Evans v Trilab Pty Ltd
[2014] FCCA 2464
•30 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EVANS v TRILAB PTY LTD | [2014] FCCA 2464 |
| Catchwords: INDUSTRIAL LAW – Dismissal alleged to be in contravention of a general protection – application for summary dismissal – whether adverse action – whether workplace right – whether employee able to make complaint or inquiry – whether subject matter of complaint or inquiry in relation to employment. |
| PRACTICE AND PROCEDURE – Summary dismissal – whether adverse action – whether workplace right – whether employee able to make complaint or inquiry – whether subject matter of complaint or inquiry in relation to employment. |
| WORDS AND PHRASES – “in relation to”. |
| Legislation: Fair Work Act 2009 (Cth), ss.3, 12, 323(1), 340(1), 341(1), 342, 361 Fair Work Bill 2008 (Cth), Explanatory Memorandum |
| Australian Communications Network Pty Ltd & Anor v Australian Competition & Consumer Commission (2005) 224 ALR 344; [2005] FCAFC 221 Bull & Ors v The Attorney-General for New South Wales (1913) 17 CLR 370 Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No. 3) [2012] FCA 697 Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 Finance Facilities Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1971) 127 CLR 106 Harrison v In Control Pty Ltd (2013) 273 FLR 190; [2013] FMCA 149 HP MercantilePty Ltd v Commissioner of Taxation (2005) 143 FCR 553; [2005] FCAFC 126 IW v The City of Perth & Ors (1997) 191 CLR 1 J & G Knowles & Associates Pty Ltd v Commissioner of Taxation (2000) 96 FCR 402; [2000] FCA 196 Nettlefold Advertising Pty Ltd v Nettlefold Signs Pty Ltd (1998) 90 FCR 453 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; [2011] FWAFB 975 |
| Applicant: | HAYDEN CARL EVANS |
| Respondent: | TRILAB PTY LTD |
| File Number: | PEG 318 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 13 February 2014 |
| Date of Last Submission: | 13 February 2014 |
| Delivered at: | Perth |
| Delivered on: | 30 October 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | R D Lewis |
| Solicitors for the Respondent: | Gilchrist Connell |
ORDERS
The respondent’s application filed 2 December 2013 for an order summarily dismissing the applicant’s application filed 12 November 2013 be dismissed.
The matter be adjourned to a directions hearing at 9.30am on 7 November 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 318 of 2013
| HAYDEN CARL EVANS |
Applicant
And
| TRILAB PTY LTD |
Respondent
REASONS FOR JUDGMENT
The application
The applicant, Mr Evans, has made an application under the Fair Work Act 2009 (Cth),[1] alleging dismissal in contravention of a general protection from his employment with the respondent, Trilab Pty Ltd.[2] Mr Evans was employed by Trilab for three weeks from 5 to 26 August 2013, as State Manager – Engineering (Perth).[3] It is common ground that Trilab is involved in the business of soil and rock classification testing.
[1] “FW Act”.
[2] “Trilab”.
[3] Claim Form, Part B, Item 10 and attachment 3.
Mr Evans alleges that after he commenced employment with Trilab:
I asked a question to one of the senior staff member (the former Perth lab manager Chris) why they were preforming testing that was not in line with standards. When I asked that staff member I said that I would conduct the testing any way the company would want them preformed, but I was interested in why they where not following the Australian standards. When I was dismissed this was the one main reason used for grounds to dismiss me.[4]
[4] Claim Form, Part G, Item 24, para.1. Transcribed from the original without amendment.
Mr Evans then alleges that the Chairman of the Board of Directors of Trilab, Mr Gavin Hamilton, came to Perth from Brisbane and dismissed him from his employment. Although this is said in the Claim Form to have occurred on 5 August 2013 it is apparent that it in fact occurred on 26 August 2013.[5] What occurred when Mr Hamilton came to see Mr Evans in the Perth office of Trilab is alleged by Mr Evans to be as follows:
When Gavin got to my office he informed me that I was being fired due to me asking question about test methods and how some of the tests where being conducted in the Lab. He then went on to how I had a criminal record with firearms and this is simply not the case as I told him at the time.[6]
[5] Claim Form, Part G, Item 24, paras.2 and 3 and attachment 2.
[6] Claim Form, Part G, Item 24, para.3. Transcribed from the original without amendment.
The Claim Form goes on to deal with matters subsequent to dismissal including a meeting concerning a waiver and possible payment of notice, and proceedings at Fair Work Australia, neither of which are relevant for present purposes.
Mr Evans indicates that he relies upon ss.341(1)(c) and 342 of the FW Act in support of the grounds of alleged contravention of a general protection.[7]
[7] Claim Form, Part G, Item 24.
The response and application for summary dismissal
Trilab filed a response opposing the orders sought by Mr Evans on the basis that Mr Evans had not pleaded a complaint that is capable, as a matter of law, of constituting a workplace right as provided by s.341(1)(c)(ii) of the FW Act. Trilab also took issue with respect to Mr Evans’ version of events and specifically asserts that any complaint made or knowledge of any firearms conviction or charges against Mr Evans did not contribute to the reason for Trilab’s decision to terminate Mr Evans’ employment, but rather that his employment was terminated solely for performance issues. The response seeks summary dismissal of Mr Evans’ application on the basis that the complaint is not capable of constituting a workplace right.
