Dina v J-Corp Pty Ltd
[2019] FCCA 2861
•9 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DINA v J-CORP PTY LTD | [2019] FCCA 2861 |
| Catchwords: INDUSTRIAL LAW – Alleged dismissal from employment in contravention of a general protection. |
| Legislation: Corporations Act 2001 (Cth) Fair Work Act 2009 (Cth), Part 3-1, ss. 338, 340, 341, 342, 360, 361, 570, 789FC Federal Circuit Court of Australia Act 1999 (Cth), s.75 Acts Interpretation Act 1901 (Cth), s.15AB Federal Circuit Court Rules 2001 (Cth), r.21.02 |
| Cases cited: Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525; (2013) 216 FCR 70 WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 9 |
| Applicant: | RUBEENA DINA |
| Respondent: | J-CORP PTY LTD ACN 009 063 076 |
| File Number: | PEG 334 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 29 February, 1, 2 and 3 March, 9, 17 and 18 May 2016 |
| Date of Last Submission: | 18 May 2016 |
| Delivered at: | Sydney (by video-link to Perth) |
| Delivered on: | 9 October 2019 (and delivered by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Ms R L Harding and Mr S Kemp |
| Solicitors for the Applicant: | Jackson MacDonald |
| Counsel for the Respondent: | Mr R Hooker |
| Solicitors for the Respondent: | K & L Gates |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 334 of 2014
| RUBEENA DINA |
Applicant
And
| J-CORP PTY LTD ACN 009 063 076 |
Respondent
REASONS FOR JUDGMENT
Introduction
The issue in these proceedings is whether the termination of the applicant, Rubeena Dina, from her employment with the respondent, J-Corp Pty Ltd, and certain other conduct of the respondent claimed to be adverse action, was taken for any of the proscribed reasons in Part 3-1 Fair Work Act 2009 (Cth) (“FW Act”), and was therefore unlawful.
In short, the applicant says that the respondent did take adverse action for a proscribed reason, whilst the respondent says it did not.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, in November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including the pleadings, evidence (including the transcript of the hearing (“Transcript”)) and submissions referred to at [6] -[7] hereunder. In the circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reasons for Judgment are being delivered by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).
The applicant alleges that the respondent took adverse action against her because she made complaints, and that the adverse action comprised:
a)issuing a written warning;
b)suspending her from work on 28 August 2014;
c)deciding to commence an investigation on 28 August 2014;
d)refusing to reschedule a disciplinary meeting on 2 September 2014 and proceeding to determine the allegations and disciplinary consequences without providing her with an opportunity to respond; and
e)terminating her employment on 2 September 2014, including doing so to prevent her from making a bullying application under the FW Act to the Fair Work Commission (“FWC”).
The respondent’s case is that:
a)it took no adverse action at any time against the applicant because of the exercise of a work place right, and therefore did not contravene the general protection provisions of the FW Act, particularly s.340(1)(a)(ii) and s.341(1)(c) of the FW Act;
b)that the applicant did not exercise a workplace right within the meaning of Part 3-1 of the FW Act at any material time;
c)that the applicant’s dismissal from her employment with the respondent arose from an investigation which substantiated serious allegations against the applicant by a number of employees in her direct team and other senior managers employed by the respondent; and
d)the fairness of the respondent’s termination of the applicant’s employment, or any decision in relation thereto, is not an issue that arises on the applicant’s claim in these proceedings.
The Court has had regard to the pleadings, and specifically the applicant’s application and form 2 filed 24 October 2014 and the response of the respondent filed 8 December 2014. The Court has also had regard to the outlines of submissions filed by each of the applicant and the respondent.
The Court has had regard to the evidence as a whole including:
a)the affidavit of the applicant filed 10 January 2016;
b)the affidavits filed on behalf of the respondent, namely:
i)the affidavit of Mark Anderson filed 8 February 2016 (“Anderson Affidavit”);
ii)the affidavit of Tonya Miller (“Ms Miller”) filed 10 February 2016 (“Miller Affidavit”);
iii)the affidavit of Steve Naumovski (“Mr Naumovski”) filed 8 February 2016 (“Naumovski Affidavit”);
iv)the affidavit of Rebecca Pearce (“Ms Pearce”) filed 8 February 2016 (“Pearce Affidavit”);
v)the affidavit of Kelvin Ryan (“Mr Ryan”) filed 8 February 2016 (“Ryan Affidavit”);
vi)the affidavit of Paul Zorzi (“Mr Zorzi”) filed 5 January 2016 (“Zorzi Affidavit”);
c)the transcript of the hearing (“Transcript”), which includes the oral evidence and submissions of the parties in the proceedings, which the Court has read and re-read prior to finalising these Reasons for Judgment; and
d)the Exhibits tendered in these proceedings.
Because of the nature of the issue to be ultimately determined by the Court it was unnecessary to determine the admissibility of the documents marked JB-15 and JB-16.
Statement of agreed facts
There was a statement of agreed facts tendered in which the parties agreed certain facts set out at [9]-[50] hereunder. Because of the nature of the issue to be ultimately determined by the Court it was unnecessary to determine whether or not the respondent might be granted leave to withdraw its agreement to a particular agreed fact.
The applicant at all material times:
a)was an employee of the respondent; and
b)reported directly to the respondent's Chief Executive Officer, Kelvin Ryan (“Mr Ryan”).
The respondent is and was at all material times:
a)a company duly incorporated pursuant to the Corporations Act 2001 (Cth);
b)the employer of the applicant; and
c)a constitutional corporation for the purposes of s.338 of the FW Act.
The applicant commenced working in the position of Financial Controller for the respondent on or around 29 September 2009.
