This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “contact us” tab.

My business grows by referrals. I would appreciate it if you would pass my details on to your colleagues, clients or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct and more…


This is an appeal to the full court of the Federal Court of Australia by a former employer (the “company”) against a decision by a primary judge of the same court that awarded $75,000 (being six months’ pay) to the company’s former employee for reasons that amounted to the company dismissing the former employee because he refused to sign a new contract of employment.

The former employee also lodged a “cross appeal” stating that he should have been awarded 12 months’ pay of $150,000.

Both the appeal and cross appeal were dismissed, reinforcing the primary judge’s decision that the former employee was dismissed because he wished to seek legal advice prior to signing (a reduced) contract of employment and in the words of the court:

“In addition or in the alternative, [the former employee] alleged that [the company] repudiated or breached his contract by failing to give him reasonable notice of termination”.


The company is a family-owned investment services firm.

The former employee is a martial arts champion who worked as a bodyguard since about 1989 and has held senior security positions in the Philippines and Australia. Between 2009 and 2015 he operated his own business providing security services. He holds an Advanced Diploma in Security Risk Management and a Diploma in Business Management.

The company employed the former employee from May 2016 until November 2016, under an oral contract. His annual salary was $150,000, plus superannuation, and he was provided with a company car, first a Mercedes S-Class, then a 2015 Maserati. Part of his job involved driving the vehicle to pick up and drop off his manager. Between May and October 2016, the former employee was given wide-ranging additional responsibility; fundamentality all administration of the business that did not involve financial trading. He was given the title “Chief Operations Officer”.

The dismissal

In the period leading up to that fateful event, the former employee had a discussion with his employer about implementing new employment contracts for all of the company’s employees. To this end, he engaged lawyers from a top tier law firm to prepare two types of employment contracts, one for award employees and the other for non-award employees.

Late in the afternoon of 11 November 2016, with no prior notice, Mr Tran was told that that his presence was required in the boardroom.

In the boardroom the former employee was presented with a new contract. The former employee recognised it as a contract in the same form he had issued to staff during the week. He told the company it was “for normal staff, not for me”. The former employee was not happy, either with the terms of the contract or, as the primary judge put it, “its applicability to him and the position he had occupied”. Although the former employee’s salary would not change, his status was reduced. He would no longer be employed as Chief Operations Officer, reporting directly to the owner. Rather, his new title would be “Risk Manager” and he would be reporting to the owner’s son. His duties were reduced and there was no mention of a company vehicle. The contract also included a 12-month probationary period.

According to the former employee’s affidavid:

“I was feeling very nervous and uncomfortable about the contract, especially considering how I was recently being treated. It was also clear that there were lots of details in there that I couldn’t be across on such short notice. Although I had been handing these out earlier in the week to other employees (since this was a contract designed for normal employees), I wasn’t across all the details of the contents and would not be comfortable signing it without having at least an opportunity to read it through. I was also conscious this version was probably tweaked by Justin Le Blond who had recently promised, when winking, to make it a lot stronger. I said:

Me: “I will take it to a lawyer to review.”

[The owner son’s] face changed, his voice became angry and he raised his voice when he said:

[OS]: “It’s your contract!”

[OS] was yelling at me at this point:

“I will not pay you if you don’t sign it now. If you don’t sign now, it shows you are not loyal”.

At some point, [the OS] said to me:

“What value do you bring to the company when we pay you $150,000, car, no fringe benefits tax, nearly $200,000?”

Soon afterwards, the owner entered the boardroom and at some point, the former employee signed the contract “under enormous pressure” from the company. He later regretted his action and tore the contract in half.

The former employee then left the building in the company Maserati.

This led to the company calling the police to retrieve the company vehicle and three mobile phones belonging to the company, having determined that the former employee had resigned (a point which the former employee denied). These issues were the subject of text messages.

The primary judge finding

The primary judge found that the former employee did not resign from his employment at the meeting. Rather, his Honour found that his employment was terminated after he left the meeting because he had sought to exercise his workplace right to seek legal advice about the new contract. The effect of his Honour’s findings is that, by arranging for the police to contact the former employee after he had sent the text message reasserting his workplace right to obtain legal advice about the new contract and retrieve its property, the company “had repudiated his contract of employment” and, by returning the Maserati with its keys and three mobile phone handsets, the former employee “had accepted the repudiation”.

This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “contact us” tab.

My business grows by referrals. I would appreciate it if you would pass my details on to your colleagues, clients or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct and more…


This decision has a lot of “wow” factor – not only in terms of the financial cost to the company, but the importance of dealing with issues front-on, including complaints of bullying (in this case 7), the exacerbation of an (unknown to company) mental health condition, monitoring workloads, and the importance of the contract of employment being right first time.

Remembering that the onus is on the employer (within reason) to prove it did nothing wrong (ie the “reverse onus of proof”).Further the “bully” was personally fined $8,000.

Please also note that I have “glossed over” a number of issues due the length of the decision.

Further noting that there is NO income limit for an adverse action claim (and whilst not pertaining to this case, no minimum employment period).

The penalty

To get this out of the way first, the penalties were made up of:

  • Fines of $40,000 to the company and $7,000 for the “bully”.
  • The company was ordered to pay the applicant:
    • $756,410.00 as compensation in respect of his forgone share options;
    • $2,825,000.00 as compensation for his future economic loss.
    • $10,000.00 for general damages.
    • Damages for breach of contract of $1,590,000.00.

The Fair Work Act 2009 provides for the maximum penalty for a single contravention by the company is $54,000.00 and for the boss $10,800.00. The seven contraventions involving the making of complaints must be grouped together as one contravention for the purpose of assessing penalties.


The applicant in this matter was employed at a publicly listed enterprise software company as State Manager for Victoria on 3 July 2006 until his dismissal 18 May 2016.

At the time of employment, the company was very small and became “very large” due (in part) the good efforts of the applicant.

The company’s reason provided for the dismissal (which was rejected by the court) was poor performance.

However, the applicant (via his QC and assisting counsel) that he was dismissed unlawfully for “making a workplace a complaint”, contrary to s 340 of the Fair Work Act:

  • Seven instances of his exercising his workplace rights by making complaints in relation to his employment: in particular, complaints as to his having been bullied (ie marginalising him, stopping him from attending meetings with clients and preventing him from doing his job);
  • His proposed exercise of his right to bring legal proceedings under a workplace law;
  • His proposed exercise of a safety net contractual entitlement; and
  • His having a safety net contractual entitlement.

The court noting that the applicant’s legal team did not press claims that he had been dismissed for other reasons (being his taking sick leave; being temporarily absent from work; and having a mental disability).

Show me the money

With the growth of the company, so was the applicant’s salary with his gross income increasing from $208,932.00 in the 2006/07 financial year to $845,128.00 in the 2015/16 financial year. Most of that increase was attributable to incentive payments; with his base salary increase only from $165,000.00 to $192,000.00 during the same period. He was also provided with share options in 2013, 2014 and 2015.

Personal crisis and ongoing Depression (work/life balance)

Whilst financially things were going very well, in the background he was working very long hours to the detriment of his home life: in September 2010, his 14-year-old daughter became ill with Kawasaki disease, requiring open-heart surgery in January 2011. He did not go to the hospital with her at that time. He had thought it vital to finalise an important deal on behalf of the company before the end of the company’s financial year. This not only left the applicant with feelings of guilt, but directly attributed to chronic depression.

Ironically, the applicant found solace in attending work to “escape the pain”. This also made worse his relationships with his family. In the words of the court:

“[The applicant] identified his feelings of guilt as stemming from his inappropriately having prioritised his work for [the company] over his daughter’s life and health. It is therefore perhaps cruelly ironic that [the applicant’s] evidence is that in order to avoid that distress, work became the one safe place where he could “escape”. He therefore increased his already long working hours.

“Outside of work however, [the applicant] could not escape his grief. He became emotionally closed off from his wife. Predictably, that gave rise to tensions within their marriage. [the applicant] gave evidence [as did an expert witness], which I accept, that at various times the marital relationship had been on the verge of breaking down. The applicant] also experienced repeated thoughts of suicide. On at least one occasion he had taken steps, ultimately not implemented, directed towards that end”.

The company was unaware of the extent of the applicant’s distress

Apart from confirming to his work colleagues from time to time that he remained concerned about his daughter’s health, the applicant was careful not to reveal to anyone at the company the depth of his private turmoil. Being able to focus on the practical problems of work without anyone at the company knowing about his damaged condition allowed him to hide in his safe place, numb to his grief and pain.

Also causing the applicant distress, was separate legal proceedings that he and his daughter were then bringing in which each had claimed damages on the basis that certain medical practitioners who were alleged to have misdiagnosed her had been negligent.

4 November 2015, the applicant saw a psychiatrist, who testified that the applicant confided:

“They [the company] don’t know about my suicidal tendencies but I’ve been told in the past four years that I could have done better. I haven’t been performance managed yet but I have to work longer hours because I get absolutely distracted about my daughter. I’m not efficient. Severe concentration problems. I forget things and I send the wrong emails to people, repeatedly getting into trouble with my boss because I misjudge situations”.

“As a result of his dismissal he suffered a profound mental breakdown. Whether his dismissal caused that breakdown, or whether it was merely a manifestation of his earlier depressive disorder from which he had continued to suffer after his daughter’s illness, is the subject of contested expert evidence to be discussed later. It is however not in dispute that after he was dismissed [the applicant] became, and remains, incapable of ever working again”. [My emphasis].