Trilab included in its response brief submissions with respect to its application for summary dismissal, and those submissions are set out below.[8]
[8] See para.14 below.
Affidavit in support of response
Trilab’s response was supported by an affidavit of Mr Hamilton, the Chairman of the Board of Directors of Trilab, sworn on 29 November 2013.[9] Mr Hamilton’s Affidavit makes it plain that Trilab asserts that Mr Evans was told to perform soil testing in accordance with the relevant Australian Standard, AS1289.1.1-2001, Dry-testing.[10]
[9] “Mr Hamilton’s Affidavit”
[10] “AS Dry-testing”; Mr Hamilton’s Affidavit, para.3.
Mr Hamilton’s Affidavit asserts that:
a)on 19 and 20 August 2013 Mr Hamilton’s co-director, Mr James Russell, spoke to him and told him that Mr Evans was not conducting testing the way that Trilab wanted it to be done, and in particular not in accordance with AS Dry-testing;[11]
[11] Mr Hamilton’s Affidavit, paras.6-7.
b)on 22 August 2013 Mr Hamilton received a telephone call from the previous Perth Laboratory Manager for Trilab, Mr Chris Cannon, who told him that he had had a discussion with Mr Evans about not doing the testing correctly, but that Mr Evans would not listen, even after Mr Cannon had quoted AS Dry-testing;[12]
[12] Mr Hamilton’s Affidavit, para.8.
c)on 22 August 2013 Mr Hamilton had a conversation with Mr Evans to the following effect:
[Mr Hamilton]: Chris told me that you are still telling him that Trilab is doing its testing wrong and it doesn’t conform to the Australian Standard. That’s rubbish, what are you basing that on?
[Mr Evans]:I’ve been doing this testing for 20 years and have always used the wet testing method which conforms with the Australian Standard and I think that’s the right method.
[Mr Hamilton]: Well, our dry-testing method is straight from the Australian Standard. 99% of testing in Australia is dry testing. Chris said that you should read the Australian Standard for dry testing. Wet testing doesn’t work on the soils we test because the particles either don’t settle or they take too long to make that method practical.
[Mr Evans]:Well, I still think wet testing is a proper way to do it.
[Mr Hamilton]: Well, I’m telling you that Trilab does dry testing, and that our testing strictly confirms to the Australian Standard, and I’m telling you to go back and do the testing that way, and stop telling other staff that they are using the wrong testing method.[13]
[13] Mr Hamilton’s Affidavit, para.13. Transcribed from the original without amendment.
d)Mr Hamilton says that it became apparent that Mr Evans remained reluctant to adopt the dry-testing method, and concerned about Mr Evans’ performance, Mr Hamilton travelled to Perth and visited Trilab’s Perth laboratory on 26 August 2013 for a meeting with Mr Evans;[14]
[14] Mr Hamilton’s Affidavit, paras.16-19.
e)Mr Hamilton says that at the 26 August 2013 meeting words to the following effect were said:
[Mr Hamilton]: A Board of Directors meeting was held and one of the matters for determination was whether you were the right person for the job and the answer was no. So, we are terminating your employment. Despite us telling you numerous times how we need the testing done, you won’t do it that way so you’re just not suitable for the position. We’re also not happy with the way you have been talking to the customers. Your performance management review was a disaster and you still haven’t completed the Atterberg Proficiency testing that James has been requesting since you started. That should have taken about 3 to 4 days.
[Mr Evans]:James told me I had 6 weeks to complete that test.
[Mr Hamilton]: James tells me that he made it clear that certification was urgent and kept reminding you. The 6 week timeframe was for other KPIs.
[Mr Evans]:Is all this coming from James?
[Mr Hamilton]: It’s coming from James, Chris and Terry.
[Mr Evans]:Well, Chris doesn’t know what he’s doing in terms of running a lab.
[Mr Hamilton]: Chris has a lot of testing experience and has always done a good job for us.
[Mr Hamilton]: In regard to formal documentation of your severance, I suggest that we both have a look at your employment contract and then have a meeting.[15]
f)no reliance was placed upon the purported firearms incident in dismissing Mr Evans;[16] and
g)Mr Evans did not complete the necessary Atterberg Limit Proficiency Test in order to obtain relevant testing certification.[17]
[15] Mr Hamilton’s Affidavit, para.20.
[16] Mr Hamilton’s Affidavit, paras.22-23.
[17] Mr Hamilton’s Affidavit, para.24.
Trilab’s submissions
In submissions attached to the response Trilab submitted as follows:
a)Mr Evans had no reasonable prospect of successfully prosecuting the application and it ought to be summarily dismissed pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth);[18]
b)the complaint relied upon by Mr Evans was essentially that the method of testing required to be utilised in performing his work under the AS Dry-testing was inappropriate and in breach of the AS Dry-testing (both propositions denied by Trilab);
c)Mr Evans’ factual account and the complaint relied upon is not capable of constituting a workplace right as a matter of law, relying upon Daw v Schneider Electric (Australia) Pty Ltd[19] and Harrison v In Control Pty Ltd;[20]
d)in Schneider Electric this Court held that the refusal to perform work in breach of a relevant Australian Standard, although constituting an unlawful direction, was not capable of constituting the exercise of a workplace right;
e)in In Control the Federal Magistrates Court held that the wording of s.341(1)(c)(ii) of the FW Act contemplated that the relevant employee must have the capability or capacity, or some authority or right, as conferred by a provision in a statute or an instrument, such as an enterprise agreement or a contract of employment, to make the complaint or inquiry, rather than a complaint or inquiry simply being made by an employer of an employee, otherwise the words “is able” were rendered meaningless or obsolete;[21] and
f)Mr Evans’ description of the complaint provides no basis for a finding that he was “able” to make that complaint by virtue of any authority or right, as conferred by a provision in the statute or an instrument, such as an enterprise agreement or contract of employment, but rather the complaint arises as a mere incident of the employment relationship, and Mr Evans therefore has no reasonable prospect of successfully prosecuting the application.