On or around 2 November 2012 the applicant entered into an new contract of employment with the respondent in which she was engaged as the General Manager - Finance on a permanent, full time basis, on a salary of $245,000 per annum, plus 9 per cent superannuation.
The respondent is part of the BGC group of companies.
BGC Residential Pty Ltd is a related body corporate of the respondent. The respondent and BGC Residential Pty Ltd are referred to collectively as "BGC Residential" or the "Group".
Ms Jenny Brown is the Group Human Resources Manager for the respondent.
Ms Tonya Miller was the Organisational Development Manager for the BGC group, including the respondent at the time of the termination of the applicant's employment.
On 10 June 2014 the applicant attended a management meeting with other senior managers and Mr Ryan.
The applicant and Ms Sue Bailey, a manager of the respondent, had lunch together at Gusti Restaurant at the Crowne Plaza Perth on 10 June 2014 with Ms Brown also in attendance.
On 2 July 2014 the applicant attended a meeting with the respondent's accounts team at which Mr Ryan was present.
Following the meeting on 2 July 2014, between 11.05am and 1.36pm, the applicant and Mr Ryan exchanged five emails with each other. Mr Ambrose was copied into four of these emails.
On 4 July 2014 the applicant and Mr Ambrose exchanged three emails.
On 24 July 2014 the applicant emailed Mr Ambrose and attached a document to that email.
On or about 31 July 2014 the applicant met with Mr Ambrose in person. Afterwards Mr Ambrose met with the applicant he met with Mr Ryan.
On 19 August 2014 the applicant contacted some of the employees of Mr Mark Anderson, General Manager of BGC Residential Pty Ltd, by phone and email about an audit.
Between 19 August 2014 and 20 August 2014 the applicant and Mr Ryan exchanged several emails.
On 21 August 2014 the applicant was requested to attend a meeting with Mr Ryan and Ms Brown.
On 21 August 2014 the applicant emailed Mr Ryan in response to his request to meet.
On 22 August 2014 the applicant attended a meeting with Mr Ryan and Ms Brown.
A written warning was given to the applicant at the meeting on 22 August 2014.
On 26 August 2014 the applicant arranged for a survey of staff working under her (“Surveys”).
The Surveys were completed by 27 employees and returned to the applicant on 27 August 2014.
In the afternoon of 27 August 2014 the applicant was approached by Ms Tonya Miller who requested the applicant to destroy all of the Surveys and the applicant refused to do so.
On or around 5:00pm on 27 August 2014 the applicant received an email from Ms Brown, in which she was directed to return all Surveys by 9.00am on 28 August 2014.
The applicant returned the original Surveys to Ms Brown on or around 8.30am on 28 August 2014.
In the morning of 28 August 2014 Mr Ryan and Ms Miller went into the applicant’s office and advised her that she was being suspended on full pay.
The applicant was then handed a letter of suspension by Mr Ryan, following which she went to her car, accompanied by Ms Miller and Ms Brown.
At 5.09pm on 28 August 2014 the applicant was directed in an email from Ms Brown to attend a meeting at 9.30am on 29 August 2014 in regard to her employment.
On 29 August 2014, the applicant sent Ms Brown an email regarding the scheduled meeting.
At 10.32am on 29 August 2014 the applicant was informed in an email from Ms Brown that the meeting originally scheduled for 29 August 2014 had been rescheduled to Monday 1 September 2014.
The applicant subsequently sent an email to Ms Brown on 30 August 2014 at 8.54am, attaching a medical certificate.
At 1.32pm on 31 August 2014 the applicant's industrial advocate emailed to Mr Ryan, Mr Ambrose and Ms Brown an application for an order to stop bullying which had been filed with the FWC.
On or around 7.00am on 1 September 2014 the applicant emailed Ms Brown regarding the rescheduled meeting.
At 8.40am on 1 September 2014 Ms Brown sent an email to the applicant regarding the further rescheduled meeting on 2 September 2014.
At 12.41pm on 1 September 2014 the applicant replied to Ms Brown by email and attached a referral for a counsellor and a medical certificate.
On or around 4.30pm on 1 September 2014 Ms Brown emailed the applicant.
On or around 6.30pm on 1 September 2014 the applicant wrote to Ms Brown.
The applicant did not attend the meeting scheduled on 2 September 2014.
The respondent terminated the applicant's employment, with immediate effect, on 2 September 2014.
Mr Ryan sent an email to senior management regarding the termination of the applicant's employment.
Law
If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: FW Act, s.361(1); Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647 (“Barclay”); Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67 (“Geraldton Port Authority”) at [221] per RD Nicholson J.
In Barclay the High Court said:
a)the task of a court in a proceeding alleging a contravention by reason of adverse action “… is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …”: Barclay at [5] per French CJ and Crennan J;
b)adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
c)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
d)“[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.
The use of the word “because” in s.340(1) of the FW Act requires that a causal link be established between the adverse action complained of and the matters referred to in s.340 of the FW Act: Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 (“Russell”) at [60] per Foster J. In Russell at [63] per Foster J the Federal Court observed that it was sufficient if the prohibited reason is one of several reasons for the taking of the action, but the prohibited reason “must have operated as a substantial and operative factor in the taking of the adverse action”.
In relation to the evidence bearing upon the decision made by an employer:
a)French CJ and Crennan J in Barclay said:
i)at [41] that “… why an employer took adverse action against an employee is a question of fact …”;
ii)at [44] that “… direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ‘why was the adverse action taken?’”; and
iii)at [45] that:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, 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. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
b)Gummow and Hayne JJ in Barclay at [127] said that:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
In Barclay the High Court also observed that the purpose of s.361 of the FW Act was to place on the defendant employer the onus of proving that which lies peculiarly within the employer’s own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J, all adopting what was said in General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J.
