likely to be an effective strategy to be deployed by the CEPU in addressing concerns about the mistreatment of injured employees. As [RESPONDENT]'s 4 February 2016 email to [RESPONDENT] and [RESPONDENT] referred to at [84] demonstrates, [RESPONDENT] was upfront about his intentions. He told them that he would be raising his concerns about [NAME]'s treatment of injured workers in Canberra on the following Monday and Tuesday. 131 It is not clear on the evidence exactly when [RESPONDENT] discovered the existence of [NAME]. It is clear that about an hour and a half after he sent the email of 4 February 2016 and at the conclusion of the meeting of the [NAME] [NAME], [RESPONDENT] told [NAME] that he "was in possession of [NAME] documents" as detailed above at [85]. Given that none of [RESPONDENT]'s earlier communications with [NAME] complaining about the treatment of injured workers raised [NAME] or its subject matter, it seems to me most likely that [RESPONDENT] learned of [NAME] on or perhaps shortly before 4 February 2016. I do not doubt that [RESPONDENT] was likely incensed by what he had discovered which, from his perspective, was the prospect that [NAME] was working on a plan to dismiss some 3,000 injured workers on [NAME] payments. Those prospective dismissals, I would infer, would have been regarded by [RESPONDENT] as highly detrimental to the interests of both the injured employees and the CEPU. If [RESPONDENT] believed that [NAME] was intent on dismissing 3,000 injured employees he is likely to have regarded that prospect as both unprecedented and outrageous. Any union official in his [NAME] would likely have been incensed and most if not all union officials in [RESPONDENT]'s circumstances would likely have been highly motivated to do something to stop it. There is good reason to accept [RESPONDENT] evidence that when his conversation with [RESPONDENT] on 5 February 2016 turned to [NAME], [RESPONDENT]'s language was "vile", that he was "upset", "really really angry", that "he was deeply and emotionally [disturbed] – beyond anything I have ever seen in my life". 132 The evidence also permits the inference that on learning of [NAME] and given [RESPONDENT]'s understanding of what was intended by [NAME], [RESPONDENT] must have thought he had struck gold in relation to his intended campaign to politically expose [NAME] in Canberra about how [NAME] treated its injured workers. 133 Whilst I need to be cautious with evidence given by [RESPONDENT], I accept his evidence that [RESPONDENT] said in relation to [NAME] words to the effect that "I'm going to make sure that I expose you and all your staff for what you are about to do". I also accept that it is likely that [RESPONDENT] said that he was going to stop [NAME] and identified at least some of the means he intended to utilise. 134 The [NAME] admitted that [RESPONDENT] made a request that [NAME] be cancelled. However, as against [RESPONDENT] and the CEPU there is no such admission. [RESPONDENT] contended that the evidence of [NAME] denying that such a request was made should be rejected and that an inference should be drawn that the request was made because it is inherently unlikely that [RESPONDENT] would make a series of threats to [RESPONDENT] to take certain action, not seek anything in return and not subsequently carry out any of the threats he had made. 135 [NAME] denied that [RESPONDENT] had demanded that he shut down or cancel [NAME] or that he had interpreted that any such demand had been made from anything said by [RESPONDENT]. However, he confirmed in cross-examination that it was apparent to him that [RESPONDENT] had strong negative views about [NAME]. As referred to earlier at [104], in response to whether it was clear to him that [RESPONDENT] did not want [NAME] to proceed, [RESPONDENT] said "He didn't tell me that. But I can assume that that is something he wouldn't want done". 136 It may well be the case that a request to cancel [NAME] was not expressly made but that does not foreclose a finding that the request was not made implicitly. [NAME] evidence of his subjective perception as to whether or not such a request was implicit is contradictory. His answer given in cross-examination suggests that it was. In any event, [NAME] subjective perceptions are not determinative. As stated earlier, the issue must be assessed objectively. 137 Given my acceptance that [RESPONDENT] was strongly opposed to [NAME] and made that opposition crystal clear to [NAME] including by threatening the actions he threatened to take as part of his campaign to stop it, I accept that a reasonable person would have construed [RESPONDENT] as demanding that [RESPONDENT] shut down or cancel [NAME]. 138 As to the actions that were threatened should [NAME] not be cancelled, I accept that it is likely [RESPONDENT] raised the organisation of protest rallies and exposing [NAME] to negative publicity. I accept that it was likely to have been at least implicit from what [RESPONDENT] did say that he intended to pursue the issue politically. All of that is entirely consistent with reliable evidence of [RESPONDENT]'s stated [NAME] prior to the 5 February conversation in relation to how he would fight to address what he perceived as [NAME]'s mistreatment of its injured employees. It is reasonable to infer that [RESPONDENT] wanted to stop [NAME] in circumstances where he likely perceived it as a further and gross example of [NAME]'s mistreatment of its injured employees. 139 I am satisfied on the basis of the findings I have just made as to the actions raised by [RESPONDENT] that those actions are objectively to be construed as having been threatened. I take into account not only what was said but the context in which it was said and the aggressive and forceful manner in which the taking of those actions was raised. I accept [NAME] evidence about the forceful nature of the language used by [RESPONDENT] in the conversation. That is all consistent with evidence of [RESPONDENT]'s prior behaviour and also consistent with reliable evidence of [NAME] reaction to the conversation and what I have described as the extraordinary decisions that he then took. In relation to [RESPONDENT]'s communications that he would organise protest rallies, expose [NAME] to negative publicity, pursue [NAME] politically and take legal action against [NAME], I am satisfied that the communication was a warning of an intention to inflict harm made for the purpose of intimidating [RESPONDENT] and [NAME] and that [RESPONDENT] held a subjective intent to carry out those actions. Each of those communications was capable of constituting a threatened action within the meaning of s 348 of the [NAME]. 140 I accept that [RESPONDENT] threatened to take action within the meaning of s 348 of the [NAME]. The action threatened was to organise protest rallies and expose [NAME] to negative publicity and political scrutiny if [NAME] was pursued. For the purpose of proving that [RESPONDENT] threatened to take action within the meaning of s 348, the threat of organising political exposure is of itself sufficient to establish that element of the cause of action as against each of the respondents. However, that was but one of the five threatened actions pleaded by [RESPONDENT]. 141 [RESPONDENT] also pleaded that [RESPONDENT] said that he would "take [[NAME]] to the cleaners". As against [RESPONDENT] and the CEPU and in so far as that allegation is to be understood as a threat to expose [NAME] to negative publicity, I accept that the threat was made. As against the [NAME] the making of that threat was admitted so far as it was conditional upon the cancellation of [NAME]. I would accept that the threat of action was likely associated with the demand that [NAME] be cancelled. 142 I also accept that [RESPONDENT] said he would "take legal action". [RESPONDENT] had made a number of complaints prior to his conversation with [NAME] that [NAME] and others on [NAME] payments were not being paid their annual leave entitlements. Consistently with the making of those complaints, I accept [RESPONDENT] evidence that [RESPONDENT] raised the taking of legal action against [NAME] for breaching "the [NAME] and [NAME]". The [NAME] admitted that that threat was made. However, as against each of the respondents, it has not been demonstrated that the threat was made in relation to either [NAME] or any demand made to remove [NAME]. It is likely that this threat was made in relation to [RESPONDENT]'s complaint that [NAME] had failed to pay annual leave entitlements to [NAME] and [NAME] employees. 143 [RESPONDENT] also pleaded that [RESPONDENT] said that he would "leak the [leaked [NAME] documents about [NAME]] to the [NAME] and [NAME]". In support of that contention, although it is not clear, [NAME] appears to have relied upon evidence given by [NAME] that he suspected that at "some stage" (a likely reference to a time much later than February 2016) [RESPONDENT] "leaked, discussed [NAME] to [sic] the [NAME]". [NAME] went on to say that this was his assumption and that he did not know where information about [NAME] in the hands of [NAME] came from including because representatives of both the Opposition and the Government questioned [NAME] about [NAME] at a hearing of [NAME]. That evidence does not address what was said in the conversation of 5 February 2016 at all. Although the evidence deals with communications received by [NAME] about [NAME], it does not in terms address "leaked [NAME] documents about [NAME]". The evidence is not capable of sustaining an inference against [RESPONDENT] and the CEPU that the threat as pleaded was made on 5 February 2016. As against the [NAME], those respondents admitted the making of the threat although they did not admit that [RESPONDENT] referred to the [NAME] documents as "leaked". 144 Further, [RESPONDENT] pleaded that [RESPONDENT] also said that he would "take serious industrial action". [RESPONDENT] contended for a finding that [RESPONDENT] threatened that he would organise unlawful industrial action. The finding sought goes beyond the threat which was pleaded. The taking of industrial action by the CEPU and its members may be lawful or it may not be. Much depends upon whether the industrial action is taken as "protected industrial action" provided for by Part 3-3 of the [NAME]. The allegation that "serious industrial action" was threatened is not an allegation of a threat of unlawful industrial action. Whilst the [NAME] admitted the allegations made, the admission does not constitute an admission that [RESPONDENT] threatened unlawful industrial action. [RESPONDENT] deposed that [RESPONDENT] raised the taking of industrial action. His evidence was that [RESPONDENT] was talking about "legalised industrial action", that is, action that [NAME] could not stop. [RESPONDENT] actually said to give him that impression was not dealt with. 145 I am not prepared to accept that a communication was made by [RESPONDENT] that the CEPU and its members would take unlawful industrial action. First, there is no evidence that action of that kind was ever previously raised by [RESPONDENT] in support of his campaign against [NAME]'s treatment of its injured workers. If I accept [NAME] evidence, which is the only available evidence as to whether lawful or unlawful industrial action was threatened, [NAME] deposed that his understanding was that lawful industrial action was threatened. If I do not accept [NAME] evidence, there is simply an insufficient basis available on the evidence to make a finding that unlawful industrial action was threatened. 146 I will return to consider the [NAME] elements necessary for [NAME] to demonstrate a contravention of s 348 in relation to threats made by [RESPONDENT] to take action unless [NAME] was cancelled. It is convenient that I first consider, in relation to the s 348 claim, whether [RESPONDENT] has established that [RESPONDENT] made threats demanding that [RESPONDENT] be removed from his [NAME] as well as, in relation to the claim of contravention of s 355, whether [RESPONDENT] demanded that [RESPONDENT] not be allocated the duties or responsibilities of the [NAME] he then held as National [NAME] Manager. I will first consider the [NAME] as against [RESPONDENT] and the CEPU. 147 The factual circumstances that support my finding that [RESPONDENT] had a strong motivation to stop [NAME] are not necessarily transferrable to support a finding that [RESPONDENT] was motivated to have [RESPONDENT] removed from his [NAME]. The extent to which [RESPONDENT] considered [NAME] responsible for [NAME] is not entirely clear. In his email of 5 February 2016 he did refer to [NAME] as "[NAME] '[NAME]'!" [NAME] said that he told [NAME], in their conversation on 12 February 2016, that [RESPONDENT] had referred to [RESPONDENT] leading [NAME] with [RESPONDENT]. However, on [NAME]'s account, [RESPONDENT] attributed primary responsibility for [NAME] to [NAME]. [RESPONDENT] thought that [RESPONDENT] was "secretly plotting behind the scenes". [RESPONDENT] said that after himself "the next person [[RESPONDENT]] went after was [[RESPONDENT]]". On [RESPONDENT] evidence, [RESPONDENT] was mentioned "very much in passing" and referred to as "[NAME] henchman" doing [RESPONDENT] "dirty work". [NAME] described [RESPONDENT] as being absolutely convinced that [RESPONDENT] and [RESPONDENT] and the management team were involved. [NAME] said that [RESPONDENT]'s focus was "on exposing me and [[NAME]]". 148 It is sufficiently clear on the evidence that on 5 February 2016 [RESPONDENT] understood that [RESPONDENT] had a significant association with [NAME]. However, there is no basis for thinking that [RESPONDENT] would have regarded [RESPONDENT] as the only person responsible for [NAME] and given the subject matter of [NAME], its scale and unprecedented nature, I would infer that [RESPONDENT] would likely have assumed that such a program could not get off the ground without the support of very senior management including [RESPONDENT]. I would accept [RESPONDENT] evidence that [RESPONDENT] perceived [NAME] as being behind [NAME] and that [RESPONDENT] was his "henchman". [RESPONDENT] evidence that [RESPONDENT] refused to accept [RESPONDENT] protestations that he was not involved is, in my view plausible. 149 Further, there is no cogent basis for thinking that [RESPONDENT] would have regarded the removal of [RESPONDENT] from his [NAME] as likely to significantly ameliorate, let alone remove, his concerns about the implementation of [NAME]. In terms of [RESPONDENT]'s perceptions, the removal of [RESPONDENT] from his role would have achieved very little unless [NAME] itself was cancelled. There is no reason to infer that [NAME] and its cancellation was not [RESPONDENT]'s main objective. If [RESPONDENT] wanted the removal of [NAME] from his or her [NAME], that objective was only ever likely to have been supplementary or subsidiary to the cancellation of [NAME]. The evidence does not enable the inference that [RESPONDENT] would have held the view that it was necessary to take down [RESPONDENT] in order to stop [NAME]. 150 If [RESPONDENT] was motivated to take a scalp out of vengeance rather than necessity, it is not clear that [NAME] would have been the head that he wanted rolled. It may have been that [RESPONDENT] recognised [NAME] as the instigator of [NAME] but on [NAME]'s evidence [RESPONDENT] directed his anger firstly at [RESPONDENT] and secondly at [NAME] with whom he had a [NAME]-[NAME] relationship and according to [NAME] said, as referred to at [98], "I've worked with her for all these years and I can't believe that she's turning her back, as the head of HR, on these injured people". The evidence demonstrates that [RESPONDENT] had issues with a number of employees within [NAME], including [NAME], who he accused of lying to him. There is no credible evidence that at least before 4 February 2016 or thereabouts (when [RESPONDENT] discovered [NAME]), [NAME] was on [RESPONDENT]'s radar at all. The complaints that he had made critical of [NAME] did not single out [NAME] for any criticism. 151 [NAME] denials that any such request or demand was made would be determinative of the issue if that evidence is accepted. If that evidence is rejected as [NAME] urges me to do, there is really little beyond the fact that [NAME] was removed from his [NAME] shortly after [NAME] spoke to [RESPONDENT] to sufficiently support an inference that [RESPONDENT] demanded that [RESPONDENT] be removed. If the only possible and cogent explanation for that removal was a demand made by [RESPONDENT], [NAME]'s [NAME] may well be stronger. 152 However, [NAME] contention that there was no "logical explanation" for his removal from his [NAME] [NAME] than that [RESPONDENT] acceded to a demand from [RESPONDENT] that that be done should not, in my view, be accepted. On the basis contended for by [NAME], that [NAME] evidence that no such demand was made is unreliable and that [NAME] explanation for removing [NAME] is also unreliable (a matter to which I will return), there is at least one [NAME] logical explanation for why [NAME] was removed. 153 In my view the following statement made by [NAME] cogently identifies the primary fear, sensitivity and concern held by [RESPONDENT] as a result of what [RESPONDENT] communicated to him during their telephone conversation on 5 February 2016 (emphasis added): And I got off the phone and I remember I looked out the window of my car and I was in shock. I actually didn't know what – like I was in – I was in shock that he could be so wrong and so misjudge what I wanted to do and what I was trying to do for the staff, and the intention, and I was concerned, deeply concerned, that he could, through negative publicity, derail the single largest [NAME] in the history of [[NAME]]. And that would be a monumental disaster, because, if the [NAME] reversed the decision we had to go and find $6.7 billion of funding, and I was really afraid for the 20,000 people that worked in the mail centres, the posties, the retail staff. I was deeply concerned about where their livelihood would come from, and that if he had used his industrial power to cause us to not reform, that – and on – on an incorrect assumption, that this would bring down [[NAME]]. And I didn't want to be the last chief executive to see 20,000 people marched out without a job. 154 There is, on the evidence, a plausible basis for thinking that there were three driving reasons to explain why immediately after his conversation with [RESPONDENT], [NAME] was under the immense pressure that I accept he was subjected to. First, he was deeply concerned that [RESPONDENT]'s threats about exposing [NAME] may bring down the [NAME] [NAME]. Second, he had failed to convince [RESPONDENT] that [NAME] did not exist or would not be pursued. Third, he was convinced that [RESPONDENT] had the capacity to and would begin using [NAME] to seriously damage [NAME] immediately, recalling in [NAME] that [RESPONDENT] had stated in his email of 4 February 2016 that he was taking his campaign to Canberra on the following Monday 8 February 2016. In those circumstances and particularly as [NAME] had no attachment to [NAME], the most obvious thing for [RESPONDENT] to do was to continue to try and convince [RESPONDENT] that [NAME] was not going to occur. It seems to me at least logically possible (if not likely) that [NAME] realised that it was necessary for him to do something concrete and convincing and do it quickly. One possible means of convincing [RESPONDENT] that [NAME] had no intention of pursuing [NAME] was to remove from the arena the person that [RESPONDENT] regarded as [NAME]'s "henchman" for implementing [NAME]. On that scenario, [NAME] was the sacrifice necessary to be made in order for [NAME] to protect what he was most deeply concerned about, the damage that [RESPONDENT] and the CEPU could do, mainly through political processes, to the [NAME] [NAME]. 155 It is instructive, I think, to notice that there is no evidence of [RESPONDENT] exposing [NAME] in Canberra on 8 February 2016 or any time soon thereafter or possibly at all. Indeed, at about 11am on Monday 8 February 2016, [RESPONDENT] sent an email to [RESPONDENT] referring to their discussions of the previous Friday. The email was civil and polite. It indicated that [RESPONDENT] was now receptive to the conduct of the [NAME] and proposed the CEPU's nominee for the team of persons who were to conduct that review. The email made no mention of [NAME]. It seems likely that by the time this email was sent, [RESPONDENT] had been convinced to accept that which he had rejected during the conversation with [NAME] on the previous Friday, that [NAME] would not pursue [NAME]. There is only one event of relevance in the evidence before me that occurred between the conversation on 5 February 2016 and [RESPONDENT]'s communication on 8 February 2016. That event is that [NAME] was removed from his [NAME]. There is no [NAME] evidence of how the removal of [RESPONDENT] from his [NAME] was communicated to [RESPONDENT]. [NAME] deposed that he did not communicate that to [RESPONDENT] but, although he said he was speculating, he said he assumed that [NAME] would have done so. 156 I do not positively find that [NAME] removed [RESPONDENT] from his [NAME] because he sought to convince [RESPONDENT] that [NAME] was truly dead and buried. I need not make that finding. However, that [NAME] removed [NAME] for that reason is an inference not less supportable than the inference that [RESPONDENT] was removed from his [NAME] because [RESPONDENT] demanded that [RESPONDENT] do so. In [NAME] words, each of those reasons are possible logical explanations for why [NAME] was removed from his [NAME]. If the existence of only one logical explanation for [NAME] conduct had been sufficient to allow the inference contended for by [NAME] to be drawn, the inference cannot be drawn because there are [NAME] logical explanations which can explain [NAME] conduct. 157 I have arrived at that conclusion mindful of the fact that, although I raised the possible explanation I have just set out with [COUNSEL] Counsel, it had not been raised or relied upon by any of the respondents and not put to [NAME]. None of the respondents had an incentive to put that case because each sought to convince the Court that [NAME] was a reliable witness whose explanation for removing [NAME] should be accepted. [NAME] deposed that [NAME] was removed because of [NAME] concern for [NAME] wellbeing and in order to protect him from exposure to [RESPONDENT]. [NAME] contended that I should not accept [NAME] explanation and for the reasons that follow I do not. However, my non-acceptance of that evidence (which has contributed to my concern about the reliability of [NAME] evidence and the [NAME] impression I gained of him), serves to support the existence as a logical possibility of the undisclosed explanation I have raised, and does so despite the unfortunate [NAME] that the explanation was not explored with [NAME]. 158 There are a number of reasons why I do not accept that [NAME] removed [NAME] from his [NAME] to protect [NAME] wellbeing. First there was an inconsistency in [NAME] evidence as to who raised a concern for [NAME] welfare. [NAME] deposed that he explained his decision to [NAME] (in his conversation with [RESPONDENT] following his conversation with [RESPONDENT]) on the basis that he did not want [RESPONDENT] "to cop any flak from [[RESPONDENT]] or anybody else". Contrary to that evidence given in chief, which suggested that protecting [NAME] was [NAME] idea, in cross-examination and in an attempt to explain his decision in the context of his evidence that he did not know [NAME] at the time, [NAME] deposed that [NAME] had told him that [NAME] was a "good person" and "good manager" and that it was [NAME] who raised the need to protect [NAME]. 159 Second, [NAME] evidence that he told [NAME] to remove [NAME] in order to protect him is inconsistent with the explanation for the decision given by [NAME] in a meeting she had with [NAME] and [NAME] shortly after her conversation with [NAME] on 5 February 2016. [NAME] did not explain the decision on the basis that it was made to protect [NAME]. She merely said that [NAME] was being removed from his [NAME] "as a result of a phone call [NAME] received about [NAME]". 160 It seems to me more likely that if the decision was taken for [NAME] [NAME]'s benefit and out of a concern for his wellbeing, especially if taken at [NAME] suggestion, [NAME] would have explained the decision to [NAME] on that basis. She did not. Neither did [NAME] when two days after the decision was made she wrote to [NAME] [NAME] senior manager saying that [NAME] had insisted that she and [NAME] inform [NAME] "of the temporary change Friday afternoon because of some pending [NAME] and legal threats". 161 Third, I think it unlikely that such a decision would have been taken for the reason given by [NAME] without some consultation with [NAME]. If the object of the exercise was to look after [NAME], surely his input including his view as to whether or not he needed protection from [RESPONDENT] and his view as to whether or not the removal from his [NAME] was ultimately of benefit to him, would have been canvassed. 162 Fourth, why was it imperative for the decision to be made and implemented immediately? Surely if [NAME] welfare was the driving motivation, the decision could have waited until the following Monday or later. [RESPONDENT] suggestion that he was concerned that [RESPONDENT] would attack [RESPONDENT] over the weekend was unconvincing, particularly in light of the next reason I have for rejecting his explanation. 163 Fifth, [NAME] evidence was that [RESPONDENT] needed protection from [RESPONDENT] not because of anything to do with [NAME] but because [NAME] was "heading" the [NAME]. Read in the context of [NAME] evidence [NAME] gave, I understood [NAME] to mean by that that [RESPONDENT] would be particularly exposed to [RESPONDENT] whilst the [NAME] was being conducted because he was the person responsible for [NAME]. There are a number of difficulties with that evidence including that, when the decision was made on 5 February 2016 shortly after the discussion between [NAME] and [RESPONDENT], given the conversation he had just had with [RESPONDENT], [NAME] could have had no confidence that the [NAME] (which required the cooperation and involvement of [RESPONDENT]) would be conducted. Secondly, [RESPONDENT] had little to do with the complaint made in relation to [NAME] or the wider issues raised by those complaints. There are others, including [NAME], that the evidence suggests were far more directly in [RESPONDENT]'s sights than [RESPONDENT] in relation to issues that would be the subject of the [NAME]. [NAME] considered it was necessary to protect [NAME] from [RESPONDENT] rather than someone like [RESPONDENT] was not really explained by [NAME] and it was [NAME] who took over the responsibilities of [NAME] role when he was removed from his [NAME]. Additionally, and I think tellingly, [NAME] evidence that his concern to protect [NAME] from [RESPONDENT] because of the [NAME] is entirely inconsistent with [NAME] refusal to allow [NAME] to take up a [NAME] in [NAME] after the [NAME] had been completed. [NAME] adopted that [NAME], despite the [NAME] making no finding of any sort against [NAME], and despite the fact that following the [NAME] a new process for interacting with the CEPU ("CEPU escalation arrangements") was established within [NAME] such that all future interaction with the CEPU would be directly through [NAME] and not with [NAME]. This new process would have prevented [RESPONDENT] from having any potential interaction with [RESPONDENT] if returned to [NAME]. 164 [NAME] refusal to permit [NAME] to return to a [NAME] involved with [NAME] continued through to the termination of [NAME] employment in August 2016. As the evidence I discuss when dealing with the contractual [NAME] demonstrates, that was so despite suitable alternative positions in that area of [NAME]'s activities being available and despite both [NAME] and [NAME] being of the view that [NAME] should take up the [NAME] of Manager [NAME]. It became clear from the evidence of [NAME] that [NAME] had directed that [NAME] not be placed in that role and nor was he to be reappointed into the National [NAME] Manager [NAME]. Despite efforts made between April and August 2016 to find an alternative [NAME] for [NAME], no [NAME] in [NAME] was ever offered to him. I would infer that that occurred because of the direction made by [NAME]. 165 That all of that occurred out of a concern by [NAME] for [NAME] welfare is neither plausible nor believable. All of those findings serve to demonstrate that there was [NAME] reason, a reason [NAME] than that proffered by [NAME], for [NAME] deep-seated objection to [NAME] occupying a [NAME] which involved [NAME] with [NAME] at [NAME]. The difficulty for [NAME] case is that the available explanations which may reveal that [NAME] reason, are not confined to the "logical explanation" for which [NAME] contended. 166 For all of those reasons, [RESPONDENT] has not established as against [RESPONDENT] and the CEPU that, in the conversation between [NAME] and [RESPONDENT] demanded that [RESPONDENT] be removed from his [NAME] or that any demand was made that [NAME] not be allocated the duties or responsibilities of that [NAME]. The evidence admissible as against [RESPONDENT] and [NAME] does not give rise to reasonable and definite inferences that such demands were made. 167 Nor has that been established as against the [NAME]. Both of those respondents denied the making of any request or demand by [RESPONDENT] that [NAME] be removed from his [NAME]. They did however admit that [RESPONDENT] told [NAME] that he could not work with [RESPONDENT] anymore. The admission cuts both ways. It supports [RESPONDENT] having a motive to make the demand contended for by [RESPONDENT]. However, that that was said by [RESPONDENT] also supports [RESPONDENT] using the removal of [RESPONDENT] as an instrument to convince [RESPONDENT] that [NAME] would not be pursued. In the end, I am not satisfied that the circumstances appearing in the evidence admissible against the [NAME] give rise to a reasonable and definite inference that [RESPONDENT] made a request or demand that [RESPONDENT] be removed from his [NAME] or not be allocated the duties of his [NAME].