[18] “FCC Rules”.
[19] (2013) 280 FLR 361; [2013] FCCA 1341 (“Schneider Electric”).
[20] (2013) 273 FLR 190; [2013] FMCA 149 (“In Control”).
[21] In Control FLR at 203 per Burnett FM; FMCA at para.71 per Burnett FM.
Mr Evans’ submissions
Mr Evans’ submissions contained much irrelevant alleged factual material and alleged factual material not on affidavit which the Court cannot consider. Relevantly, however, Mr Evans’ submissions assert that:
a)a complaint need not be to a formal or “governing” body;
b)that a complaint was made by Mr Evans to a senior staff member; and
c)a complaint made by an employee, whether to a governing body or to a senior staff member or a director of a company, is a complaint under the FW Act.
Trilab’s submissions in reply
Trilab’s submissions in reply dealt with:
a)the workplace right issue; and
b)the test with respect to summary dismissal of an application.
Workplace right
Trilab’s submissions in reply on the workplace right issue were relevantly as follows:
a)Trilab recognises that the judgment in Devonshire v Magellan Powertronics Pty Ltd[22] is authority for the proposition that, in order to constitute the exercise of a workplace right, the relevant complaint does not need to be capable of being pursued through a formal complaint mechanism. That is, a relevant complaint can include a complaint directly by an employee to an employer in relation to the employee’s employment;
[22] Devonshire v Magellan Powertronics Pty Ltd & Ors (2013) 275 FLR 273; [2013] FMCA 207 (“Magellan Powertronics”).
b)Trilab says that there is no corresponding workplace right to the pleaded complaint due to the nature, or subject material, of the complaint itself;
c)the following complaints and inquiries are relied on by Mr Evans:
i)“I asked a question to one of the senior staff member (the former Perth lab manager Chris) why they were performing testing that was not in line with the Australian Standards” which Mr Evans alleges was one of the main reasons that the adverse action, being the dismissal, was taken against him.[23] Mr Evans alleges that this was the reason that was stated by Trilab as the reason for dismissal at the time of the dismissal;[24]
[23] Claim Form, Part G, para.1.
[24] Claim Form, Part G, para.3.
ii)confusion over KPIs;
iii)alleged delay in performing required proficiency tests; and
iv)an alleged belief by Trilab that Mr Evans had a firearms conviction,
with (ii), (iii) and (iv) being raised at a meeting between Trilab and Mr Evans after his dismissal;
d)assuming that it is accepted that Mr Evans did make the abovementioned complaints, and further assuming that Mr Evans is correct in regard to his assertion that Trilab’s testing did not conform to the relevant Australian Standard (which Trilab denies), Trilab says that this still does not create a complaint or inquiry which is capable of corresponding to a workplace right within the meaning of s.341(1)(c)(ii) of the FW Act;
e)the case is analogous to Schneider Electric, where Mr Daw had complained that the required method of performing the work was in breach of the relevant industry standard. This Court held that the allegation that the employer’s direction constituted an unlawful direction, in breach of s.115 of the Professional Engineers Act 2002 (Qld)[25] was proven, but still held that the inquiry about, and refusal to follow, the direction was not capable of constituting the exercise of a workplace right;[26]
[25] “PE Act”.
[26] Schneider Electric FLR at 379, 380 and 383 per Judge Jarrett; FCCA at paras.96, 99, 100 and 114 per Judge Jarrett.
f)in Schneider Electric the Court identified that Mr Daw was relying on the above facts to advance the proposition that he “had a workplace right to refuse to do that work and was entitled to complain about having to perform that work”;[27]
[27] Schneider Electric FLR at 379 per Judge Jarrett; FCCA at para.96(f) per Judge Jarrett.
g)in Schneider Electric the Court focussed on the issue of whether the refusal to perform the work created a workplace right, in itself, and also considered the issue of whether the complaint about that subject matter could create a workplace right, and held that it could not;[28]
[28] Schneider Electric FLR at 379 per Judge Jarrett; FCCA at para.96(f) per Judge Jarrett.
h)in Schneider Electric the Court found that although Mr Daw was correct in his assertion that the instruction about which he complained was unlawful, his refusal to carry out that instruction was not the exercise of a workplace right for the purposes of the FW Act.[29] By consideration of the result it can be seen that the complaint about the instruction likewise was held not to be the exercise of a workplace right within the meaning of s.341(1)(c)(ii) of the FW Act;[30]
[29] Schneider Electric FLR at 380-383 per Judge Jarrett; FCCA at paras.101-114 per Judge Jarrett.