The applicant submits that the making by her of one or more complaints or inquiries was a reason for her dismissal. That allegation having been raised, s.361 of the FW Act operates to create a presumption that the applicant was dismissed including because of the making by her of one or more of the inquiries or complaints. The onus is then cast on the respondent to prove otherwise. To displace the presumption, the respondent needs to establish that the making by the applicant of one or more of the complaints or inquiries was not a substantial and operative factor for dismissing her: Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468; (2014) 66 AILR 102-285 (“Greater Metropolitan Cemeteries Trust (No 2)”) at [17] per Bromberg J, where the Federal Court noted that the relevant authorities as to the operation of ss.360 and 361 of the FW Act are discussed in Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446; (2013) 232 IR 290; (2013) 65 AILR 101-911.
It follows therefore that mere declarations of innocent reason or intent in taking adverse action may not satisfy the onus upon an employer if contrary inferences are available on the facts: Barclay at [54] per French CJ and Crennan J. The question is whether the proscribed reason was a substantial and operative factor such as to constitute a proscribed reason, or whether it was an operative and immediate reason for the adverse action: Barclay at [127] per Gummow and Hayne JJ; Storey v The Monitoring Centre Pty Ltd & Ors [2015] FCCA 3310 (“Storey”) at [128] per Judge Manousaridis. The proscribed reason does not have to be the sole reason for taking the adverse action, and a person may be regarded as having taken adverse action for a particular reason if the reasons for the action include that reason: FW Act, s.360.
As has been observed by both the High Court and the Federal Court it is not a breach of s.340 of the FW Act if adverse action is taken for a reason whose underlying facts coincide with the existence or exercise of a workplace right so long as the adverse action is not taken because of the existence or exercise of the workplace right: Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268 (“BHP Coal”) at [20] per French CJ and Kiefel J; Construction, Forestry, Mining & Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422 (“Endeavour Co”) at [32] per Jessup J.
An employee has a workplace right if the employee is able to make a complaint or inquiry in relation to his or her employment: s 341(1)(c)(ii) of the FW Act.
In Evans v Trilab Pty Ltd [2014] FCCA 2464; (2014) 66 AILR 102-287 (“Trilab”) at [16] per Judge Lucev, this Court noted that divergent approaches have emerged in this Court and the Federal Court as to when an employee “is able to make a complaint or inquiry”.
On one approach to s.341(1)(c)(ii) of the FW Act, a complaint or inquiry need not arise from a statutory, regulatory or contractual provision before it can be a complaint or inquiry in relation to a person's employment: Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207; (2013) 231 IR 198; (2013) 275 FLR 273; (2013) 65 AILR 101-892; Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307 (“Murrihy”).
The contrasting approach to s.341(l)(c)(ii) of the FW Act is that a complaint must be underpinned by a statutory or contractual entitlement or right: Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1; (2014) 314 ALR 346 (“Shea (No 6)”) at [625] per Dodds-Streeton J; Harrison v In Control Pty Ltd [2013] FMCA 149; (2013) 230 IR 452; (2013) 273 FLR 190; (2013) 65 AILR 101-866; Trilab at [24] per Judge Lucev.
The applicant submits that the wider approach of Murrihy should be preferred. On the appeal from Shea (No 6) the Full Court of the Federal Court cautioned against “implying into s.341 any constraint that would inhibit an employee’s ability to freely exercise the important statutory right to make a ‘complaint’”: Shea v Energy Australia Services Pty Ltd [2014] FCAFC 167; (2014) 242 IR 159; (2014) 66 AILR 102-303 (“Energy Australia Services”) at [12] per Rares, Flick and Jagot JJ.
A complaint with an indirect nexus with the applicant’s terms and conditions of employment may still come within the scope of s.341(1)(c)(ii) of the FW Act: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; (2012) 64 AILR 101-659 (“Pilbara Iron Services (No 3)”) at [64] per Katzmann J.
The words “in relation to” as used in s.341(1)(c)(ii) of the FW Act are of wide import. The use of that phrase identifies that a relationship between the subject matter of the complaint and the complainant’s employment is required: Greater Metropolitan Cemeteries Trust (No 2) at [41] per Bromberg J, and where the subject matter of the complaint raises an issue with potential implications for the complainant’s employment, it is likely that the requisite nexus will be satisfied: Pilbara Iron Services (No 3) at [69] per Katzmann J; Greater Metropolitan Cemeteries Trust (No 2) at [42] per Bromberg J.
In Ramos v Good Samaritan Industries [2013] FCA 30 the Federal Court recognised the possibility that a complaint made by an employee about comments made by management concerning work issues might, dependent upon the circumstances, admit of a conclusion that adverse action could be taken against an employee because of such a complaint: see also Trilab at [47] per Judge Lucev.
In Greater Metropolitan Cemeteries Trust (No 2) the applicant raised a probity issue in relation to a contract with a supplier who supplied services which the applicant managed in the course of her employment. The Federal Court stated that whether or not the employee was under a contractual duty to report the possible misdeeds of others, her failure to report suspected wrong-doing had the potential to reflect badly upon her and cause prejudice to her in her employment. By reason of either of those two factors, it was held that the contract complaint made by the applicant raised an issue with potential implications for her employment and was “in relation to...her employment” within the meaning of s.341(c)(ii) of the FW Act.
The parties differ as to the proper construction of s.341(1)(c) of the FW Act, and do so along the lines of the split in the Federal Court between the Shea(No 6) view that a complaint or inquiry must be one that the employee is able to make based upon an instrument such as a contract of employment, award or legislation, and the broader Murrihy view that the employee can make a complaint or inquiry about any matter, provided it is in relation to the employee’s employment.
