Bhalla v Woolworths Group Pty Ltd
[2024] FedCFamC2G 652
•23 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bhalla v Woolworths Group Pty Ltd [2024] FedCFamC2G 652
File number(s): MLG 3982 of 2020 Judgment of: JUDGE SYMONS Date of judgment: 23 July 2024 Catchwords: PRACTICE AND PROCEDURE – adverse action – dismissal - application for leave to file further amended statement of claim – application made during closing submissions of trial – amendment directed at the identification of person whose conduct said to be engaged in by respondent for the purpose of 793(1)(a) of the Fair Work Act 2009 (Cth) – where evidentiary case emerged during cross-examination of respondent witnesses – where amendment opposed – whether proposed amendments liable to be struck out – where proposed amendments bring case run at trial in conformity with the pleading – application granted Legislation: Fair Work Act 2009 (Cth), ss 340, 342, 361, 793.
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190.
Federal Court Rules 2011 (Cth), r 16.53.
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27.
Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; [2018] FCAFC 83.
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500;
[2012] HCA 32.
Caason Investments Pty Ltd v Cao (2015) 236 FCR 322; [2015] FCAFC 94.
Forshaw v Qantas Airways Limited [2023] FCA 957.
Monash Health v Singh [2023] FCAFC 166.
Uber Technologies Incorporated v Andrianakis (2020) 61 VR 580; [2020] VSCA 186.
Wong v National Australia Bank Limited (2022) 318 IR 148; [2022] FCAFC 155.
Wood v City of Melbourne Corporation (1979) 26 ALR 430; [1979] FCA 42.
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submissions: 24 May 2024 Date of hearing: On the papers Place: Melbourne Counsel for the Applicant: Mr T Rawlinson Solicitor for the Applicant: Betts Law Company Counsel for the Respondent: Mr J Tracey Solicitor for the Respondent: Minter Ellison ORDERS
MLG3982 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SURESH BHALLA
Applicant
AND: WOOLWORTHS GROUP PTY LTD (ACN 000 104 675)
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
23 JULY 2024
THE COURT ORDERS THAT:
1.The applicant be granted leave to file and serve a further amended statement of claim in the form annexed to her written submissions filed on 17 May 2024 by 4pm on 25 July 2024.
2.The respondent be granted leave to file and serve a defence to the further amended statement of claim referred to in paragraph 1 by 4pm on 13 August 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
These reasons are concerned with an application pressed by the applicant, Ms Bhalla, at what might fairly be described as the eleventh hour of closing submissions on the third and final day of trial. By her application, Ms Bhalla seeks leave to file and serve what would be a fifth further amended statement of claim in a proceeding brought in the Court’s Fair Work division.
To understand how the application came about it is necessary to set out some background to the proceeding.
BACKGROUND
The applicant’s case against the respondent, Woolworths Group Pty Ltd, involves allegations of adverse action including an allegation that the respondent dismissed Ms Bhalla from employment because she exercised workplace rights contrary to s 340(1)(a)(i) of the Fair Work Act 2009 (Cth) (FW Act) and because of her race or national extraction, contrary to s 351(1) of the FW Act.
The respondent admits that it dismissed Ms Bhalla from employment on 22 November 2022 and that this action constituted “adverse action” within the meaning of s 342(1) of the FW Act but denies that the decision to dismiss Ms Bhalla was made for any proscribed reason, including any of those identified by Ms Bhalla.
The respondent submits that the reason for Ms Bhalla’s dismissal was that described in the letter of termination dated 22 November 2022 namely that Ms Bhalla had “repeatedly fail[ed] and/or refus[ed] to comply with the lawful and reasonable directions in the Direction and Warning Letters”. The direction was described in both of these communications (dated 14 September 2022 and 20 October 2022, respectively) as a “direction to confirm…that upon your return to work you will, as required, perform all tasks that fall within the scope of the duties of a Level 1 Store Team Member under the Agreement – including recovery work, returns work, incidental cleaning work and/or any other work which is incidental to, or in connection with, any of the other tasks listed in the Level 1 classification description in the Agreement”. It is agreed that reference to the Agreement is to the BIGW Stores Agreement 2019.