[30] Schneider Electric FLR at 384 per Judge Jarrett; FCCA at para.120 per Judge Jarrett.
i)in Schneider Electric the Court did however accept that Mr Daw’s formal complaints in regard to bullying and harassment and breaching the Workplace Health and Safety Act 1995 (Qld) were an exercise of a workplace right;[31]
[31] Schneider Electric FLR at 369 and 383-384 per Judge Jarrett; FCCA at paras.43 and 115-119 per Judge Jarrett.
j)in Magellan Powertronics the Court held that Ms Devonshire had a workplace right under s.340(1)(a) of the FW Act because she was entitled to the benefit of a workplace law, namely s.323(1)(a) of the FW Act.[32] In Magellan Powertronics it was further indicated that a “workplace law” means the FW Act because of the definition of “workplace law” in s.12 of the FW Act which “means ... this Act”, and specifically, s.323 of the FW Act stipulated various requirements for correct payment of wages payable to employees;[33]
[32] Magellan Powertronics FLR at 290-291 per Lucev FM; FMCA at para.51 per Lucev FM, citing FW Act, s.341(1)(a).
[33] Magellan Powertronics FLR at 290-291 per Lucev FM; FMCA at para. 51 per Lucev FM.
k)in Magellan Powertronics the Court found that the employee’s specific complaint that she had either not been paid her motor vehicle allowance at all, or had not been paid the correct amount of salary to which she says she was contractually entitled at the time it was due, constituted a workplace right;[34]
[34] Magellan Powertronics FLR at 293 per Lucev FM; FMCA at para.64 per Lucev FM.
l)in Magellan Powertronics the Court also set out one of the examples provided in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth),[35] but all three examples contained in the FW Bill – Explanatory Memorandum, and the complaints in Magellan Powertronics and Schneider Electric which were held to constitute the exercise of a workplace right, involved complaints about workplace rights concerning a legislatively enshrined workplace entitlement. The nature of the complaint in the present application does not have that character. The complaint relates merely to the directions from the employer as to how the employer wished the employee to perform the work and day to day duties of employment. The three examples set out in the FW Bill – Explanatory Memorandum make it clear that it was not Parliament’s intention for s.341 of the FW Act to provide that complaints such as the complaint made by Mr Evans involve an exercise of a workplace right such that making a complaint can trigger s.361(1)(a) of the FW Act;[36]
m)to allow a complaint such as that made by Mr Evans to be considered as an exercise of a workplace right would lead to a situation whereby any complaint or inquiry about an employer’s directions on how the employer wished work to be performed would be capable of founding an action for adverse action with a reverse onus of proof. Trilab submits that this would create a situation in which the vast majority of employees, upon termination of their employment, would be able to cite a complaint or inquiry of this nature upon which to found a claim for adverse action, and that that interpretation:
i)cannot be correct as a matter of public policy and industrial efficiency; and
ii)cannot be the correct legal position on this issue, and
iii)would work against the object of the FW Act, provided at s.3 as being that:
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians ….
n)Mr Evans was legally represented at the directions hearing on 9 December 2013, at which time he was granted leave to file an amended application. Mr Evans declined to do so and it was therefore safe for the Court to assume that Mr Evans is not in a position to, in the subsequent course of the proceedings, identify any alternative complaint or other mechanism which is said to constitute the exercise of a workplace right.
[35] “FW Bill – Explanatory Memorandum”.
[36] Section 361(1) of the FW Act provides as follows:
Summary dismissal
Trilab’s submissions concerning the relevant test for summarily dismissing an application were as follows:
a)section 17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth)[37] and r.13.10 of the FCC Rules empower the Court to give judgment in favour of Trilab if it is satisfied that Mr Evans has “no reasonable prospect of successfully prosecuting the proceedings”. Section 17A(3) of the FCC Act makes it plain that the proceedings need not be hopeless or bound to fail in order for it to have no reasonable prospects of success. Section 17A of the FCCA Act is in similar terms to s.31A of the Federal Court of Australia Act 1976 (Cth);[38]
b)in Martin v I C Frith and Assoc. (SA) Pty Ltd & Anor,[39] the Court identified the principles to be applied to the determination of an application as those set out in Australian Securities and Investments Commission v Cassimatis & Anor[40] and cited a summary of the principles[41] set out in Dandaven v Harbeth Holdings Pty Ltd;[42]
c)Trilab acknowledges that in determining whether there are real issues of fact which preclude summary dismissal, the Court should draw all reasonable inferences in favour of Mr Evans, but says that Mr Evans’s case, taken at its highest, does not disclose a case which has reasonable prospects of success; and
d)on the above basis Mr Evans has no reasonable prospects of successfully prosecuting the proceedings, and his application should therefore be summarily dismissed.
Consideration
[37] “FCCA Act”.
[38] “FC Act”.
[39] [2013] FCCA 1745 at para.5 per Judge Simpson (“IC Frith”).
[40] (2013) 220 FCR 256; [2013] FCA 641.
[41] IC Frith at paras.5-7 per Judge Simpson.
[42] [2008] FCA 955 at para.6 per Gilmour J (“Dandaven”).
Legislation and divergent approaches
Section 342(1), Item 1 of the FW Act provides that adverse action is taken against an employee by an employer if the employer dismisses the employee. There is no dispute in this case that there was a dismissal. Adverse action, such as a dismissal, taken because a person has a workplace right is prohibited under s.340(1)(a)(i) of the FW Act. Section 341(1) of the FW Act provides that a person has a workplace right if the person:
(c)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee – in relation to his or her employment.