The dichotomy in views as to the proper construction of s.341(1)(c) of the FW Act is reflected in judgments of this Court which have applied both views: see Trilab.
There is authority, both before and after Trilab, concluding that that a complaint, whether formal or informal, relating to the conduct of another person in the workplace and complaints about workplace bullying will constitute the exercise of workplace rights: Barnes v Hatch Associates Pty Ltd [2015] FCCA 3375; De Blasio v Melba Support Services lnc [2014] FCCA 1893; National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; Pilbara Iron Services (No. 3); Greater Metropolitan Cemeteries Trust (No.2); Stevens v Airservices [2012] FCMA 55; (2012) 218 IR 210; Storey.
Factual matters and consideration
The applicant must establish that she had a workplace right or had exercised a workplace right as defined in the FW Act.
The applicant alleges that she had a workplace right or had exercised a workplace right on eight occasions which can be grouped into three categories. These are:
a)the workplace right to make a complaint under s.341(1)(c)(iii) of the FW Act when she made:
i)a complaint to Ms Jenny Brown of the respondent on 10 and 11 June 2014;
ii)a complaint to Mr Andrew Teo of the respondent on 18 June 2014;
iii)a complaint to Mr Julian Ambrose of the respondent on 2 July, 4 July, 24 July and 31 July 2014;
iv)a complaint to Mr Ryan on 30 August 2014; and
v)a complaint to Mr Ryan and Ms Brown on 31 August 2014;
b)the workplace right to take paid personal leave under s.341(1)(a) of the FW Act when:
i)she took paid personal leave on 29 August 2014;
ii)she took paid personal leave on 1 September 2014; and
iii)the workplace right to commence proceedings under a workplace law under s.341(1)(b) of the FW Act by filing an application to the FWC for a stop bullying order under s.789FC of the FW Act on 31 August 2014;
c)the workplace right to take bullying proceedings in the FWC.
The respondent admits that the applicant exercised a workplace right, for the purposes of s.341(1)(a) of the FW Act, when she took paid personal leave on 29 August 2014 and on 1 September 2014.
The applicant alleges that the respondent took adverse action against her because she exercised the workplace right to take personal leave by:
a)refusing to reschedule the disciplinary meeting on 2 September 2014 and proceeding to determine the allegations and disciplinary consequences without providing her with an opportunity to respond; and
b)terminating her employment on 2 September 2014.
The respondent admits that the applicant exercised a workplace right under s.341(1)(b) of the FW Act when she filed an application for stop bullying orders in the FWC on 31 August 2014.
The applicant alleges that the respondent took adverse action against her because she exercised the workplace right to apply for stop bullying orders by:
a)proceeding to determine the allegations and disciplinary consequences while she was absent on personal leave; and
b)terminating her employment on 2 September 2014, in breach of s.340(1)(a)(ii) of the FW Act.
The applicant further alleges that the respondent took adverse action against her to prevent her continuing the proceedings in the FWC by terminating her employment in breach of s.340(1)(b) of the FW Act.
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, and the person is an employee, in relation to his or her employment.
The applicant was employed by the respondent for approximately 5 years before her employment was terminated on 2 September 2014. For the majority of that employment, that is until around early 2013, the respondent regarded its relationship with the applicant as positive. During that period, although the applicant displayed an abrupt and at times abrasive management style, which was to become characteristic of the applicant's dealings with her colleagues and direct employees, the respondent did not consider that the applicant conducted herself in any way that amounted to "misconduct." From about the first half of 2013, the applicant began to be informally counselled and spoken to by Mr Ryan regarding her communication style.
The applicant asserts in her affidavit that she complained to Ms Brown about Mr Ryan's behaviour following a staff meeting: Applicant's Affidavit at [19]-[21].
The following day, on 11 June 2014, the applicant went to Ms Brown to explain that she was upset and did not feel she could continue to work like this. During this meeting Ms Brown and the applicant discussed what she could do including counselling and making a complaint to one of the respondent's directors, Julian Ambrose: Applicant's Affidavit at [23]-[24].
The evidence reveals that the applicant made specific comments about Mr Ryan's behaviour on 10 and 11 June 2014, his behaviour to her generally, and was told to take her issue to Mr Ambrose, a director of the respondent.
The applicant also alleges that she made a complaint to Mr Andrew Teo, the Chief Financial Officer of the Respondent on 18 June 2014 regarding the "aggressive and intimidating behaviours of Mr Ryan".
The applicant and Mr Ryan exchanged several emails on 2 July 2014, Mr Ambrose was copied into many of those emails. They record the applicant's grievances with Mr Ryan. Examples of the statements the applicant made on 2 July 2014 include:
a)“You [Mr Ryan] and I had some differences in opinion recently and there has been some frictions. If you are trying to involve my staff in this, it will not be acceptable”;
b)“Julian-I am cc;ing you on this as I need to have this resolved please and would like to hear from you. I am quite upset and had been in the past few weeks and I think now we need to get this resolved”;
c)“I am offended that you are saying I am over reacting and it is ridiculous that I think I am being undermined. Please do not belittle my feelings or me”;
d)“At this stage judging by your (Mr Ryan's) email below, it does not look like you and I can resolve this on our own”;
e)“With the level of friction between us and the negative vibes I get from you, I do not feel comfortable trying to resolve this on my own. I am following the chain of command and being fair to you by raising this with Julian”.
Applicant's Affidavit, Annexure RD-3
On 4 July 2014 in an email to Mr Ambrose about the ongoing matter with Mr Ryan, the applicant states:
I would like to meet at your convenience with you when you are back ...I do not feel positive in my work environment.