Intent to coerce

Removal of [NAME] 168 My finding that [RESPONDENT] has failed to establish that [RESPONDENT] threatened action unless [RESPONDENT] was removed from his [NAME] or that he not be allocated the duties of that [NAME] is critical to [NAME] ss 348 and 355 [NAME] based on that threatened action. If I am wrong about that and such a threat was made, those [NAME] would fail in any event. 169 There is an issue as to whether [NAME] engaged s 361(1) by making the requisite allegation (see [37] above) that [RESPONDENT] had an intention to negate [NAME]'s choice. In relation to the s 348 claim, the allegation made in the [NAME] was that "[RESPONDENT] intended to overbear the will of [NAME]". In my view, that description was sufficient (in the words of the [ADDRESS] in [NAME] at [41]) to "convey the relevant [NAME] intent" required for a contravention of s 348. In relation to s 355, [RESPONDENT] pleaded that [RESPONDENT] threatened to take action "with intent to coerce [NAME]". Pleading the requisite allegation in that form may well be insufficient. I consider, however, that attention must be given to what is conveyed rather than merely what is stated. In the context of what was earlier stated in the pleading as to the nature of [RESPONDENT]'s intent and given the settled view as to the singular nature of the intent necessary to be proved, I consider that for the legally represented respondents to whom the pleading was directed, the pleading conveyed the allegation that [RESPONDENT] intended to negate [NAME]'s choice. No practical unfairness was occasioned upon those respondents. There is no basis for thinking that they did not fully appreciate this aspect of the case being put against them. 170 Assuming in favour of [NAME] that by his pleadings he did enough to engage s 361(1) of the [NAME] and proceeding on the basis earlier discussed that s 361(1) is available to be engaged in relation to the making of threats, I would have been satisfied, because the presumption created by s 361(1) was not rebutted, that the "intent to negate choice" element of coercion was established. 171 I would have rejected [NAME] contention that he discharged his onus to establish the second necessary element of coercion – the use of unlawful, illegitimate or unconscionable means. The legal basis for my view that on this issue [NAME] bears the onus of proof is set out at [29] above. Even if that legal analysis is wrong, and I took the view that [NAME] could have engaged s 361(1) on this issue, at the factual level and by reason of the pleading deficiencies to which I will shortly refer, I would not have come to the view that s 361(1) was engaged. 172 The deficiencies in the pleading on this aspect of [NAME] case are manifest. [NAME] failed to plead any material facts in support of any asserted unlawfulness, illegitimacy or unconscionability in relation to his s 348 case. In relation to his s 355 case, even the bare allegation that the threats made by [RESPONDENT] were unlawful, unconscionable or illegitimate was not pleaded. 173 [COUNSEL] conceded in submissions made by his Counsel that there was "little by way of articulation" of those matters. It was said, however, and it is the case that the fact that [RESPONDENT] had leaked [NAME] documents in his possession and that he had told [NAME] that he would leak those documents to the [NAME], was pleaded. The first difficulty for [NAME] is that whilst those allegations were made, the pleading failed to link or connect those allegations to the [NAME] that the threats made by [RESPONDENT] were unlawful, unconscionable or illegitimate. No such connection is expressed or reasonably to be implied. I would not conclude that, in this respect, the [NAME] satisfied [NAME] obligation to clearly and precisely inform the respondents of the case they had to meet: [NAME] (at [50]). 174 [NAME] also relied on an outline filed prior to the commencement of the trial to buttress his contention that the respondents had been put on notice as to the case that they would need to meet that the threats made were unlawful, illegitimate or unconscionable. Paragraphs 26 and 27 of that outline were relied on. There is no mention there made of any leaked [NAME] documents. Under the heading "Coercion: unlawful, illegitimate or unconscionable" the only allegations of any substance were that [RESPONDENT] "was seeking to interfere with the contractual relationship between [NAME] and [[NAME]]" and that [RESPONDENT]'s conduct was "illegitimate" because the means employed by him (presumably in making the threats) "were clearly disproportionate, assessed objectively, to what he and the CEPU might have legitimately wanted to achieve". No material facts in support of those allegations were given. [NAME] further submitted that there was no unfairness as proper notice had been given and the respondents' ability to conduct a trial fairly was not impacted. 175 In [NAME], the [ADDRESS] at [48] and [51] rejected a contention made by the appellant in that case that the deficiencies in the appellant's pleading of its case under ss 343 and 355 were overcome by reason of statements made in opening and closing submissions which clarified how those cases were put. Referring to the observations of [NAME] [NAME] and [NAME] in [NAME] En [NAME] v [COMPANY] (1990) 169 CLR 279 at 286-287, the [ADDRESS] in [NAME] accepted that the [NAME] rule that relief is confined to that available on the pleadings, may be avoided where the parties have deliberately chosen to conduct the case on a basis different to that disclosed by the pleadings. However, the [ADDRESS] held that there was insufficient evidence in that case of the respondents making any such deliberate choice. 176 There is here no evidence of any deliberate choice made by the respondents sufficient to abrogate the [NAME] rule that relief is confined to that available on the pleadings. In any event, the failure of the [NAME] to set out the material facts relied upon to support the allegation that [RESPONDENT]'s threats were made unlawfully, illegitimately or unconscionably, was not cured by what was stated in the outline of submission relied upon. The outline did no more than pose two legal conclusions. No material facts were given in support of those conclusions. The case that the respondents had to meet was not articulated by the outline relied upon. 177 As no unlawful, illegitimate or unconscionable conduct was either pleaded or established in relation to the threatened action directed at the removal of [NAME] from his [NAME] as National [NAME] Manager, the ss 348 and 355 [NAME] must also be rejected for this reason.

Cancellation of [NAME] 178 The same conclusion is applicable in relation to the threat that I have found was made – that unless [NAME] was cancelled [RESPONDENT] would carry the actions referred to above at [13]. For that reason – that no unlawful, illegitimate, or unconscionable conduct was either pleaded or established in relation to that threat – [NAME] [NAME] of contraventions of ss 348 and 355 in reliance upon that threat, must fail. 179 I should add that even if I had found contraventions of ss 348 and 355 based on the threat directed at [NAME], no attempt was made by [NAME] to establish that the conduct in question had caused him any loss or damage. The only apparent purpose of that cause of action appears to be the pursuance of pecuniary penalties. 180 For all those reasons each of the [NAME] made by [NAME] of contraventions of ss 348 and 355 must be rejected.

Availability of a [NAME] inference 181 For completeness, I should record that at various times [NAME] sough to support the factual findings he contended for on the basis of the principle in [NAME] (1959) 101 CLR 298. Reliance in [NAME] was placed on the failure of [NAME] to call either [NAME] or [NAME]. I would accept that both of those individuals ought to be regarded as in the camp of the [NAME]. If the [NAME] had desired to put a full and comprehensive picture before the Court, it might have been expected that those respondents would have called [NAME] and [NAME]. Nevertheless, [NAME] did not persuade me that in relation to any [NAME] finding of consequence, the finding he contended for could be made with greater confidence because of the failure of the [NAME] to call [NAME] or [NAME]. It is important in this respect to recall that the principle in [NAME] is not to be utilised for the purpose of gap-filling: see [NAME] v [NAME] (No 4) [2019] FCA 1133 at [215] ([NAME]).