The direction was given in circumstances where Ms Bhalla had been absent from work on medical grounds for over six months but had been recently assessed by the respondent as fit to return to work in the respondent-owned Big W store located in Doncaster, Melbourne.
The respondent, in its affidavit material read at trial and in its written submissions filed in advance of the final hearing, asserted that the decision to dismiss Ms Bhalla was made by one individual, namely, Ms Kathleen Toner, who at relevant times was employed by the respondent as Area Operations Manager of Big W. The respondent submitted that to the extent that s 361(1) of the FW Act was engaged, the evidence of Ms Toner would have the effect of discharging the respondent’s onus under this provision.
Prior to final hearing, Ms Bhalla had not actively sought to controvert the position taken by the respondent as to the identification of Ms Toner as sole decision-maker. However, in opening submissions on day one of trial, counsel for Ms Bhalla, Mr Rawlinson, made the following submission:[1]
Ultimately, Ms Bhalla’s employment was terminated. The reason stated by Ms Toner for the termination was that Ms Bhalla had refused to comply with a lawful and reasonable direction to perform returns, recovery and cleaning work.
The written evidence, however, suggests that Ms Toner acted on information received from Ms Johnson, who had, in turn, acted on information received from Ms Thomas. It will be a live issue I submit in the evidence being the extent to which the termination decision wasn’t made by Ms Toner alone, and she says it was, and that will be an issue of fact for your Honour to determine in the evidence.
[1] T9 lines 17 – 26.
The references to Ms Johnson and to Ms Thomas are to, respectively, Samantha Johnson who, at relevant times was employed by the respondent as Head of Employee Relations and Rosaria (Sarina) Thomas who, at relevant times was employed by the respondent as Store Manager, Big W Doncaster Store. Both Ms Johnson and Ms Thomas made affidavits that were read by the respondent, and both were required for cross-examination by Ms Bhalla.
In closing argument, counsel for Ms Bhalla submitted that the evidence, including that adduced through cross-examination, disclosed that Ms Johnson’s contribution to the dismissal decision had a material effect on the ultimate outcome. It followed, according to Ms Bhalla, that the respondent could only discharge the reverse onus under s 361(1) of the FW Act if the Court was to find that Ms Johnson’s contribution to the dismissal was dissociated from any proscribed reason.
This submission prompted an objection by the respondent who, through counsel, noted that in her fourth further amended statement of claim filed on 12 February 2024 (the latest iteration of her pleading), Ms Bhalla had alleged at paragraph 103A as follows, noting that the reference to the Fourth Respondent is a reference to Woolworths Group:
103A.The Fourth Respondent is liable under Section 793(1)(a) of the FWA for the actions of:
a) Mr Hawkins;
b) Ms Weldon;
c) Ms Mooy;
d) Mr Marcellino;
e) Mr Katsikogianis;
f) Mr Rizvi;
g) Ms Campbell;
h) Ms Bennet; and
i) Ms Balcombe
for the Adverse Actions and the conduct of the individuals named in this paragraph, in relation to the Adverse Actions.
Self-evidently, this paragraph does not identify Ms Johnson, or for that matter, Ms Toner.
The respondent submitted that in these circumstances Ms Bhalla should not be permitted to prosecute a case that sought to attribute to the respondent the conduct of Ms Johnson in relation to the dismissal when such a case had not been pleaded and the respondent was denied the opportunity to meet it head on.
Ms Bhalla sought to redress the position by making an oral application for leave to amend her pleading. The respondent opposed the application citing delay and prejudice and that to allow such an application would be contrary to the following passage taken from Forshaw v Qantas Airways Limited [2023] FCA 957 where at [45]-[46] Snaden J said.
Section 361(1) of the FW Act does not operate to qualify, nor to relieve an applicant of, the obligation to plead with orthodox precision the case that is to be advanced against a respondent. Instead, it operates to facilitate, by means of a rebuttable presumption, the proof of one aspect of such a case (namely, the state or states of mind by which identified conduct is said to have been at least partly actuated); Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131, 167 [161]-[162] (Branson J). Contrary to the effect of Ms Forshaw’s submission, the statutory presumption does not serve to suspend the ordinary conventions of procedural fairness so as to require that a respondent should make its own sense of a case advanced vaguely against it.
