Byrne v LG Ferries Pty Ltd
[2024] FedCFamC2G 390
•30 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Byrne v LG Ferries Pty Ltd [2024] FedCFamC2G 390
File number(s): MLG 1765 of 2023 Judgment of: JUDGE O'SULLIVAN Date of judgment: 30 April 2024 Catchwords: FAIR WORK – application in a proceeding by respondent for summary dismissal – consideration of prospects of success of applicant’s claims – consideration of section 341(1)(c) Fair Work Act 2009 (Cth) – application in a proceeding dismissed – orders for future progress of matter. Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342
Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Court of Australia Act 1976 (Cth), ss.31A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, rr. 13.10, 13.13
Federal Circuit and Family Court of Australia Act 2021 (Cth), s. 143
Federal Circuit Court Rules 2001 (Cth), r.13.07
Cases cited: Alam v National Australia Bank Ltd [2021] FCAFC 178
Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16
Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 2) (2012) FCA 697
CumminsSouth Pacific Pty Ltd v Keenan [2020] FCAFC 204
Environmental Group LTD v Bowd [2019] FCA 951
Han v St Basil's Homes [2023] FCA 1010
Leach v Burston [2022] FCA 87
Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677
Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908
Serpanos v Commonwealth of Australia [2022] FCA 1226
Shea v TRUenergy Services Pty Ltd (No. 6) (2014) 314 ALR 346
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Tattsbet Ltd v Morrow [2015] FCAFC 63
Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456
Wong v National Australia Bank [2021] FCA 671
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of hearing: 17 April 2024 Place: Melbourne Counsel for the Applicant: Mr R. Millar Solicitor for the Applicant: McDonald Murholme Solicitors Counsel for the Respondent: Mr A. Denton Solicitor for the Respondent: Thomson Geer ORDERS
MLG 1765 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROBERT BYRNE
Applicant
AND: LG FERRIES PTY LTD (AS TRUSTEE FOR THE LG FERRIES TRUST T/A PORT PHILLIP FERRIES)
Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
30 APRIL 2024
THE COURT ORDERS THAT:
1.The respondent’s application in a proceeding filed 20 November 2023 be dismissed.
2.The proceedings be adjourned to a directions hearing on a date and at a time to be fixed.
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
INTRODUCTION
On 13 October 2023, Robert Byrne (‘the applicant’) filed an application and Form 2 alleging that he was dismissed (and subject to other forms of adverse action) in contravention of a general protection under the Fair Work Act 2009 (Cth) (‘FW Act’) by his former employer LG Ferries Pty Ltd as the Trustee for LG Ferries Trust t/a Port Phillip Ferries (‘Port Phillip Ferries’). The primary basis of these alleged contraventions is that Port Phillip Ferries took adverse action against the applicant because he exercised his “workplace rights” in the form of making “complaints” in relation to his employment which was as a Master for Port Phillip Ferries between October 2019 and August 2023.
After Port Phillip Ferries had filed a response to the application, denying the allegations contained therein, it filed an application in a proceeding, accompanied by an affidavit of its solicitor Andrew Cardell-Ree on 20 November 2023. In the application in a proceeding, Port Phillip Ferries sought that pursuant to s.143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the FCFCOA Act’) a number of the paragraphs of the applicant's Form 2 dated 13 October 2023 (‘the Claim’) be summarily dismissed.
On 21 November 2023, a Registrar of the Court issued directions for the hearing of the application in a proceeding (which was subsequently listed to 19 April 2024) as follows:
1.The Respondent’s Application in a Proceeding be listed for hearing before a Federal Circuit and Family Court of Australia (Division 2) Judge on a date and time to be advised, not before 11 March 2024 and on an estimate of 3 hours.
2.The Respondent file and serve any further affidavit material and any submissions in support of the Application in a Proceeding by 12 February 2024.
3.The Applicant file and serve any affidavit material and any submissions in response to the Respondent’s Application in a Proceeding by 26 February 2024.
4.There be liberty to apply.
In accordance with those directions, Port Phillip Ferries filed submissions on 12 February 2024 to which it will be necessary to return. The applicant (through his solicitors) failed to file material by the above deadline, and it was only after time was extended by the Court (following a mention via MS Teams) that he filed an affidavit (for the first time) and submissions (which it will also be necessary to return to) opposing the orders sought by Port Phillip Ferries.