Accessorial Liability of [NAME] 182 Each of [NAME] are alleged to have been "involved in" the contraventions of ss 348 and 355 committed by [RESPONDENT] within the meaning of s 550 of the [NAME]. Section 550 provides: Involvement in contravention treated in same way as actual contravention (1) [NAME] who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. Note: If [NAME] (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person's contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)). (2) [NAME] is involved in a contravention of a civil remedy provision if, and only if, the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or (d) has conspired with others to effect the contravention. 183 Although pleaded more widely, ultimately, [NAME] only pressed reliance upon paras (c) and (d) of s 550(2). 184 The accessorial liability of the [NAME] would only arise for determination if I had found, on the admissible evidence in the case as against the [NAME], that a primary contravention (by [RESPONDENT]) of either ss 348 or 355 had occurred. I have not made those findings. In case I am wrong not to have done so, I will briefly outline why, if either or both of those findings had been made, I would nevertheless have rejected [NAME] case that the [NAME] were accessorily liable. For the purpose of the exercise, I will assume that the contraventions alleged against [RESPONDENT] are made out ("assumed contraventions"). 185 [RESPONDENT] contended that [NAME] (and [NAME] derivatively by reason of s 793 of the [NAME]) were "involved in" [RESPONDENT]'s assumed contraventions by being "knowingly concerned in or party to "those contraventions" (s 550(2)(c)) because: in succumbing to [RESPONDENT]'s coercion, [NAME] helped [RESPONDENT] achieve the outcome [RESPONDENT] wanted and was thereby "a participant in" [RESPONDENT]'s contravention; and by appeasing [RESPONDENT], [NAME] associated himself with [RESPONDENT]'s contravening conduct and was linked in purpose with [RESPONDENT]. 186 Further, it was contended that [RESPONDENT] and [NAME] were "involved in" [RESPONDENT]'s contraventions by "conspiring with others to affect the contraventions" (s 550(2)(d)) because in the conversation of 5 February 2016 [NAME] agreed with [RESPONDENT] to effect [RESPONDENT]'s demand that [RESPONDENT] be removed from his [NAME] and further "effected" [RESPONDENT]'s contravention by removing [RESPONDENT] from his [NAME]. At a factual level, I would not have found that [RESPONDENT] agreed to effect [RESPONDENT]'s demand that [RESPONDENT] be removed because I have found that no such demand was made. However, I will, for current purposes, assume that I should have made such a finding. I will also proceed on the basis that [NAME] preparedness to cancel [NAME] may be characterised as [NAME] agreeing to [RESPONDENT]'s demand that that be done. 187 [RESPONDENT] contentions on accessorial liability must be rejected. They are founded upon a misunderstanding of the [NAME] contraventions said to have been committed by [RESPONDENT] and when those contraventions were complete. 188 The assumed contraventions in question are contraventions committed by [RESPONDENT] making threats in his conversation with [RESPONDENT] on 5 February 2016. On the assumption that those threats were made and made with the state of mind requirements of ss 348 and 355, the contraventions of those provisions were complete the moment that the threats were uttered. The contraventions of those provisions do not require any further or later conduct or consequence. As [NAME[NAME] (with whom [NAME[NAME] agreed) said in [NAME] at [180] in relation to s 343 "the nub of s 343 is that it is not necessary to wait until the action takes its toll and has overborn the will of the target". As I said about that same provision in [NAME] at [227] by reference to the Explanatory Memorandum to the [NAME], the prohibition applies irrespective of whether the action taken to coerce [NAME] is effective or not, the focus of s 343 is upon the intent and reason for action of an alleged offender. Those observations are equally applicable to ss 348 and 355. 189 All of the conduct of [NAME] relied upon by [NAME] for demonstrating that [RESPONDENT] and [NAME] were "involved in" [RESPONDENT]'s assumed contraventions (ie succumbing to [RESPONDENT]'s coercion, appeasing [RESPONDENT], agreeing to [RESPONDENT]'s demands and affecting them) occurred after the threats were uttered and the contraventions were complete. There is no suggestion, let alone evidence, that [NAME] was "involved in" the uttering of the threats. There is no evidence that [NAME] was implicated in, consented to or concurred in or had a practical connection with the uttering of the threats to him by [RESPONDENT]: see [COMPANY] v [NAME] [2018] FCAFC 134 at [13] ([NAME], [NAME] and O'[NAME]); [NAME] v [NAME] [COMPANY] [2017] FCA 833 at [116]-[119] ([NAME]). The [NAME] were correct to contend that they could only have conspired to affect the contraventions if [RESPONDENT] had agreed with [RESPONDENT] in advance for [RESPONDENT] to threaten [NAME]. 190 The [NAME] are also right to contend that a fundamental defect underlying the approach to the [NAME] of s 550 of the [NAME] taken by [NAME] is the characterisation of himself as being the "victim" or the "target" of the contraventions. It was the [NAME] who were subjected to the assumed contravening conduct. It was their capacity to engage in "industrial activity" and their capacity to allocate duties and responsibilities to a [NAME] that ss 348 and 355 sought to protect. Those provisions prohibit conduct which is likely to have the effect of denying or diminishing those protections and thereby victimising the person the provision seeks to benefit. A [NAME] of s 550 of the [NAME] which imposes accessorial liability upon the very person sought to be protected by a statutory prohibition, for having succumbed to the prohibited conduct, is most obviously unattractive. [NAME] contentions completely ignored the fact that no such consequence could have been intended. Those contentions must be rejected.

section 340 claim – removal decision

Relevant Legislation and Legal Principles 191 Section 340 of the [NAME] is in the following terms: 340 Protection (1) [NAME] must not take adverse action against [NAME]: (a) because the [NAME]: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the [NAME]. Note: This subsection is a civil remedy provision (see Part 4-1). 192 The term "workplace right" is defined in s 341 of the [NAME] and relevantly includes an entitlement to the benefit of or having a role or responsibility under a workplace law. The definition of "adverse action" is provided in s 342. Relevant for present purposes, the definition includes at item 1 of s 342, the employer: (c) altering the [NAME] of the employee to the employee's prejudice; or (d) discriminating between the employee and [NAME] employees of the employer. 193 The nexus in s 340(1) between the prohibition on taking adverse action and the holding or exercise of a workplace right is found in the word "because". As is well established on the authorities, that nexus will be satisfied and therefore s 340(1) will be contravened, where the holding or exercise by [NAME] of a workplace right was a substantial and operative reason for the adverse action taken against that person: [NAME] v [NAME] [2015] FCAFC 55, at [55]. At [54]-[56] of [NAME], [NAME] and [NAME] [NAME] said this: [54] When an employee alleges that an employer has taken action against him or her because the employee exercised a workplace right s 361 casts the onus on the employer to 'prove otherwise'. Under s 360, while there may be multiple reasons for an employer to have taken the adverse action, the employer takes action for a prohibited reason if the reasons for the action include that reason. The rationale for the presumption was explained by [NAME[NAME] in [NAME] [COMPANY] v [NAME] (1976) 12 ALR 605 at 617 per Mason J as being to throw on to the employer the onus of proving that which lies peculiarly within its own knowledge (cited with approval in Board of [NAME] of [NAME] v [NAME] (2012) 248 CLR 500 at [50] ([NAME] and [NAME] J)). [55] Where adverse action is taken by one person against [NAME], the task of a court in a proceeding alleging contravention of s 340 or s 351 is to determine why the person took the adverse action and to ask whether it was for a prohibited reason or reasons which included a prohibited reason ([NAME] at [5], [44] per [NAME] and [NAME] J). The question is whether a prohibited reason was a 'substantial and operative' reason for the respondent's action ([NAME] at [104] per [RESPONDENT] and [NAME], see also [59] per [NAME] and [NAME[NAME]). The relevant inquiry is therefore into the '[NAME] reason' of the decision-maker for taking action ([NAME] at [42] per [NAME] and [NAME[NAME], [102] per [NAME] and [NAME] [NAME]), which is a determination of fact to be made by the court taking account of all the facts and circumstances of the case and available inferences ([NAME] v [COMPANY] (2014) 88 ALJR 980 at [7] per [NAME] J, [NAME] at [45] per [NAME] and [NAME[NAME], [79] per [NAME] and [NAME] [NAME]). [56] To displace the presumption created by s 361 in light of the effect of s 360, the respondent must prove that its conduct was not motivated in whole or in part by the prohibited reason alleged. A failure to displace the presumption enables the allegation by an applicant of adverse action for a prohibited reason to stand as sufficient proof of that fact: [COMPANY] v National Union of Workers (1991) 91 FCR 463 at [109] per [NAME]. 194 As I said in [NAME] at [158] by reference to the observations made by [NAME] in [NAME] v [NAME] of Technology [2013] FCA 451 at [20], "what the party seeking to rebut the presumption must do is to establish on the balance of probabilities that the alleged improper reason was not a reason for taking the action." 195 [NAME] alleged that the Removal decision constituted adverse action and that [NAME] made that decision for the reason, or for reasons that include the reason, that [NAME] had a "workplace right" namely, that (relying on s 341(1)(a) of the [NAME]) he was entitled to the benefit of a workplace law being s 19(2)(a) (a likely intended reference to s 19(1)(a)) of the [NAME] and [NAME] 2011 (Cth) ("[NAME]"). [NAME] also pleaded (again relying on s 341(1)(a)) that he had a role or responsibility under s 28 of the [NAME], but reliance on that matter was not pressed. 196 Section 19(1)(a) of the [NAME] provides that an employee has a right to a safe working environment. Relevantly it states that [NAME] conducting a business or undertaking must ensure, so far as is reasonably practicable, the [NAME] and [NAME] of workers engaged by that person while they are at work in the business or undertaking.

Whether the Removal Decision Constituted Adverse Action 197 [NAME] bears the onus of establishing that adverse action was taken against him by [NAME]. He has discharged that onus. I am satisfied, despite [NAME]'s denial, that the decision to remove [NAME] from his [NAME] altered [NAME] [NAME] to his prejudice within the meaning of that part of the definition of adverse action provided by Item 1(c) of s 342(1) of the [NAME]. The prejudice suffered included loss of security in employment: [NAME] [COMPANY] v [NAME] (1998) 195 CLR 1 at [4] ([NAME], [NAME], Gummow, [NAME]), as later events demonstrated. In being removed from a [NAME] in which he was exercising high level skills and expertise in his chosen field of endeavour, [NAME] was also denied non-pecuniary benefits ([NAME] v [NAME] (2016) 247 FCR 154 at [22]-[24], [NAME] and [NAME], and at [63]-[66] [NAME]) associated with working in the [NAME] in which he was contracted to work in. As, for reasons later discussed, the Removal decision involved a breach of [NAME] contract of employment, [NAME] was also injured in his employment within the meaning of Item 1(b) of s 342(1) ([NAME] at [4]).

Workplace Right 198 I am also satisfied that [NAME] had the workplace right he contended for. The WHS is a "workplace law" within the meaning of s 341(1)(a) and [NAME] was entitled to the benefit of s 19(1)(a) of the [NAME].

State of Mind Element 199 I then turn to the state of mind element that constitutes [NAME] necessary ingredient of a contravention of s 340 of the [NAME]. Section 361(1) has application. The relevant principles have already been set out. [NAME] [NAME] made the allegation necessary to engage s 361(1) – he alleged that [NAME] made the Removal decision for reasons that included the reason that [NAME] was entitled "pursuant to s 19[1](a) of the [NAME], to be provided with a working environment that was, so far as reasonably practicable, without risks to his [NAME] and [NAME]". 200 In relation to the removal decision, [NAME] gave the following evidence: When you made the decision to ask Ms [NAME] to have [[NAME]] [NAME] stepped aside from his role, was it any part of your reasoning that [[NAME]] [NAME] was entitled to benefits under the [[NAME]]?---No. Was it any part of your reasoning that [[NAME]] [NAME] was entitled to be provided with a working environment that was, so far as practicable, without risks to [NAME] and [NAME]?---I wasn't thinking about that. I was thinking about just giving him something useful to do and where he could be out of any harm's way of any emotional or email abuse, and I could do this review independently without interference. And was it any part of your reasoning in making the decision we've been talking about that [[NAME], as a supervisor and manager, had himself some roles and responsibilities under the [[NAME]], including the obligation to take reasonable care for his own [NAME] and [NAME] and for the [NAME] and [NAME] of others?---No. 201 By that evidence [NAME] rebutted the presumption which pursuant to s 361(1) would otherwise have applied. It was unpersuasively submitted that [NAME] evidence was equivocal. Beyond that faintly put contention, [NAME] submissions made no real attempt to persuade me that [NAME] evidence should not be accepted. Instead, [NAME] contended that [NAME] had a different reason for removing [NAME] from the reason alleged in the [NAME]. It was said that [NAME] was removed from his [NAME] because "[NAME] had no means by which it could meet its statutory duty to its employees under s 19 of the [[NAME]] [NAME] than removing them from any function that would bring them into contact with [[RESPONDENT]]". 202 That proposition is completely at odds with the pleaded case. The pleaded case relied upon the bizarre proposition that [NAME] was removed so as to deny him his entitlement to a safe workplace. The alternative proposition is that he was removed to protect him or, in [NAME] words, to provide him with a safe workplace. That the alternative proposition was put, does no more than highlight the lack of any substantive merit in the case as pleaded. 203 I have already expressed my doubt that the reason for [NAME] removal from his [NAME] had anything much to do with his welfare. However, a finding to that effect is not necessary to dispose of this claim. It is sufficient for me to record that I am not satisfied that the reason for [NAME] being removed from his [NAME] was the reason alleged by [NAME] in the [NAME]. I have reached that view on the assumption favourable to [NAME] that the second pre-condition to the engagement of s 361(1) (see [38]-[40] above) was met. I should not, however, be thought to have accepted that the connection between the adverse action and the prohibited reason alleged was not so remote as to be fanciful. 204 For those reasons, the claim that the Removal decision constituted a contravention of s 340 of the [NAME] must be rejected.

contractual [NAME] 205 It is convenient to set out an outline of the relevant events that occurred between 5 February 2016 and the termination of [NAME] employment on 11 August 2016. It is also convenient that I divide that time into three distinct periods. To the extent necessary, a more detailed discussion of [NAME] events will be given later. 206 In a meeting with [NAME] and [NAME] at approximately 5.30pm on 5 February 2016, [NAME] was informed that [NAME] would be cancelled and told that he was removed from his [NAME] as National [NAME] Manager. From that time through to 27 April 2016 ("first period"), [NAME] attended work and undertook a range of minor administrative tasks at the direction of [NAME]. 207 On 21 April 2016, [NAME] attended a meeting with [NAME] and [NAME] where he was presented with a [NAME] description for the [NAME] of Manager [NAME] ("[NAME]"). On the morning of 26 April 2016 [NAME] met with [NAME] to discuss the [NAME]. At a team meeting later that day [NAME] and [NAME] announced that [NAME] would take on the [NAME]. [NAME] actually took up this [NAME] will be further discussed below. On the next day (27 April 2016) at approximately 5.30pm, [NAME] was directed by [NAME] that he was being sent home and that [NAME] required that he be medically cleared before he could return to work. At that point, what I will characterise as the second period ("second period") commenced. That period extended until 20 June 2016 when [NAME]'s requirement that [NAME] undertake a medical assessment was withdrawn. In this second period, [NAME] did not perform any work at [NAME]. Most of his interaction with [NAME] concerned communications about whether he should, and the basis upon which he should, be required to undergo a medical assessment. The direction given for [NAME] not to perform duties until he had obtained a medical clearance is the subject of [NAME] statutory and contractual claim that he was unlawfully required to take "garden leave". 208 A third relevant period followed from a discussion between [NAME] and [NAME] on 26 May 2016. It was largely in consequence of that discussion that, on 20 June 2016, [NAME]'s requirement for a medical clearance was removed and on that day three potential roles that [NAME] "may perform upon his return to work" were proposed by [NAME] for [NAME] consideration. Those roles were Manager, Business Infrastructure and Integration ("[NAME]"); Manger, People Framework Strategy ("[NAME]"); and Manager, Future Workforce Planning and Analytics ("[NAME]"). What I characterise as the "third period" commenced on the making of that proposal and ended with the termination of [NAME] employment on 11 August 2016. In this period, [NAME] did not perform any work. His interaction with [NAME] involved various communications about the suitability of the three positions under discussion. 209 On 27 July 2016, [NAME] directed that [NAME] return to work on 1 August 2016 (later extended to 3 August 2016) to perform the [NAME]. [NAME] did not attend for work on 3 August 2016. On 4 August 2016, [NAME] was informed that by reason of his failure to comply with the direction that he attend for work on 3 August 2016, [NAME] was considering terminating his employment. By letter dated 11 August 2016, [NAME] informed [NAME] that his employment with [NAME] was terminated effective immediately. 210 It is convenient that I now turn to identify those clauses of relevance in [NAME] contract of employment with [NAME] ("contract"), the alleged breaches of that contract and determine any issues between the parties as to how those clauses should be construed. I will then turn to consider further the facts relevant to the contractual breaches alleged. 211 Clause 1 is headed "Your role" and relevantly provides: 1.1 [NAME] You will be employed in the [NAME] of National [NAME] Manager on the terms and conditions set out in this document (Contract) from 24 [NAME] 2014 (Commencement Date). 1.2 Probationary period ... 1.3 Change of [NAME] (a) [[NAME]] may require You to occupy a [NAME] different from the [NAME] referred to at clause 1.1 of this Contract. (b) Any such [NAME] must be suitable for You, having regard to Your skills, training and experience. (c) Unless this Contract is replaced by [NAME] agreement, the terms and conditions set out in this Contract will continue to apply to your employment even if Your [NAME] is changed in accordance with this clause 1.3. 1.4 Duties and changes to duties (a) You will faithfully and diligently perform, to the best of your abilities and knowledge, such duties as [[NAME]] may from time to time assign to You. (b) You are required to achieve a satisfactory level of performance of your duties as measured against agreed performance objectives. (c) [[NAME]] may at any time change the duties assigned to You. (d) [[NAME]] may only assign duties to you that are suitable for You, having regard to Your skills, training and experience. (e) Unless this Contract is replaced by [NAME] agreement, the terms and conditions set out in this Contract will continue to apply to your employment even if Your duties are changed in accordance with this clause 1.4. 1.5 Reporting lines and changes to reporting lines … 1.6 Location … 1.7 Change of location … 1.8 Employment Checks Throughout Your employment in the [NAME] referred to in clause 1.1 or any subsequent or alternative [NAME] in accordance with clause 1.3, [[NAME]] may require you to undergo medical, criminal, security, or character checks where [[NAME]] determines it desirable or necessary to do so. It is an ongoing condition of your employment that: (a) You comply with any requirement to undergo a check; and (b) the results of any check are satisfactory to [[NAME]] 212 Clause 10 is headed "Ending Your employment" and relevantly provides: 10.1 Employment ending on notice by [[NAME]] (a) [[NAME]] may terminate Your employment at any time by giving you 12 weeks' notice. (b) Without limiting its rights under clause 10.3 or 10.1(a), [[NAME]] may terminate Your employment under this clause if: (i) You contravene or fail to comply with the terms and conditions upon which You are employed, including, without limitation, the achievement of a satisfactory level of performance as measured against agreed performance objectives; (ii) in the reasonable opinion of [[NAME]], You are unable to adequately and safely perform the inherent requirements of your [NAME]; or (iii) Your [NAME] no longer exists. (c) [[NAME]] may provide payment in lieu of all or part of this notice period. 10.2 Employment ending on notice by You You may terminate your employment at any time by the provision of 12 weeks' written notice to [[NAME]]. 10.3 Summary dismissal ... 10.4 Garden leave (a) During part or all of any period of notice of termination given by You or by [[NAME]] or during any period in which [[NAME]] is investigating any disciplinary issue involving you, [[NAME]] may, at its sole discretion: (i) require you to perform only such duties as [[NAME]] may determine or not to perform any duties at all; (ii) require you not to have any contact with any employees, customers or business associates of [[NAME]] [NAME] than normal social contact; and/or (iii) exclude you from all or part of [[NAME]'s] premises. (b) Your remuneration will not be withheld or reduced as a result of You complying with such directions. 213 Clause 13 is headed "[NAME]" and relevantly at cl 13.3 provides: 13.3 Rights cumulative Except as expressly stated otherwise in this document, the rights of a party under this document are cumulative and are in addition to any [NAME] rights of that party. 214 There are two categories of breach pleaded in the [NAME]. The first is concerned with the Removal decision and asserts a breach of cll 1.1, 1.3 and 1.4. The second concerns the Garden leave decision and asserts a breach of cl 10.4.