An applicant in a matter commenced under Pt 3-1 of the FW Act must plead, in the usual way, the conduct in which the respondent is said to have engaged. In the case of corporate respondents, that endeavour necessarily requires the identification of the human actors whose conduct is said to be relevantly attributable, and of the agency or other circumstances that suffice to associate that conduct as conduct of the body corporate….
Given the significance of the application to the parties’ respective cases, I declined to make a decision without first giving the parties an opportunity to file written submissions setting out their positions.
Ms Bhalla’s submissions
Ms Bhalla filed written submissions on 17 May 2024 which attached a proposed Fifth Further Amended Statement of Claim (Proposed FASOC) that was said to plead the material facts necessary to allege Ms Johnson’s involvement in the termination of Ms Bhalla’s employment.
Ms Bhalla submits that the proposed amendments would simply redress the disconformity between the case run at trial (including as it unfolded through the cross examination of Ms Johnson and Ms Toner) and the pleading, and that leave to amend in these circumstances would not prejudice the respondent in any meaningful way.
According to Ms Bhalla, the lack of prejudice is said to be a matter that can be inferred from the following circumstances:
First, Ms Bhalla observes that the dismissal claim was first alleged in the current pleading filed on 12 February 2024. The affidavits of Ms Johnson and Ms Toner filed on 25 March 2024, set out the respondent’s evidence in chief regarding the involvement of Ms Johnson and Ms Toner in the process of the termination and their reasons for the conduct in question.
Second, Ms Bhalla submits that her case regarding the involvement of Ms Johnson is based on the evidence given by Ms Johnson and Ms Toner in their respective affidavits, and evidence elicited from Ms Johnson and Ms Toner in cross-examination. Ms Bhalla submits it to be significant that Ms Johnson’s affidavit contains a denial that any action she took, or other conduct she engaged in, was taken or occurred for any unlawful reason, including any reason alleged by Ms Bhalla in this proceeding.[2]
[2] Second affidavit of Ms Johnson sworn 25 March 2024 at [24]-[25]
Ms Bhalla submits that because of this denial, the respondent has not demonstrated a need to call additional evidence from Ms Johnson to meet Ms Bhalla’s case regarding her involvement in the termination. Ms Bhalla submits that the forensic decisions made at trial by the respondent’s counsel support this conclusion. It is said to be significant that the respondent did not re-examine Ms Johnson or Ms Toner or seek leave to lead additional evidence from them or any other witness. Neither did the respondent object to any cross-examination of Ms Johnson or Ms Toner on the basis that it travelled beyond the pleadings.
Ms Bhalla submits that the Court can infer (based on the above) that the respondent would not have led any different evidence from Ms Johnson or Ms Toner, or conducted the trial any differently, had she sought leave to amend her pleading after receiving the respondent’s affidavit evidence.
Ms Bhalla submits that as far as the respondent seeks to rely on the decision of Forshaw in contending that her pleading is deficient, the reasoning of Snaden J in fact supports her application for leave to amend. Ms Bhalla’s submissions contain an acknowledgement that like the case considered in Forshaw, her pleading is deficient - by reason of the failure to allege that Ms Johnson’s conduct and reasons for her conduct regarding the dismissal are attributable to the respondent. However, she submits that as was the outcome in Forshaw, she should be given leave to replead and on the “usual basis” that the inadequacy of the pleading does not mean that the Court might properly infer that no reasonable cause of action exists (Forshaw at [75]).
Ms Bhalla submits that here, like in Forshaw, there is no doubt that she has a cause of action regarding the dismissal if it is established on the evidence. In this respect, she explains that the reason for the late amendment is simply that her case regarding the involvement of Ms Johnson only emerged from the cross-examination of Ms Johnson. She submits that because of the evolution of the evidence she might well have been legitimately criticised had she sought to amend the pleadings to allege the involvement of Ms Johnson at an earlier stage of the proceeding.