APPLICATION IN A PROCEEDING
The orders sought by Port Phillip Ferries were:
1.Pursuant to section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), and rule 13.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021:
(a)any allegation that the communications and reports alleged within paragraphs 7, 8, 11, 12, 13, 14, 15 of the applicant's Form 2 dated 13 October 2023 (Claim) were the exercise of a "workplace right" within the meaning of section 341(1)(c)(ii) of the FW Act be summarily dismissed;
(b)any allegation that the respondent took "adverse action" because of the communications or reports alleged within paragraphs 7, 8, 11, 12, 13, 14, 15 of the Claim (such as those allegations made in paragraphs 30, 31, 32, 33, and 34 of the Claim) be summarily dismissed.[1]
[1] Whilst (the incorrect rule (i.e. rule 13.10) was referred to in the application in a proceeding the correct rule was referred to in Port Phillip Ferries’ submissions and there was no confusion at the hearing as to which rule was relied on.
At the hearing on 17 April 2024, Mr Millar of Counsel appeared on behalf of the applicant and Mr Denton of Counsel appeared on behalf of Port Phillip Ferries.
The Court was told that Port Phillip Ferries relied on the affidavit of Andrew Cardell-Ree filed 17 November 2023 and the submissions filed 12 February 2024. The applicant relied on his affidavit and submissions filed 28 March 2024.
At the commencement of the hearing, Counsel for Port Phillip Ferries, indicated that he pressed several objections to the applicant’s affidavit. The objections were made on the grounds (and in some cases, overlapping) that the evidence was irrelevant or opinion. In relation to the former, the objections were said to be because the affidavit was filed by order of the Registrar (and was responding to the application in proceeding only). The objections on relevance fail given the nature of the evidence (relevant to a material fact[2]) and as a summary dismissal hearing given what the authorities say about the material the Court should consider.[3] Similarly, and in so far as the objections on the basis of opinion went, as I understood, the submissions of Counsel for the applicant in response the evidence was only relied on for the purposes of his client’s subjective characterisation of the matter in the sense referred to in the authorities.[4]
[2] Where in the proceedings it is alleged that adverse action has been taken against an employee because an employee has made a complaint or inquiry in relation to his employment.
[3] For the purposes of an application for summary judgment it is permissible to look beyond the pleadings and consider affidavits and other evidence: see Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192 at [26]. See also comments in University of New South Wales v Huang [2012] FCA 308 at [36]-[39] & Rana v University of South Australia [2004] FCA 559 at [73]-[75] on summary dismissal applications.
[4] see Wong v National Australia Bank Limited [2021] FCA 671 at [153].
WRITTEN SUBMISSIONS
Port Phillip Ferries set out in a document titled “Respondent’s Outline of Submissions In Support of Summary Dismissal” the grounds on which it relied for submitting that the applicant did not have reasonable prospects of successfully prosecuting those of his claims, the subject of the application in a proceeding. The applicant responded in detail to those submissions in a document titled “Applicant’s Submissions In Response to the Respondent’s Application in Proceeding”. In those submissions the parties agreed on the general principles involved in considering a strike out application and how the Court should approach the exercise of the discretion to summarily dismiss proceedings.[5] The written submissions from both the applicant and Port Phillip Ferries also addressed (and not surprisingly, emphasised different) authorities on the definition of complaint for the purposes of s.341 of the FW Act.[6]
[5] See paragraphs [5] – [8] of Port Phillip Ferries submissions & paragraphs [4] – [8] of the applicant’s submissions.
[6] See paragraphs [9] – [12] of Port Phillip Ferries submissions and paragraphs [9] – [20] of the applicant’s submissions.
Port Phillip Ferries submitted that on an objective analysis of any of the written communications, the applicant has no reasonable prospects of successfully establishing that any of those written communications are “complaints” in relation to his employment. It was said that, at their highest, each of the complaints amounted to a report, or an email discussing Port Phillip Ferries’ vessels without the necessary complaint or grievance or finding of fault; genuinely-held accusation; or assertion of the existence of a state of affairs alleged to be unsatisfactory, undesirable or unacceptable necessary to be a “complaint” as required by s.341(1)(c)(ii) of the FW Act.
Port Phillip Ferries also submitted that each of the complaints were also deficient as they had not been made pursuant to the ability, founded on a source of entitlement (whether instrumental or otherwise), to make a complaint or inquiry in relation to employment (see Han v St Basil's Homes [2023] FCA 1010 per Rares J, citing, with approval, Alam[7]).
[7] [2021] FCAFC 178.