Alleged Contractual Breach Relating to the Removal Decision 215 That [NAME] was, with effect from 24 [NAME] 2014, employed by [NAME] in the [NAME] of National [NAME] Manager was admitted in the pleading of the [NAME]. The duties of the [NAME] of National [NAME] Manager were set out in a document entitled "ROLE PROFILE (Proposed Only)" ("Role Profile"). It was not in contest that in the [NAME] of National [NAME] Manager [NAME] was expected to perform duties in accordance with the Role Profile. 216 The [NAME] alleged that cll 1.1, 1.3 and 1.4 of the contract were breached by [NAME] by reason that, on 5 February 2016, [NAME] was removed from his [NAME] of National [NAME] Manager and that, upon being removed, [NAME] was not offered an alternative [NAME] with [NAME], required by [NAME] to fulfil the duties of [NAME] [NAME], or assigned to alternative duties by [NAME]. Read in the light of the particulars given of the breach, the pleading is to be understood as alleging a breach by reason of [NAME] removing [NAME] from his [NAME] of National [NAME] Manager on 5 February 2016 without placing him into an alternative "suitable" [NAME] within the meaning of cl 1.3 of the contract. 217 That was essentially the way in which the breach was put and pursued at trial. There was no reliance placed on cl 1.4 of the contract and in so far as the [NAME] asserted a breach of that clause such a breach was not pressed. 218 The focus of [NAME] submission was on cl 1.3 as encapsulated in the following contention made in written submission: On 5 February 2016 when [[NAME]] was removed from the [NAME] to which he had been appointed without being assigned to [NAME] [NAME] that was suitable for him having regard to his skills, training and experience in breach of cl 1.3. 219 Whilst the submission was never a model of clarity, as I understood it, [NAME] maintained that under his contract he had a "dual right". First (and pursuant to cl 1.1) a right to be employed in "the [NAME] under the contract", that is the [NAME] of National [NAME] Manager, and second a right to a "suitable" alternative [NAME] under cl 1.3(b) if he was removed from the [NAME] of National [NAME] Manager. 220 [NAME] case was really that [NAME] had an obligation to employ him in either the [NAME] of National [NAME] Manager or in an alternative but suitable [NAME] in accordance with clause 1.3(b). [NAME] accepted that a reasonable period may be allowed for [NAME] to move him from the National [NAME] Manager [NAME] into an suitable alternative [NAME] without the contract being breached. He contended, however, that on 5 February 2016 he was removed from his [NAME] as National [NAME] Manager and that thereafter, and in breach of the contract, he was not employed in either the National [NAME] Manager [NAME] or a suitable alternative [NAME]. 221 Despite the lack of clarity in the way in which this part of [NAME] case was pleaded and pressed, [NAME]'s submissions indicate a sufficient appreciation of the case against it which it was being required to meet. 222 [NAME] denied that cll 1.1 or 1.3 were breached. By its written submissions, [NAME] contended that there was no breach because [NAME] was offered a number of roles which were "suitable" positions within the meaning of cl 1.3, in [NAME] the [NAME], a [NAME] that [NAME] was initially directed to perform on 11 July 2016 but later altered to commence on 3 August 2016. [NAME] contended that there is no temporal limitation imposed by cl 1.3 but, in the alternative, if a temporal limitation existed it required only that a suitable alternative [NAME] be offered within a reasonable period of time from [NAME] removal from his [NAME] as National [NAME] Manager. 223 [NAME]'s written submissions largely proceeded on an implicit assumption that save for allowing for a reasonable period of time between positions, cl 1 of the contract imposed upon [NAME] an obligation to employ [NAME] in either the National [NAME] Manager [NAME] or in a suitable alternative [NAME]. However, somewhat inconsistently with its written submission, in oral argument, [NAME] contended that cl 1.3 conferred a right upon [NAME] but did not confer any right upon [NAME] and that cl 1.3 did not oblige it to provide [NAME] with an alternative [NAME] at all once he was removed from the National [NAME] Manager [NAME], but merely required that if and when [NAME] was required to take up an alternative [NAME], that [NAME] had to be a suitable alternative [NAME]. [NAME] contended that until a suitable alternative [NAME] was provided to [NAME], at common law, it was entitled to have [NAME] carry out various tasks without providing [NAME] with any [NAME] at all. That submission seems to have been put in addition to the contention that [NAME] was entitled under the contract, to a reasonable period of time in which to place [NAME] in a suitable alternative [NAME]. 224 I do not accept that the contract is to be construed as [NAME] contended that it should be. Nor do I construe cl 1 entirely consistently with the contentions made by [NAME]. 225 Clauses 1.1, 1.3 and 1.4 deal with the [NAME] that [NAME] must be employed in and its duties. The [NAME] that [NAME] must be employed in on commencement of the employment is specified as that of National [NAME] Manager. The contract contemplates that [NAME] will continue to be employed in that [NAME] (referred to at cl 1.3(c) as "Your [NAME]"), unless a change of [NAME] is affected in accordance with cl 1.3. Under the heading "Change of [NAME]", cl 1.3 provides [NAME] with the capacity to require [NAME] "to occupy a [NAME] different from" the National [NAME] Manager [NAME] but restricts the exercise of that right by requiring that the alternative [NAME] "must be suitable for You, having regard to Your skills, training and experience". 226 That restriction is directed at protecting [NAME] interests. It is not a restriction beneficial to [NAME]. Although cl 1.3 provides [NAME] with a right to change [NAME] [NAME], it nevertheless imposes a negative or restrictive stipulation upon the exercise of that right. A failure to comply with a negative or restrictive stipulation in a clause otherwise permissive is capable of constituting a contravention of the clause: see as an example [NAME], [NAME] v [COMPANY] [COMPANY] [2018] FCAFC 182 at [12]-[13] ([NAME], [NAME] and [NAME] [NAME]). 227 However, in my view, cl 1.3 must be read with cl 1.1. When read together, I consider that the obligation imposed upon [NAME] is to be found in cl 1.1. That obligation is to employ [NAME] in the [NAME] of National [NAME] Manager unless [NAME] is relieved of that obligation, if and when, it affects a change to [NAME] [NAME] in accordance with cl 1.3. [NAME] way, whilst [NAME] is not employed in the National [NAME] Manager [NAME], [NAME] will be in breach of cl 1.1 unless it has availed itself of the capacity to move him to a suitable alternative [NAME] in accordance with cl 1.3. 228 [NAME] may be correct in its submission that cl 1.3 is directed at a right conferred upon it and that it is not obliged under cl 1.3 to do anything at all. However, that acceptance does not relieve [NAME] of its obligation under cl 1.1 to have employed [NAME] in the [NAME] of National [NAME] Manager unless and until it moved him to a suitable alternative [NAME] in accordance with cl 1.3. 229 I would accept that cl 1 should be construed as permitting [NAME] some reasonable time to move [NAME] from the National [NAME] Manager [NAME] into a new [NAME] which accords with the requirements of cl 1.3, without [NAME] being in breach of the contract. Clause 1 should be construed to operate in the practical manner as was obviously intended. The possibility of a necessary interregnum between roles must have been contemplated to address practical considerations such as a shift of locations to the new role or perhaps the need for the occupant of the new [NAME] to vacate. 230 However, the clause is addressing an exchange of the National [NAME] Manager [NAME] for an alternative [NAME] in circumstances where [NAME] is requiring [NAME] to occupy the alternative [NAME]. It contemplates that the alternative [NAME] be identified and, practical considerations aside, that it be available in the exchange which cl 1.3 permits [NAME] to effectuate. I do not construe cl 1 as authorising the removal of [NAME] from his [NAME] per se. The capacity given to [NAME] to remove [NAME] from his contracted [NAME], is part and parcel of a single process in which [NAME] existing [NAME] is replaced with a different [NAME] which accords with the suitability requirement in cl 1.3(b). 231 The obligation imposed on [NAME] by cl 1.1 is not suspended where [NAME] is removed from his [NAME] as National [NAME] Manager on the basis that some unidentified suitable [NAME] may be found for him at some indeterminate time in the future. That, as I will shortly explain, is what I consider occurred in this case. 232 It is first necessary to address two matters before returning to the facts. First, there is a distinction to be drawn between [NAME]'s power to [NAME] [NAME] [NAME] not to perform his duties in the [NAME] of National [NAME] Manager and its power to remove him from that [NAME]. That distinction was not observed in the submissions made by [NAME] that sought to justify the interregnum inflicted upon [NAME] based upon [NAME]'s asserted common law right not to have [NAME] carry out his duties as National [NAME] Manager and perform [NAME] duties instead. 233 Second, save for the exception allowed for by cl 1.3, the obligation upon [NAME] imposed by cl 1.1 to employ [NAME] in the [NAME] of National [NAME] Manager is a continuing obligation. On-going conduct in breach of cl 1.1 would therefore constitute a continuing breach – a breach which subsists so [NAME] as the requirements of cl 1.1 remain unsatisfied. An obligation to employ an employee in the contracted [NAME] was held to be a continuing obligation in [COMPANY] [COMPANY] v Harrison [1985] ICR 668 at 681 ([NAME] LJ). In [NAME] v [NAME] Commission (1982) 148 CLR 97, a failure to employ the services of an employee in a senior capacity as a [NAME] surgeon was regarded as a "continuing wrong": see at 100-101 ([NAME] and [NAME] [NAME]). 234 The [NAME] does not expressly plead a continuing breach of the contract. [NAME] read the pleading suggests that all that is alleged is a single breach on 5 February 2016 consequent upon [NAME] removal from his [NAME] as National [NAME] Manager. The case was run more broadly and was the subject of some complaint by the [NAME] but not any formal objection. No practical unfairness was either asserted or is apparent if [NAME] case is permitted to be made on the basis of a continuing breach rather than a single breach on 5 February 2016. Including because the result would be the same in either case, I will proceed on the correct characterisation of the nature of the breach in question.

First Period 235 [NAME] evidence was that at a meeting with [NAME] and [NAME] at approximately 5.30pm on 5 February 2016, [NAME] told him that he was removed from his role as National [NAME] Manager at the request of [NAME]. He deposed that [NAME] had indicated that he would be looked after and that he would be put into a different role, that that role had yet to be determined but that the role "sat with [NAME]". He deposed that [NAME] told him that he could be in that [NAME] role for one or more months and that [NAME] could not indicate how many months. [NAME] also deposed that [NAME] and [NAME] spoke about replacing him, discussed a contractor being brought in to fill his [NAME] and also discussed "a [NAME] report stepping up into my [NAME]". In a handwritten note made by [NAME] of the meeting, [NAME] recorded that "[a]s a directive of [[NAME]], [[NAME]] withdrew me from my [NAME] and the [sic] proposed a role with [[NAME]] in Operations…" 236 That evidence includes the suggestion that the removal of [NAME] from his [NAME] was represented to him as a temporary removal. There is [NAME] evidence of correspondence sent by [NAME] on 7 February 2016 and 9 February 2016 that suggests that [NAME] regarded the change to be temporary and that [NAME] was joining the [NAME] managed by [NAME] for two months, which she described as a [NAME]-term secondment. [NAME] directed that in that period, the [NAME] employees who reported to [NAME] report to her. On 8 February 2016, [NAME] was asked to remove himself from all his work and pass it on to his [NAME]. There is no evidence that after 5 February 2016 [NAME] undertook any of the duties of the National [NAME] Manager [NAME]. 237 The evidence is best characterised as establishing that on 5 February 2016, [NAME] was removed as the occupant of the [NAME] of National [NAME] Manager albeit that [NAME] and [NAME] may have, at that time, regarded the removal as temporary. The unchallenged evidence of [NAME] as to what he was told by [NAME] at the meeting of 5 February 2016 and her characterisation of the nature of the change being effectuated, persuades me that [NAME] was not merely directed to temporarily not perform the duties of his [NAME] but, instead, was removed from that [NAME] in a manner sufficient to meet the contractual description of no longer being "employed in the [NAME] of National [NAME] Manager". 238 It is not in contest that in what I have described as the first period (5 February 2016-27 April 2016), [NAME] was not occupying a "suitable" alternative [NAME] in accordance with cl 1.3(b) of the contract. I hold that in that first period, [NAME]'s conduct constituted a continuing breach of its obligation under cl 1.1 of the contract to employ [NAME] in the [NAME] of National [NAME] Manager.

Second Period 239 What I have described as the second period commenced on 26 April 2016 when at a meeting attended by over 100 employees about a proposed restructure of [NAME]'s [NAME], it was announced by [NAME] and [NAME] that [NAME] would take on the [NAME]. Given that it was not in contest that the [NAME] was a "suitable" [NAME] for [NAME] within the meaning of cl 1.3(b) of the contract, a question arises as to whether on or about 26 April 2016, [NAME] occupied that [NAME] thereby ending the continuing breach of cl 1.1 of the contract by [NAME]. 240 A discussion of the events here in question should commence with some background. In the course of what I have referred to as the first period, [NAME] made a number of attempts to have [NAME] provide him with a new role. At a meeting with [NAME] on 22 [NAME] 2016 he asked that he be provided with options for either returning to the [NAME] of National [NAME] Manager or undertaking [NAME] roles within [NAME] that were commensurate with his skills and experience. It appears that as a result of that request a meeting was organised for [NAME] with [NAME] and [NAME] on 21 April 2016. The evidence is not clear, but it would appear that either at that meeting or prior to that meeting, [NAME] was informed that he would not be able to return to the National [NAME] Manager [NAME]. At the meeting with [NAME] and [NAME], he was presented with a [NAME] description for the [NAME]. He asked for time to read the [NAME] description and have a discussion with [NAME]. He met with [NAME] on the morning of 26 April 2016 where he raised some concerns about the conditions of employment in the [NAME]. He suggested a further meeting with [NAME] be held by 28 April 2016 "so that all parties can move forward". It would appear, that later that same day and without any prior consultation with or notice to [NAME], it was announced at the meeting to which I have already referred that [NAME] would be taking on the [NAME]. 241 On the following day, 27 April 2016 [NAME] was verbally directed by [NAME] that he was being sent home and that [NAME] required that he be medically cleared before he could return to work. That was confirmed by a letter dated 29 April 2016 in which [NAME] was informed by [NAME] that: As I advised on Wednesday, we have received a complaint that has specifically raised concerns that you have been under a level of work stress that has placed your [NAME] and wellbeing at [NAME]. While I accept that you are of the view that this is not the case and you are able to continue work, given the seriousness of the allegations, we are of the view that we have a duty of care to obtain independent medical opinion confirming your fitness for duty. 242 [NAME] requested [NAME] to refrain from contacting anyone at [NAME] or accessing his emails. He also stated that he would be in touch again with [NAME] shortly with details of medical appointments he was to attend. 243 [NAME] evidence was equivocal as to whether [NAME] had been appointed into the [NAME]. At times he referred to [NAME] having been "appointed" into that [NAME] on 26 April 2016 in the expectation that he would start work as soon as possible. However, when asked whether [NAME] ever commenced in the role, [NAME] indicated that he never did. When it was suggested to him that [NAME] was "appointed" into the [NAME] on 26 April 2016, [NAME] said "[a]ppointed is an interesting expression. We announced [NAME] into that role". He then agreed that [NAME] "never fulfilled the role". [NAME] was adamant that he never took on the [NAME]. 244 In the terms utilised by cl 1.3(a) I am not satisfied that [NAME] did "require [[NAME]] to occupy" the [NAME]. I am satisfied therefore that [NAME]'s breach of cl 1.1 continued throughout the course of the second period.