Applicant's Affidavit, Annexure RD-5
On 24 July 2014, after not hearing from Mr Ambrose, the applicant followed up by email with him, and again states she wished to meet in relation to her concerns over Mr Ryan. The applicant attached to the email a document email setting out the “key points” regarding Mr Ryan that she wishes to address with Mr Ambrose in order to “ascertain how these issues will be addressed”: Applicant's Affidavit at [47].
The document the applicant attaches to the email is a one page document recording the applicant's concerns about Mr Ryan's “bullying behaviour” with specific examples of the behaviour she is complaining of, including:
a)being aggressive by leaning over and being talked to in harsh tones;
b)phrases like “you need to look at yourself in the mirror” [and] “you are responsible for wasting $2M”;
c)not dealing in a professional and respectful way with differences in opinions or views; and
d)trying to create rifts between the applicant and her peers.
Applicant's Affidavit, Annexure RD- 7
On 31 July 2014 the applicant met with Mr Ambrose and at this meeting brought the email and attachment she sent on 24 July 2014. The applicant says she addressed the issues she had documented with Mr Ambrose in detail: Applicant's Affidavit at [50]-[57].
The respondent admits that the applicant met with Mr Ambrose on 31 July 2014: Response at [9(f)].
During 2014, there were a number of incidents between the applicant and Mr Anderson, General Manager of BGC Residential, reflecting the applicant's perception, and the attitude she displayed in the workplace, that she thought she was more senior than Mr Anderson and thus held more authority than him. This culminated in the applicant approaching members of Mr Anderson's team directly and directing them to participate in an audit of Mr Anderson's business unit without advising him of the audit at all. This incident was the catalyst for a disciplinary meeting with the applicant, Mr Ryan and Ms Brown on 22 August 2014 regarding a number of areas of the applicant's alleged underperformance and conduct at work.
Around that time, Mr Ryan spoke to Mr Naumovski, the Finance Manager for the respondent, who informed him of issues Ms Pearce had had with the applicant which impacted on her (Ms Pearce) to a significantly detrimental degree. Mr Ryan contacted Ms Pearce and informed her that he was aware of the issues Ms Pearce had concerning the applicant, and he that would be talking to the applicant the next day about it. Ms Pearce informed Mr Ryan that on her perception, the applicant had demonstrated to her a lack of empathy and support whilst she underwent surgery and recovery from an ankle injury in 2013, and then surgery and radiotherapy for cancer in 2014.
During the meeting on 22 August 2014, the applicant was provided with a formal written warning and each area of the applicant's performance and conduct which had been identified for improvement was discussed with the applicant. In particular, the applicant was counselled about what the respondent said were the following significant shortcomings:
a)failing to follow and respect the chain of communication;
b)failing to work in a collaborative and cooperative manner;
c)engaging in behaviour amounting to bullying of her colleagues; and
d)failing to attend work and working from home without proper authorisation.
Because of what was said to be the sensitive nature of the bullying complaints and that a significant number of employees, aggrieved by the applicant's conduct towards them in the workplace, were frightened of retribution from the applicant if they raised this issue, Mr Ryan expressly counselled the applicant to be careful about how she communicated with her staff and directed her to work with Human Resources if she wanted to obtain more specific feedback from her team.
The respondent issued the applicant with a written warning on 22 August 2014 setting out four areas of underperformance or conduct issues alleged against the applicant (“Written Warning”): Applicant's Affidavit, Annexure RD-11.
The Written Warning expressly warns the applicant that her future employment is at risk:
Howeveo [sic] should you fail to demonstrate improvement in the areas outlined, further disciplinary action may take place; which may include the termination of your employment.
On Monday, 25 August 2014, the next working day after the disciplinary meeting, the applicant was absent from work on the basis of an asserted illness. That night, however, the applicant sent 23 emails containing confidential information and property of the respondent to her own private email address.
At 9.39am the next day, being her first day back at work, the applicant sent a survey that she had conceived and drafted herself, without speaking to or discussing it with Human Resources as she had been directed, to most members of the J-Corp and BGC accounts teams. It is plain the applicant's actions in issuing the survey were inappropriate per se in the circumstances. The respondent asserts that the survey was flawed, biased and required team members to report on the conduct of their direct and indirect supervisors to the applicant, but it is unnecessary to make express findings on that issue.
The applicant did not consult with either, Ms Pearce, nor Mr Naumovski prior to the survey being conducted, notwithstanding that both of those persons were the only "direct" managers of the employees.
On 27 August 2014 the applicant provided a written response to the Written Warning.
On 28 August 2014, the applicant was suspended on full pay whilst an investigation into the most recent survey was conducted. During that investigation, employees were encouraged to speak freely about the team and a large proportion of employees reported bullying and intimidating behaviour by the applicant over a long period of time. This was the first time that the respondent was aware of the extent and seriousness of the applicant's alleged conduct.
The complaints and feedback received from the employees regarding the most recent survey then led the respondent to further investigate additional instances of apparent misconduct. During that investigation employees raised complaints against the applicant alleging the following behaviour:
a)talking down to colleagues and belittling them in front of other colleagues at meetings and functions;
b)changing deadlines and timeframes to suit her circumstances;
c)communicating to colleagues in abrupt and unfriendly tones;
d)failing to accommodate ill and injured colleagues or show any compassion or consideration;
e)treating employees differently based on gender and other factors; and
f)disrespecting and undermining senior management.
The investigation was said to have substantiated consistent feedback from employees across all areas of the applicant's department that the majority of the applicant's team felt that they could not work with her. The respondent submits that it suffered detriment as a result of the applicant's conduct as this resulted in a very high turnover in her department and 13 resignations (out of 16 terminations) over the 2013/2014 financial year. The respondent was concerned that further resignations would occur unless issues arising from the applicant's conduct were resolved.