The applicant maintained in his written submissions that the written communications alleged in the Claim did constitute complaints and were an exercise of a ‘workplace right’ under s.341(1)(c)(ii) of the FW Act. The applicant took issue with the submissions of Port Phillip Ferries[8] and for the reasons developed in those submissions, contended that the application in a proceeding filed by Port Phillip Ferries should be dismissed. The applicant’s submissions said:
…the grievances raised by the Applicant were raised in a manner that required action to remedy safety defects with the vessel. Of course, at the very least, the employment complaints made by the Applicant impliedly required the Respondent to remedy the defects as they were in regard to serious safety issues in the Applicant’s workplace environment and required a recount of the historical facts in order to justify this and for future rectification to then occur. The whole purpose behind the Applicant disclosing the occupational health and safety issues was for something to be done about them, and for such issues to be rectified. The Applicant has given evidence that at various points in his employment, his safety, the safety of others, and the integrity of the vessels he was operating were at risk, and it was within this context that the Applicant raised such grievances for the purpose of rectification.[9]
[8] Including in relation to reliance on the reference in Environmental Group LTD v Bowd [2019] FCA 951 on a report not being a complaint. See further paragraphs [16]-[20] of applicant’s submissions
[9] Notwithstanding footnote 3 Port Phillip Ferries had not objected to paragraphs [41], [52] & [55] of the applicant’s affidavit.
It will be necessary to return to the parties’ written submissions in so far as they addressed each of the complaints in the Claim when considering them individually for the purposes of determining the application in a proceeding in these reasons. Before doing so it is convenient to note that annexed to the applicant’s affidavit filed 28 March 2024 was a copy of his ‘Employment Agreement’ which included the following clause:
14 Workplace Safety
(a)The Employee must exercise reasonable care and diligence in the performance of duties and comply with all reasonable instructions to protect the health and safety of the Employee and the health and safety of others.
(b)The Employee must report any work-related injuries, or injuries which will affect capacity to work, as soon as practicable. The Employee must report any apparent risk to the health and safety of any person immediately.
LEGAL PRINICPLES REGARDING SUMMARY DISMISSAL
The Court has the power to summarily dismiss a claim before it pursuant to s.143 of the FCFCOA Act and Rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the General Federal Law Rules’). Section 143 of the FCFCOA Act relevantly provides that summary judgment may be given in relation to the whole or part of any proceedings where ‘the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding’.
Section 143(3) of the FCFCOA Act specifically provides that:
…
(3)For the purposes of this section, a … proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
Rule 13.13 of the General Federal Law Rules further provides that:
The Court may order that a proceeding be … dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or …
Rule 13.13(a) of the General Federal Law Rules repeats that contained within former r.13.07(1)(b)(ii) of the repealed Federal Circuit Court Rules 2001 (Cth), which in turn reflected s.17A of the repealed Federal Circuit Court of Australia Act 1999 (Cth).
Because the Court’s power to summarily dismiss is exercised at a preliminary stage in proceedings, before the Court has the benefit of hearing full argument and evidence, it is a power which ought to be exercised with caution. In Spencer v Commonwealth of Australia (2010) 241 CLR 118 (‘Spencer’), when considering the Federal Court’s power for summary dismissal under the then s.31A of the Federal Court of Australia Act 1976 (Cth) (‘the FCA Act’), in similar terms to s.143(3) of the FCFCOA Act, French CJ and Gummow J noted:
24.The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. …
25.Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a ‘fanciful’ prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. …
French CJ and Gummow J went on to say that s.31A of the FCA Act:
22.…will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is an unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. … The application of s 31A is not, in terms, limited to those categories.