Divergent approaches have emerged as to when an employee “is able to make a complaint or inquiry”. The divergent approaches to that phrase are best exemplified by the contrasting judgments in the Federal Magistrates Court’s judgments in In Control and Magellan Powertronics and a number of judgments of the Federal Court discussed below.
In Control
In In Control, decided in March 2013, the Federal Magistrates Court:
a)had before it competing contentions whereby the applicant contended for a wide meaning of the phrase to include complaints about inter-office issues or workplace conflict,[43] following earlier judgments of the Federal Magistrates Court in relation to such matters,[44] those judgments being Ramos v Good Samaritan Industries (No. 2)[45] and Stevenson v Airservices Australia;[46]
[43] In Control FLR at 199 per Burnett FM; FMCA at para.48 per Burnett FM.
[44] In Control FLR at 199 per Burnett FM; FMCA at para.48 per Burnett FM.
[45] [2011] FMCA 341 (“Ramos (No. 2)”).
[46] (2012) 218 IR 210; [2012] FMCA 55 (“Stevenson”).
b)noted that the respondent employer submitted that the phrase was limited to:
i)an employee who has a capability or capacity or authority or right conferred by provision in a statute or an instrument, such as an enterprise agreement or contract of employment, to make the complaint or inquiry; and
ii)did not include a complaint or inquiry that can be made simply because the complainant is an employee of the employer;[47]
[47] In Control FLR at 199-200 per Burnett FM; FMCA at para.51 per Burnett FM.
c)noted the obiter comments of the Full Bench of Fair Work Australia[48] in Nulty v Blue Star Group Pty Ltd[49] in which FWA said it was “inclined to think” that the employee was able to make the complaint by virtue of some provision in a statute or instrument such as an enterprise agreement or contract of employment;[50]
[48] “FWA”.
[49] (2011) 203 IR 1 at 14 per Lawler VP, Sams DP and Williams C; [2011] FWAFB 975 at para.49 per Lawler VP, Sams DP and Williams C.
[50] In Control FLR at 200 per Burnett FM; FMCA at para.52 per Burnett FM.
d)noted the submission that it was contended that as a matter of judicial comity the Court ought to follow Stevenson and Ramos (No. 2), but observed that in those judgments the Court simply proceeded upon the basis that a complaint by an employee to a relevant person in authority of the employer was sufficient to make out a workplace right, and had not determined that issue;[51]
e)examined the relevant provisions of the FW Bill – Explanatory Memorandum, and concluded that they amplified the fact that a complaint must be sourced in an underlying contractual or statutory obligation governing the employment relationship;[52]
f)distinguished the Federal Court judgment in Jones v Queensland Tertiary Admissions Centre Ltd (No. 2).[53] In Queensland Tertiary Admissions Centre Ltd (No. 2) the Federal Court had found that the words “able to initiate” in s.341(1)(b) of the FW Act did not need to be founded in a “right” arising from the FW Act, but might arise from an authorisation given by an employer to an employee. Whilst accepting the interpretation of the term “able” as construed by the Federal Court in Queensland Tertiary Admissions Centre (No. 2) for the purpose of s.341(1)(b) of the FW Act, the Federal Magistrates Court did not accept it for the purposes of s.341(1)(c) of the FW Act, and in particular s.341(1)(c)(ii), because the provisions were said to be entirely different and distinct;[54]
g)noted the use of the disjunctive “or” between placitas (i) and (ii) of s.341(1)(c) of the FW Act, and the approaches to the interpretation of “or”, and considered that it was to be read cumulatively, rather than disjunctively, so as to restrict the meaning of s.341(1)(c)(ii) of the FW Act to complaints and inquiries, made to a person or body with the capacity to deal with the complaint or inquiry, for example by way of enforcing compliance, within either the terms of the contractual relationship or as otherwise governed by the statutory framework;[55]
h)had regard to the objects of the relevant part of the FW Act, being to protect workplace rights and provide relief in the event of contravention;[56]
i)section 341(1)(c) was therefore to be read restrictively as one to be made by the employee who has the capability or capacity, or authority or right, conferred by a provision in an Act, legislative instrument, enterprise agreement or contract of employment, to make the complaint or inquiry;[57] and
j)considered the issue to be determined was therefore whether the relevant matters concerned complaints and inquiries:
i)concerning and confined to the applicant’s employment; or
ii)concerning either the terms of the contractual relationship or otherwise governed by the statutory framework.[58]
[51] In Control FLR at 200 per Burnett FM; FMCA at paras.53-54 per Burnett FM.
[52] In Control FLR at 200-201 per Burnett FM; FMCA at paras.55-57 per Burnett FM.
[53] (2010) 186 FCR 22; [2010] FCA 399 (“Queensland Tertiary Admissions (No. 2)”).
[54] In Control FLR at 201-202 per Burnett FM; FMCA at paras.58-63 per Burnett FM.
[55] In Control FLR at 202-204 per Burnett FM; FMCA at paras.64-75 per Burnett FM.
[56] In Control FLR at 203 per Burnett FM; FMCA at para.73 per Burnett FM.
[57] In Control FLR at 199 and 203 per Burnett FM; FMCA at paras.51 and 73 per Burnett FM.
[58] In Control FLR at 204 per Burnett FM; FMCA at para.75 per Burnett FM.
The ultimate effect of In Control is therefore to restrict the ability to make a complaint or inquiry to an ability to do so sourced in a provision of an Act, statutory instrument or the employee’s contract of employment. Thus, under the rationale adopted in In Control, the ability to make a complaint or inquiry does not extend to a complaint or inquiry about employment made by an employee which is not sourced in the contract of employment, a statutory instrument or Act.