The applicant’s performance at work does not materially decline notwithstanding his (later diagnosed) depressive disorder

The court did not accept that the applicant’s long established, and only later diagnosed, depressive disorder caused a material decline in his performance at work, citing the performance bonuses provided to the applicant. He also received the “Chairman’s Award” in of 2012, 2013 and 2014.

Serial Complainer = exercising a workplace right

He was always astute to ensure that his contribution to the success of the company be rewarded in monetary terms; to the extent that his boss describing the applicant as being a constant complainer:

“[The applicant] complained from the day he started at [the company]. He complained from day one that the salary that we had offered him and that he had agreed was not enough and I had to change it. He complained about options. He complained about staff. He complained so much. You will see it through all the papers, and the last three or four months … I couldn’t care less about a complaint. All I cared about is his ability to perform, number 1, and number 2, that his behaviours were acceptable. But his complaints were totally irrelevant to the whole thing. And if Behnam had been the right person, he would still be there”.

The court commenting:

“As [the applicant’s boss] evidence implies, I am entitled to be satisfied that had [the applicant] not been a strong performer he would have been given very short shrift. Instead, I infer that [his boss] yielded to [the applicant’s] demands for additional financial rewards because he was a strong performer whose services he wished to retain”.

“I am satisfied that [the company’s] “Open Door Policy” and its “Workplace Bullying Policy” …are not disputed to have been applicable at the relevant time. They provide an explicit basis for the Court to be satisfied that [the applicant] was “able to make a complaint” as he claims he did, inter-alia, about his having been bullied in relation to his employment”.

The court adding:

“The same applies with respect to any complaint [the applicant] made in good faith regarding his contractual entitlements…I respectfully adopt the reasoning of Rangiah and Charlesworth JJ in PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 at [19]-[20]:

‘Under the general law, an employee has a right to sue his or her employer for an alleged breach of the contract of employment. A suit may be regarded as the ultimate form of complaint. Accordingly, in our opinion, an employee is “able to make a complaint” about his or her employer’s alleged breach of the contract of employment. That ability is “underpinned by” (to use Dodds-Streeton J’s expression in Shea) the right to sue, and extends to making a verbal or written complaint to the employer about an alleged breach of the contract.

‘Further, an employee who alleges that his or her employer has contravened a statutory provision relating to the employment is “able to make a complaint” within s 341(1)(c)(ii) of the FW Act. That right or entitlement derives from the statutory provision alleged to have been contravened. The ability encompasses making a complaint to the employer or an appropriate authority about the alleged contravention, whether or not the statute directly provides a right to sue or make a complaint’”.

The court ultimately finding that the applicant did exercise a workplace right by complaining about his being bullied by one or more other employees of the company or about his safety net contractual entitlements.


The applicant had complained of bullying to the HR department, however the fact that he did not formalise the complaint, it was telling that the HR person who met with the applicant “conceded in their conversation that the conduct he had described to her was unacceptable”.

Pecuniary penalties

The court, as previously mentioned, was satisfied that it can make orders compensating the Applicant for loss that he has suffered because of the Respondents’ contravention of the Fair Work Act, finding that there was a clear “causal connection” between that contravention and the various forms of loss suffered by the applicant. These being described in detail as:

  • Forgone share options;
  • Future economic loss:

“At common law, damages are payable to compensate a person for a loss of future earning capacity where that loss of capacity is caused by reason of an injury which in turn has been caused by the wrongdoer’s negligent act or omission, and the diminution of earning capacity is or may be productive of financial loss: Graham v Baker [1961] HCA 48; 106 CLR 340 at 347.

“Also at common law, the fact that a plaintiff may be predisposed to an injury caused by tortious conduct does not reduce his damages; the tortfeasor must take an injured person as he finds him or her. As Dixon CJ put it in Watts v Rake [1960] HCA 58; 108 CLR 158 at 160:

‘If the injury proves more serious in its incidents and its consequences because of the injured man’s condition, that does nothing but increase the damages the defendant must pay. To sever the remaining leg of a one-legged man or put out the eye of a one-eyed man is to do a far more serious injury than it would have been had the injured man possessed two legs or two eyes. But for the seriousness of the injury the defendant must pay’.

“I am satisfied…that in circumstances in which:

  • a person’s capacity to have continued in remunerative employment has been demonstrated over approximately half a decade, notwithstanding their suffering from a depressive disorder; and
  • where expert psychiatrists uniformly opine that the person’s dismissal for a prohibited reason has caused a significant aggravation of their pre-existing depressive disorder, with the consequence that they have lost their capacity to work and have a poor prognosis of ever regaining any capacity for remunerative employment in a position for which they would be otherwise qualified;
  • the Court is entitled, within the meaning of s 545 of the Fair Work Act, to consider it appropriate to make an order compensating that person for the economic loss he or she has suffered: without any reduction by reason of the person having the pre-existing condition which their unlawful dismissal has aggravated.
  • General damages

“At common law damages are payable for pain and suffering, which includes physical pain; mental illness or anguish; loss of enjoyment of life; and loss of the amenities of life.

“Loss of amenities” refers to the destruction or diminution of a faculty or skill that causes “the deprivation of the ability to participate in normal activities and thus to enjoy life to the full and to take full advantage of the opportunities that otherwise it might offer”: Teubner v Humble [1963] HCA 11; 108 CLR 491 at 506 per Windeyer J. Such damages are awarded once and for all. If the damage is or may be permanent, then it has to be assessed for the duration of the applicant’s life. While it is “impossible precisely to translate pain and suffering and the loss of enjoyment of life into money values”, and no amount of money will restore an applicant to her pre-injury position, that is the purpose of an award of such damages. That means that an attempt must be made to assess a reasonable sum, having regard as far as possible to the prevailing standards of the community: O’Brien v Dunsdon (1965) 39 ALJR 78.

“Notwithstanding, there is no “tariff” on damages for pain and suffering. In Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118 (Planet Fisheries) per Barwick CJ, Kitto and Menzies JJ observed at 125:

‘The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But …[t]he awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand’.

[The “ambush”…]

“However, I am satisfied [the applicant] is entitled to more than a nominal award in that regard. His dismissal for a prohibited reason was effected only after when, against his doctor’s advice, the applicant] had accepted [his boss’s] request that he to travel to Brisbane in order to attend a meeting for which [his boss]…”

“[His boss’s] representations to [the applicant] to that effect were knowingly false and deceptive. [The applicant’s] termination as then followed in consequence was accompanied within the hour by a company-wide announcement. [The applicant] was instructed not to go back to his office to collect his personal possessions; they would be sent on to him. I am satisfied that those unfortunate events added a not insignificant quantum of humiliation to the predictable shock and hurt that [the applicant] would have suffered simply by reason of the fact of his unlawful termination. I am satisfied that such humiliation became an element in his suicidal ideation immediately following that event.

“I will award [the applicant] $10,000.00 as compensation in the nature of general damages, having regard to the hurt and humiliation he was forced to suffer in consequence of the manner of his unlawful dismissal”.

  • Special damages

“…[the applicant] seeks compensation for incurred and future medical expenses from May 2016 to September 2020. He claims $50,000.00 as an approximation of that loss. However, [the applicant] has led no evidence which would entitle me to make any findings as to such claimed special damages. For that reason, I decline to make an order for compensation in those regards”.

Contract claim

This is VERY instructive for practitioners of IR/ER/HR.

The court then turned its attention to the breach of (employment) contract claim:

“In Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; 218 CLR 471, Gleeson CJ, McHugh, Kirby Hayne and Callinan JJ stated (at [34]) “the ‘general test of objectivity [that] is of pervasive influence in the law of contract’” dictates that “[t]he legal rights and obligations of the parties turn upon what their words and conduct would be reasonably understood to convey, not upon actual beliefs or intentions”.

“That conclusion was restated in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [38], per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ . In referring to Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 (at [25]), their Honours said:

‘Although the word ‘intention’ is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties’.

“Their Honours continued (at [40]):

This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement”. (Emphasis added)


“Neither party has advanced submissions as to costs. That may simply be because s 570 of the Fair Work Act precludes, save in limited instances, a Court awarding costs in a matter litigated pursuant to that Act. The cases – to which I have only given limited attention – suggest that it is also at least arguable that that prohibition extends to an award of costs with respect to any associated claims, such as the applicant brought in contract in these proceedings (Stanley v Service to Youth Council Inc (No 3) [2014] FCA 716; 225 FCR 357, Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; 229 FCR 221, Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 987).

“Having regard to the above, I will make no order as to costs but will provide for the opportunity for the parties to file submissions if they are advised that they should be entitled to an award of costs”.

This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “contact us” tab.

My business grows by referrals. I would appreciate it if you would pass my details on to your colleagues, clients or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct and more…


Case: Appleroth v Ferrari Australasia Pty Limited [2020] FCA 756.

A person makes a General Protections application to the Fair Work Commission, and then later withdraws the application. The media smell a juicy story and seek to attain the material filed with the FWC by seeking an order for its release to the Federal Court.

This is a matter that deals with the issue of “open justice” and confidentiality.

This case also serves as cautionary tale, when apply for or defending a legal matter: does the relief sought outweigh your public reputation?


The person who made the application and subsequently withdrew it in the FWC sought from the Federal Court to respect his confidentiality in that the documentation relating to the application is not made publicly available. Fairfax Media disagreed and sought that the Court release the information in interests of “open justice”.