A convenient summary of the relevant principles in that regard was set out by Halley J in Leach v Burston [2022] FCA 87 at [36], as follows:
(a)the discretion to summarily dismiss proceedings should be exercised if, and only if, the Court is satisfied that there is no reasonable prospect of success: Spencer v Commonwealth of Australia (2010) 241 CLR 118 (Spencer) at [60] (Hayne, Crennan, Kiefel and Bell JJ);
(b)the enquiry required to be undertaken is whether there is a reasonable prospect of prosecuting the proceeding, not an enquiry directed to whether a certain or concluded determination could be made that the proceeding will necessarily fail: Spencer at [52];
(c)the use of the word “may” in s 31A of the FCA Act is to be read as an empowering word, not for the purpose of conferring a discretion on the Court. If the Court is satisfied that a cause of action has no reasonable prospect of success, it “must” be exercised. The exercise of the power turns not on the discretion of the Court, but rather upon proof that the cause of action has no reasonable prospect of success: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 at [128] –[129] (Gordon J);
(d)full weight must be given to the expression “no reasonable prospect” as a whole, and it might readily be accepted that the power to dismiss a proceeding summarily is not to be exercised lightly: Spencer at [60][;]
(e)particular caution to exercise the discretion is required if there are factual disputes and evidence is not in a final form: Houston v State of New South Wales (No 2) [2021] FCA 637 (Houston) at [5(d)] (Griffiths J); Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; [2006] FCA 1352 at [43] –[45] (Rares J);
(f)appropriate account needs to be taken of the possibility that existing authority may be overruled, qualified or further explained; summary dismissal must not be used to stultify the development of the law: Houston at [5(e)] (Griffiths J); Spencer at [25]; Western Australia v Fazeldean and Others (No 2) (2013) 211 FCR 150; [2013] FCAFC 58 at [35] (Allsop CJ, Marshall and Mansfield JJ); and
(g)the party seeking summary dismissal bears the onus of establishing the proceeding or defence has no reasonable prospects of success: Kitiko v University of Technology Sydney [2021] FCA 360 at [55] (Griffiths J).
THE APPLICANT’S CLAIMS
Turning then to the applicant’s Claim. In doing so it is necessary to analyse each “complaint” to understand their relationship to the allegations articulated in the Claim and the provisions of the FW Act they are said to engage.
The parts of the Claim the subject of Port Phillip Ferries’ application in a proceeding (which will be considered seriatim) were:
The First Employment Complaint
7.On 25 February 2021, the applicant made a complaint to Mr Ruscoe by email about throttle engine delays of the Bellarine Express vessel. The email read, in part, as follows:
‘Due to engines not increasing in power within the timeframe, the very front of the stbd hull hit the wharf on one of the bolts that holds the tendering to the wharf. This put a dint in the leading edge of the hull.’
The Second Employment Complaint
8.On 12 March 2022, the applicant made a complaint to Mr Ruscoe by email about the engines dropping out of synchronization from Geelong Flyer. The email read as follows:
‘... as GF was approaching Cunningham Wharf at 12:40, the engines dropped out of sync. The throttles were brought out of sync and continued on to the berth. When transferring to the port Wing station I had no port throttle control. I went back to midship controls and berthed the vessel.’
...
The Fourth Employment Complaint
12.On 19 April 2023, the applicant made a complaint to Mr Ruscoe by phone and in an Incident Report about a delay in the throttle engine of the Geelong Flyer vessel. The Applicant complained that ‘Without warning, a gust/squall came from the southwest and pushed the vessel sideways towards the wharf. Additional port rudder and throttle were applied, however, there appeared to be little or no response from the control input ... there was not enough power quick enough to pull the vessel away from the wharf. Geelong Flyer made contact with the eastern end of the Portarlington Wharf on her starboard side and stopped.’
The Fifth Employment Complaint
13.On 23 April 2023, the applicant made a complaint to Mr Ruscoe by email about a delay in the throttle engine of the Bellarine Express vessel. The email complaint read as follows:
‘I am noticing a considerable increase in the time delay from applying the throttles and it translating into the engines giving me the power I need in order to manoeuvrer the vessel safely. Even though the wind was predominantly from the north, the wind swirl was pushing the stern closer to GF which was already berthed. The time delay put BE approximately 1.5 metres away from GF.’
The Sixth Employment Complaint
14.On 8 May 2023, the applicant made a complaint to Mr Ruscoe by way of email about having a throttle engine power issue with the Bellarine Express vessel. The email complaint read as follows:
‘Today on approach BE at PA there was another 'non-power response' incident on the port throttle. The vessel was travelling slower than usual as I was waiting for the small survey boat to clear the area. I moved in for my final approach. As the vessel gets closer to the wharf, I then put port throttle in reverse to stop forward motion. At this critical moment, there was no response with the throttle engine input. To keep from hitting the crash barrier in front of the pier shelter, I had to put even more power on STBD throttle to pull the vessel up.’
The Seventh Employment Complaint
15.On 10 June 2023, the applicant made a complaint to Mr Ruscoe by email about a delay in the throttle engine of the Geelong Flyer vessel. The email complaint stated as follows:
‘Hi Jamie... I experienced another major episode of 'non response' to the throttle/engine controls onboard Geelong Flyer today on our approach to the berth at Portarlington at 1150. The lack of power from the correct throttle input put the boat in a position which almost caused another collision with the Portarlington main wharf.’