Third Period 245 It is not necessary for current purposes to describe in any detail the interactions between [NAME] and [NAME] (over some two months) about [NAME]'s requirement that [NAME] undergo medical examinations and [NAME] resistance to that course. It is sufficient to say that the requirement for [NAME] to undertake medical examinations arose from a direction made by [NAME]. [NAME] asserted that the direction was instigated by the [NAME] complaint on 16 April 2016 in which [NAME] complained that her team had been subjected to constant harassment and bullying by [RESPONDENT] and noted that, as a result, a number of members of her team, including herself, were under the care of [NAME]. [NAME] complained that [NAME]'s acceptance of the behaviour amounted to "company sanctioned bullying". 246 Having been sent home on 27 April 2016, it was not until 9 May 2016 that [NAME] forwarded to [NAME] drafts of letters that were proposed be sent to [NAME] treating [NAME] practitioner and to [NAME] medical practitioners in relation to obtaining medical assessments and [NAME]. That correspondence from [NAME] only came after [NAME] had prompted [NAME] to deal with the situation. [NAME] took issue with the wording of the draft letters and further issue with later drafts of those letters through to about 20 May 2016. 247 In correspondence of 23 May 2016, [NAME] wrote to [NAME] and again communicated his discontent with further revised draft letters and requested further revisions. He suggested that [NAME] was not engaged in the process of returning him to employment. He also stated that he considered the request for him to attend a medical examination unreasonable and unlawful. He requested that he be provided with a copy of the [NAME] complaint. [NAME] deposed that he was unhappy with the medical clearance request and stated that it was his impression that he was being put through the first process of being removed from his employment. 248 [NAME] resistance was not without its justification. There was no foundation in the evidence that [NAME] psychological wellbeing was affected by his prior interactions with [RESPONDENT] or that he was otherwise unwell. Some of the [NAME] employees who had also been on [NAME]'s team who had extensive involvement with [RESPONDENT] were not directed not to work. Additionally on 13 May 2016 [NAME] wrote an email to which [NAME] was copied in apologising that he had been caught up in "this whole mess" and stated that at no point in her complaint did she raise a concern about [NAME] fitness for duty, although she noted that she had said to [NAME] that she felt that [NAME] (and others) were under inappropriate levels of stress because of [NAME]'s expectation that they tolerate [RESPONDENT]'s behaviour. 249 On 26 May 2016, [RESPONDENT] telephoned [NAME]. This was a [NAME] conversation and, again, it is not necessary to set it out in detail. It is sufficient to say that [NAME] contacted [NAME] to try and bring things to a head including to determine whether or not [NAME] would continue to be employed by [NAME]. Although there is some suggestion in the evidence that [NAME] may have commenced the conversation with the intention of ending the employment relationship between [NAME] and [NAME], I accept that [NAME] was by no means fixed in the pursuance of that course. He was however as he himself said, intent on having a discussion with [NAME] about whether, being realistic, there was a job for [NAME] at [NAME]. The conversation led to a without prejudice meeting held on 6 June 2016 in which [NAME] and [NAME] lawyer ("[NAME]") participated, and a further without prejudice meeting on 15 June between [NAME] and [NAME]. 250 On 20 June 2016, [NAME] sent a letter to [NAME] in relation to [NAME] employment. In that letter [NAME]'s requirement that [NAME] be medically assessed was removed. That was said to have occurred on the basis of [NAME] assurance that he was physically and mentally fit to work and [NAME]'s desire to get [NAME] back into the workplace. [NAME] letter enclosed three [NAME] descriptions for [NAME] which had been discussed with [NAME] at the meeting on 15 June 2016. Those positions were for the: [NAME]; [NAME]; and [NAME]. 251 On 4 July 2016 [NAME] sent a letter to [NAME]. In that letter [NAME] noted that [NAME] had not received a response from [NAME] indicating a preference for any of the proposed roles. [NAME] reiterated [NAME]'s [NAME] that the roles were "appropriate for [NAME] experience and skill set" and asked for a response from [NAME] by 5pm on 8 July 2016. The letter stated that if [NAME] did not respond by that date that he would be appointed to one of the proposed roles and would be required to return to work from 18 July 2016. 252 By letter of 8 July 2016, [NAME] responded to [NAME]'s letter; [NAME] noted that he had reviewed each of the proposed roles and that they did "not appear to us to be suitable for [NAME] [[NAME]], having regard to his skills, training and experience." [NAME] specified the basis upon which it was asserted that the positions were not suitable. 253 [NAME] proposed an alternative solution; that [NAME] be returned to the National [NAME] Manager [NAME], and that if the conduct of [RESPONDENT] remained problematic that [NAME] should make an application under the [NAME] anti-bullying provisions. If it were not possible to return [NAME] to his previous positon, [NAME] proposed that [NAME] should be placed in the [NAME]. 254 On 11 July 2016, [NAME] sent two letters to [NAME] regarding [NAME] employment. In the first letter [NAME] noted its disagreement with the assertion that the roles were not suitable and stated "we maintain that each of these roles are appropriate: they are all senior, strategic roles and are roles [NAME] [[NAME]] would be capable of performing given his training, skill-set and experience." It was noted (presumably because [NAME] had so directed) that [NAME] had made a "business decision" not to return [NAME] to [NAME] and instead that [NAME] had been appointed to the [NAME] and was required to return to work on 18 July 2016. The second letter largely reiterated statements made in the first letter with the additional comment that should [NAME] refuse to return to work in the [NAME] that [NAME] is available to attend a without prejudice meeting with [NAME] and [NAME] to discuss the basis upon which his employment will end. 255 [NAME] wrote to [NAME] on 13 July 2016 seeking a letter setting out the basis and reasoning for the "business decision" not to place [NAME] in any role in [NAME]. 256 In further correspondence dated 14 July 2016, [NAME] confirmed that the decision not to return [NAME] to [NAME] was made because it was "no longer tenable" due to the tensions between [NAME] and a key external stakeholder and due to [NAME]'s concerns about the ongoing impact of this tension on [NAME] wellbeing. 257 Further correspondence ensued between [NAME] and [NAME] as a result of which [NAME] made a number of changes to the [NAME] description. By letter dated 27 July 2016, [NAME] noted: in light of the concerns you have raised, and to give [NAME] [[NAME]] some comfort, we have made some adjustments to the [NAME] description...to more accurately reflect the skills, experience and training required for the role. Although we consider that [NAME] [[NAME]] has the skills, experience and training required for this role, we anticipate that it may take some time to bring [NAME] [[NAME]] up to speed on the specific requirements of the role. We confirm that this will be taken into account when assessing [NAME] [[NAME]] performance in the role. 258 The letter stated that [NAME] was expected to return to work on 1 August 2016. The letter attached an updated [NAME] description for the [NAME]. Key changes included removal of the requirement for "data manipulation and analysis" skills and removal of design and management requirements in relation to database and technology. The [NAME] description also changed the required technical and professional skills to only a tertiary level qualification in business or a related discipline. 259 [NAME] sent an email to [NAME] on 28 July 2016 in response to the updated [NAME] description. [NAME] stated that the [NAME] being offered was different to that previously offered, and requested until 10 August 2016 to consider the "new" [NAME]. 260 [NAME] responded by email on 29 July 2016. He stated that "ample opportunity" had been provided to [NAME] to decide whether to return to work, that the [NAME] was not a "new [NAME]" and that as a "gesture of good will" the return date would be extended to 3 August 2016. 261 On 3 August 2016 [NAME] did not attend work in accordance with the direction made by [NAME]. 262 On 4 August 2016, [NAME] sent correspondence to [NAME]. The correspondence asserted that the decision to appoint [NAME] to the [NAME] "was made in accordance with clause 1.3 of your 13 [NAME] 2014 employment contract, which allows [[NAME]] to appoint you to [NAME] [NAME] suitable for you having regard to your skills, training and experience". The letter referred to [NAME]'s direction that [NAME] return to work to perform the [NAME] and stated that: Given your failure to comply with this direction to attend work on 3 August 2016, we are now considering terminating your employment with [[NAME]], and we propose to make a final decision by early next week. 263 By letter of 11 August 2016, on behalf of [NAME], [NAME] informed [NAME] that his employment was "being terminated due to your failure to comply with a lawful and reasonable direction, namely that you attend for work on 3 August 2016 in the [[NAME]]". [NAME] further stated that: [a]lthough we are of the view that under clause 10.3(a) of your employment contract, we are entitled to summarily terminate your employment on the basis of your failure to comply with this lawful and reasonable direction…we have made the decision to terminate your employment under clause 10.1(a), with pay in lieu of notice. 264 As will be apparent from the facts set out above, [NAME] appointed [NAME] to the [NAME] on 11 July 2016 and required him to commence work in that positon initially by 18 July 2016 but ultimately the commencement date was extended to 3 August 2016. If I had found that the [NAME] was a "suitable" [NAME] within the meaning of cl 1.3(b) of the contract, I would have held that [NAME]'s continuing breach of cl 1.1 extended to 11 July 2016. However, for the reasons I will now address, I do not consider that the [NAME] was a "suitable [NAME]". I hold, therefore, that [NAME]'s continuing breach of cl 1.1 extended through to the termination of the contract on 11 August 2016.

Suitability of alternative positions proposed/offered 265 It is not uncommon for contracts of employment and industrial instruments such as [NAME] agreements made under the [NAME] to allow for an employer to shift an employee into a different [NAME] but at the same time protect the employee by requiring that the new [NAME] be suitable or a suitable alternative [NAME]. A contractual provision of that kind must be construed according to its own terms and that is the approach I will adopt in relation to cl 1.3(b). Nevertheless, it is instructive to examine some of the authorities and the approach taken to exercises similar to that with which I am here confronted. 266 In [COMPANY] v Barbieri [2018] FCA 622 at [41], a contractual provision required that on the redundancy of an existing [NAME], an employee had to be offered "an alternative" to "your [NAME]". I there determined that, read in context, an "alternative [NAME]…connotes a reciprocity or an equivalence in the exchange. A reciprocal [NAME] in the context in question would be a [NAME] with the same or similar characteristics to [the employee's] existing [NAME]". I observed that an assessment as to whether a [NAME] is an "alternative [NAME]" required an assessment of the nature and character of the existing [NAME] as well as the employee's career expertise and experience. Further, that "[a]n assessment of whether the work and duties of one [NAME] is the same or similar in nature or character to the next, is likely to have both a quantitative and a qualitative dimension" (at [44]-[45]). This is essentially the approach taken by [NAME] AJA in [NAME] v [NAME] and [COMPANY] (2013) 39 VR 578 where, in assessing whether a new [NAME] offered to an employee was a "suitable alternative [NAME]" in accordance with the employer's redundancy policy, their [NAME] made a qualitative and quantitative assessment of the attributes of the two positions. In [NAME], the [ADDRESS] compared the status and seniority of the positions, including the number of subordinates, supervisory responsibilities and access to business funds, and whether the work and skill sets required to carry out the new [NAME] were commensurate with those exercised by the employee in the [NAME] [NAME]. At [88], Kyrou AJA (with whom [NAME] agreed) said, alluding to the managerial nature of the positions being compared: [88] The concept of '[NAME]' in the present context includes at least the following features: (a) the nature of the work attached to the [NAME]; (b) the title that is associated with the [NAME]; (c) the status and seniority of the [NAME]; (d) the reporting lines associated with the [NAME], including the number and seniority of the persons reporting to that [NAME] and the seniority of the superiors to whom that [NAME] [NAME]; and (e) the level of autonomy associated with the [NAME]. 267 The comparison of positions made in [NAME] focused upon whether there was sufficient commonality between the "defining features of the work performed" (at [79]) in the respective positions. Important to the conclusion that the latter [NAME] was not a "suitable alternative [NAME]" was that when the attributes of the work required to be performed were compared, a major portion of the work required in the [NAME] [NAME] was not required in the latter [NAME] (see at [65]-[82]) in [NAME]). This was a qualitative assessment in which the "work" compared involved a comparison of the skill and expertise required to perform the work of the respective positions. 268 Further, in assessing what a contractual [NAME] requiring suitability for an alternative [NAME] intends, it is helpful to bear in mind the settled principle that, as a [NAME] rule, a significant diminution in an employee's remuneration, status or responsibility may constitute a repudiation of the contract in and of itself: see [NAME] v [NAME] [COMPANY] (2016) 26 VR 668 at [41] ([NAME]) and [NAME] v [NAME] (1996) 88 IR 259 ([NAME[NAME]). 269 Clause 1.3(b) of the contract provides that the different [NAME] that [NAME] may be required to occupy "must be suitable for [[NAME]] having regard to [[NAME]] skills, training and experience". [NAME], where the criteria required assessing one [NAME] against [NAME], the criteria in cl 1.3(b) is more personal to [NAME] and calls for a comparison of the skills, training and experience held by him in his employment at [NAME] and those called for by the alternative [NAME]. There is no subjective element in that criterion. The question is not whether [NAME] regards a [NAME] to be suitable. Suitability is to be assessed objectively. [NAME] skills, training and experience are the primary considerations which the clause intends should inform the assessment. Regard must be had to [NAME] skills, training and experience, meaning that both the quality and extent of the skills, training or experience held or undertaken must be given weight in the assessment. Thus, if [NAME] has high level management skills and experience [NAME] a large team of employees, all [NAME] things being equal, a [NAME] that does not require that level of skill or experience is to be regarded as less suitable than a [NAME] that does. 270 The clause is not suggesting that a [NAME] is suitable simply because it is within [NAME] skills and competence to perform the role. A [NAME] as a clerk is not a suitable [NAME] for [NAME] with the skills, training and experience of a supervisor or manager simply because that person has the ability to perform the clerk's role. If cl 1.3(b) was merely intended to empower [NAME] to transfer [NAME] into a [NAME] that he has the capacity to perform, the clause would not have used the phrase "suitable for You" as the controlling condition. A phrase like "within your skills, training and experience" might have been used in that case. What the clause calls for is a sufficient alignment or correspondence between the skills, training and experience held or undertaken by [NAME] and the skills, training and experience required to perform the alternative [NAME], to make the alternative [NAME] befitting or suitable for [NAME]. It is in that sense that the "[NAME] must be suitable for [[NAME]]". The employment context suggests that a holistic and practical rather than a technical or formulaic assessment was intended. 271 Turning then to the requisite assessment, I will commence with what the evidence reveals about [NAME] skills, training and experience. For most of 2016, [NAME] was 45 years of age. He completed his [NAME] in 1989. He then obtained a Bachelor of Engineering and a Post Graduate Diploma in [NAME] and [NAME]. He also obtained a Masters of Business Administration and a further Masters of Business in [NAME]. In 2016, [NAME] commenced studies for a legal degree. 272 Utilising his engineering skills, from about 1993 [NAME] worked as a metallurgical and then as a galvanising line operator for some 3 years at BHP. He then commenced work for [COMPANY] as the National [NAME] Manager. In the latter part of his seven years working for [COMPANY], he also undertook a role as a Business Analyst. For a [NAME] period, a year or two, [NAME] worked in Business Planning before returning to [COMPANY] in 2009 to the National [NAME] Manager role. In that role he managed five employees. He left [COMPANY] in 2014 to take up the [NAME] with [NAME] as National [NAME] Manager. He moved to [NAME] including because [NAME] was of the largest [NAME] for workers [NAME]. He referred to working for a self-insured employer as an aspect of the career he had had working at [COMPANY]. 273 In the [NAME] of National [NAME] Manager, [NAME] managed some 30 employees with 5 managers directly reporting to him. His day to day work in the [NAME] included liaising with [NAME], attending to project work allocated to him and overseeing the work of his [NAME], in [NAME] reviewing high [NAME] worker's [NAME] [NAME]. 274 The skills, training and experience held by [NAME] are reflected in the Role Profile for the [NAME] of National [NAME] Manager. The evidence was that [NAME] had performed well in the [NAME] of National [NAME] Manager and I would infer that his skills and expertise were commensurate with those required by the Role Profile. 275 The Role Profile described the purpose of the National [NAME] Manager [NAME] as including developing [NAME]'s [NAME] strategy and developing the future [NAME] operating model by reviewing existing practices and processes and examining external best practice approaches, considering the broader [NAME] operating model and determining efficiency opportunities. [NAME] deposed that he had been able to draw on his past experience in the worker's [NAME] field to fulfil that objective and in [NAME] his experience working for a [NAME]. In this respect, [NAME] deposed that he had conducted research examining the efficiency of [NAME] [NAME] and was able to offer suggestions for improvement to assist [NAME] to effectively improve their [NAME] management of [NAME]. As I understood it, much of that evidence related to the development by him of [NAME]. 276 In identifying its purpose, the Role Profile also referred to the need for the National [NAME] Manager to lead the implementation of "the new [NAME] operating model by leading their team through the change process and ensuring the business is supportive of the new model". Further, the National [NAME] Manager was charged with ensuring the performance of [NAME] including continuing to effectively manage [NAME]'s [NAME] obligations, a responsibility stated to involve the maintenance of [NAME]'s self-insurance licence by ensuring compliance with legislative requirements, providing [NAME] advice and guidance to [NAME] and working in conjunction with the [NAME] team to contribute to mitigating [NAME] liability. 277 The Role Profile described the [NAME]'s "Major Accountabilities" as follows: Provision of [NAME] • Management of [[NAME]'s] [NAME] function nationally. • Provide expert advice and guidance on the complex and high [NAME] workers [NAME] related matters. • Provide senior management with detailed analysis of the cost of workplace injuries to the organisation, injury types and trends • Oversight and effectively manage the [NAME] national provision. • Ensure compliance with all policies, procedures, legislative and SRCC licensing requirements • Source and manage professional development for [NAME] specifically relating to medical and legal knowledge Strategy Execution & Customer • Accountable for the development of the future [NAME] strategy and operation model. • Investigating external best practices for [NAME] the [NAME] function in [NAME] comparible [sic] organisations. • Take an [NAME] wide approach to the management of [NAME] and the [NAME] term success of [[NAME]]. • Manage the change transition function from a state based team to a [NAME] to meet the needs of the business. Financial • [NAME] provision and costs. • In conjunction with finance, develop a business case for the new operating model. Leadership & Organisation • Lead a high performing team with behaviours aligned to Culture Pillars • Ensuring the people are committed and accepting of change and there is stakeholder buy-in to facilitate change. • Facilitate the people strategy and planning process for the [NAME] in partnership with HR Business Partners, [NAME], [NAME] [NAME] and [NAME] • Coach & monitor performance of [NAME] • Actively manage [NAME], [NAME] and wellbeing of team 278 Two aspects of what are described in the Role Profile as "Person Specification" are worthy of detailed consideration. Under the subheading "Essential Experience" the Role Profile called for: • Experience in the management [sic] a high volume [NAME] • [NAME] relationships including [NAME], staff, government and community • Experience working with legal advisors to manage workers' compensations [sic] litigation obligations • Managed a number of projects (ideally [NAME] change) simultaneously from conception to implementation and realisation of program objectives • Significant experience diagnosing and delivering organisational development and change solutions with [NAME] • Communicating with, influencing and advising [NAME] • Established record of coaching, development and [NAME] the performance of others 279 Under the subheading "Critical Knowledge" the following was stated: • Detailed understanding of the [NAME], [NAME] 1988 and expert knowledge of [NAME] • Detailed understanding of the workers [NAME] regulatory environment • Detailed understanding of the Self Insurance licensing system and compliance requirements • Business analysis, understanding of key financial tools and management [NAME] to measure performance and inform decision making • Tertiary qualifications in Business, OH&S or related discipline • Extensive knowledge of key market drivers, industry players and latest developments within [NAME] [sic] jurisdiction • Existing and new [NAME] processes and regulatory requirements • Must have existing knowlege [sic] of processing systems • Must have understanding of [[NAME]] SBU components parts (PON, Retail, CMS), interfaces, key processes and information/material flows • Business and financial analysis and reporting process • High level decision making and communication skills • Capacity to understand complex issues, analyse data and develop appropriate solutions