In what must have been a very interesting news story, the court heard the matter it listed the matter at the earliest possible time.

A former employee of the respondent whose employment was terminated which led to the Protected Action application in the FWC, concerned “certain allegations” that his former employer levelled against him. Reasons that were said to justify his dismissal. Whilst not revealing the allegations, the court said:

“…it suffices to note that some of them were of a personal nature, involving a relationship to which [the former employee] was party and his conduct toward the other party to that relationship. Also raised within the confines of his proceeding was information concerning [the former employee’s] remuneration”.

As summarised by the Court, the former employee contends that the particulars of the allegations that are summarised above are not known outside of his former employer and some of its employees. Having reflected upon its potential ramifications, the former employee has been led to conclude that it was not in his or his family’s best interests that the proceeding continue. His decision to discontinue it was, at least in part, animated by a desire to avoid media speculation. Notwithstanding its discontinuance, there has remained some media interest in accessing documents that have been filed with the court.

Confidentiality is discretionary

The court’s power to grant relief in the nature of the orders that are sought is not in question. Relief of that nature is discretionary. That discretion must be exercised judicially. Doing so requires that the court take account of the matters that incline in favour of the orders that the documents filed to date remain beyond public reach; and that those matters be weighed against others that incline the other way.

The former employee’s argument

The former employee argued that under the Court’s rules, the court’s discretion to make an order of the kind sought are similar to—but not wholly aligned with—those that inform the making of non-publication orders and suppression orders under the Federal Court of Australia Act 1976 (Cth), if it considers that there is good reason to do so. citing Central Equity Ltd v Chua [1999] FCA 1067, [20] (Weinberg J). He submitted that the circumstances that prevail presently warrant that outcome because:

  • the detail (or some of the detail) contained within the documents in question is of a personal nature, or is otherwise confidential to him;
  • some of that information concerns other parties, whose privacy and confidences ought to be preserved;
  • the proceeding is no longer extant and was never served on his former employer;
  • The former employee did not have the normal amount of time that litigants typically have before they must commence proceedings to reflect upon whether or not it was in his or his family’s interests to do so; and
  • having discontinued the action, he has now effectively forfeited his rights to vindicate his position (that is to say, to answer the allegations that were levelled against him) in court.

“Open justice”

Fairfax submitted that access to documents was an important manifestation of the principle of open justice and that the circumstances of this case were not sufficient to keep them from the public. Citing R v Davis (1995):

“Whatever their motives in reporting, [the media’s] opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them”.

The court noting that it is only in exceptional and special cases that courts are entitled to exclude public access to the processes with which they deal (citation omitted):

“It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms…A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported”. [Emphasis added].

And in another matter, citing:

“…it is an inevitable feature of litigation in open court that persons who are mentioned in passing may suffer embarrassment and distress. But that is a price the community has to pay for the undoubted benefit of court proceedings being, except in very exceptional circumstances, conducted in public”.

Former employee seeks to shield himself

For reasons that might readily be understood, the former employee seeks to shield himself and others from the potential distress and embarrassment that public consumption of his short-lived suit against his former employer might occasion. Although not unmoved by the former employee’s circumstances, the court did not consider that the former employee’s circumstances amounted to reason enough to depart from the foundational principle of open justice.

Open justice trumps confidentiality

The court, in this case, was not persuaded that it is appropriate to suppress the information and so granted Fairfax access to the documentation.

This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “contact us” tab.

My business grows by referrals. I would appreciate it if you would pass my details on to your colleagues, clients or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct and more…


Case: Australian Building & Construction Commissioner v Molina (No 2) [2019] FCA 1014

Can the threat of an adverse action be in breach of the General Protects provisions of the Fair Work Act? The Full Bench of the Federal Court says no and leaves the door open for the Australian Building & Construction Commissioner to pay the union’s costs.

The Australian Building & Construction Commissioner (ABCC) takes the matter to the Federal Court and loses. It then appeals to the Full Court…and fails (again).


Following the death of a worker on a building site a CFMMEU organiser addressed the workers at the site. The union’s organiser called a meeting of the site’s 500 workers and called for a minute’s silence as “a sign of respect for the fallen worker”. A number of workers spoke at the meeting and stated that the site should close for 24 hours out of respect for the deceased worker. There was a vote by a show of hands and the union organiser proclaimed the result as a vote to leave the site.

The union organiser put this to the meeting and about 30% of workers “trickled” off the site.

[Ed: In years gone past the site would have been shut down by the union – no exceptions].

The company’s site representative then called a meeting, declaring the site “open”, ie the workers should continue their duties.

The company representative and the union organiser then had an exchange:

Union organiser: “You need to send your guys home. Have some respect, send your guys home.”

Company representative responded by saying that the union organiser knew he could not do that.

Union organiser: “If you don’t send your guys home, you can expect a picket line on Monday – if you send your guys back up to work”.

Storm in a teacup?

The company representative did not take the conversation personally and did not get upset about the conversation. He was not threatened or concerned by what had been said and he continued to keep his workers on the site for another two hours or so. Eventually, the workers left the Site because crane drivers were not working. In the result, workers returned to the Site the next day and there was no picket line arranged at the Site the following Monday.


In the above circumstances, proceedings were brought by the (ABCC) against the union’s organiser and the Union alleging two contraventions under the Fair Work Act 2009 (Cth), namely that:

  1. contrary to s 346(b), they threatened to take adverse action against Civmec (being arranging a picket line at the Stadium site) because Civmec did not comply with a lawful request by the Union (being to send its workers home as a sign of respect) (adverse action claim); and
  2. contrary to s 348, they threatened to take action against Civmec (being arranging a picket line at the Stadium site) with intent to coerce Civmec to comply with a lawful request by the Union (being to send its workers home as a sign of respect) (coercion claim).

The first case (fail)

The primary judge found that there had been a threat to put a picket line in place, but determined there had been no threat of adverse action in contravention of s 346 because it had not been proved that there could have been prejudice to Civmec if there had been a picket line. The primary judge also found that intent to coerce had not been established and for that reason there was no contravention of s 348. In reaching the latter conclusion the primary judge found that the statutory presumption expressed in s 361 of the Fair Work Act (to the effect that action alleged to be taken with a particular intent was presumed to be taken with that intent unless proved otherwise) did not apply.

As a result, the proceedings were dismissed. The ABCC the appealed.

The issues in the appeal

In the appeal, the ABCC raises three issues (including an alternative argument as to the third). A significant part of the answer raised by the respondents to the appeal is that the ABCC now seeks to depart from the way it presented its case to the primary judge. The competing positions of the parties on the three issues are as follows:

  • First, on the adverse action claim, the ABCC says that the primary judge erred by requiring it to establish objectively that the threat, if implemented, would have had the effect of prejudicing Civmec. The ABCC says that the correct approach was to ask whether prejudice to Civmec was threatened by what was said. It says that if that approach had been adopted then, on the findings of the primary judge, the contravention of s 346 was established.
  • The second issue concerns the coercion claim. The ABCC says that the statutory presumption in s 361 applies and the primary judge erred by finding it did not apply. The ABCC says that if the presumption applies then the contravention of s 361 was established because the ABCC’s version of events was accepted and the burden imposed by s 361 was not discharged by the union’s organiser or the Union.
  • The third issue also concerns the coercion claim. The ABCC says that on the proper construction of s 348 there is no requirement that the coercion must negate any choice by means of an action that is unlawful, illegitimate or unconscionable and the many authorities to that effect are wrong. It says that if the primary judge had applied what it contends to be the proper approach then the contravention of s 348 was established on the findings by the primary judge. It accepts that it ran the case before the primary judge on the basis that there was a requirement that coercion involves negating any choice by an action that is unlawful, illegitimate or unconscionable. However, it says that there is no respect in which the case below might have been run differently if that requirement did not apply. In the alternative, the ABCC says that if the coercion must be by action that is unlawful, illegitimate or unconscionable then the primary judge erred in not finding that to be the case.

Full Court findings

Section 346 provides, relevantly for present purposes, that a person “must not take adverse action against another person because the other person … does not engage … in industrial activity”. The meaning of the phrase “engages in industrial activity” is defined in s 347. Amongst other things, it is defined to include an instance where a person does not comply with a lawful request made by an industrial association.

So, a person must not take adverse action against another person because that person does not comply with a lawful request made by an industrial association.

First, the Court found, a threat to take action will be adverse action if it is a threat to bring about the effect of prejudicing an independent contractor in relation to a contract for services. On such an approach, the effect must form part of that which is threatened.

Second, if that were the way the provision operated then it would be necessary to consider what will often be an hypothetical either because the threat has the desired effect and it does not need to be carried out or the threat is ineffective but, for some reason, the threat is not implemented. Further, on the second construction, issues may arise as to the degree of likelihood of the threatened conduct having the required effect that is sufficient to establish a contravention.

The third possibility is that a threat will be adverse action if it is intended to have the consequence of prejudicing an independent contractor in relation to a contract for services. On such an approach the party making the threat must be shown to have intended the effect. This third alternative can be readily discounted because it sits inconsistently with the ordinary meaning of a threat. The expression of an intention to do harm is a threat.

The threat must be real?