Port Phillip Ferries also said the allegations made in the Claim at paragraphs [30] – [34], that Port Phillip took “adverse action” because of the above complaints should be summarily dismissed (so far as it did so). Those parts of the Claim were:
30.In breach of section 340(1) of the Fair Work Act 2009 (Cth), the Respondent subjected the Applicant to the Misconduct Allegation because of, or for reasons that included the First through Seventh Employment Complaint, the Period of Annual Leave and the Period of Paid Personal Leave.
31.In breach of section 340(1) of the Fair Work Act 2009 (Cth), the Respondent placed the on the Stand Down because of, or for reasons that included the First through Seventh Employment Complaint, the Period of Annual Leave and the Period of Paid Personal Leave.
32.In breach of section 340(1) of the Fair Work Act 2009 (Cth), the Respondent issued the Applicant the Show Cause Letter because of, or for reasons that included the First through Seventh Employment Complaint, the Period of Annual Leave and the Period of Paid Personal Leave.
33.In breach of section 340(1) of the Fair Work Act 2009 (Cth), the Respondent failed to address the serious occupational health and safety risks involved with the First through to Seventh Employment Complaint because of, or for reasons that included the First through Seventh Employment Complaint, the Period of Annual Leave and the Period of Paid Personal Leave.
34.In breach of section 340(1) of the Fair Work Act 2009 (Cth), the Respondent dismissed the Applicant because of, or for reasons that included the First through Seventh Employment Complaint, the Period of Annual Leave and the Period of Paid Personal Leave. (emphasis added)
CONSIDERATION
Having set out the relevant sections of the Claim it is also necessary to refer to the relevant legislative provisions in the FW Act because of the relief sought in the application in a proceeding.
The relevant legislative provisions
The legislative provisions of Pt 3-1 of the FW Act revolve around certain core protective concepts. In particular, those on which the applicant relied proscribe his former employer (Port Phillip Ferries) from taking adverse action (s.340(1)). In this case, as best his application can be understood, either by dismissing him or altering his position to his prejudice (s.342(1)), because the applicant had a workplace right, or to prevent the exercise of a workplace right (s.340(1)(a) or (b)). The applicant will have a workplace right if inter alia he is able to make a complaint or inquiry in relation to his employment (s.341(1)).
Section 341(1)(c)(ii) of the FW Act provides that a person has a workplace right “if the person is able to make a complaint or inquiry: if the person is an employee – in relation to his or her employment.”
Extensive consideration has been given by Courts to the words ‘complaint or inquiry’, and to the meaning of the phrase ‘is able to make a complaint or inquiry...if the person is an employee – in relation to his or her employment’ in s.341(1)(c)(ii) of the FW Act. See for example: Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456 at [41], and [43]; Serpanos v Commonwealth of Australia [2022] FCA 1226 at [89]; Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 (‘Whelan’) at [28]; Alam v National Australia Bank Ltd [2021] FCAFC 178 (‘Alam’) at [94]; [97]-[98].
The principles that can be derived from Alam and other cases cited in relation to the proper construction of s.341(1)(c) generally, can be summarised as follows:
·the words ‘complaint or inquiry’ should be interpreted broadly with limits to be found in the nature and purpose of the legislation which includes the protection of workplace rights (see Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 2) (2012) FCA 697 at [64]);
·the term ‘complaint’ connotes an expression of discontent or a particular grievance or finding of fault which seeks consideration, redress or relief from the matter about which the complainant is aggrieved; (Alam v National Australia Bank Limited [2021] FCAFC 178 at [59] citing Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 281 FCR 421; 302 IR 400; FCAFC 204 and Shea v TRUenergy Services Pty Ltd (No. 6) (2014) 314 ALR 346; 242 IR 1; (2014) FCA 271);
·it is not necessary that a particular form of words is used or that the complainant or inquirer identify the communication as a complaint or an inquiry;
·an inquiry must also be more than a mere request for assistance or outlining concerns about a matter and may include, for example, an inquiry as to whether the recipient is able to provide the requested assistance.