The respondent’s submissions
The respondent filed written submissions on 24 May 2024. Aside from citing inordinate delay in the context of a proceeding that has been on foot since November 2020 and been the subject of four pleading amendments, the respondent’s principal objection to the Proposed FASOC is that it would be liable to be struck out on the basis that it is “embarrassing”. It would be futile therefore to grant Ms Bhalla leave to further amend and would cause substantial injustice or prejudice to the respondent which could not be compensated by costs.
In order to understand the respondent’s position, it is necessary to identify how it is that Ms Bhalla proposes to amend her statement of claim. She proposes to do so as follows:
First, by a new paragraph 27B Ms Bhalla pleads that “From in or around November 2021, Ms Samantha Johnson (Ms Johnson) has been employed by the Fourth Respondent as Head of Employee Relations”.
Second, Ms Bhalla proposes to introduce the following two paragraphs (99BA and 99BB):
99BA Ms Johnson was involved in the Termination in that:
a) Ms Johnson had a material effect on the ultimate outcome of the Termination by reason of her having had a material effect on the decision to impose the Return to Work Condition; and
b) The imposition of the Return to Work Condition led to the Termination.
99BBMs Johnson’s material effect on the decision to impose the Return to Work Condition was motivated by:
a) Reasons including the Bullying Application; and/or
b) Reasons including Ms Bhalla’s ability to complain about the Return to Work Condition (once imposed).
Third, Ms Bhalla proposes to amend current paragraph 99C so that it would read:
99CIn the premises of paragraph 99BA and 99BB above, the Termination was by reason of, or for reasons including, the Condition Refusal and/or the Bullying Application.
Particulars
The Applicant repeats paragraph 99BA and 99BB above.
Ms Johnson’s state of mind in relation to the conduct in relation to the Termination is the state of mind of the Fourth Respondent, pursuant to section 793(2) of the FWA.
Fourth, Ms Bhalla proposes to amend paragraph 103A (reproduced in its current form at [9] above) to read, relevantly:
The conduct, and states of mind in relation to the conduct of:
…
(j) Ms Johnson
are, pursuant to Section 793(1) and (2) of the FWA, taken to be the conduct, and states of mind in relation to the conduct, of Woolworths.
The respondent makes the following submissions about these proposed amendments.
First, paragraph 99BA introduces the concept of “the decision to impose the Return to Work Condition”, and then the further concept that “the imposition of the Return to Work Condition” “led to the Termination”. The respondent identifies two problems with this pleading. First, because the alleged “Return to Work Condition” is not an alleged form of adverse action, it is irrelevant that a decision (in the Barclay[3] sense) was made to “impose” it; and it is also irrelevant who made that “decision”. Second, the notion that the so-called “imposition” of the alleged “Return to Work Condition” “led to the Termination” is said to be vague, general, imprecise, unintelligible and a non-sequitur – on a fair reading of the pleading on its face (referring to Uber Technologies Incorporated v Andrianakis (2020) 61 VR 580 at [50(n)]).
[3] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500.
The respondent submits that proposed paragraph 99BA suffers from further vices. Specifically, the pleading that Ms Johnson was “involved in the Termination” “in that” Ms Johnson had a “material effect” on the “ultimate outcome of the Termination” is described as a vague, general and embarrassing conclusion based on unstated facts. The problem is compounded by the attempt by Ms Bhalla to connect this allegation with the alleged subsidiary, or anterior, reason (said to be expressed in conclusory form) of Ms Johnson “having had a material effect on the decision to impose the Return to Work Condition”.
Second, proposed paragraph 99BB introduces the notion that Ms Johnson’s “material effect” on the “decision to impose the Return to Work Condition was motivated by: (a) reasons [unstated] including the Bullying Application; and/or (b) reasons [unstated] including Ms Bhalla’s ability to complain about the Return to Work Condition (once imposed)”. The respondent submits that these allegations cannot constitute a reasonable cause of action for a contravention of s 340(1) of the FW Act. This is because, apart from being vague, general and embarrassing, they do not plead the necessary elements of the apparently alleged workplace right constituted by having an “ability to complain” about the “Return to Work Condition (once imposed)”, including the necessary instrumental source of such an ability.