Therefore, the feasible alternative constructions appear to be the first and the second. In many instances, the distinction between them may not be of great significance because a threat is likely to be made with a particular consequence being both part of the threat (expressly or impliedly) and plainly in view. However, the second alternative would open up the possibility that an effect that was not within the purview of the threatening party might give rise to a contravention. It would attribute to the threatening party a responsibility for likely effects that may not have been in the party’s contemplation when making the threat (and in that sense were not threatened by that party). Such a construction would be inconsistent with the ordinary meaning of a threat which is to engender fear by conduct that, viewed objectively, conveys an intention to do something that would be harmful from the perspective of the person being threatened. In ordinary parlance, a threat identifies the harm that is threatened.


On my reading, to be upheld, the ABBC would need to provide that the union had intended to carry out the adverse action, and that there was “fear” involved.

It will be interesting to see if the union pursues costs, as the ABCC has been relentless in past dealings with this union.

This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “contact us” tab.

My business grows by referrals. I would appreciate it if you would pass my details on to your colleagues, clients or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct and more…


Case: Lamont v University of Queensland (No 2) [2020] FCA 720

Allegations by the applicant of ongoing harassment and bullying, and the what he perceived to be similar conduct by his employer had led to multiple resignations, a heart attack and a suicide. And the importance of separating your policies from your contractual terms.

This judgment responds to some 41 allegations by the applicant. This article focuses on just two:

  • What “injures” an employee for exercising a workplace right?
  • Does the threat of disciplinary action constitute an “adverse action”?

This case is of an obsessive, tenacious litigant, who genuinely felt he has 41 chances of a successful outcome. In fact, he had five. This was enough to cause the University untold distress and – even if no further award of damages are given/agreed – the legal costs alone could be more than a small country’s GDP.

The main thread in this case is that Prof X was found to be unprofessional (my words) if the dealing of a complaint from what he probably perceived (my words again) to be a vexatious, troublesome employee. Note the judge’s findings on the applicant’s career.

The takeaway message, therefore, is that no matter how trivial or troublesome an employee may be, always address the substantive issue and, if possible, any underlying issues with dispassion. Focus on the issue not the person. In football parlance this is called “playing the ball, not the man (or woman)”.


This matter involves an unhappy employee who felt that his employer and supervisor had not treated him as he thought he should have been treated. As a result, he filed an “adverse action” claim against his employer and four other university employees – alleging 41 counts of “adverse action”.

Now imagine if this was your business. How would you react?

In what can only be described as having more money than sense, the applicant in this matter certainly had a tonne of tenacity, and the financial ability to be represented by a QC, a solicitor and a legal counsel over 13 days of hearing days alone. The judgement itself is a constrained 160 pages. The judge summed it up best:

“I do not propose to list the allegations made in the pleadings, nor to describe the evidence of the witnesses in narrative form. That is because of the sheer number of allegations made and the scale of the evidence. There are over 6,000 pages of affidavit material, and over 8,000 pages of documents in total. The applicant’s written submissions alone exceed 500 pages, while those of the respondents exceed 300 pages. Many of the affidavits are prolix and replete with barely relevant, repetitive or superfluous material. There were many communications between the protagonists by email, and many of these were verbose and turgid, containing numerous acronyms and phrases decipherable only by academics. In particular, Dr Lamont’s emails tended to flow in a stream of consciousness that makes them difficult to read and understand.

“The parties, particularly the applicant, have made what should have been a fairly straightforward case into one of almost labyrinthine complexity. To illustrate the point, after nine days of evidence, there were two days of closing oral addresses, almost all of which was spent trying to understand the complex structures of the written submissions, while the parties barely touched upon the particular allegations made and the evidence led. I recognise that the respondents were required to respond to the voluminous material filed by the applicant, but even so, the material filed by both parties was excessive”. [My emphasis]

In reporting this judgement, I have only included the context and parts that I found to be instructional. For a more complete analysis, I suggest you , dear reader, read the judgement in full.

The Genesis

This matter kicked off with a grievance by the applicant who made some very unsettling allegations against his employer. He wrote a letter (email), dated 12 April 2010, to Prof X making a complaint against Prof Y under the Staff Grievance Resolution Policy:

“I am writing to you in accordance with Section 4, Step 1 of the University’s 5.70.8 Staff Grievance Resolution. I have attached a copy of a letter dated March 19, 2010 from [a person] to me and a copy of a letter dated April 9, 2010 in reply, from me to [the person]. Although the letters do not give all the background information they are, nevertheless, long and detailed enough to give a clear indication of the matters of my concern. I believe that [the person’s] behaviour towards me, over at least the past 6 months, constitutes harassment.

“As you know our School has a sad history of harassment. Both the previous two Heads of School were sued by staff members for harassment resulting in large out-of-court settlements which cost our School dearly both in terms of reputation and money. Last year, a staff member, [name deleted], resigned, alleging harassment. In addition, we now have a history of one staff member, [name deleted], who was a friend of mine, being terribly stressed by his treatment in the School and dying of a heart attack; and now the tragic case of [Dr XY] committing suicide. All these matters have weighed heavily on my mind in the past, but it was mainly as a result of [Dr XY’s] suicide and the subsequent visit to our School of the Staff Support and Rehabilitation Advisor that I finally decided to seek counselling for harassment from the University’s Employee Assistance Service Provider…These counselling sessions, which have provided me with strategies to cope with harassing behaviour, have also helped me make the decision to bring this matter to your attention.

“My hope is for this situation not to escalate – I have no desire to add to the sad public history of the HPRC School. Congruent with this intention, I am bringing this matter to your attention under “Step 1” and Section 4.1 of the University’s HUPP 5.70.8 Staff Grievance Resolution Policy which states “The aim is to reach an acceptable outcome that minimises any potential detriment to ongoing workplace relationships.” My grievance is that I have been the subject of harassing behaviour by my supervisor [named]. To help you determine whether a genuine grievance exists (under 4.5(1)) I have provided you with the two letters which I believe provide ample evidence of harassing behaviour. I am willing to elaborate further on any of these behaviours and other behaviour not described in the letters, if you would like.

“Given that I am not proceeding under “Step 2” of the Policy, as I understand it, what is required of you is to “determine whether a genuine grievance exists” (4.5(1)). However, if you wish yourself to formally determine whether harassment has occurred under HUPP 1.70.6 please notify me and I would be willing to have the letters used as evidence in that determination and would be willing to provide further evidence if needed. However, if you are proceeding under “Step 1”, which I have initially asked for, it requires that the staff member state “what a preferred outcome might be”. In the spirit of not wanting to escalate this problem further, I need to express to you my preferred outcome. My preferred outcome is that [named] cease harassing me and be replaced as my supervisor with [another named person], who is our Acting Deputy HOS. I have approached [nominated replacement] about this matter and he has agreed to act as my supervisor if formally asked by you. Given that, in the circumstances, it would be completely inappropriate for [name] to conduct my annual appraisal, I ask that [nominated replacement] conduct it or, if he is not currently qualified, for [another person, also named] to do so. It is my hope, through this lowest level of intervention, to inhibit escalation of this situation”. [emphasis added].

The applicant’s letter of complaint attached his email exchange with the named person and the applicant had also written a lengthy email to Prof X complaining about a number of issues.

An angry Prof X shared the email with two other people. This being in breach of the confidentiality requirement of the relevant policy. That set off a chain of further complaints by the applicant.


Workplace right to make a complaint

The workplace rights alleged by the applicant include his right to make complaints within s 341(1)(c) under various enterprise agreements and policies. Citing Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; [2014] FCA 271, Dodds-Streeton J said at [29], in relation to a “complaint”, the judge noted:

“(a)        a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;

(b)          the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;

(c)          the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;

(d)          the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);

(e)          a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;

(f)           a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and

(g)          a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.

Justice Dodds-Streeton added at [625], in a passage approved in Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 285 IR 290; [2019] FCAFC 16 at [28] and PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 at [12]:

“In my opinion, the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation”.

Adverse action taken against another person

Under s 342(1) of the FWA, taking “adverse action against another person”, relevantly, consists of an employer:

(a)          dismissing the employee;

(b)          injuring the employee in his or her employment;

(c)           altering the position of the employee to the employee’s prejudice; or

(d)          discriminating between the employee and other employees of the employer.

Injures an employee

The judge finding for this provision to be enacted, the employer must “injure” an employee. The injury must be to the employee “in his or her employment”.

The Macquarie Dictionary defines “injure” as:

  1. to do or cause harm of any kind to; damage; hurt; impair…
  2. to do wrong or injustice to.

The judge then supported this with the authorities seem to have regarded s 342(1) (and its equivalent under s 298K(1)(b) of the WR Act) as taking the first of these meanings, not the second. They have focussed upon whether there is some practical detriment or harm to the employee in his or her employment, and mere unfairness or injustice has not been regarded as enough. That was, for example, the approach in Squires at 164 which required that the treatment must be injurious or prejudicial. In Major v State of South Australia (1999) 140 IR 29; [1999] FCA 1684, where the employer refused an employee who had been seconded to a union a further period of unpaid leave as the employer was entitled to do, Marshall J held that the employee was not injured. In Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 (Jones v QTAC), Collier J held at [121]–[122] that a failure by an employer to accord natural justice is not of itself an injury in employment. [My emphasis].


“…Therefore, it is not enough that an action by an employer is itself wrong or unjust—it must cause some kind of material harm or detriment to the employee”.

Is a formal warning an injury?

In the present case, a question arises as to whether an employee is injured by being given a formal warning following a disciplinary process.

Citing a number of previous decisions by the Federal Court, the Judge found:

“These cases demonstrate that a formal warning may cause a practical detriment to an employee. In my opinion, a practical detriment of that kind may also amount to injury to an employee”.