Suitability of the [NAME] 280 The [NAME] was one of the three roles offered for [NAME] to consider. The context in which those roles was offered is of some relevance. The [NAME] did not exist within [NAME] at the time it was offered. It is not clear on the evidence whether the [NAME] two positions were also newly created. These positions were offered to [NAME] in the circumstances earlier recounted where, at the direction of [NAME] was unable to offer [NAME] a [NAME] in [NAME]. 281 As earlier set out, a [NAME] description for the [NAME] was provided to [NAME] with two [NAME] [NAME] descriptions on 20 June 2016. After a complaint from [NAME] on 8 July 2016 that each of those positions required skills that [NAME] did not possess, the [NAME] description for the [NAME] was amended and provided to [NAME] by letter on 27 July 2016. [NAME]'s [NAME] was that the adjustments to the [NAME] description did not create "a different or new [NAME]" and [NAME] evidence was that, despite the adjustments, the "essence of the role hasn't really changed". It is helpful to identify the adjustments in setting out the role description in its adjusted form. If the essence of the role was not changed the requirements deleted serve to help to identify that essence. 282 The [NAME] description sets out the business context in which the [NAME] was intended to operate. It stated that [NAME] had embarked upon a rapid transformation of its business model to better suit the needs of its customers in response to dramatic social and technological changes affecting Australia. Further, that [NAME] was beginning "the next wave of change which will reposition it as a truly customer focussed organisation, with a broad offer beyond communications, and differentiated go-to-market propositions and associated brands". Under the heading "[NAME]" the following was stated (with the words which appeared in the original [NAME] description crossed through): The [NAME] brings together an unparalleled set of skills in data manipulation and analysis to help inform complex solutions and provide clarity to drive efficiencies within the [COMPANY]. This role is accountable to design, implement and deliver the analytics framework to deliver efficiencies within the [COMPANY] and make it simpler and more customer orientated to support the [[NAME]] strategy. 283 Matters listed under the heading "Major Accountabilities" were broken up into three categories – Strategic Execution and Customer Interaction, Leadership and Organisation and Execution. Much of the focus of these accountabilities was data collection and analysis including, for instance, ensuring "effective day-to-day oversight of analytics for the [COMPANY] and adherence to analytical protocols". The "Leadership" accountabilities made no reference to leading or [NAME] [NAME] employees and [NAME] evidence confirmed that the role did not involve any [NAME]. The role involved no management of employees. The "Organisation and Execution" accountabilities referred to problem solving skills critical to business issues, a demonstrated ability to deliver robust data analysis and reporting. References made in the original [NAME] description, to the ability to design data manipulation interfaces, perform data quality control, develop database [NAME] and normalise relational data, were omitted. 284 Under a heading identifying the experience and knowledge that the [NAME] should ideally demonstrate, the [NAME] description set out the essential experience and critical knowledge required. For "Essential Experience" the following were stated (words in the original that were omitted are crossed out): [NAME]: • Strong project management experience. • Experience analysing data from [COMPANY]. • Strong attention to detail and thoroughness in following systems and procedures. • Excellent organisational / time management skills. • Strong written and verbal communication skills. • Specific experience in the development of management and operational dashboards. • Demonstrated analytical thinking combining business acumen and elements of creativity. • Strong presentations skills; experience of presenting to internal and external [NAME]. • Comfortable working both internally and externally with technical and business experts providing input into future business offerings and opportunities. • Strong technical ability in the use of data analytical tools, data mining and data manipulation. • Ability to design solutions with ease of use in mind enabling seemless handover to [NAME]. Relationships: • Strong stakeholder management skills. 285 Under the heading "Critical Knowledge", the following was stated (words in the original that were omitted are crossed out additional words are underlined): Market and Environment: • Understanding of core accounting concepts. • Date Warehousing methodologies/techniques; Business intelligence reporting; and ERP systems. [[NAME]] Specific: • Not applicable. Technical and Professional Qualifications/Skills Required: • Qualifications in IT, Computer Science or Finance • A solid technical grounding in SQL; • Experience in predictive analytic tools – e.g. [NAME], [NAME]. R, etc • Data management and extraction experience – SSIS • Tertiary level qualifications in business or a related discipline 286 The assessment I need to make is not assisted by the vacuous "HR speak" with which [NAME] descriptions are commonly plagued. The oral evidence given did not provide much clarity into what the new and never before performed [NAME] really would entail. 287 It is sufficiently clear, however, that the [NAME] had nothing to do with [NAME] defining skills, training and experience – his primary and essential skill and expertise as a manager leading and supervising a large team of employees and as a [NAME] in the field of the management of [NAME] [NAME], including with extensive experience in a [NAME]. [NAME] had some 14 years of prior experience in the management of injured employees and their [NAME] for [NAME]. That he was given the task of developing [NAME] illustrates the sophistication of his skills in that area. 288 No doubt the [NAME] would have involved the utilisation of what I might call the generic or basic competencies which a [NAME]-[NAME] manager with significant responsibilities would have, such as effective communication skills or time management and organisational skills or a basic capacity to analyse data. However, skills of that kind are merely foundational. They do not reflect the [NAME] and defining expertise and [NAME] capabilities held by [NAME] which no part of the [NAME] description called for. To my mind, the essential rather than basic or foundational skills and experience required by the [NAME] are not at all matched or suited to those which defined [NAME] in his employment with [NAME]. 289 The essential skills and experience called for by the [NAME] are directed to customer service, product and business development with a focus on sophisticated data gathering and analysis to solve problems and develop strategies. These are matters largely foreign to [NAME] [NAME] expertise and [NAME] capabilities even though, including because of his training in business and some earlier relatively brief experience as a business analyst, [NAME] may have been capable of carrying out the [NAME]. It is suitability rather than capability which must drive the assessment. The fact that basic or foundational skills and expertise of the kind that [NAME] has may make him capable of performing the duties of the [NAME], does not make the skills, training and experience required by the [NAME] commensurate with or matched with or befitting the skills, training and expertise held by [NAME]. I do not consider the [NAME] to be a "suitable" [NAME] within the meaning of cl 1.3(b) of the contract. The contrary conclusion would fall well [NAME] of the protection which cl 1.3(b) intended be provided to [NAME].

Suitability of the MPFS and MFWPA positions 290 [NAME] did not require [NAME] to occupy the [NAME] or the [NAME]. It is not necessary to assess the suitability of those positions [NAME] than for questions of causation and mitigation of damages later addressed. It is convenient to assess here whether those two positions were "suitable" within the meaning of cl 1.3(b) of the contract. In my view neither [NAME] was "suitable for [[NAME]]". 291 [NAME] put forward the [NAME] as the most suitable of the three. I would infer from that a likely acceptance that if the Court held that the [NAME] was not suitable it would follow that neither of the [NAME] two positions were suitable. I do not mean to suggest that any concession of that kind was necessarily made. However, if it was, the concession was correctly made. 292 The purpose of the [NAME] was to develop and drive strategy and a holistic and integrated people and career framework. The [NAME] description clearly articulated that this [NAME] was suited to the experience and skills of a senior HR manager, requiring at least 10 years' experience in HR and extensive knowledge of HR strategy, best practice and principles. [NAME] did not possess these skills or experience; he had never worked in HR let alone had 10 years' experience in HR. [NAME] has a qualification in business, has undertaken some HR courses and has experience leading a team, this experience was not commensurate with the level of HR knowledge and experience required of the [NAME]. The essential skills and experience called for by the [NAME] were not commensurate or matched with [NAME] defining expertise and [NAME] capabilities. The [NAME] did not require [NAME] to utilise his expertise as a manager leading and supervising a large group of employees. It had no [NAME] or indirect [NAME] and no management of budgeted spend. It was not a "suitable" alternative [NAME] within the meaning of cl 1.3(b) of the contract. 293 The purpose of the [NAME] was to develop [NAME], the key accountabilities included developing a 3-5 year workforce strategy, supporting in the development and execution of a 1-3 year operating plan and contributing to the development of the [NAME] strategy. The [NAME] requirements included strong working knowledge of the [NAME] and its consumers and the ability to lead quantitative and financial business analysis. [NAME] did not have these skills or knowledge. Further, as deposed by [NAME], he did not have a "proven track record" in a [NAME] or strategic management role with at least 3-5 years' experience, as the [NAME] required. The [NAME] also had no [NAME] or indirect [NAME] and no management of budgeted spend. Again, although [NAME] held an MBA, the defining skills and experience required of this [NAME] were not commensurate with or matched to [NAME] expertise and it was not a "suitable" alternative [NAME].

Alleged Contractual Breach Relating to the Garden Leave Decision 294 [NAME] [NAME] alleges that [NAME] breached cl 10.4 of the contract by directing that [NAME] take "garden leave". The relevant direction was alleged to have been given in [NAME] letter to [NAME] of 29 April 2016 referred to at [241] above. 295 Fairly read, [NAME] letter contained two directions: (i) that [NAME] fitness for duty be assessed by a [NAME] practitioner and a [NAME] ("medical assessment direction"); and (ii) that until those medical assessments were obtained, [NAME] not return to work, refrain from contacting anyone at [NAME] or accessing his emails ("exclusion from work direction"). 296 Clause 10.4 is headed "Garden leave". What is meant by that expression is apparent from its terms. The clause addresses [NAME]'s right to make an exclusion from work direction – that is, that no duties be performed, that no contact with [NAME] employees, customers or business associates be made and that [NAME] be excluded from [NAME]'s premises. The capacity for [NAME] to make such a direction under cl 10.4 is limited. It may only be made during part or all of any period of notice of termination given by [NAME] or by [NAME], or during any period in which [NAME] is investigating any disciplinary issues involving [NAME]. 297 Clause 10.4 does not in any way deal with the making of a direction by [NAME] requiring [NAME] to be medically assessed. Much of the submissions made by [NAME] in support of the alleged breach of cl 10.4 of the contract were directed to demonstrating that the medical assessment direction was not a lawful and reasonable direction. There are a number of difficulties with the submissions made for that purpose. First, the [NAME] does not allege that cl 10.4 was breached by reason of [NAME] making the medical assessment direction. The [NAME] only alleges that cl 10.4 was breached because [NAME] directed [NAME] to take "garden leave", which can only be a reference to the direction which I have described as the exclusion from work direction. Second, cl 1.8 of the contract provides that [NAME] may require [NAME] "to undergo medical…checks where [[NAME]] determines it is desirable or necessary to do so". The clause states that it is an ongoing condition of [NAME] employment that he comply with any requirement to undergo a check. Neither the submissions of [NAME] or [NAME] seemed to have appreciated the existence of that contractual capacity given to [NAME]. 298 There are two answers to [NAME] claim that cl 10.4 was breached by [NAME] making the exclusion from work direction. The first is that, putting aside para (b) thereof which is not relevant for present purposes, cl 10.4 does not impose any obligation upon [NAME] which it is capable of breaching. Second, the circumstances in which the exclusion from work direction was made, did not engage cl 10.4. Clause 10.4 specifically confines the circumstances of its operation and none of those circumstances were present in relation to the making of the exclusion from work direction. 299 [NAME] contention that cl 10.4 should be construed as a code which covers the field about the circumstances in which [NAME] could be excluded from his workplace is entirely unpersuasive. Neither the terms of the provision nor common sense supports such a [NAME]. Clause 10.4 could not have been intended to cover the field of reasons for which [NAME] could be restrained from attending [NAME]'s premises. If that were so absurd results would prevail. For example, even if attendance was dangerous to the [NAME] of employees, on the [NAME] of cl 10.4 for which he contends, [NAME] could not be instructed to stay away. 300 In so far as [NAME] submissions relied upon the exclusion from work direction being an unlawful and unreasonable direction, that reliance has nothing whatsoever to do with an allegation that cl 10.4 of the contract was breached. That raises a different allegation of breach which has not been pleaded. [NAME] ought not here be permitted to travel outside of his pleading including because, even if there were merit in the contention made, [NAME] submissions do not establish that any relief whatsoever would flow from that breach. Those submissions did not even attempt to demonstrate any connection between the breach contended for and the damages claimed. If it was intended to ascribe part of the [NAME] damages claimed to the "garden leave" contractual breach claim, for reasons I will set out below, [NAME] damages could not be awarded in any event. 301 For all of those reasons, I reject the contractual claim made in reliance upon the Garden leave decision.

section 340 claim – garden leave decision 302 It is not in issue that the exclusion from work direction communicated to [NAME] by [NAME] was a direction which emanated from [NAME]. [NAME] contended that by excluding him from work, [NAME] subjected him to adverse action within the meaning of s 342 of the [NAME] for reasons including the reason that he had a workplace right being his entitlement to a safe working environment pursuant to s 19(1)(a) of the [NAME]. 303 The relevant legislation and legal principles, including the basis for the workplace right that [NAME] relies upon have been discussed already at [191]-[196] above. 304 I am satisfied that [NAME] had the workplace right he contended for. I am also satisfied, by reason of the authorities discussed at [197] above, that the exclusion from work direction denied [NAME] non-pecuniary benefits of employment sufficient to constitute a prejudicial alteration to his [NAME]. So much was accepted by [NAME]. 305 It is because I am not satisfied that the reason asserted by [NAME] was a reason for the exclusion from work direction that this claim must fail. 306 [NAME] denied that he was actuated by the alleged reasons relied upon by [NAME]. There is no basis for that denial not to be accepted. It is entirely plausible that [NAME] entitlement to a safe workplace played no part in [NAME] decision to give the direction. 307 I say that despite the fact that I harbour some concern that the reasons for the direction may not be truly reflected in the evidence given by [NAME]. The decision to send [NAME] home was an odd decision. It came well after the making of the [NAME] complaint. At the time the decision was made, [RESPONDENT] had had no contact with [RESPONDENT] for many months. Some of the [NAME] employees on [NAME]'s team, that [NAME] had suggested were put under stress by their contact with [RESPONDENT], were not sent home. [RESPONDENT] had shown no symptoms of having been affected by stress. [NAME] or [NAME] could have held any concern about his fitness for duty including in relation to a [NAME] in [NAME], as they had just selected [NAME] to commence the [NAME]. The timing of the direction, coming a day or two after it was announced that [NAME] would take up the [NAME] is also a matter which contributes to my concern given my conclusion about [NAME] resistance to [NAME] returning to a [NAME] in the area of [NAME] and [NAME]. 308 It is not, however, sufficient for [NAME] to persuade me that [NAME] had an ulterior purpose in making the exclusion from work direction. [NAME] needs to demonstrate that that ulterior purpose or reason was the workplace right which he has asserted to be a reason which actuated the direction. To make that case out [NAME] relied upon the same analysis as was put for the s 340 claim made in relation to the Removal decision which, as I have stated at [199], involved contending for a different prohibited reason to that alleged in the [NAME]. I have already addressed (at [201]-[202]) the reasons why that analysis is flawed. I have rejected this claim having assumed favourably to [NAME] that s 361(1) of the [NAME] was engaged, although I should not be taken to have accepted that the connection between the adverse action and the prohibited reason alleged was not so remote as to be fanciful.

relief 309 The only cause of action that has succeeded is [NAME] claim that the contract was breached when he was removed from his [NAME] as National [NAME] Manager. I have determined that cl 1.1 of the contract was breached by [NAME] on 5 February 2016 when [NAME] was removed from his [NAME] and that the breach continued until the contract was terminated. 310 [NAME] [NAME] substantial damages in the sum of $1,702,582.00. That calculation includes what in truth is a claim for debt relating to an unpaid bonus for the 2015/16 financial year. That claim was not pleaded and ultimately no claim relating to that bonus was pressed. The calculation also includes $4,116 for the reimbursement of university fees, but that claim was not pleaded nor proved. A claim for [NAME] damages of $50,000 is also included.