Third, proposed paragraph 99C alleges that the Termination “was by reason of, or for reasons including, the Condition Refusal and/or the Bullying Application”, “in the premises of paragraph 99BA and 99BB above”. However, those premises (according to the respondent) are flawed and embarrassing premises and do not logically support the allegations made in the balance of paragraph 99C or the cause of action purportedly founded upon these allegations. In this respect, the respondent notes that it made closing submissions directed at the “unintelligibility and embarrassing nature” of the “Condition Refusal” as a proposal to exercise a workplace right.
Fourth, proposed amended paragraph 103A vaguely and generally asserts that “the conduct” (unspecified) and state of mind in relation to “the conduct” (again unspecified) of Ms Johnson are the conduct and state of mind of the respondent. The respondent characterises these pleas as “vague, general and embarrassing” and submits that these deficiencies are not cured by the “similarly vague” new particulars of paragraph 99C which “generally and vaguely” refer to Ms Johnson’s “state of mind in relation to her conduct in relation to the Termination”.
The respondent submits that the Proposed FASOC pleads no material facts as to the occurrence of any action or conduct and is especially critical of the failure of Ms Bhalla to plead any adverse action on the part of Ms Johnson (or for that matter, on the part of Ms Toner). The respondent submits that such a pleading is necessary for the onus under s 361 of the FW Act to be engaged (referring to Forshaw at [38]-[46]). The respondent is also critical of the failure of Ms Bhalla to allege material facts as to the “involvement” or “material effect” Ms Johnson is said to have had, or as to the state of mind Ms Johnson allegedly possessed at the particular time she engaged in any particular action or conduct. As a result, Ms Bhalla has failed to establish a cause of action and has inhibited the respondent’s understanding of the case sought to be raised against it, thereby denying it procedural fairness.
The respondent submits that these deficiencies are more pronounced and prejudicial in circumstances where the alleged causes of action involve civil penalty provisions and where the respondent bears the “reverse onus” under s 361 of the FW Act. The respondent cites in support of this proposition the decisions of Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 at [14], [19] and Monash Health v Singh [2023] FCAFC 166 at [57].
The respondent submits that if leave to amend was granted it would suffer further prejudice in the form of a lost forensic advantage. The respondent contends that because Ms Johnson’s evidence was prepared for the purpose of addressing the case advanced by way of the current pleading (and earlier iterations of the statement of claim) it will potentially incur costs in relation to the taking of relevant instructions, the preparation and filing of further evidence, the potential reopening of the respondent’s case and the associated further hearing time. The respondent will, at a minimum, incur costs in relation to preparing and filing another defence.
The respondent is critical of the failure of Ms Bhalla to provide any “good or adequate” reason in seeking the amendment. The respondent submits that in circumstances where Ms Bhalla was served with Ms Johnson’s first affidavit on 20 December 2022 and where this affidavit canvassed aspects of her role in relation to Ms Bhalla’s employment, amendments of the kind now sought to be made were available from at least this point in time (approximately 17 months ago). Even if the arguments that underscored any such amendments were flawed, the respondent would have received advance notice of Ms Bhalla’s case theory, rather than being taken by surprise, as had ultimately occurred.
The respondent submits that delay, including in the context of this Court’s overarching purpose (refer s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)) is an important factor in the determination of whether leave should be granted. The respondent submits that the delay in this case is compounded by the protracted history of the proceeding and the fact that Ms Bhalla has, on many occasions, sought and obtained the indulgence of the Court (with the respondent’s consent) to amend her statement of claim.
The respondent submits that if – against its primary submission – the Court was to grant Ms Bhalla leave to amend, directions would need to be made for the filing of a defence to the Proposed FASOC. The respondent foreshadows an application to seek leave to file further evidence and make further submissions as to matters arising from Ms Bhalla’s amended case.