There is also an issue in the present case as to whether distress, falling short of a psychiatric injury, can be an injury to an employee in his or her employment. One of the contexts in which the issue arises is whether a threat of disciplinary action causes, or can cause, injury.

A recognisable psychiatric illness, according to the judge, clearly comes within the conception of an injury…

I do not think that psychological or emotional distress falling short of a recognisable psychiatric illness is necessarily excluded. A situation can readily be imagined where an employee is bullied and harassed by a supervisor to the point where the employee experiences great distress at work on a daily basis, but that distress does not rise as high as a psychiatric injury. In my opinion, distress falling short of a recognisable psychiatric illness may be regarded as an injury if it causes sufficient harm, damage, hurt or impairment to the employee’s emotional state”. [My emphasis].

Then clarifying:

“However, … not all harm, damage, hurt or impairment to an employee’s feelings can necessarily be regarded as an injury. In my opinion, the word “injury” implies that a minimal level of harm is insufficient. For example, I do not think that a person who experiences physical pain that is slight and fleeting could be said to be injured. In the day to day conduct of any employment relationship, an employer may make decisions and take actions which result in disappointment, upset or reduction in job satisfaction. Some examples include asking an employee to improve their punctuality or performance, requiring an employee to do new or different duties, or requiring an employee to work reasonable overtime. In such a circumstance, it could not necessarily be said that the “employer…injures the employee in his or her employment”. To be described as an “injury”, there must be a sufficient level of harm, damage, hurt or impairment to the employee’s emotional or psychological welfare. A qualitative judgment must be made as to whether the level of emotional distress demonstrated by the evidence amounts to an injury”. [Emphasis added].

So, does disciplinary action count as an “injury”

According to the judge, yes:

“I accept that the taking of disciplinary proceedings can cause injury to an employee because the employee is exposed to the potential of adverse consequences for his or her employment. The employee’s employment may be less secure. Further, a threat to take disciplinary proceedings may amount to an injury because, if the threat is carried out, the employee is exposed to potential adverse consequences. In my opinion, the emotional consequences of such a threat being made or proceedings being taken may also amount to an injury”.


“Not every injury that has a relationship with employment is necessarily an injury “in employment”.

Because the person has exercised a workplace right

The judge further examined another case as follows:

  • The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
  • That question is to be answered having regard to all the facts established in the proceeding.
  • The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
  • It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
  • Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
  • If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.

The judge then went to a previous matter in which he was involved:

“…that a mere causal nexus between the exercise of a workplace right and the adverse action is not enough…the word “because” in s 340(1) requires an enquiry as to the ‘substantial and operative’ reason or reasons for the relevant action…the enquiry as being into the “operative and immediate” reason or reasons. The mere application of a “but for” test is insufficient…A qualitative judgment must be made as to whether the adverse action was taken because the employee exercised a workplace right”.

Threatening of Disciplinary Action

The tenth allegation is that Prof X, on behalf of the University, threatened disciplinary action against the applicant on 8 July 2010 because he exercised workplace rights.

In his email of 8 July 2010, Prof X threatened that, unless the applicant responded to his letter of 1 July 2010, he would have the applicant investigated for serious misconduct under the University’s Misconduct — Serious Misconduct Policy on the basis of refusing to carry out a lawful and reasonable instruction. The email reads:

Step 1 of the grievance procedure…involves informal attempts to resolve a grievance through, e.g., a meeting with the person concerned…, or an oral discussion with the next most senior officer (me, in this instance). However:

  • you did not seek resolution of the problem directly with the person concerned;
  • you have failed, in spite of several requests, to meet with me to discuss the matter orally nor agreed to allow me to attempt to deal with the matter informally, e.g. through mediation by hosting a meeting between you and [another employee];
  • to my knowledge, at no time have you made any other attempts to resolve the grievance informally;
  • your application to me was formal, in writing, and was followed by a large number of additional written (email) submissions.

I have therefore concluded that…you consider that dealing with this matter under step 1 is not possible or appropriate and that your submissions and subsequent actions indicated that you wished to initiate formal step 2 proceedings. I am therefore proceeding with your complaint as per step 2 of the grievance resolution procedures.

I commenced my investigation on 13 April, the day after receiving your letter, and drafted my findings and advice intending to respond to you within the two week timeline…but was unable to complete the procedure because you began a separate claim that I breached confidentiality in assessing your allegation of grievance. I was obliged to delay completion of my formal response until I was able to establish that I was still the officer authorised to do so. The delay therefore was caused solely by your action.

My response dated 1 July is provisional in that, as I have noted, I am giving you an opportunity to make further submissions on two matters if you wish to do so, and to make amends for the false and damaging allegations you have made against three successive Heads of School.

I require a written response to my letter of 1 July by Friday 16 July. If you fail to do so, I hereby give you advance notice that on Monday 19 July I will send you a formal notice advising you that I intend to initiate an investigation into your actions under…Serious Misconduct as to whether you have refused to carry out a lawful and reasonable instruction in respect of a significant matter

In an email of 9 July 2010 to in-house counsel, Prof X explained the threat he had made as follows:

“I would, of course, not under any circumstances penalise a staff member for lodging a grievance, even if that grievance ultimately failed, provided the complainant entered in good faith into procedures towards resolution of the complaint as is required under the policy. However, failure to respond to a reasonable request to substantiate a grievance, broadening the complaint to include false and damaging allegations about the person complained against and about others, as well as his more general failure to show good faith in trying to resolve the issue by failing to enter into any dialogue or mediation or any communication whatsoever other than his own diatribes, constitute in my view grounds for investigation for serious misconduct”.

The judge finding that Prof X’s email contained a clear implication that he considered that the applicant was committing serious misconduct by failing to comply with a reasonable and lawful direction to respond to his letter of 1 July 2010 and was at risk of being sanctioned, stating:

“The email was calculated to intimidate [the applicant] into complying with Prof [X’s] demand to respond by causing him to fear the consequences for his employment if he did not. The threat to investigate was not significantly different to a threat to take disciplinary action in that regard. [The applicant] feared the consequences for his employment…indicating that the threat had caused him to experience enormous distress, such that he was intending to seek medical advice…the making of the threat aggravated [the applicant’s] psychiatric condition to a minor extent. In my view, the making of the threat caused injury to [the applicant] in his employment”.

The judge went on to reject the validity of Prof X’s reasons for the “threat” stating:

“I do not accept that Prof [X] genuinely thought that [the applicant] was disobeying a lawful and reasonable workplace direction…I consider that Prof [X] correspondence reveals that his view was that [the applicant’s] complaint was spurious and made for ulterior purposes, including bypassing the annual performance appraisal that would otherwise be conducted by the Head of School. His correspondence also reveals that he thought that if [the applicant] could not provide further evidence about his claims, he should withdraw them. His email of 3 June 2010 indicates that he wanted [the applicant] to apologise to Prof [Y] and Associate Prof [Z]. I consider that Prof [X] made the threat in order to intimidate [the applicant] into withdrawing his claims if, as Prof [X] expected, he could not provide further evidence, and to apologise to Prof[‘s Y and Z]. The threat was made because [the applicant] had made his complaint of 12 April 2010″.

In finding that the applicant’s complaint of 12 April 2010 was genuine and that he exercised a workplace right by making his complaint, the judge found the threat to be an adverse action:

“Prof [X], being aware that [the applicant] had made his complaint, made the threat that caused the injury constituting the adverse action. Prof [X] was knowingly concerned in the contravention…”

Duty of confidentiality

The judge formed the impression that the applicant, while acutely sensitive to his own perceived unfair treatment, still lacks insight into the unfairness and seriousness of implying that Prof X contributed to Dr XY’s suicide. Ultimately, the judge finding:

“[The applicant] had a workplace right to make a complaint pursuant to the Staff Grievance Resolution Policy and exercised that right. I find that, even though [the applicant] did not have an adequate basis for making the part of his complaint that implied that Prof [X] had contributed to the suicide of Dr XY, he had a genuine belief in the truth of his complaint. I find that Prof X disclosed the letter of complaint because [the applicant] had exercised his workplace right.”

Confidentiality v Injury

According to the judge, the breaching of the confidentiality did not “injure” the applicant because the fear and stress was not to his employment. In the judge’s words:

“I accept that the threat by Prof [Y] to consider an action for defamation amounted to an “injury”…to [the applicant] because it caused him substantial fear and distress, leading to his apology. However, I do not accept that it was an injury to [applicant], “in his…employment”. As I have said, not every injury that has a connection or relationship with employment is necessarily an injury “in employment”. The threat to consider an action for defamation was certainly connected with his employment because [the applicant] wrote the letter of complaint in his employment and about his employment. However, the fear and distress caused to [the applicant] by the possibility of an action for defamation was because of the financial consequences and stress that litigation would have had on him in his personal life. The evidence does not establish that the threat had any consequences for his employment…”

However, the disclosure of the letter did “injure” the relationship between Prof Y and the applicant, and this, according to the judge amounted to adverse action against the applicant.

Choosing who conducts your performance appraisal

The applicant put that he was “injured” by not being able to choose who conducted his annual performance review. The judge rejected this stating that:

“[The applicant] has not demonstrated that he was injured by either the appointment of [name] as his performance reviewer or any actions taken by [name]. I am satisfied that [name] performed his role dispassionately and competently. There were three categories for the rating of performance levels, “Not applicable”, “Satisfactory” and “Not Satisfactory”. [the applicant] was rated “Satisfactory” in each category of performance. I find that [the applicant] was not injured as he alleges”.