For the purposes of s.341(1)(c)(ii) in particular:
·there must be a relationship between the subject matter of the employee’s complaint and the employee’s employment;
·the subject of the employee’s complaint must be founded on a source of entitlement or right (such as an employment contract, award, enterprise agreement or legislation);
·it will be sufficient to attract the protections in Part 3-1 Division 3 of the FW Act if the complaint or inquiry relates to subject matter for which the employment contract makes provision (Alam v National Australia Bank Limited [2021] FCAFC 178 at [75]);
·it is not necessary for the ability to make a complaint or inquiry to itself have an instrumental source and the employee does not have to identify a grievance procedure or some other right to bring a complaint in their employment contract, award, enterprise agreement or legislation, in order to attract the protections in Part 3-1 Division 3 of the Act (Alam v National Australia Bank Limited [2021] FCAFC 178 at [59]).
However, as Snaden J noted in Wong v National Australia Bank [2021] FCA 671 at [153] ‘not every interaction by which one person communicates to another the existence of some suboptimal state of affairs will qualify as a “complaint”, as that term is properly understood. Were it otherwise, any form of reporting that involves the conveying of objectively unwelcome news would suffice to qualify’. As to the source of an employee’s ability to make a complaint, or to use the language of s.341(1)(c) of the FW Act, whether an employee ‘is able to’ make a complaint, that right to complain must be found in some entitlement or right contained, for example, in a contract or other instrument, or the general law: see Whelan at [28], Bowd at [128]-129], and Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 at [150].
Section 341, together with the surrounding sections, establish a scheme where an employee may seek a remedy if adverse action is taken against the employee if, among other things, all the requirements of s.341 are satisfied.
THE COMPLAINTS
It is now necessary to consider whether the applicant has reasonable prospects of succeeding in respect of each of the parts of the Claim sought to be summarily dismissed. The Claim brought by the applicant against Port Phillip Ferries is serious. The applicant in making the allegation that adverse action was taken because of a particular circumstance (for example, a ‘complaint’)[10] must establish the existence of that circumstance as an objective fact.[11]
[10] In submissions before the Court Counsel for the applicant noted that the definition of a “complaint” in s 341 of the FW Act is broad/wide (citing Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307 at [141] and the example of Rachel in the Explanatory Memorandum for the FW Act referred to therein) and Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271.
[11] See Tattsbet Ltd v Morrow [2015] FCAFC 63 at [119].
The actual text of the written communication/s referred to in the first, second, fourth, fifth, sixth and seventh complaints in the Claim was attached to the affidavit of Andrew Cardell-Ree filed 17 November 2023 (see paragraphs [7] – [12] and ACR-4 - ACR-9). Whilst the submissions of Port Phillip Ferries inferred that this was the extent of the evidence of each of the “complaints” for the reasons referred to earlier when considering the issue of summary dismissal consideration must also be given to the applicant’s affidavit.
The First Complaint
As the authorities referred to above make clear to constitute a complaint of the requisite kind, the applicant needs to have at least raised a grievance in respect of which he (even impliedly) sought assistance or some kind of consideration, relief or action. In the Claim the First Complaint was:
On 25 February 2021, the applicant made a complaint to Mr Ruscoe by email about throttle engine delays of the Bellarine Express vessel. The email read, in part, as follows:
‘Due to engines not increasing in power within the timeframe, the very front of the stbd hull hit the wharf on one of the bolts that holds the tendering to the wharf. This put a dint in the leading edge of the hull.’
Port Phillip Ferries’ written submissions addressed this at paragraph [15]. In submissions before the Court, Counsel for Port Phillip Ferries further submitted that at most, this was an incident form, there was no grievance or accusation of fault and it was not a complaint in relation to the applicant’s employment.
The applicant’s written submissions addressed this at paragraphs [22] – [23], referencing the relevant paragraphs of his affidavit and noted (given he had expressed a grievance about the proper (and safe) operation of the engines) that the written documentation which was following on from that “impliedly required the employer to…take notice and consider the complaint”. In submissions before the Court, Counsel for the applicant also noted that the Court should accept this was so given the evidence his client gave of subsequent action by the Port Phillip Ferries’ managers to “address the issues” raised.
It was not controversial that there were terms of the applicant’s employment requiring inter alia him to carry out his duties safely. Port Phillip Ferries acknowledged that he was required under his Employment Agreement to notify them of safety incidents. Given this and having regard to the matters raised in the applicant’s submissions I am not satisfied that the applicant does not have any reasonable prospects of succeeding in relation to this alleged complaint.
The Second Complaint
In the Claim the Second Complaint was:
On 12 March 2022, the applicant made a complaint to Mr Ruscoe by email about the engines dropping out of synchronization from Geelong Flyer. The email read as follows:
‘... as GF was approaching Cunningham Wharf at 12:40, the engines dropped out of sync. The throttles were brought out of sync and continued on to the berth. When transferring to the port Wing station I had no port throttle control. I went back to midship controls and berthed the vessel.’