Loss of Remuneration Damages 311 What remains when those claimed losses are put aside, is a claim for loss of remuneration both past (as at the time of the trial) and future. The loss of remuneration claim is based on the annual salary and full bonus that [NAME] alleged he would have earned under the contract from August 2016 through to December 2024 (less 30% for contingencies in relation to future earnings). [NAME] contended that, but for the breach of his contract, he would have continued working for [NAME] in a senior managerial role. 312 The economic loss claimed by [NAME] only fell in after the termination of the contract. All of the loss sought by [NAME] referable to the breach of cl 1.1 of the contract post-date the termination of [NAME] employment.

Causation 313 The [NAME] principle is that damages for breach of contract are awarded to put the promisee, so far as money can do it, in the same situation as if the contract had been performed as promised: Clark v Macourt (2013) 253 CLR 1 at [26] ([NAME] and [NAME]). That principle emanates from a well-known statement made by [NAME] B in Robinson v Harman (1848) 1 Ex 850 at 855 that: [w]here a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation with respect to damages, as if the contract had been performed. 314 As [NAME] stated in Commonwealth of Australia v [COMPANY] (1991) 174 CLR 64 at 98, the principle expressed in [NAME] v [NAME] "identifies both the subject of [NAME] (loss sustained by reason of a breach of contract) and the measure of damages (the amount required to place the [NAME] in the same situation as if the contract had been performed)". As [NAME[NAME] went on to say at 99, a plaintiff seeking damages from a defendant "bears the onus of proving both the loss sustained by reason of the breach and the damages for the loss". 315 Chief Justice Mason and Dawson J observed in [NAME] at 80, that the award of damages for breach of contract "protects a plaintiff's expectation of receiving the defendant's performance. That expectation arises out of or is created by the contract. Hence, damages for breach of contract are often described as 'expectation damages'". 316 It was not really in contest that if removing [NAME] from his [NAME] as National [NAME] Manager and not providing him with a suitable alternative [NAME] was a breach of the contract, that breach was a repudiatory breach. A repudiatory breach entitled [NAME] to elect to accept the repudiation and sue for damages brought about by the termination of the contract. But such an election was not made, or at least, it was not [NAME] case that it was. However, contrary to the suggestion made in [NAME]'s submissions, [NAME] failure to rescind the contract for repudiatory breach did not foreclose his capacity to sue for damages relying on the same breach. A plaintiff can claim damages for breach of contract even though the plaintiff has not exercised a right to terminate the contract: [NAME], [NAME] on Contract (Thomson Reuters, 2019) at [26.90]. As [NAME[NAME] said in [COMPANY] v [COMPANY] (1985) 157 CLR 17 at 31 (emphasis added): It is often said that repudiation or fundamental breach - in the sense of breach of a condition or breach of [NAME] term or terms which is so serious that it goes to the root of the contract, and thus deprives the [NAME] party of substantially the whole benefit of the contract ([COMPANY]. v. Molena Alpha – entitles the [NAME] to rescind the contract and sue for damages for loss of the bargain: see, e.g., Ogle v. [COMPANY]. But this does not mean that such damages are recoverable only in the event of discharge for breach though it is essential to an award of damages for loss of bargain that the defendant can no longer be required to perform his contractual obligations in specie. 317 In this case [NAME] terminated the contract, not [NAME]. Upon the termination of the contract [NAME] was no longer required to perform its contractual obligations including the obligation to pay remuneration to [NAME]. 318 As the contract was terminated, [NAME] lost the benefit of the contract – namely, the remuneration he would have earned under the contract for the continuance of its term. If the breach of cl 1.1 was a cause of the termination of the contract then that breach was a cause of the loss or injury, being the remuneration [NAME] would have earned under the contract. 319 On this head of damage [NAME] contended that a loss of chance analysis was the appropriate approach to the assessment of his loss. It is not clear to me that it makes any difference to the assessment of this head of damage whether the loss is characterised as a loss of the bargain or the loss of a chance or opportunity to take the benefit of the bargain. In either case what is being valued is the benefit of the contract. In either case, what needs to be assessed is whether the loss flowed from the breach of cl 1.1 and, if it did, the extent of that loss by reference to the remuneration that [NAME] has or is likely to earn by reason of [NAME] employments or engagements (a scenario I will call "the factual") and the remuneration he would have earned under the contract in his employment with [NAME] (a scenario I will call "the counter-factual") over the period that that employment would have continued. [NAME] loss would be the difference between the remuneration that was or would have been earned on the factual and the remuneration that would have been earned on the counter-factual. By that process of assessment the object of putting the promisee, so far as money can do it, in the same situation as if the contract had been performed as promised, may be achieved. 320 There are issues raised as to whether [NAME] has suffered loss by reason of the breach of the contract upon which his cause of action relies. [NAME] contended that all of [NAME] claimed economic loss is referable to the termination of the contract by [NAME], an act not contended by [NAME] to be in breach of the contract or otherwise unlawful. [NAME] contended that [NAME] suffered no loss by reason of any breach by it of cl 1 of the contract. 321 That contention raises a causation issue. Did the economic loss claimed by [NAME] flow from the breach of cl 1.1 or did it solely flow from [NAME]'s unchallenged act of termination of the contract? That issue about causation is not avoided by [NAME] characterising his claim for damages, as I perceive he attempted to do, as a claim for a loss of a chance. As Kiefel J said in Tabet v Gett (2010) 240 CLR 537 at [143] "[r]esort to the language of 'chance' cannot displace the analysis necessary for the determination of the issue of causation of damage". 322 The now well established principles relating to causation were recently expressed by the Court of Appeal of the Supreme Court of [NAME] in [COMPANY] v [NAME] [COMPANY] [2019] VSCA 74 at [86] ([NAME], [NAME] and [NAME]). Relying on a series of High Court judgments including [NAME] v E and [COMPANY] (1991) 171 CLR 506 at 514 ([NAME]); Chappel v Hart (1998) 195 CLR 232 at 244 at [27] ([NAME[NAME]); Henville v Walker (2001) 206 CLR 459 at [106] ([NAME[NAME]) and also [NAME] v [COMPANY] (1987) 9 NSWLR 310 at 315 (Glass JA), and at 357–8 ([NAME]), their [NAME] said this: In essence, the law does not take a philosophical or formulaic approach to the question of whether a breach of contract has resulted in loss to the injured party. Rather, the law approaches the issue of causation as a matter of common sense. In [NAME], it is not necessary for a plaintiff to establish that the relevant breach of contract was the sole or exclusive cause of the loss claimed. It is sufficient if, in the circumstances of the case, the breach of contract materially contributed to the loss. 323 It is helpful in understanding what was meant by the expression "the breach of contract materially contributed to the loss" to refer to its source and the observation made by [NAME[NAME] at [27] of Chappel v Hart, where [NAME] said this: Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold [NAME] causally liable for a wrongful act or omission only when it increases the [NAME] of injury to [NAME]. If a wrongful act or omission results in an increased [NAME] of injury to the plaintiff and that [NAME] eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not [NAME] factors also contributed to that injury occurring. 324 In my view, [NAME]'s breach of contract created or generated the situation in which it was likely that the injury suffered by [NAME] would be sustained. In that respect the breach materially contributed to the injury and was thus a cause of it. 325 In assessing whether [NAME]'s breach of cl 1.1 was a cause of the loss of [NAME] employment and the remuneration he would have earned in that employment, it is important to properly identify the breach. As I have said, the breach was [NAME]'s failure, commencing on 5 February 2016, to employ [NAME] in the [NAME] of National [NAME] Manager. That breach could have been avoided or remedied if [NAME] had been placed into a suitable alternative [NAME] but he was not. 326 At the heart of the contract of employment is an exchange of work for remuneration – the work/pay bargain. Under the contract, [NAME] remuneration was paid to him for providing the services required by the contracted [NAME] ie either the National [NAME] Manager [NAME] or a suitable alternative [NAME]. [NAME] was denied the capacity to provide those services to [NAME], for which he continued to be remunerated at the level commensurate with his contracted [NAME], his ongoing future employment became commercially unsustainable. Taking a common sense view, it was likely, and in the absence of a variation of the contract it was inevitable, that that situation would result in the termination of [NAME] employment within a [NAME] period after what had been bargained for by [NAME] was not being received. [NAME]'s failure to employ [NAME] in his contracted [NAME] created or generated the very [NAME] of injury that [NAME] suffered – that his employment and earning capacity under the contract would be brought to an end by [NAME] exercising its right to terminate on notice pursuant to cl 10.1(a) of the contract. 327 It would not be correct to construe [NAME]'s exercise of its right to terminate as based upon [NAME] refusal to obey a lawful and reasonable direction to perform the [NAME], because on the findings I have made about the suitability of that [NAME], there was no lawful and reasonable direction made. It may however be said that a cause of the exercise of the right to terminate was [NAME]'s view that a lawful and reasonable direction had been refused. In either case, such a cause bore a relationship to the breach of contract proven by [NAME] and was not independent of that breach as a cause of the loss suffered by [NAME]. Even if an independent and separate cause existed, it was not necessary for [NAME] to establish that the breach he relies upon was the sole cause of the loss claimed.

Did an intervening event break the chain of causation? 328 If [NAME]'s exercise of its contractual right to terminate is of itself to be regarded as an intervening event, it is not an event which broke the chain of causation because irrespective of whether that event was [NAME] or unlawful, it was, in the ordinary course of things, the very kind of thing likely to happen as a result of [NAME]'s breach. That conclusion is an application of what was said by [NAME] in [NAME] at 518 as follows: It has been said that the fact that the intervening action was foreseeable does not mean that the negligent defendant is liable for damage which results from the intervening action: see [NAME] v. [NAME]; [NAME]; [NAME] v. Commissioner of Railways. But it is otherwise if the intervening action was in the ordinary course of things the very kind of thing likely to happen as a result of the defendant's negligence. In [NAME], [RESPONDENT] observed: 'But if the intervening action was likely to happen I do not think that it can matter whether that action was [NAME] or tortious or criminal. Unfortunately, tortious or criminal action by a third party is often the 'very kind of thing' which is likely to happen as a result of the wrongful or careless act of the defendant'. [NAME] contended that the chain of causation between the breach and the termination losses was severed by the various actions of [NAME] between February 2016 and 11 August 2016. In [NAME] it was contended that what led to the termination of [NAME] employment was his own actions in failing to reasonably engage with any sensible return to work. In that respect it was said that [NAME] failed to engage in a meaningful way with the process of meeting with [NAME] to discuss the roles being proffered or by attempting to grow into any of the roles on offer. [NAME] contended that it was clear that [NAME] would have remained in employment with [NAME], under the same contract of employment, at the same hierarchical level, earning the same amount of remuneration with the same bonus eligibility, if he had so engaged. Instead of so doing, [NAME] submitted that it was [NAME] own free, informed and voluntary actions in failing to reasonably engage which ultimately led to the termination of his employment. It was [NAME]'s submission that it was those actions that are properly to be regarded as the only, or only effective, cause of [NAME] losses. It was further contended that the losses would not have been caused by the breach alone and could not have been caused without [NAME] own actions in failing to reasonably engage in the process of his return to work, or ultimately, to accept the [NAME] he was directed to take up. 330 I do not accept that [NAME] failed to reasonably engage in the process of being returned to work in a [NAME] including by not accepting the [NAME] he was directed to take up. As I have found, neither the [NAME] nor the [NAME] two positions offered for [NAME] consideration were a "suitable" alternative [NAME]. It was not unreasonable for [NAME] to reject a return to work in a [NAME] of employment by, in effect, insisting on being employed in a [NAME] to which he was entitled to be employed under the contract. [NAME] conduct amounted to no more than an insistence that [NAME] comply with its contractual obligation and was not unreasonable. If [NAME] conduct was not unreasonable, "it could not be said in the circumstances that that action, rather than [[NAME]'s breach], was the cause of [[NAME] losses]": [NAME] v Commissioner for Railways (1973) 128 CLR 99 at 110-111 ([NAME[NAME], with whom [NAME] [NAME], [NAME] and [NAME] [NAME] agreed); see also [NAME] v [NAME] Commission (1995) 182 CLR 1 at 22. 331 It is [NAME] that bears responsibility for the failure to place [NAME] into a "suitable" alternative [NAME]. A number of "suitable" positions were available for [NAME] to take up including a return to the National [NAME] Manager [NAME] (available at least until 26 April 2016) and the [NAME] (available from that date). It was [NAME] refusal to permit [NAME] to take up either [NAME] which denied [NAME] placement into a "suitable" [NAME]. As I have stated, I do not accept that [NAME] refusal was materially based on a concern for [NAME] wellbeing and no [NAME] basis to justify the refusal is apparent. That both [NAME] and [NAME] were in favour of [NAME] being appointed to the [NAME] persuades me that there was no reasonable basis for [NAME] exclusion from that [NAME]. 332 In so far as [NAME] relies on [NAME] attitude and behaviour demonstrated during the process of being returned into a suitable [NAME], I accept that at times [NAME] was slow to respond to communications (although [NAME] was slow as well) and that [NAME] was less receptive and less willing to meaningfully engage with [NAME] than he might otherwise have been. That needs to be assessed in the context of [NAME] justifiable view that he had been badly mistreated by [NAME] and that the process that [NAME] was engaging him in was really the first step in bringing about the termination of his employment. His behaviour was not unreasonable in the circumstances and could not be said to be the cause of the losses which he [NAME]. 333 There is no reason, as [NAME] said in [NAME] at 519 "in common sense, logic or policy" for refusing to regard [NAME]'s breach of cl 1.1 of the contract as a cause of the losses suffered by [NAME].

Remoteness of damage 334 [NAME] also contended that the claimed termination losses were too remote from any breach of the contract. The principles for assessing whether damage is too remote were not in contest. The principles are set out by [NAME] in [NAME] at 98: The rule in [NAME] v. [NAME] prescribes the condition on which damages can be awarded in respect of a loss sustained by reason of a breach of contract: 'Where two parties have made a contract which one of them has broken, the damages which the [NAME] party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.' Applying the rule in [COMPANY]. v. [NAME], Lord [NAME] said that: 'The crucial question is whether, on the information available to the defendant when the contract was made, he should, or the reasonable man in his [NAME] would, have realised that such loss was sufficiently likely to result from the breach of contract to make it proper to hold that the loss flowed naturally from the breach or that loss of that kind should have been within his contemplation.' 335 What is "sufficiently likely" are damages "not unlikely to result from the breach" (C. [COMPANY] v Koufos [1969] 1 AC 350 at 382-3 and 385; Wenham v Ella (1972) 127 CLR 454 at 471-2), or which are a "serious possibility" ([NAME] at 365; [COMPANY] v [COMPANY] (1998) 192 CLR 603 at [60]; [NAME] v Farstad Shipping (Indian Pacific) [COMPANY] (No 3) [2016] FCA 1453 at [21]). 336 As [NAME] correctly contended, the onus of proving that the claimed losses are not too remote falls upon [NAME]: [NAME] at 80 and 99; Clark v Macourt at [27]. 337 [NAME] contended that [NAME] cannot establish that the losses were a "serious possibility" arising from the breach of cl 1 of the contract. It submitted that the relevant juxtaposition here is between the contract being performed (by [NAME] being placed in a "suitable" [NAME]) and the contract being breached (by [NAME] being placed in no [NAME], or an unsuitable [NAME]). [NAME] said that in either case, when the parties made the contract, they would not have reasonably contemplated that placing [NAME] into an unsuitable [NAME] would have led to the claimed loss on termination and that, in fact, they would not have contemplated any loss arising from such a breach, as the contract would have remained on foot and the employment would have continued. 338 The submission is unpersuasive. It is premised on the unlikely scenario that the parties contemplated that the [NAME] the subject of the breach of the contract, would have accepted the contract-breaker's non-performance and, by conduct or otherwise, assented to its variation. 339 The correct analysis, unburdened by a flawed premise, is that termination losses flow naturally from the breach of cl 1.1, including because it was a repudiatory breach of the contract and [NAME] was entitled to terminate the contract and sue for termination losses. Termination losses are therefore damages "not unlikely to result from the breach". Furthermore, for the reasons explained at [326] as to why it was likely that the breach of the contract would result in termination and subsequent loss, those losses are damages "not unlikely to result from the breach" even if the analysis is to be confined to a termination at the instance of [NAME]. Lastly, [NAME]'s contention that because [NAME] refused to accept a "suitable" [NAME] he increased his damages thereby making those damages too remote, is rejected including because there was no rejection of a "suitable" [NAME] and further, the responsibility for any failure for a "suitable" [NAME] to have been provided so that it could have been accepted, falls at the feet of [NAME].

The Measure of Damages 340 I turn then to deal with the measure of damages. In dealing with the measure of damages, the "least burdensome principle" can have application. Under that principle and as the High Court ([NAME], [NAME], [NAME] and [NAME]) said in [COMPANY] v [NAME]) [COMPANY] (2008) 234 CLR 237 at [89] "where a contract-breaker has a choice of methods of performance, damages will be assessed on the basis of the contract-breaker's minimum legal obligation – the method which would have been least onerous to the contract-breaker in the sense that non-compliance with it attracts the lowest measure of damages". 341 [NAME] did not rely upon the "least burdensome principle" and it was correct not to do so. [NAME] did not suggest that the termination effected on 11 August 2016 with the giving of notice, was the invocation by it of the least onerous method of non-compliance with its contractual obligation. No such suggestion was open including because by the time [NAME] effected the termination, the breach upon which [NAME] relies was complete. The facts are not relevantly dissimilar to those in Commonwealth Bank of Australia v [NAME] (2013) 214 FCR 450, where the failure to follow a redeployment policy and redeploy an employee was the alleged breach of contract but where the damage which the employee suffered fell in at the point at which he was later dismissed by his employer on four weeks written notice. In obiter but not in dissent on this issue and on the presumption that there was a breach of the contract by reason of the failure to redeploy, [NAME[NAME] at [354] rejected the employer's invocation of the "least burdensome principle": The appellant's invocation of the least burdensome principle encounters an immediate obstacle in the facts of the case. The least burdensome principle takes it as a given that the party otherwise in default would seek to do, or at least to achieve the effect of, what was done irregularly. The appellant had no desire to terminate the respondent's employment. On 2 [NAME] 2009, he was told that it was the appellant's preference that he be redeployed to [NAME] [NAME]. It was not until 9 April 2009 that the appellant dismissed the respondent, but by then the breach of contract for which damages were assessed by the primary Judge was complete. In respects relevant to that breach, the case was not one in which the appellant made an ineffective attempt lawfully to terminate the employment of the respondent. It is not, therefore, a situation in which we should assume that the appellant would have adopted the least burdensome method of lawfully doing what it attempted to do. The question was not whether there was a means of dispensing with the services of the respondent that would not involve a breach of contract. The omissions which the primary Judge held to constitute a breach of contract on the part of the appellant were not by way of attempts to terminate his services. In my view, the least burdensome principle had no role to play in the assessment of damages in the present case.