Another matter pertaining to the performance appraisal process was raised by the applicant in that he was directed to remove remarks from the documentation relating to the applicant’s grievances against the university. The applicant was threatened with disciplinary action if he failed to remove the offending words. The judge also rejected this allegation, stating:

“However, I do not accept that Prof Z gave the direction that [the applicant] remove references to the grievances and made the threats to take disciplinary action if he did not, because [the applicant] had exercised any workplace rights. The fact that the direction was to remove references to grievances does not mean that the adverse action was taken because [the applicant] had made those grievances. As I have said, the mere satisfaction of a “but for” test is insufficient. That [the applicant] had made the grievances was not a substantial and operative reason for directing their removal. I find that the direction and the threat to take disciplinary action if he did not comply were made because Prof [Z] considered that it was not productive, appropriate or warranted to allow references in the Form B relating to what [the applicant] considered to be an ongoing grievance against the University and allegations of violations of University policies, victimisation and misconduct. It was not because he exercised workplace rights”.

In coming to these conclusions, the judge was cognisant of the purpose of a Performance Appraisal was one of development of an employee’s career/identify training opportunities that would benefit the employee.



Whilst there were no specific allegations of breach of the contract of employment, in the “prayer for relief”, damages are sought for breach of implied terms of the contract.

The allegations seem to be that the University breached implied terms of the contract of employment:

  • to provide the applicant with a safe system of work, to take all reasonable steps necessary to protect his safety and to avoid exposing him to unnecessary risks of injury;
  • to cooperate with the applicant;
  • to comply with its policies.

The judge summarising the “common law” of the contract of employment may be of assistance to fellow practitioners…

Safe system of work

In Tame v New South Wales (2002) 211 CLR 317, McHugh J held at [140]:

…The law of contract does not imply two terms of reasonable care; it does not imply a duty to protect against physical harm and a separate duty to protect against psychiatric injury. It simply implies a general duty to take reasonable care for the safety of the employee and, it might be added, for the employee’s property.

Implied duty of cooperation

There is an implied duty to cooperate in the doing of acts necessary to performance of, or to enable the other party to secure a benefit provided by, the contract: Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at [37] and [61].

In Regulski v State of Victoria [2015] FCA 206 at [211]–[213], Jessup J held:

“211         As to the first implied term relied on, there is, of course, a duty of co-operation which is implied into employment contracts, as within the class of contracts in which the derivation of the benefit of the contract by one party is dependent upon some co-operative action by the other party: see Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596. But, properly understood, the duty to co-operate is a specific one. It is not as though there is a term in contracts of employment that the parties must co-operate with each other, in the broad as it were. An employee who declines an invitation to act in a supervisory position to cover a temporary absence may be viewed by his or her employer as being distinctly unco-operative, but this would not give rise to a breach of contract…

“213         It was submitted on behalf of the applicant that “the scope of the required co-operation between the parties to a contract must be defined by what has been promised under the particular contract.” I accept that. It was then submitted that the policies of each of the respondents in the present case had been agreed as between the relevant respondent and the applicant, such that “both the employer and the employee would comply with their respective policies in the workplace”. I do not accept that. It was not pleaded that the policies had been agreed as terms of the applicant’s contract of employment: indeed, it was alleged that the Department required the applicant to comply with its policies. Consistently with this allegation, I would hold that, in presently relevant respects, the respondents’ policies were internal rules, procedures, etc with which their employees were required to comply. They were issued pursuant to an employer’s common law power to direct. They were not contractual”.

The policies as implied terms

Ed: this is most important and why each employment contract should contain words to the effect: “Your employment will also be governed by the Company’s published policies and procedures as may be varied from time to time. However, these policies and procedures do not refer any contractual obligations at law, including the Code of Conduct”.

The applicant alleged that the University’s policies are incorporated into the terms of the employment contract.

“An employer’s policies or procedures can only be incorporated into an employment contract by express or implied agreement. Whether or not the terms of policies or procedures have been incorporated depends upon the parties’ intentions, which are to be determined objectively. The Court is required to consider whether or not the language used by the parties, in the context in which those words were used, would have led a reasonable person to believe that the policy or procedure had been incorporated.

“The factors that are relevant include the wording of the contract; the wording of the policy or procedure in question (and whether or not the terms are contractual or promissory in nature); the subject matter of the policy or procedure and the circumstances surrounding the making of the contract; and whether or not the contract has an express clause that states the policy or procedure is not incorporated: see generally Romero at [33]–[63].

“A term will not be implied if to do so would contradict any express term of the contract. Accordingly, terms of a policy or procedure will not be incorporated if to do so would be inconsistent with an express term of the contrary.

Employment contracts have been found to incorporate an employer’s policies and procedures in circumstances where the employee was required in the employment contract to “abide by” the policies and procedures and the policies and procedures used promissory language. A policy or procedure will not be incorporated if it is intended to operate as a guideline only and is not intended to have contractual force, or the employment contract expressly provides that the policy or procedure does not form part of the employment contract”.

[citations omitted].


The allegations (outcome)

Of the 41 allegations, the judge upheld five, therefore finding that the University contravened s 340(1) of the FWA. That is that the University was “guilty” of taking adverse action against the applicant on five occasions.

Penalties (Generally)

The judge will hear the parties as to penalties on a later date but set out the consideration of the question of compensation and damages.

Ed: At this point it is instructive to point out that there no restrictions on awards to successful applicants in the Federal Court system. This is different to an unfair dismissal whereby the award of compensation to a successful applicant is six months’ pay.

The judge then set out a number of citations (omitted) relating to the award of compensation as summarised:

  • There needs to be a causal connection between the contravention and the loss claimed.
  • What is reasonable in the circumstances and what would have been likely to occur had the Act not been contravened.
  • The detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.
  • Compensation may be awarded for non-economic loss such as hurt and humiliation, as well as for economic loss.

Penalties (This case)

Turning specifically to the applicant’s situation:

  • Breach of confidentiality and resulting fear of the threat of legal action:

“I accept that [the applicant] must have experienced substantial fear and distress upon receiving the threat of legal action. I accept that he was also distressed by the breach of confidentiality of his complaint itself.

  • The applicant submitted that he developed a psychiatric illness as a result of his mistreatment by the University. He relies upon two reports of a psychiatrist. The judge commenting:

“I consider that the aggravations were minor and of temporary effect. The evidence does not establish that the aggravations caused by the contraventions were permanent. By far, the greater contributions to his condition were made by the numerous workplace events which have either been found not to constitute any breach of the FWA or did not form part of the pleaded allegations”.

How much?

The judge awarded the applicant $15,000 for the mental and emotional distress.

Lack of career progression

The applicant submitted that his career has not progressed because of the workplace events and his reputation has suffered and that he should be awarded compensation for that loss:

“It is necessary to consider whether the contraventions have made any contribution to the lack of progression of [the applicant’s] career.

“[The applicant] has been continuously employed with the University on a full-time basis since February 1998. He has remained at the level of Lecturer (Level B) since he was appointed. He applied for promotion to Senior Lecturer (Level C) once in early 2000 and was unsuccessful.

“…his philosophy colleagues who started at the same time as him have been appointed to Senior Lecturer (Level C) and Associate Professor (Level D) respectively. He states that he expected to complete one of his books in 2011 and to have followed his colleagues with promotion in 2012 to Senior Lecturer and then to Associate Professor by now.

“It may be accepted that [the applicant’s] career has stalled. The reason for that is that he has not applied for promotion. His failure to apply seems to recognise that promotion would not be warranted upon the present state of his academic accomplishments. The issue is why he does not have the accomplishments necessary to achieve promotion.

“I accept that [the applicant’s] psychiatric condition has played some part in the lack of progression of his career. For example, since 2010, [the applicant] seems to have been obsessed with and focussed upon his complaints, and now this litigation. Some of his correspondence reveals an extraordinary amount of time dedicated to composing submissions to support his complaints and composing lengthy emails to make a point, at the expense of the time available for research. He declined to take the SSP leave he was granted in 2013, when that might have helped him to improve his research record.

“It may be noted that [the applicant’s] career was already at a standstill before he made his initial complaint…on 12 April 2010, since he had been employed by the University as a lecturer for about eleven years without being promoted”.

Finding that:

“…I consider that the minor contributions these contraventions made to his psychiatric condition have made no material contribution to [the applicant’s] lack of career progress. I am not satisfied that the contraventions have contributed to the stalling of his career or affected his reputation in any other way.

“In making this assessment, I do not wish to sound harsh. The evidence shows that [applicant] is highly regarded as a teacher by his students. I would have thought that the ability to teach and impart knowledge is by far the most valuable quality an academic could bring to a university. Unfortunately, it appears that the University is much more impressed by the quantity of publications in obscure journals read only by other academics”.

Damages for breach of contract

“The general principle is that where a party sustains a loss by reason of a breach of contract, they are, 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.

“[The applicant] would not have suffered the temporary aggravations of his psychiatric illness that I have found if the University had performed the contract. On the basis of the facts I have found, the award of damages for breach of contract would be the same as the award of compensation for the University’s contraventions of s 340(1) of the FWA. As I have indicated, I will award [the applicant] $15,000 for those contraventions”.


The awarding of $15,000 to the applicant is just the beginning. The judge allowed for further submissions (which he limited to 15 pages) leaving the door open for further penalties and costs in the applicant’s favour, which is scheduled for a further hearing 8 July 2020.