Magellan Powertronics
In Magellan Powertronics this Court analysed s.341(1)(c)(ii) of the FW Act as follows:
Analysis – s.341(1)(c)(ii) of the FW Act
52. The respondents asserted that Ms Devonshire was not “able to make a complaint or inquiry” for the purposes of s.341(1)(c) of the FW Act because that provision was limited to formal or specified mechanisms of complaint or inquiry which fell outside the terms of s.341(1)(a) or (b), and, otherwise, argued that if s.341(1)(c)(ii) allowed an employee simply to make a complaint or inquiry of their employer in relation to their employment and have that treated as a workplace right, it would render otiose paragraphs (a) and (b) of s.341(1) of the FW Act.
Dictionary meaning
53. The Shorter Oxford Dictionary on Historical Principles (3rd Edn) (Oxford: Clarendon Press, 1973) at page 5 relevantly defines “able” as:
Having the qualifications for, and means of, doing anything; having sufficient power, …
54. The definition, particularly as it relates to the issue of qualification or power, however, simply begs the question which arises out of s.341(1)(c) of the FW Act, namely, whether Ms Devonshire has the means or sufficient power, under the law, to be able to make the present application. That requires consideration of the terms of the legislation, set out above, and the relevant case law.
Case law
55. In Jones v Queensland Tertiary Admissions Centre Ltd (No. 2) (2009) 186 FCR 22 at 40 per Collier J; [2010] FCA 399 at para.57 per Collier J (“Jones”) the Federal Court considered the meaning of “is able to” in s.341(1)(b) and (c) of the FW Act and made clear that the ability is not confined to rights or mechanisms arising exclusively from the FW Act or other workplace laws, but rather an ability “which can arise from arrangements beyond those conferred by the [FW] Act.” Jones is not inconsistent with either argument in this matter. It merely indicates that rights can arise beyond those conferred by the FW Act. It is not explicit as to whether there has to be any formal extra-legislative machinery or provisions in relation to the making of the complaint or inquiry.
56. In Hodkinson v Commonwealth (2011) 207 IR 129; [2011] FMCA 171 (“Hodkinson”) the applicant alleged adverse action by her employer, and that she had made a complaint under s.341(1)(c) of the FW Act. The applicant alleged that the section meant that:
… if a person is able to make a complaint or an inquiry in relation to their employment then that is a workplace right. She submitted that the … [FW Act] did not restrict the person or body to whom such a complaint or inquiry could be directed and, by reference to para 1370 of the explanatory memorandum to the Fair Work Bill 2008, submitted that it included situations where an employee makes an inquiry or complaint to his or her employer.
Hodkinson IR at 159 per Cameron FM; FMCA at para.112 per Cameron FM.
This Court supported the applicant’s interpretation of of s.341(1)(c) of the FW Act: Hodkinson IR at 163 per Cameron FM; FMCA at para.131 per Cameron FM, where the Court states as follows:
That paragraph does not limit the class of persons to whom a complaint or inquiry may be made and, in particular, is not drawn in such a way as to exclude a person who makes an a complaint or inquiry to his or her employer. This interpretation is borne out by para 1370 of the explanatory memorandum to the Fair Work Bill which stated:
Subparagraph 341(1)(c)(ii) specifically protects an employee who makes any inquiry or complaint in relation to his or her employment. Unlike existing paragraph 659(2)(e) of the WR Act, it is not a pre-requisite for the protection to apply that the employee has “recourse to a competent administrative authority”. It would include situations where an employee makes an inquiry or complaint to his or her employer.
57. The applicant in Hodkinson failed because this Court determined that she had not in fact made a complaint or inquiry: Hodkinson IR at 163 per Cameron FM; FMCA at para.133 per Cameron FM, but the interpretation of s.341(1)(c) of the FW Act set out above provides for a broad meaning of “is able to”.
58. In Ratnayake v Greenwood Manor Pty Ltd [2012] FMCA 350 at paras.115-117 per Riley FM (“Ratnayake”) this Court considered that an employer’s refusal to accept a letter from an employee in relation to change of hours in which the employee used the words “I accept under strong protest” constituted a complaint or inquiry by the employee. Further, an implicit complaint, but one that was sufficient for the purposes of s.341(1)(c) of the FW Act, arose from the applicant’s use of words and conduct at a meeting discuss the change of hours.
59. In Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at 14 per Lawler VP, Sams DP and Williams C; [2011] FWAFB 975 at para.49 per Lawler VP, Sams DP and Williams C (“Nulty”) a Full Bench of FWA said as follows:
The issue is whether the criterion in s 341(1)(c)(ii) is met whenever an employee makes a complaint to a responsible senior manager as a mere incident of the employment relationship. We are inclined to think that is it not and that s 341(1)(c)(ii) contemplates that the employee is "able" to make the complaint by virtue of some provision in a statute or in an instrument such as a enterprise agreement or contract of employment. However, the appellant made no submissions on s 341(1)(c)(ii) and the respondent was not given an adequate opportunity to be heard in relation to this question. We do not think it appropriate to express a concluded view on that issue in the absence of argument.