LEGAL PRINCIPLES AND FRAMEWORK
The parties agree that rule 16.53 of the Federal Court Rules 2011 (Cth) is applicable to the present application.
This rule states:
Application for leave to amend
1)Unless rule 16.51 applies, a party must apply for the leave of the Court to amend a pleading.
2)A party may apply under sub rule (1) for leave to amend a pleading to add or substitute a new claim for relief, or a new foundation in law for a claim for relief that arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party, even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started.
3)A party must not apply under sub rule (1) for leave to amend a pleading to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises, in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding if the application would be made after the end of any relevant period of limitation applying at the date the proceeding was started.
There is no suggestion that sub-rule 16.53(3) is engaged in this case and the respondent does not submit that, superficially at least, the Proposed FASOC is incapable of comprehending matters of the kind contemplated by sub-rule 16.53(2).
The parties also agree that leave to amend should not be granted where the proposed amendments would be futile, likely to be struck out or would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by costs. The parties otherwise place different emphasis on the considerations that should inform the exercise of the Court’s discretion.
Both parties referred, in their written submission to the Full Court’s judgment in Caason Investments Pty Ltd v Cao (2015) 236 FCR 322 at [19]-[21] where Gilmour and Foster JJ observed:
The power of the Court to grant or refuse leave must be exercised in the way that best promotes the Court’s overarching purpose to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: s 37M(3) of the FCA Act and the Federal Court Rules 2011 (Cth) (FCR): Bowen Energy Ltd v 2KD Drilling Pty Ltd [2012] FCA 275 at [8]; Australian Competition and Consumer Commission v Jutsen (No 2) [2010] FCA 982 at [12]-[13]; Suzlon Energy Ltd v Bangad (2011) 196 FCR 259 at [19]; University of Sydney v ResMed Ltd (No 5) [2012] FCA 232 at [14]…
The Court’s power to grant leave to amend is broad and has the remedial objective of ensuring that any defect in the pleadings is cured and that the real questions in the controversy are properly agitated and to avoid a multiplicity of proceedings: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [14]…The object of the Court is not to punish parties for mistakes made in the conduct of their case, but to correct errors with the result that a decision can be made on the real matters in controversy: Clough v Frog (1974) 38 ALJR 481 at 482; 4 ALR 615 at 618, citing Cropper v Smith (1884) 26 Ch D 700 at 710-711.
Leave to amend should be granted unless the proposed amendment is futile, such that the issue sought to be added is unlikely to succeed, the amendment is likely to be struck out or would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by costs: Research in Motion Ltd v Samsung Electronics Australia Pty Ltd (2009) 176 FCR 66 at [21]-[22]; Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8]. Rule 16.21 of the FCR identifies the grounds on which pleadings may be struck out.
RESOLUTION
I am persuaded that Ms Bhalla’s application to amend her statement of claim (the Fourth Further Amended Statement of Claim) should be allowed. Although made late, the application is justified and explained by the statutory and evidentiary context in which it was made.
While this interlocutory application does not present the occasion to forensically examine and reach concluded views about the evidence elicited by Ms Bhalla in her cross-examination of Ms Johnson and Ms Toner, I am satisfied that it establishes a proper basis for Ms Bhalla to allege that, for the purposes of s 793(1)(a) of the FW Act, Ms Johnson is a person whose conduct is liable to be evaluated and attributed to the respondent.
As I apprehend the case sought to be prosecuted by Ms Bhalla, her argument is that Ms Johnson’s contribution to her dismissal occurred at an antecedent step (with the decision to impose the Return to Work Condition) but nonetheless, taking a transactional view of the decision-making process, was apt to be described as “significant, plainly important, major, substantial or essential” (Wong v National Australia Bank Limited [2022] FCAFC 155; 318 IR 148 at [83]).
In Wood v City of Melbourne Corporation [1979] FCA 42; 26 ALR 430, a decision referred to by the Full Court in Wong, Smithers J noted (in relation to an earlier but analogous general protection provision) (at 446-447) that “the corporation is entitled to have the total transaction looked at objectively by the court. It is the duty of the court to draw such inferences as are proper on the evidence as to who it was that played the decision-making part in the joint administrative activities culminating in Reilly performing the actual act of standing down”.