This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “contact us” tab.

My business grows by referrals. I would appreciate it if you would pass my details on to your colleagues, clients or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct and more…


Read the full decision here.

A job applicant who was offered employment, despite back and knee issues, had that job offer later rescinded. When a judge of the Federal Court of Australia commences their decision with the words: “This is an unusual case” you expect something special, but…

The background to this matter involves a job applicant that was offered the job, with the employer being in the full knowledge of the applicant having back and knee issues. The prospective employer did not see this to be a problem as the work was mostly desk-bound and sit/standing desks were already in place.

Learnings from this decision

  • The subject matter leading to this judgement, cannot be faulted, except that the Company reneged on the job offer.
  • That an employee can sue an employer at common law.
  • That being an employee (for the purposes of the taking of an adverse action) overrides the provision of being a “prospective employee”, which in (my logic) leads to another unanswered question: “why have the provision there in the first place if it has not real effect?

My “legal fiction” (see later for definition)

  • The person applies for a job.
  • Company says “you’re” hired (subject to signing contract of employment).
  • The “chosen” applicant, wants to amend the contract of employment and also questions a number of other employment conditions.
  • The Company finds it all too hard and calls the whole thing off.
  • The aforementioned applicant, then says I’m, not happy with this decision and calls in the lawyers.
  • There is no evidence of agreement at conciliation (not even a mention of such occurring), both legal teams want to move forward cautiously and seek a narrow legal opinion from the courts.
  • The court finds that, as there was no signed contract, the “adverse action” does not apply.

Of course, my legal fiction, might be off the mark, but we must fill in the gaps as one must see fit…

Was this case informative and can we learn from it?

The decision proper was highly “legal-technical”, in that it focused on mainly two issues, the contract of employment and whether a “prospective” employee had rights to sue for Adverse action under the Fair Work Act.

This is disappointing because there were a number of cases cited, with legislation drawn upon – including:

  • Disability Discrimination Act 1992 (Cth.).
  • Equal Opportunity Act 2010 (Vic.).
  • Privacy Act 1988 (Cth).
  • Corporations Act 2001 (Cth) (disclosures by whistleblowers).
  • Competition and Consumer Act 2010 (Cth.).
  • Fair Work Act 2009 (Cth.) (ss. 340, 341, 342).

The decision proper does not help with what the thoughts of the parties were during the contract negotiations, with the prospective employee focussing of the list of her requirements. All we know is that is, in accordance with the written email of offer, the prospective employee sought out legal advice, which resulted in the prospective employee requesting that the proposed contract contain amended wording that:

“[the employee does] not have any pre-existing medical or psychological condition which could affect [the employee’s] ability to perform the inherent requirements of your role after reasonable adjustments have been made

“Please note: a reasonable adjustment [being] a workstation to be set up ergonomically including an electric sit/stand desk, therapod chair and anti-fatigue mat”.

With the prospective employee being “comfortable to fund a therapod chair and anti­fatigue mat, if required”.

And further, that the job offer was withdrawn by the prospective employer.


Whilst I will refrain from quoting the complexity of the judges decision, I thought it might be instructive to provide the following terminology that was used throughout the decision:

Firstly, “legal fiction”, Wikipedia tells me:

“A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England”.

For example, in this decision the judge stated:

“Indeed, there is an air of unreality about this aspect of the applicant’s case: the nature of her inquiry was about a draft contract of employment made, applying the statutory fiction, when she is taken to have already been employed…”

Secondly, with which the judge concluded the decision with:

“…that the matter proceed to mediation even in the face of what may be a limping appeal from this decision”.

What does “limping appeal” mean? I can find no definition of this term and would be grateful to any legal folk out there who might be able to shed some light on this for me.

Questions to be answered before proceeding (you can skip this bit)

It was put to the court, and the judge agreed, that:

“The parties agreed that the first step in this proceeding should be for the Court to answer two preliminary questions of law based upon an agreed set of facts…The purpose [being] to avoid the potential incurrence of unnecessary cost.  The agreed questions were as follows:

  1. As a prospective employee of the Respondent and by reason of subsection 341(3) of the Fair Work Act 2009 (Cth) (FW Act), did the Applicant have a workplace right constituted by her being able to make a complaint or inquiry within the meaning of subsection 341(1)(c)(ii) of the FW Act in relation to her prospective employment?

  2. If yes, are the First and/or Second and/or Third and/or Fourth Alleged Inquiry or Inquiries capable of being a complaint or inquiry within the meaning of subsection 341(1)(c)(ii) of the FW Act?”

Agreed position of the parties

On a positive note, it would appear that both the parties were looking for legal guidance on two separate – although seemingly conflicting – sections of the “adverse actions” sections of the FWA. I say this because the parties submitted a list of “agreed facts” (some of which the judge did not agree, including that some of the “facts” were preceded by the words “alleged”, which means that the there was no agreement) and it was also agreed that costs would not be sought.

Practical lessons

For those of us who are asked regularly on the interpretation of Acts, awards and so forth; this decision provides the “rules” to follow when the there appears to be conflicting parts of a piece of legislation. In this case, the conflict between a prospective employee having workplace rights (mainly to do with discrimination), as opposed to section 341 which sets out the meaning of workplace right – in particular section 341(c)(ii), stating: “(ii) if the person is an employee – in relation to his or her employment”. My emphasis.

Put simply, one part of the section allows for a “prospective employee” with other requiring that the person be employed.

The nitty gritty

On the one hand the proposed contract was not executed; and on the other, it was argued the prospective employer took adverse action against the prospective employee in that the prospective employer refused to employ the prospective employee; or discriminates against the prospective employee in the terms and conditions on which the prospective employer offers to employee the prospective employee (Column 2, item 2).

The judgement/decision found that:

“…to the extent that there may be a conflict [in the legislation], that conflict might need to be resolved by a reading down of one of the provisions.  In that respect, the Full Court of this Court observed in Handbury Holdings Pty Ltd v. Federal Commissioner of Taxation (2009) 179 F.C.R. 569 at 577 [31] as follows:

‘The problem of reconciling apparently conflicting parts of the statute is well-worn territory. That process of reconciling such provisions will often require a court…to determine which is the leading provision, and which must give way’.

The referencing a High court decision (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70]):

‘Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme’”.

And…employment wins!

The judge finding that the “leading provision” is s. 341(1)(c)(ii) [ie employee] and it is thus s. 341(3) [prospective employee] which “must give way” to its operation.

Common law right for employee to sue an employer

The judge then finding:

“Under the general law, an employee has a right to sue his or her employer for an alleged breach of the contract of employment. A suit may be regarded as the ultimate form of complaint [this in reference to the adverse action]. Accordingly, in our opinion, an employee is “able to make a complaint” about his or her employer’s alleged breach of the contract of employment. That ability is “underpinned by…the right to sue and extends to making a verbal or written complaint to the employer about an alleged breach of the contract.

“Further, an employee who alleges that his or her employer has contravened a statutory provision relating to the employment is “able to make a complaint” within s 341(1)(c)(ii) of the FW Act. That right or entitlement derives from the statutory provision alleged to have been contravened.  The ability encompasses making a complaint to the employer or an appropriate authority about the alleged contravention, whether or not the statute directly provides a right to sue or make a complaint”.

The Competition and Consumer Act 2010

The judge then noting that:

“…the applicant has also pleaded claims in reliance…s. 31 of the Australian Consumer Law as contained in Sch. 2 to the Competition and Consumer Act 2010 (Cth.)…The latter section provides, in general terms, that a person must not, in relation to employment that is offered, engage in conduct that is liable to mislead a person seeking employment. Those claims are not considered in these reasons and may need to be addressed on another occasion”.

But was there a complaint (or enquiry)?

According to the judge, the answer to this question is “no”, however the judge put it this way:

“It was rather a simple application made as part of the applicant’s negotiation of her work conditions. Nor was the applicant’s statement that she had received legal advice and wanted to make changes to the Proposed Contract an “inquiry”…Again, what was said simply formed part of the negotiations between the parties…I otherwise accept that the question asked about the award or enterprise agreement was an “inquiry”, but doubt whether the same could be said in relation to the requests for amendments to the Proposed Contract and to the request for an ergonomic work station…Nonetheless, in what follows I have assumed, in accordance with the wishes of the parties, that [these] Inquiries constituted an “inquiry” as that word is used in s. 341(1)(c)(ii) of the FW Act”.


[Enter “dramatic” music…

  • Were the parties satisfied with the decision?
  • Will mediation be successful? Probably not, and if yes, it will be cheap.
  • What was the point?

Greg Reiffel Consulting works exclusively for employers – acting as a powerful advocate in all areas of Workplace/Industrial Relations and Human Resources Management. (Unfair Dismissals are a speciality). My business grows by referrals. I would appreciate it if you would pass my details on to your colleagues, clients or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct and more…

This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “contact us” tab.

Schedule free Consultation here.

Full Decision here.


This is essential reading for those of us who deal with the matters of “unfair dismissal” and “protected (adverse) Actions”; and not to mention the important of having well-constructed policies (in this case “media policy”) and contracts of employment.

Your “brand” is your bread and butter, reputational damage can destroy it!


This was an appeal to the Full Bench of the Federal Court by a person who was senior employee (the “applicant”) of a prominent law firm claiming “adverse action” because of his political beliefs. The applicant was dismissed with being paid three month’s pay in lieu of notice (in accordance with his contract of employment) for breaching the firm’s Media Policy in that he criticised the Government departments, of which were either clients or potential clients.