60. Nulty is not authority for the proposition that s.341(1)(c)(ii) of the FW Act requires some formal mechanism or provision for a complaint or inquiry for the purposes of s.341(1)(c)(ii) of the FW Act. The Full Bench of FWA did not determine that issue, and expressly noted that they did not express a concluded view upon the issue. Moreover, the matter was not argued before the Full Bench of FWA in Nulty, and the Full Bench of FWA did not (because they did not ultimately consider or rule upon the matter) rule out the possibility that s.341(1)(c)(ii) of the FW Act might give rise to a workplace right on the basis of a simple complaint or inquiry to an employer from an employee in relation to their employment. Decisions of the Full Bench of the FWA exercising arbitral powers under the FW Act are not binding on this Court exercising the judicial power of the Commonwealth. Further, this Court, exercising the Commonwealth’s judicial power has, in Hodkinson and Ratnayake, on the basis of considered examination of the provisions of s.341(1)(c)(ii) reached a contrary concluded view. Comity alone would necessitate this Court following earlier decisions of this Court: see cases cited at para.26(c) above, unless it considered them to be plainly wrong, which it does not. There is nothing in the ordinary meaning of the provisions of the FW Act, and particularly the terms of s.341 of the FW Act (especially when contrasted to earlier provisions such as s.659(2)(e) of the Workplace Relations Act 1996 (Cth) and current provisions such as s.772(1)(e) of the FW Act), and the consideration in Hodkinson and Ratnayake, which indicates that anything other than the ordinary meaning of s.341(1)(c)(ii) of the FW Act ought to be adopted by this Court. That meaning, as set out above, indicates that a complaint or inquiry to their employer by an employee can give rise to a workplace right for the purposes of s.341(1) of the FW Act.
Explanatory Memorandum
61. In addition to the paragraph cited by this Court in Hodkinson and set out above: see para.56 above, the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (“Explanatory Memorandum”) contains a number of “[i]llustrative examples” including the following:
Freddy works part-time at a petrol station. He believes he is not being paid the correct award rate for a console operator. He writes a letter of complaint to the Australian Competition and Consumer Commission (ACCC) as he mistakenly believes that it is able to investigate wage underpayments. Freddy tells his manager about the letter. Following this, his hours for the next fortnight are cut in half. While the complaint would not be covered by paragraph 341(1)(c)(i) as the ACCC does not have capacity under a workplace law to seek compliance with the applicable award, Freddy would still have exercised a workplace right because he has made a complaint regarding his employment (subparagraph 341(1)(c)(ii)).
62. The above example demonstrates that the Parliament’s intention was that a complaint can be made to a body without capacity to seek compliance, and that that complaint can be mentioned to the employer, which then constitutes the exercise of a workplace right because of the making of a complaint regarding employment under s.341(1)(c)(ii) of the FW Act. That confirms that the ordinary meaning of “is able to” for the purposes of s.341(1)(c) of the FW Act includes the making of a complaint directly by an employee to an employer in relation to their employment. In that regard, the provisions of the Explanatory Memorandum are extrinsic materials which confirm the ordinary meaning conveyed by the text of s.341(1)(c) of the FW Act: Acts Interpretation Act 1901 (Cth), s.15AB.
Conclusion – “is able to”
63. The consideration of s.341(1)(c) of the FW Act, both judicial and parliamentary, points to the ordinary meaning of the phrase “is able to” being the correct construction of that phrase in s.341(1)(c) of the FW Act, that being that an employee can make a complaint or inquiry direct to their employer and such a complaint or inquiry can constitute a workplace right for the purposes of s.341(1)(c)(ii) of the FW Act.
Conclusion – workplace right
64. For the reasons set out above, Ms Devonshire has a workplace right with respect to alleged adverse action in relation to her entitlement to, and her complaints or inquiries about, her salary package and payments. The answer to question (a) is therefore “yes”.[59]
[59] Magellan Powertronics at paras.52-64 per Lucev FM.
Magellan Powertronics was handed down in April 2013 but did not refer to In Control, as Magellan Powertronics had been argued prior to In Control being handed down.
Murrihy
A similar divergence of opinion as to whether a complaint must be underpinned by a statutory or contractual right or entitlement appears to have emerged on the Federal Court. In Murrihy v Betezy.com.au Pty Ltd[60] a single Judge of the Federal Court observed as follows:
140 … The applicant relies on para (c)(ii) of this provision. She alleges that she was able to make a complaint or inquiry in relation to her employment, namely, to obtain legal advice about her rights in relation to remuneration and commission. The respondents say that s 341(1)(c)(ii) is not invoked when the employee’s “ability” to make a complaint or inquiry arises from nothing more than the absence of a prohibition upon proceeding in that way: what the section requires, they say, is a relevant provision of some kind, be it statutory, regulatory or contractual, or arising from some applicable grievance procedure, under which there is some provision for the making of a complaint or inquiry.