As with the ‘email’ in relation to the First Complaint the actual text of the ‘email’ referred to in the Claim is attached to the affidavit of Andrew Cardell-Ree. However, again for the reasons referred to earlier when considering the issue of summary dismissal, consideration must also be given to the applicant’s affidavit evidence about this complaint.
Port Phillip Ferries’ written submissions addressed the ‘second complaint’ at paragraph [16]. In submissions before the Court, Counsel for Port Phillip Ferries said “at its highest this was just a report” and focused on the reference to “all good” elsewhere in the email.
The applicant’s written submissions at paragraphs [24] – [25] noted this was again an issue about control of the vessel’s engines and he had conveyed his grievance about having “no control”. Counsel for the applicant again emphasised the understanding of it as such (at least an implied request for assistance or to take notice of the issue raised) was demonstrated by the subsequent action by Port Phillip Ferries’ managers his client gave evidence about at paragraph [25].
Having considered all those matters I am not satisfied that the applicant does not have any reasonable prospects of succeeding in relation to this alleged complaint.
The Fourth Complaint
The written communication said to be the Fourth Complaint in the Claim is attached to the affidavit of Andrew Cardell-Ree. In the Claim the Fourth Complaint was referred to as:
On 19 April 2023, the applicant made a complaint to Mr Ruscoe by phone and in an Incident Report about a delay in the throttle engine of the Geelong Flyer vessel. The Applicant complained that ‘Without warning, a gust/squall came from the southwest and pushed the vessel sideways towards the wharf. Additional port rudder and throttle were applied, however, there appeared to be little or no response from the control input ... there was not enough power quick enough to pull the vessel away from the wharf. Geelong Flyer made contact with the eastern end of the Portarlington Wharf on her starboard side and stopped.’
Port Phillip Ferries’ written submissions addressed this matter at paragraph [17]. In submissions before the Court, Counsel for Port Phillip Ferries submitted that this was “a report not a complaint”. Counsel said there was no finding or accusation on the face of the report.
The applicant’s written submissions addressed this alleged complaint again about the vessel’s engines at paragraphs [26] – [27]. Counsel for the applicant emphasised that for his client the “safety issue” the subject of this alleged complaint had caused his client “stress and put his health and safety at risk and those of others” with “the potential to cause significant harm to…passengers” and that at “the very least [there was] an implied expectation that something be done by the Respondent about the incident”.
As with the First and Second Complaints, the evidence regarding this alleged complaint was not limited to the text of the communication referred to above. Moreover, the context (and reaction of Port Phillip Ferries’ management that the applicant deposed to is relevant when assessing whether there was the (implied) request that this [ongoing] issue with the engines be addressed. Having considered all those matters, I am not satisfied that the applicant does not have any reasonable prospects of succeeding in relation to this alleged complaint.
The Fifth Complaint
The Claim identified an email sent by the applicant on 23 April 2023. In the Claim the Fifth Complaint was identified as:
On 23 April 2023, the applicant made a complaint to Mr Ruscoe by email about a delay in the throttle engine of the Bellarine Express vessel. The email complaint read as follows:
‘I am noticing a considerable increase in the time delay from applying the throttles and it translating into the engines giving me the power I need in order to manoeuvrer the vessel safely. Even though the wind was predominantly from the north, the wind swirl was pushing the stern closer to GF which was already berthed. The time delay put BE approximately 1.5 metres away from GF.’
The affidavit of Andrew Cardell-Ree attached an email dated 27 April 2023 at ACR-7 from the applicant to Mr Ruscoe (which was in the same terms as set out above). Port Phillip Ferries’ written submissions addressed this allegation at paragraph [18]. In submissions before the Court, Counsel for Port Phillip Ferries acknowledged that “vessel safety” was referred to but said at its highest, it was about “manoeuvring safety”.
The applicant’s written submissions addressed this alleged complaint at paragraphs [28] – [29]. In submissions before the Court, Counsel for the applicant said that his client had displayed a “clear grievance at the safety hazard of the delayed engine throttle” which went to whether his client could properly control the vessel. It was said that the applicant took steps to “formalize” the complaint and that this “impliedly indicated” that he wanted action taken (as required in Wong) in the sense that the applicant conveyed that he did not have the power necessary to safely manoeuvre the vessel.