During the investigation, Ms Miller accessed the applicant's computer, it being property of the respondent. Ms Miller discovered 23 emails and confidential information that the applicant had sent to herself on 25 August 2014 together with another email sent on 21 August 2014 and three other emails sent on 26 August 2014. Sometime after sending these emails to her own private account, the applicant deleted them from her system at work. It was not until IT had restored the applicant's computer that those emails were located. The Court has no doubt that the applicant's actions in removing the respondent's property and confidential information was inconsistent with her obligations under her contract of employment and her fiduciary obligations as a senior employee of the respondent with access to confidential and commercially sensitive information.
On 28 August 2014, Mr Ryan instructed Ms Brown to arrange a meeting with the applicant on Friday 29 August 2014. In the afternoon of 28 August 2014, the applicant refused to attend, and on the morning of Friday 29 August 2014, after being reasonably and lawfully directed to attend the meeting, advised Ms Brown that she was unwell and could not attend. No mention of the applicant's illness was made on Thursday 28 August 2014 during the correspondence between the applicant and Ms Brown. The applicant later provided a medical certificate for Friday, 29 August 2014.
By at least Friday 29 August 2014, as a result of the outcome of the investigation, Mr Ryan had determined that the applicant's employment would likely be terminated, unless she was able to provide some explanation as to why the respondent should not terminate her employment. The Court again notes that, no issue arises as to whether or not it was "fair" of Mr Ryan to proceed on that basis in light of all of the material he by that time had before him, and the Court’s focus here is, initially, upon whether the reason or any of the reasons for the applicant’s termination were for a proscribed reason.
The applicant provided a further written response to the Written Warning letter on Saturday 30 August 2014 and in relation to the suspension on 31 August 2014.
At this stage, the applicant was well aware, or at the very least could not tenably assert she was unaware that her employment was in jeopardy.
On 30 August 2014 the applicant emailed Ms Brown a letter addressed to Mr Ryan in response to her Written Warning. The letter addresses matters alleged against the applicant and further states:
a)“I feel this warning letter is a response to the bullying complaint I made against you on 31st July”;
b)“It is open for discussion as to whether the issue of a warning letter ... is reasonable management action”; and
c)“I appreciate your consideration of my response and look forward to resolving the issues”.
Applicant's Affidavit, Annexure RD - 22
On 31 August 2014 the applicant emailed Mr Ryan and Ms Brown, attaching a letter in response to her suspension of 28 August 2014. The letter clearly expresses dissatisfaction with the manner in which the allegations of misconduct have been put to her and expressly states that she considers Mr Ryan's conduct bullying and/or unlawful. The applicant asserted that:
a)she had not been informed of what alleged misconduct she had engaged in;
b)she had not been notified of any assertions or allegations made against her; and
c)the respondent’s conduct on 28th August 2014 constituted bullying.
Applicant's Affidavit, Annexure RD-24
The applicant instructed her industrial agent to file an "anti-bullying application" with the Fair Work Commission on Sunday, 31 August 2014 and to serve it on the respondent. The substance of the "anti-bullying application" had not been put to Mr Ryan by the applicant before this time.
The language and conduct of the applicant on each occasion as set out above clearly involves expressions of dissatisfaction and frustration with regard to Mr Ryan and the way the applicant was being treated, including the issue of the Written Warning and her suspension. The applicant submits that it is clear on the evidence that the applicant's actions and statements on the relevant dates constitute a "complaint”. The Court, adopting the broad view as to what constitutes a complaint agrees with that submission.
The meeting with the applicant was rescheduled to Monday, 1 September 2014. Again, the applicant advised Ms Brown on the morning of Monday, 1 September 2014 that she would be unable to attend work as she was unwell. Later that day she provided a medical certificate certifying that she was unwell until Friday, 5 September 2014.
The meeting was again rescheduled for Tuesday, 2 September 2014 and the applicant was advised that if she did not attend, a decision would be made on the evidence available to the respondent at that time. The applicant responded, stating that she was unaware of any disciplinary issues not covered by the responses she had provided in her letters dated 30 and 31 August 2014.
Having already determined to terminate the applicant's employment in the absence of a reason from the applicant not to, Mr Ryan determined to proceed with the termination despite the applicant's absence.
The applicant was advised of the decision to terminate her employment by email, letter and text message on 2 September 2014.
It has regularly been accepted that a warning given to an employee can amount to adverse action on the grounds that it is has altered the employee's position to his or her prejudice. For example:
a)Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525; (2013) 216 FCR 70 (“Visy Packaging (No 3)”) found that a warning issued to an employee which affected the security of the employee's future employment constituted adverse action, and it was stated at [119] per Murphy J that:
To my mind, there can be no doubt that the security of his future employment was therefore reduced. In fact, that is one of the main points of the warning. I consider that the issuing of the Final Written Warning to Mr Swart constituted adverse action.
b)Short v Ambulance Victoria [2014] FCA 3 at [47] per Marshall ACJ accepted that a formal warning to an employee constituted adverse action under the FW Act; and
c)Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056 at [60] per Whelan J found that the issuing of a warning amounted to adverse action by the employer against the employee in that it made the more vulnerable to being dismissed from her employment.
As a result of the Written Warning the Applicant was more vulnerable to termination after the Written Warning had been issued. The applicant was one step closer to termination than she would have been before. Her employment was less secure. The issuing of the Written Warning amounted to adverse action because it altered the applicant's position in her employment to her prejudice, and constituted adverse action under s.342(1)(c) of the FW Act.
The applicant was suspended from her employment on the morning of Thursday 28 August 2014 pending an investigation: Applicant's Affidavit at [85]; Ryan's Affidavit at [125].