The Full Court in Wong adopted this reasoning when at [25] it observed:
As the decisions in Wood, Voigtsberger and Roberts demonstrate, the word “because” as it appears in s 340 of the FW Act directs attention to the reason for an action. Where (as here) that person is a corporate entity, it will in all cases be necessary to examine the state of mind of the human actor or actors who (alone or together) caused the corporation to take the action that it did or, to adopt a phrase from Wood, who “played the decision-making part in the joint administrative activities” culminating in the actual act that constitutes the adverse action. It may be convenient to refer to the person whose conduct directly visited the adverse action on the employee as the “decision-maker” but his or her decision-making process may incorporate the state of mind of other people, including by adopting facts or opinions asserted by them.
Viewed through this lens, the respondent’s objection to the failure of Ms Bhalla to constitute the decision to impose the Return to Work Condition as a species of “adverse action” is misplaced. The adverse action plainly is the decision to dismiss Ms Bhalla. However, on Ms Bhalla’s proposed case, the imposition of the Return to Work Condition formed part of the “joint administrative activities” that culminated in this decision. The reference to Barclay does not alter this analysis as this decision was not concerned with “the anatomy of corporate decision-making” and no issue arose as to whether any other person materially contributed to the decision.[4]
[4] Wong at [31].
The respondent’s complaint about the inadequacy of the pleaded workplace right constituted by the ability to complain about the Return to Work Condition is not new. The argument was fully ventilated at trial, and it is a matter about which I will be required to ultimately form a final view. For present purposes, I do not consider it provides a sufficient basis to refuse the application to amend. The allegation achieves the threshold of arguable. In any case, the respondent accepts that the making of the Bullying Application (as defined) involved the exercise by Ms Bhalla of a workplace right.
Furthermore, the complaints about the imprecision and unintelligibility of the Proposed FASOC are difficult to reconcile with the situation that at trial, the respondent (through counsel) made submissions of substance directed at the case put by Ms Bhalla that Ms Johnson “had a material influence or effect or made an indispensable contribution to the decision to dismiss” including through the “11 August imposition of a condition”. The respondent submitted that such a case was not consistent with the evidence of either Ms Toner or Ms Johnson or the denials made by Ms Johnson that she had acted for any of the alleged prohibited reasons and defied commonsense and common experience.[5]
[5] T190, lines 20-31.
Unlike in AonRisk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, Ms Bhalla is not seeking leave to add a substantial new claim; the case against the respondent, insofar as it alleged adverse action in relation to her dismissal, was signposted in the most recent iteration of the pleading that was filed on 12 February 2024. Furthermore, I accept Ms Bhalla’s explanation that until she understood the evidence adduced at trial, she was not sufficiently confident that an allegation that identified Ms Johnson as a person “involved” in the dismissal would have survived an application to amend. If that reflects a tactical decision, I accept that it was made for legitimate forensic reasons, rather than to secure some form of advantage over the respondent.
As I indicated at the outset, the statutory context is important. It is to be recalled that s 361(1) of the FW Act represents a legislative response to the reality that it is the respondent employer who is best placed to adduce evidence as to the decision-making process and the matters that inform it (Barclay at [50]). While this does not relieve an applicant of the obligation to properly identify his or her case (especially where the case involves a civil penalty provision), it does help to explain why in an application of this kind, the particular dimensions and nuances of the case might emerge through the evidence of the respondent and at a late stage in the proceeding.
In addition to granting leave to Ms Bhalla to file and serve the Proposed FASOC I will make a further order that the respondent have leave to file and serve a defence to the Proposed FASOC within 21 days.
Further, while I have found, in effect, that the respondent understood the case made against it concerning Ms Johnson as it had crystallised by the third day of trial, this does not preclude the possibility that the respondent was prejudiced in its preparation and response by the evolution of the case against it.
If the respondent considers it necessary to make any of the foreshadowed applications, it should do so within 28 days.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 23 July 2024
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