Having considered all those matters I am not satisfied that the applicant does not have any reasonable prospects of succeeding in relation to this alleged complaint.
The Sixth Complaint
The Claim identified the Sixth Complaint in the following manner:
On 8 May 2023, the applicant made a complaint to Mr Ruscoe by way of email about having a throttle engine power issue with the Bellarine Express vessel. The email complaint read as follows:
‘Today on approach BE at PA there was another 'non-power response' incident on the port throttle. The vessel was travelling slower than usual as I was waiting for the small survey boat to clear the area. I moved in for my final approach. As the vessel gets closer to the wharf, I then put port throttle in reverse to stop forward motion. At this critical moment, there was no response with the throttle engine input. To keep from hitting the crash barrier in front of the pier shelter, I had to put even more power on STBD throttle to pull the vessel up.’
The affidavit of Andrew Cardell-Ree attached an email dated 8 May 2023 at ACR-8 from the applicant to Mr Ruscoe (which was in the same terms as set out above). This alleged complaint was addressed in Port Phillip Ferries’ written submissions at paragraph [19]. In submissions before the Court, Counsel for Port Phillip Ferries again concentrated only on the text and said this matter was similar to the earlier alleged complaint.
The applicant’s written submissions addressed this alleged complaint at paragraphs [30] – [31] and in submissions before the Court, Counsel for the applicant submitted the incident the subject of this alleged complaint by the applicant provided a “clear indication of an equipment problem” to Port Phillip Ferries (which included an implied request by the applicant they take notice or action).
In light of all those matters, I am not satisfied that the applicant does not have any reasonable prospects of succeeding in relation to this alleged complaint.
The Seventh Complaint
Finally, the Seventh Complaint was identified in the Claim as follows:
On 10 June 2023, the applicant made a complaint to Mr Ruscoe by email about a delay in the throttle engine of the Geelong Flyer vessel. The email complaint stated as follows:
‘Hi Jamie... I experienced another major episode of 'non response' to the throttle/engine controls onboard Geelong Flyer today on our approach to the berth at Portarlington at 1150. The lack of power from the correct throttle input put the boat in a position which almost caused another collision with the Portarlington main wharf.’
In relation to this complaint (as with the First, Second, Fourth, Fifth and Sixth Complaint) Port Phillip Ferries submitted:
22. The communications are all dispassionate reports of events or circumstances that the applicant was (properly) ensuring that the respondent was aware of. There is no communication of grievance in the applicant’s employment that he is seeking to be redressed. There is no expression of discontent, or even an inference that the applicant himself was aggrieved in relation to his employment. The applicant is not seeking any relief from the respondent, rather he is recording historical fact. Even if those recordings may be considered to be objectively unwelcome news to the respondent (which is not accepted), that does not mean that they are “complaints”.
Counsel for the Port Phillip Ferries submitted that what the applicant said in his affidavit was not what he said at the time of the alleged complaints and the applicant should not now be allowed to “rephrase it to get [his] foot in the door”. Counsel for the applicant noted each of the alleged complaints, properly understood, communicated an “unsatisfactory state of affairs” or “expression of discontent” about the engines on the vessel which the applicant was required to safely operate and were accompanied by an implied request that it be noted, or something be done by Port Phillip Ferries. The requirement in Alam was that there be a relationship between the subject of the complaint and the applicant’s employment in the sense of being a complaint about the things he was required to do as part of his employment. Port Phillip Ferries acknowledged that the applicant was required to report safety issues. The applicant as master of one of Port Phillip Ferries’ vessels (responsible under his Employment Agreement for inter alia safety) was plainly able to raise and express discontent about the issue of being able to control the engines and therefore, the ferry or vessel safely, (including about his previous statements of dissatisfaction not being addressed) which the applicant said he did and also said his complaints were at least capable of conveying impliedly that the recipient take notice of that. Accordingly, on the material before the Court it would be inappropriate for me to find that his case was manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.
Whether or not a matter should be dismissed because one party has no reasonable prospects of success is largely contextual and fact specific. In this case I am not persuaded that the “complaints” were not so without merit as to satisfy me that at this stage they do not enjoy any reasonable prospect of success.
CONCLUSION
Having conducted a close examination of the evidence in relation to each complaint, I am not satisfied that they could not be complaints comprehended by s.341(1)(c)(ii) of the FW Act, at least in the sense that they would be manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.
For the reasons set out above as I am not satisfied that it is appropriate to grant the relief sought in the application in a proceeding and hence, it will be dismissed.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 30 April 2024
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