For similar reasons with respect to those concerning the Written Warning, the applicant's suspension from work on 28 August 2014 constituted adverse action (as is alleged by the applicant) under s.342(1)(c) of the FW Act: Visy Packaging (No 3) at [114]-[115] per Murphy J
The applicant alleges that she was subjected to adverse action when the respondent decided to commence an investigation into her actions on 28 August 2014. The applicant says the respondent's actions altered her position to her prejudice as contemplated by s.342(1)(c) of the FW Act.
An investigation which threatens the possibility of dismissal will operate to reduce the security of future employment of the employee concerned and constitute adverse action: Visy Packaging (No 3) at [103] per Murphy J; Storey at [125] and [138] per Judge Manousaridis.
The decision of an employer to seek information about complaints that had been made previously about the employee or new complaints which could give reason to termination employment and obtaining those complaints was factually found to alter the employee's position to her prejudice because it constituted a loss of security of her employment: Storey at [139] per Judge Manousaridis.
Consequently, the respondent's decision to commence an investigation into the applicant's conduct on 28 August 2014 constituted adverse action under s.342(1)(c) of the FW Act.
The applicant alleges that she was subjected to adverse action when the respondent refused to adjourn a meeting at which the respondent proposed to provide the applicant with the opportunity to respond to disciplinary issues and instead continued to determine the allegations and disciplinary consequences. The applicant says the respondent's actions altered her position to her prejudice as contemplated by s.342(1)(c) of the FW Act.
At 5.10pm on 28 August 2014 the applicant was notified by email that she was required to attend a disciplinary meeting the following day, 29 August 2014, in relation to alleged complaints of workplace bullying, breaches of contract and the applicant's contract of employment. That notification expressly stated:
These issues are serious and, although no decision will be made until we have considered everything you have to say, it is possible that disciplinary action up to and including termination of your employment may result. [emphasis added]
Applicant's Affidavit, Annexure RD-18
On the morning of 29 August 2014 the applicant emailed the respondent advising she would not be able to attend the disciplinary meeting due to health concerns and later provided a medical certificate confirming this, Applicant's Affidavit: Annexure RD-20 and RD-21.
The disciplinary meeting was rescheduled to Monday 1 September 2014: Applicant's Affidavit, Annexure RD-20.
On the morning of Monday 1 September 2014 the applicant emailed Ms Brown advising that she was still not well and would be going to the doctor: Applicant's Affidavit, Annexure RD-25.
Ms Brown then emailed the applicant advising that the disciplinary meeting would be rescheduled until 2 September 2014 at 8.30am stating:
Although you have said you are not feeling well, it is important that these issues are resolved. You are not required to attend for normal work but you are required to attend a meeting scheduled for one hour to finalise the issues we raised with you two weeks ago.
We have again rescheduled the meeting for tomorrow morning at 8.30am, there is no reason we are aware of as to why you cannot attend the meeting tomorrow; and as this meeting has now been rescheduled twice, if you refuse to attend a decision will be made on what disciplinary action to take based on all information we have.
Applicant's Affidavit, Annexure RD-25
The applicant then emailed Ms Brown at 12.41pm time on 1 September 2014 attaching a medical certificate and advising she is unfit for work and will not be able to attend any meetings until she has recovered: Applicant's Affidavit, Annexure RD-26.
Ms Brown sent an email to the applicant in response at 4.27pm on 1 September 2014 advising that the applicant is not being required to attend “work” but is being given an opportunity to “attend a meeting and respond to disciplinary issues” and if the applicant does not take this opportunity “a decision will be made based on the information available”: Applicant's Affidavit, Annexure RD-26.
The applicant did not attend the disciplinary meeting on 2 September 2014: Ryan Affidavit at [140]; Miller Affidavit at [124].
The respondent then proceeded to make its findings and decided to terminate the applicant's employment with immediate effect on 2 September 2014: Ryan Affidavit at [143]-[144]; Miller Affidavit at [126].
The act of refusing to postpone the disciplinary meeting scheduled for 2 September 2014 despite the applicant's request, and proceeding to determine the allegations without providing her an opportunity to respond was an intentional act: Ryan Affidavit at [143].
The intentional act of the respondent in refusing to postpone the disciplinary meeting on 2 September 2014, and then determining the allegations and disciplinary consequences in her absence amounted to adverse action. In not postponing the meeting and determining the allegations without the benefit of her response the applicant's continuing employment was less secure and accordingly her position was altered to her prejudice, and constituted adverse action.
The respondent submits that as the relevant decision-maker, namely Mr Ryan, was not simply taking advantage of the fact the applicant was on leave in order to dismiss her, nor was the decision to terminate influenced by the employee's right to accrue and use personal leave credits or because she exercised that right, this component of the claim is devoid of any merit.
Having accepted that what was put by the applicant amounted to adverse action the real question for determination by the Court is whether any of that adverse action arising from the exercise of a workplace right occurred for a proscribed reason, that is, that the proscribed reason was a substantial and operative reason for the adverse action.
It follows from that, and it is important to recognise that, this is not a case which turns on the fairness of what was done by the respondent in relation to the applicant. What was done may or may not have been fair, it is unnecessary to determine that, but irrespective the question still remains, was the adverse action for a proscribed reason which was a substantial and operative reason for it.
The focus in determining this core issue rests with an examination of the conduct of Mr Ryan, and the process which he procured, supervised and took responsibility for in relation to the decisions to warn, suspend on pay, investigate and terminate the applicant. In that respect the significant events from mid-August 2014 onwards which culminated in the Written Warning, which was a portent of a view formed as to the possible future of the employment relationship between the respondent and the applicant, and then the most recent survey, resulting in the investigation, and the discovery of the removal of proprietary confidential information crystallised the portent into a definite preliminary view that termination of the applicant was by then a real likelihood.