The decision (appeal rejected)

The applicant previously having his case before a single judged dismissed.

Two of the three judges dismissed the appeal, with the third also dismissing the appeal but using different reasoning.

That is, according to the Full Bench, was that whether an employer contravenes the adverse actions’ section of the Fair Work Act 2009 by dismissing an employee because the employee repeatedly breaches the employer’s policy prohibiting its employees from criticising the Government (being a client of the employer) in the media when the employer reasoned that that conduct could affect its ability to continue to attract and earn income from fees from Government work.

The primary judge found that, consistently with his history of similar conduct, during November and December 2016, the applicant had criticised the Commonwealth Government twice in The Sydney Morning Herald. His Honour found that the conduct breached the firm’s media policy that in its practical effect prohibited such criticism in the media. The primary judge found, as facts, that first, the Firm dismissed the applicant because he disobeyed instructions and a policy not to discuss the Firm’s clients in public without first getting permission and secondly, the Firm did not terminate the applicant’s employment for having, or expressing, a political opinion. The Judge finding:

  • Two reasons which were “in the mind” of the Firm were “inextricably linked, i.e. that the Firm did not consider the applicant valuable enough to justify the repeated disobedience of his orders;
  • The Firm was motivated by three matters in reaching his decision to terminate the applicant’s employment: applicant’s disobedience to the media policy (and the not-to-be-questioned authority of the Firm’s managing partner), the Firm’s perception that he was not making the Firm much in the way of fees and the fact that the Firm was entitled to end the relationship on three months’ notice without any reason;
  • The applicant’s employment with the Firm was terminated because he expressed a political opinion and found that no one at the Firm cared about the applicant’s political opinion, but very much cared about his conduct being a threat to its business”. The “concerns” of the Firm’s managing partner “were more pedestrian” in that he “held a perception that the applicant was not bringing in much in the way of profit and he was infuriated by the applicant’s refusal to comply with the media policy and what he regarded as insubordinate behaviour by an employee who was not, to his understanding, profit enhancing; and
  • The applicant had been dismissed “because he disobeyed instructions and a policy not to discuss the Firm’s clients in public without first getting permission”.

Discrimination under the Fair Work Act

The Full Bench examined, as part of this decision, the section of the Fair Work Act pertaining to discrimination/Protected (adverse) action:

The relevant section of the FWA states:

“351       Discrimination

  • An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin”.

The guide to Pt 3.1 of the Fair Work Act in s 334 states that the Part provides general workplace protections and that, among others, “Division 3 protects workplace rights, and the exercise of those rights” and “Division 5 provides other protections, including protection from discrimination”.

Relevantly, the prohibitions in Pt 3.1 against an employer taking adverse action against an employee in s 340 (in respect of workplace rights generally), and specifically in s 346 (in respect of industrial activity), s 351 (in respect of discrimination) and s  352 (in respect of dismissal for illness and injury) are enlivened if the employer takes the particular adverse action “because” a fact or circumstance obtains or has occurred.

Practitioners may wish to read on…(it gets a bit legal):

Section 346, for example, which is in Div 4, relevantly proscribes an employer from taking adverse action, such as dismissal, against an employee “because” the employee is or was an official or member of an industrial association (s 346(a)) or engaged, is engaging or proposes to engage in industrial activity (s 346(b)).  And s 351(1), which is in Div 5 and is headed “Discrimination”, relevantly proscribes an employer from taking adverse action against an employee or prospective employee “because” of the particular employee’s specific characteristics, including physical or mental ones, his or her sexuality, beliefs or political opinion.

Section 361(1) creates a presumption in an application under Pt 3-1 that, where an employee alleges that the employer took, or is taking, adverse action for a particular reason, and “taking that action for that reason or with that intent would constitute a contravention of this Part”, “the action was or is being taken for that reason or with that intent unless the person proves otherwise”.  Importantly, s 360 provides:

‘360        Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason”.

Barclay High court decision

In Barclay 248 CLR 500, the High Court considered the operation of the adverse action provisions in the context of a claim under s 346 that an employer had taken adverse action against an employee “because” he was an officer of an industrial association and had engaged in industrial activity.

The High Court observed that the Parliament intended ss 360 and 361 to provide a balance between the parties to a workplace dispute by, first, establishing a presumption in favour of an employee who alleges that an employer had taken, or is taking, adverse action against him or her because of a particular circumstance or fact of the kind specified in any of ss 340, 346, 351 or 354 and, secondly, enabling the employer to rebut that presumption. The presumption and onus that ss 360 and 361(1) create are necessary because the employee cannot know or prove what was in the decision-maker’s mind when he or she took the adverse action. The court must enquire into, and make findings about, the mental processes of the decision-maker for taking the adverse action complained of.

Accordingly, the employer or decision-maker acting on its behalf who took the alleged adverse action must prove, as a fact, that none of his or her reasons for that action included as a substantial and operative factor any reason or intent that the Act proscribed him or her from having, the Court must determine the question of fact, namely “why was the adverse action taken?”

French CJ and Crennan J explained (248 CLR at 523 [61], [62] and see too per Heydon J at 547 [148]):

“Central to the respondents’ argument on this appeal was the contrary and incorrect view that Mr Barclay’s status as an officer of an industrial association engaged in lawful industrial activity at the time that Dr Harvey took adverse action against him meant that Mr Barclay’s union position and activities were inextricably entwined with the adverse action, and that Mr Barclay was therefore immune, and protected, from the adverse action. If accepted, such a position would destroy the balance between employers and employees central to the operation of s 361, a balance which Parliament has chosen to maintain irrespective of the fact that the protection in s 346(b) has a shorter history than the protection in s 346(a). That balance, once the reflex of criminal sanctions in the legislation, now reflects the serious nature of the civil penalty regime. Speaking more generally, that balance is a specific example of the balance of which Alfred Deakin spoke as being necessary for an effective conciliation and arbitration system.

Secondly, it is a related error to treat an employee’s union position and activity as necessarily being a factor which must have something to do with adverse action, or which can never be dissociated from adverse action. It is a misunderstanding of, and contrary to, [General Motors-Holden’s Pty Ltd v Bowling [(1976) 136 CLR 676] to require that the establishment of the reason for adverse action must be entirely dissociated from an employee’s union position or activities. Such reasoning effectively institutes an interpretation of the relevant provisions indistinguishable from that of Isaacs J in Pearce, which was rejected in Bowling. The onus of proving that an employee’s union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence”. (Emphasis added.)

Gummow and Hayne JJ (248 CLR) and Heydon J rejected the argument that, in answering the question “Why was the adverse action taken?” the court could take into account any “unconscious” state of mind of the decision-maker or employer.

BHP High Court decision

In BHP Coal 253 CLR 243 French CJ and Kiefel J rejected as erroneous the reasoning of the primary judge (Jessup J) who had posited that the employer (or decision-maker) has to establish, under s 361(1), that no part of his or her reasons included the employee’s engagement in industrial activity (and see also at 268–269 [90]–[93] per Gageler J).  Their Honours said:

“The primary judge then went on to consider whether Mr Doevendans’ conduct constituted an industrial activity in the relevant respects. The only inference which can be drawn from this additional reasoning is that, because the adverse action was based upon the sign which Mr Doevendans held and waved, this activity must be taken as one of the reasons for the action. That is to say no more than that the adverse action had a connection, in fact, to the industrial activity. That connection may necessitate some consideration as to the true motivations of Mr Brick, but it cannot itself provide the reason why Mr Brick took the action he did. That inquiry was concluded by his Honour’s earlier findings. His Honour, in effect, wrongly added a further requirement to s 361, namely that the employer dissociate its adverse action completely from any industrial activity”.

In essence, in this passage, French CJ and Kiefel J applied the test that, even though Mr Doevendans’ conduct amounted to his engaging in industrial activity within the meaning of s 346(b) and that conduct was “a reason” for the decision-maker, Mr Brick, acting as he did, the conduct was not a substantial and operative reason in Mr Brick’s mind when he took the adverse action. That conclusion was consistent with the reasons in Barclay, based on the trial judge’s unchallenged findings of fact.

Endeavour Coal High Court decision

In Endeavour Coal 231 FCR 150, Jessup J (who, with Perram J constituted the majority) explained the principle established in Barclay 248 CLR 500 and BHP Coal 253 CLR 243 as follows:

The “connection” which was held not to be sufficient in BHP Coal was between the adverse action taken by the employer and the industrial activity in which the employee had engaged. It was not between two different characterisations of the conduct of the employee, in that case, as a contravention of the employer’s conduct policy and as participation in industrial activity. As French CJ and Kiefel J made clear, if adverse action was taken because the conduct involved such a contravention, it did not become a breach of s 346 merely because the conduct was, at the same time, participation in industrial activity. The existence of such a “connection” was insufficient. What was necessary was that the actual reason of the decision-maker, in his or her own mind, be the employee’s participation in industrial activity. To see their Honours’ reasons in this way is, in my view, to recognise the consistency of those reasons with the statements of principle contained in the reasons of Gageler J in the same case. Those statements represent the law after Barclay and BHP Coal”. (Emphasis added.)

Perram J came to the same conclusion.  He gave the example that, while a judge in giving reasons for his or her decision will have regard to the unsuccessful party’s submissions as an important part of arriving at that decision, those submissions will not be the reasons that are substantial and operative in why the judge made the decision: Endeavour Coal 231 FCR at 173.