The counter-factual 342 There is, however, [NAME] way in which the availability to [NAME] of a contractual capacity to terminate the contract on providing notice of termination may be relevant in assessing the measure of damages where, on the counter-factual, the assessment of damages takes into account the future capacity to earn remuneration under that contract. [NAME]'s capacity to terminate is a hypothetical future event of relevance just like [NAME] possible personal exigencies or contingencies which must be taken into account. The relevant question being would [NAME] have exercised its capacity to terminate the contract and if so when? That approach has been taken or considered in a number of cases including Walker v [NAME] Australia [COMPANY] [2006] FCAFC 101 at [83]-[84] ([NAME], Edmonds, and [NAME]), [COMPANY] [COMPANY] v Mitchell-Innes [2015] NSWCA 381 at [117-123] (MacFarlan JA with whom [NAME] agreed) and [NAME] at 93 and 97-8 ([NAME] J). The approach is not, in my view, confined to cases where damages are being assessed on the basis of a loss of a chance. 343 However, no submission was made by [NAME] and no evidence was called to the effect that if [NAME] had not breached the contract and, on the counter-factual, [NAME] had remained employed by [NAME], [NAME] would have exercised its right to terminate the contract on providing notice either at the time it did or otherwise, save that in contending for a discount for contingencies [NAME] referred to the possibility of [NAME] employment with it coming to an end. 344 I will return later to the issue of the appropriate discount for contingencies. I turn first to consider, on the counter-factual, the income [NAME] would have likely earned under the contract. Under the counter-factual, I will assume that [NAME] would have remained employed in the [NAME] of National [NAME] Manager or in an alternative "suitable" [NAME], although the assumption remains valid even if [NAME] was placed into a [NAME] [NAME] than a "suitable" [NAME] so [NAME] as the remuneration in that [NAME] [NAME] remained commensurate with that likely to have been earned in the National [NAME] Manager [NAME]. 345 [NAME] claim for loss is based on 8.33 years of employment with [NAME] from 11 August 2016 when the contract was terminated. [NAME]'s submission did not specify the period [NAME] would likely stay in employment with it on the counter-factual but that submission was based on the proposition that within no more than about 3 years and 9 months of August 2016, [NAME] would have been in employment in which his income was commensurate with the income he would have earned at [NAME]. For reasons I will further develop, I consider that assessment to be about right but would regard 4 years as a more likely time period by which [NAME] income would reach the same level as it would have been if he had remained employed by [NAME]. 346 I am of the view that even if [NAME] remains unemployed as at the time of this judgment, it is likely that he will obtain remunerative employment commensurate with the remuneration payable for the National [NAME] Manager [NAME] by August 2020 because, by this judgment, a very significant impediment to [NAME] opportunity of obtaining such employment will be lifted. [NAME] employment history prior to August 2016 demonstrates that he has not previously had difficulty finding employment and securing new job opportunities commensurate with his skills and [NAME] expertise. As I later record, [NAME] made extensive efforts to find work between August 2016 and the date of the trial without any success. But I regard that as an aberration largely brought about by the circumstances in which he lost his employment with [NAME]. He has not been able to obtain a reference from [NAME] and he has been often required to tell potential employers that he was dismissed by [NAME] for refusing a lawful and reasonable direction. It is likely that any potential employer seriously considering employing [NAME] would want to know the basis upon which he left his prior employment and will be greatly concerned, if not put off entirely, by being told that [NAME] terminated [NAME] employment for the reason that [NAME] gave. This judgment vindicates [NAME] [NAME] and provides [NAME] the opportunity of conveying to potential employers that [NAME] bears responsibility for the loss of what the evidence persuades me was a very capable and highly performing employee. 347 On that basis, in considering the counter-factual, it is only necessary to work on the assumption, which I consider to be reasonable, that [NAME] would have stayed in employment with [NAME] in his contracted [NAME] or [NAME] [NAME] with the same remuneration for four years – that is to 11 August 2020. At that time [NAME] will be a little less than 49 years of age. 348 [NAME] annual salary when the contract was terminated was $187,480. Although it was contended that an allowance should be made for an increase in [NAME] annual salary based on likely future promotions, there was no evidence about the likelihood of future promotions nor was the extent of any allowance contended for specified. I would not provide for any such allowance. 349 The evidence persuades me that [NAME] is a very capable high performing employee. In the last full financial year in which he worked in the National [NAME] Manager [NAME] (2014/15) he earned a bonus of $34,701. I consider it reasonable to assume that in each of the four years through to August 2020 [NAME] would have continued to earn an annual salary of $187,480 and a bonus commensurate with the bonus earned in 2014/15 ($35,000) ie a total salary of $222,480 per annum and, over the four year period in question, a total of $889,920. 350 I accept that that total should be discounted for contingencies. The submissions were not particularly enlightening as to the appropriate rate at which that should be set. For the first 2.33 years post August 2016, [NAME] contended that no discount should be made but that thereafter a discount of 30% should be allowed. I assume, although it was not explained, that that discount was based on the vicissitudes of life and that in the first 2.33 years to the date of the trial which was attended by a seemingly fit and healthy [NAME], there could be no suggestion for a discount of that kind. [NAME] referred to the 25% contingency discount applied in [NAME] "to take account of the possibility of early termination for one reason or [NAME]" (at [84] and [87]) as indicative of the appropriateness of the discount suggested by him. 351 By its submission, [NAME] contended that the appropriate discount for contingencies would be in the order of 50%. [NAME] relied on the discount of 50% found to be appropriate in [NAME] v [NAME] [2015] FCAFC 120. In that case, a [ADDRESS] ([NAME], [NAME] and [NAME]) in reassessing the appropriate discount for contingencies increased the discount applied by the primary judge from 20% to 50%. As is apparent from the observations made at [142]-[146], the basis for the 30% uplift to the rate applied by the [ADDRESS] was the failure of the primary judge to take into account the casual nature of the counter-factual employment as well as the [NAME] vicissitudes of life at sea and the significant possibility that the employees concerned would find lengthy periods of separation unsustainable. None of the considerations upon which the 30% uplift was based are here relevant. In so far as I am assisted by the result in that case, it seems to me that that decision supports a discount rate of about 20%. However, I am not much assisted because in my view, primary attention must be given to the [NAME] circumstances of the case in question. 352 [NAME] contended that the evidence demonstrated that there was some turnover of managers at [NAME] and that, despite there being no evidence of "mass redundancies", the workplace was redolent with change including because alterations to roles and duties are not infrequent. However, the evidence referred to does not suggest anything [NAME] than the ordinary turnover of staff in a [NAME] like [NAME]. It was further contended that [NAME] employment may well have ceased either by reason of changes to his role, or by reason of his reaction to those proposed changes. The submission is unpersuasive. It is premised on [NAME] being responsible for the loss of his employment in August 2016. I reject that premise for reasons previously addressed. 353 [NAME] is a very [NAME] and as such its opportunity to provide its employees with ongoing employment is relatively large. I consider [NAME] characterisation of [NAME] as a [NAME] that offered "security and longevity" likely to be accurate. I rely as well on the evidence that, on average, employment at [NAME] lasts 16 years. Furthermore, prior to the termination of his contract, [NAME] had a record of stability in employment and family and financial responsibilities which suggest that he would be keen to maintain secure employment. [NAME] struck me as a capable individual, well respected by his colleagues, hard working and the kind of person who would be well placed to enhance the security of his employment. There is nothing out of the ordinary to suggest that as an individual of less than 50 years of age in a managerial role, [NAME] or personal considerations would have impeded his ongoing employment through to August of 2020. In the circumstances, I consider that a 20% discount for contingencies should be applied.

The factual 354 Turning then to consider what I have called the "factual scenario", there are known facts and yet unknown factors which need to be considered. At the time of the trial, evidence was received about [NAME] earnings and his attempts to secure work. 355 [NAME] has not been able to secure any full-time work since his employment was terminated by [NAME] on 11 August 2016. Since then he has undertaken paid and unpaid consultancy work for two businesses and has been self-employed as a landscape gardener. He has earnt $22,366 through this work. The calculation of his earnings must also take into account the 3 months' pay provided in lieu of notice by [NAME]. 356 After the Removal decision and fearing that his employment at [NAME] was at [NAME], [NAME] first contacted a number of recruitment agencies in February 2016 and had weekly contact with those firms before the termination of the contract. [NAME] provided the Court with a list of job positions that he had applied for commencing from February 2016 to the date of trial, and deposed that he was still searching for a job. The jobs that [NAME] applied for were in the [NAME], [NAME] and occupational [NAME] and [NAME] fields. The majority of salaries for these positions ranged from $120,000 to $150,000, the lowest salary was $90,000 and the highest was $200,000. Doing the best I can to interpret [NAME] comments on the list provided, he applied and was unsuccessful for approximately 31 positions and he made enquiries about approximately 28 [NAME] positions. [NAME] also registered with approximately 15 recruitment agencies. [NAME] deposed that in applying for positions he was often asked to provide the reason for leaving his [NAME] at [NAME] and that he advised that his [NAME] was terminated due to not following a reasonable management request. Further, that many potential employers requested references and that he had attempted to secure references from his [NAME] managers but that he did not receive any response to those requests. As at the date of the trial, a number of job applications were still pending.

Mitigation 357 [NAME] was critical of [NAME] conduct contending that he failed to mitigate his losses. The legal principles are not in contest. They are helpfully surveyed by [NAME] in [NAME] at [169]-[176]. Subject to the reservation that each case must be determined on its own facts, the observations of [NAME] were adopted by [NAME] (with whom [NAME] and [NAME] [NAME] agreed) at [139]-[140] of [NAME] [COMPANY] v Smith [2015] SASCFC 160. Those authorities support the following principles: the [NAME] rule is that an applicant is not entitled to recover damages for any loss that has in fact been avoided or could have been avoided by taking reasonable steps; the question of what steps are reasonable is a question of fact to be determined having regard to the [NAME] circumstances; there is no onus on an applicant to show it has taken reasonable steps to mitigate loss, rather the onus is on the respondent to show that the applicant did not take reasonable steps and show the extent of the failure to do so; mitigation does not require an applicant to do what is unreasonable including to do things that present serious risks to the applicant's interests; in employment cases, personal factors are likely to be of greater weight than in commercial cases; and it is not unreasonable to refuse an offer of employment where the level of remuneration or status of the [NAME] offered is less than that previously enjoyed by the applicant, but with the passage of time, it may be reasonable for the applicant to "lower their sights". 358 [NAME] contended that [APPELLANT] attempts to obtain employment are characterised by a lack of reasonableness. That was said to be so because [NAME] focused almost exclusively on employment in the field of [NAME] in circumstances where he has post-graduate qualifications in finance, [NAME] and industrial relations. In that respect [NAME] contended that [NAME] had not been prepared to "lower his sights". 359 That criticism must be rejected. The evidence that [NAME] was prepared to "lower his sights" is manifest. The vast majority of positions that he applied for were positions well below the level of remuneration, and I would infer, level of status, of the [NAME] that [NAME] previously enjoyed. The jobs applied for were in the fields of [NAME], [NAME] and occupational [NAME] and [NAME]. Each of those fields are wide and the large number of positions applied for (as well as [NAME] registration with approximately 15 recruitment agencies) demonstrated that [NAME] embarked upon a wide field of enquiry. Despite the fact that the field did not extend to finance, [NAME] and industrial relations (areas in which [NAME] has some qualifications but no experience) does not in my view, demonstrate that the field of exploration chosen by [NAME] was unreasonably narrow and that, in that respect, [NAME] failed to "lower his sights". In any event, I note that [NAME] did work outside of his occupational field including by taking on landscaping work. The most cursory of factual comparison with the facts in Riverlands, where the employee there in question was held to have failed to "lower his sights" well demonstrates how far off the mark [NAME]'s reliance on Riverlands is. In that case, the [NAME] of a regional council only applied for four positions after his contract was repudiated in the 2 years and 4 months subsequent to the termination of his contract and did not lower his sights by applying for positions of a lower status or less remuneration to that which he previously enjoyed. 360 [NAME] also contended that [NAME] failed to mitigate his losses by refusing alternative positons offered to him by [NAME] in the period after 5 February 2016. As only the [NAME] was refused, I assume that the contention was confined to that [NAME], although if reliance was also being made on the MPFS or MFWPA positions my conclusion would be the same. Although I doubt it to be the case, I will assume in favour of [NAME] that a duty to mitigate loss exists at a time when that loss is merely prospective and whether it will eventuate is uncertain. Nevertheless, I reject [NAME]'s contention that there was a failure to mitigate by any non-acceptance of either the MBII, MPFS or MFWPA positions. As I have earlier discussed, there was nothing unreasonable in [NAME] insisting on [NAME] complying with its contractual obligations. Further, the duty to mitigate did not extend to requiring [NAME] to do things that presented a serious [NAME] to his own interests. Accepting a [NAME] that compromised his contractual entitlements would have, in the circumstance, likely to have been seriously adverse to [NAME] interests.

The need for updating 361 To return more directly to the assessment of earnings on the factual scenario, it is also necessary to assess [NAME] earnings after the trial and through to August 2020. As things currently stand, that assessment could only be made as a matter of judgment and degree on the basis of evidence that was current at the time of the trial. The unfortunate delay between that time and the present is [NAME]. It is likely that if the Court was updated with evidence of [NAME] earnings and employment circumstances, the Court would be better able to assess with greater surety the quantum of [NAME] loss because the assessment will more readily be able to be made on actual rather than assumed facts. 362 I am minded therefore, subject to hearing any objection if there be any, to receive evidence or preferably a statement of agreed facts which deals with [NAME] earnings and his employments since trial. It would be better still if on the basis of that updating and my findings, the parties were able to agree the damages and any interest payable under s 51A of the Federal Court of Australia Act 1976 (Cth). A Registrar of the Court can be made available to mediate if that would be of assistance. 363 This course will be facilitated by directions I intend to make.

[NAME] 364 Lastly, [NAME] also [NAME] $50,000 in [NAME] damages for pain and suffering. The claim was based on [NAME] evidence that he had become withdrawn, had difficulty sleeping and suffered from isolation. I suspect that the claim was made principally in relation to [NAME] statutory causes of action which have not succeeded. Nevertheless, the claim for [NAME] damages was also made under the contractual claim. 365 The claim must be rejected because [NAME] is not able to claim damages for distress in relation to his breach of contract claim. 366 The [NAME] rule in relation to contractual breaches is that damages for anxiety, disappointment and distress are generally not recoverable, save for certain exceptions: Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 361 ([NAME] with whom [NAME] and [NAME] agreed). The rule in relation to those exceptions was detailed by [NAME] in Dillon (at 365, with whom [NAME] and [NAME] [NAME] agreed) as follows: damages for disappointment and distress are not recoverable unless they proceed from physical inconvenience caused by the breach or unless the contract is one the object of which is to provide enjoyment, relaxation or freedom from molestation. In cases falling within the last-mentioned category, the damages flow directly from the breach of contract, the promise being to provide enjoyment, relaxation or freedom from molestation. In these situations the court is not driven to invoke notions such as 'reasonably foreseeable' or 'within the reasonable contemplation of the parties' because the breach results in a failure to provide the promised benefits. 367 It was not the object of the contract to provide [NAME] peace of mind nor was [NAME] physically inconvenienced. Even if I were to be satisfied that [NAME] was distressed and that the distress flowed from the breach of contract, I would nevertheless find that no award for distress could be made. In support of his submission [NAME] referred to [NAME] (at [91]), however, in that case the damage for distress was awarded in relation to Mr [NAME] statutory claim and not his contractual claim.

conclusion 368 I have rejected all of [NAME] statutory [NAME] and, in [NAME], his claimed contraventions of ss 348, 355 and 340 of the [NAME] and associated [NAME] of accessorial liability. 369 Of the two contractual [NAME] made, one (a breach of cl 1.1 of the contract) has succeeded but the [NAME] (an asserted breach of cl 10.4 of the contract) has failed. 370 In relation to the contractual claim that has succeeded, I have rejected [NAME] claim of [NAME] damages for pain and suffering. I have upheld his claim of damages for loss of remuneration. The quantum of that loss is not yet fully assessed and I propose that the Court receive further evidence or an agreed proposal to enable that assessment to be finalised. 371 I will make orders to facilitate that course. I certify that the preceding three hundred and seventy-one (371) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME].

Associate: Dated: 23 December 2019

SCHEDULE OF PARTIES VID 876 of 2017 Respondents Fourth Respondent: [redacted]