A significant factor in Mr Ryan’s decision to terminate the applicant rested upon the relationship between Mr Anderson and the applicant. The applicant’s attitude towards Mr Anderson had brought Mr Anderson to a point where he was seemingly actively considering seeking alternative employment outside of the respondent. The reasons for the breakdown of the relationship between the applicant and Mr Anderson related to their interaction on work issues in at least the first half of 2014, but more critically latterly the applicant’s interaction with Mr Anderson’s staff, without Mr Anderson’s knowledge. Mr Ryan perceived, correctly on the evidence of Mr Anderson (who was in the Court’s view clear, concise and not to be doubted on these issues), that there was a real commercial risk to the respondent’s business if Mr Anderson were to leave, and it is apparent that Mr Ryan’s no nonsense commercial view was that if terminating the applicant meant retaining Mr Anderson would remain with the respondent, then the applicant would be terminated. Notably, that reason for termination, which was a substantial and operative reason therefor, is not a proscribed reason.
Plainly one of the reasons for the applicant’s dismissal was the discovery by the respondent that the applicant had copied and removed to her home personal computer proprietary confidential information, which is also plainly a breach of the duty of good faith and confidentiality owed by the applicant to the respondent.
Mr Ryan’s evidence as to his reasons for the actions taken were unequivocal and unimpeached by cross-examination. The Court accepts that the reasons he gave for the termination of the applicant were the actual reasons. None of the adverse action was therefore triggered or motivated by of the complaints relied upon by the applicant or by her taking of, or being on, personal leave at and about the time of her termination. The latter is well confirmed by the indications given to the applicant at the time that the respondent intended to proceed whether or not she came to the meeting to discuss the allegations the respondent wished to discuss with her. Further Mr Ryan’s evidence was not undermined in any way by any of the documentary evidence, and it would seem that he had made a decision by Friday 29 August 2014 that the applicant would be terminated, or at the very least, that was his “strong default position” as it was put in the respondent’s closing oral submissions. And that position or decision, whichever it be, and in any event the decision ultimately conveyed to the applicant by the termination letter on the following Tuesday, 2 September 2014, remained consistent, and was based on the applicant’s conduct and performance, reinforced by then by the applicant’s removal of proprietary confidential information. And whether the decision to terminate the applicant was made by Mr Ryan earlier or later the evidence unequivocally indicated that he was open to be persuaded otherwise right up until the termination letter was dispatched: he made that quite clear in cross-examination, describing his “open mind as to any significant circumstance that might prevail”.
The fact that there was, as the Court finds, at the very least a provisional decision to terminate the applicant made by Mr Ryan by Friday 29 August 2014, assists the Court also to find that there was no termination based on the bullying complaint advised to the respondent on 31 August 2014 or the applicant’s absence from work on 1 and 2 September 2014 on personal leave. And it is not otherwise apparent, and would be directly contrary to Mr Ryan’s unequivocal and unimpeached evidence, that anything that occurred as alleged by the applicant between Friday 29 August 2014 and Tuesday 2 September 2019 influenced Mr Ryan’s decision to terminate the applicant. Rather, the at least provisional view that he had reached on Friday 29 August 2014 was simply reinforced by the reports to him about the further issues with the applicant’s conduct and performance, including the removal of proprietary confidential information and the apparent attitudes towards the applicant of a number of other employees of the respondent. In respect of the latter in particular, the evidence indicated that the respondent’s workplace had become a very difficult place to work for at least some of those required to work with the applicant, and notably Ms Pearce and Mr Naumovski. Those reasons for termination which were substantial and operative reasons therefor, were not proscribed reasons.
The Court also notes that as at Friday 29 August 2014 the applicant that indicated that she had nothing further to say by way of response to what had been put to her by the respondent at that stage: Transcript, 2 March 2016, p.140. Thus, if it matters, it can be said that nothing turns on the applicant’s absence from the meetings in which she was invited to discuss the allegations which led to her termination. The applicant had nothing further to say, and that reinforces, albeit in a minor way, the fact that the termination itself was not based on at least her absence on personal leave on 1 and 2 September 2014.
There is nothing in the evidence which indicates to the Court that the reasons for the applicant’s termination were other than those given in her Termination Letter, which were as follows:
a)failing to follow and respect the chain of command;
b)failing to work in a collaborative and co-operative manner;
c)engaging in behaviour amounting to bullying of colleagues;
d)failing to attend work and working from home without proper authorisation; and
e)taking the respondent’s proprietary confidential information in breach of the employment contract.
The evidence simply does not establish that any proscribed reason was a reason, substantial, operative, or otherwise, for the termination of the applicant. It follows that the application is not made out.
Conclusion and orders
The Court has concluded that the claims made by the applicant alleging contraventions of general protections provisions of the FW Act have not been made out. It follows that this application must be dismissed. There will be an order accordingly.
The Court notes that by reason of the provisions of s.570 of the FW Act this Court’s fair work jurisdiction is principally a no-costs jurisdiction, with costs being very much the exception to the no-costs rule: Construction, Forestry, Mining & Energy Union & Others v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 at [28]-[30] per Tamberlin, Gyles and Gilmour JJ; and see also the observations in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306; (2017) 274 IR 420 at [70]-[74] and [89] per Logan J and [161]-[164] per Bromberg J, assuming that costs are payable at all (as to which see Cross v Harbour City Ferries Pty Ltd T/As Harbour City Ferries & Ors (No 2) [2017] FCCA 1713). If, however, BGC Residential considers that it might be entitled to costs an application for costs can be made under r.21.02(1) of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 9 October 2019
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