141 Section 341(1)(c)(ii) has two presently relevant predecessors, namely, ss 659(2)(e) and 793(1)(j) of the Workplace Relations Act 1996 (Cth). They were activated upon “the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation or laws or regulations or recourse to competent administrative authorities”, and upon the making of a complaint or inquiry “to a person or body having the capacity under an industrial law to seek … compliance with that law; or … the observance of a person’s rights under an industrial instrument”, respectively. In relation to s 659(2)(e) when it was numbered s 170CK(2)(e), Lander J (with the assent of Spender and Kenny JJ) held that a complaint by an employee to his or her employer would not be caught by the provision: Zhang v The Royal Australian Chemical Institute Inc (2005) 144 FCR 347, 351 [25]. Read literally, s 341(1)(c)(ii) would cover the making of a complaint or inquiry to the relevant employer. On one view, that would be a wide reading of the provision, but there seems to be little doubt but that the provision was intended to mean what it says. By s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth), in the construction of a provision of an Act, recourse may be had to the relevant Explanatory Memorandum for the purpose of confirming that the meaning of the provision is the “ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act”. In the case of s 341(1)(c)(ii), the ordinary meaning is the wide one to which I have referred. The relevant Explanatory Memorandum noted the wider terms of the new provision by comparison with the previous s 659(2)(e), and observed that the new provision would “include situations where an employee makes an inquiry or complaint to his or her employer”. One of the illustrative examples, that of “Rachel”, seems apt to cover the meaning for which the applicant contends.
142 In the present case, it was not the employer to whom the applicant proposed to make a complaint or inquiry: it was her solicitor. Indeed, she had been making complaints to her employer over an extended period. It was the inefficacy of those complaints, and the applicant’s frustrations with the respondents’ failure to address them, that led to her advising Mr Kay on 20 September 2011 that she proposed to seek legal advice. The question, therefore, is whether the seeking of legal advice falls within the connotation of a complaint or inquiry within the meaning of s 341(1)(c)(ii). A significant innovation introduced by the FW Act was the imposition of an obligation upon a “national system employer” (such as each of the respondents was) to pay its employees amounts payable to them in relation to the performance of work in full at least monthly: s 323(1) of the FW Act. Thus the legislation picks up, amongst other things, entitlements arising under contracts of employment and gives statutory consequences to an employer’s failure to make good on them. In this respect, s 323(1) is a civil remedy provision. There is – and there would have been at the time of the introduction of this provision – no reason to assume that the employees for whose benefit s 323(1) was enacted would be confined to those in unionised sectors and occupations. Perhaps more than ever before, it must realistically be accepted that individual employees, without the benefit of union representation, will often need to seek their own advice and representation in relation to rights arising under federal industrial legislation.
143 Against the wide terms of s 341(1)(c)(ii), I can think of no reason to assume that the legislature did not regard the protection of an unrepresented employee, who had rights under his or her contract of employment or other agreement with his or her employer, as within the range of protections provided by the provision. That such an employee should be able to have recourse to his or her solicitor, without the fear of repercussions in the nature of “adverse action” taken by the employer, would be well within the purposes of the section as they may be perceived in the legislative context to which I have referred. Further, to regard the seeking of legal advice as an “inquiry” within the meaning of para (c) is, in my view, a natural reading of the provision. I take the view, therefore, that the applicant’s proposal, conveyed to Mr Kay on 20 September 2011, that she would seek legal advice was a proposal by her to make an inquiry in relation to her employment within the meaning of s 341(1)(c)(ii) of the FW Act.[61]
[60] (2013) 238 IR 307; [2013] FCA 908 (“Murrihy”).
[61] Murrihy IR at 350-352 per Jessup J; FCA at paras.140-143 per Jessup J.
In Murrihy the workplace right was therefore a right to make an inquiry with a private advisor (in that case a solicitor) with respect to the employee’s right to be paid.
Murrihy, which was handed down in September 2013, was not cited to the Court in argument.
Shea (No. 6)
By way of contrast in Shea v TRUenergy Services Pty Ltd (No. 6),[62] handed down by the Federal Court after this matter had been argued, another single Judge of the Federal Court held that a complaint must be underpinned by a statutory or contractual entitlement or right, observing as follows:
625 In my opinion, the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.[63]
[62] [2014] FCA 271 (“Shea (No. 6)”).
[63] Shea (No. 6) at para.625 per Dodds-Streeton J.
In Shea (No. 6) the Federal Court made the following observation in respect of Murrihy:
594 In my view, it does not follow from Jessup J’s reasoning that s 340(1)(c)(ii) would cover a complaint or inquiry made to any person at all in relation to employment. Nor, contrary to the applicant’s submission, did his Honour hold that the ability to make a complaint required no instrumental source of entitlement. To the contrary, his Honour’s reasoning appeared to assume the existence of an entitlement or right under an instrument, such as the contract of employment or relevant legislation.[64]
[64] Shea (No. 6) at para.594 per Dodds-Streeton J.
Whilst it is fair to accept that in Murrihy the Federal Court was dealing with an entitlement sourced in s.323(1) of the FW Act, it remains the case that notwithstanding the above observation on Murrihy in Shea (No. 6) there is a tension between the Federal Court’s observation as to the width of the meaning of s.341(1)(c)(ii) of the FW Act in Murrihy and the more limited scope of application given to that provision in Shea (No. 6).
“in relation to”
The emphasis of Trilab’s approach shifted at hearing, and was less upon the question of whether there was an entitlement on Mr Evans’ part to make a complaint or inquiry, but rather whether the subject matter of the complaint was “in relation to” his employment.
It is appropriate to commence by making some general observations as to the phrase “in relation to”.
In Travelex Ltd v Commissioner of Taxation of the Commonwealth of Australia[65] the majority in the High Court of Australia found that a purchaser of foreign currency obtained rights that attached to, or were constituted by, the ability to use the currency, without which, property in the currency was worthless. Therefore, the supply of foreign currency (on the departure side of the customs barrier at Sydney Airport) was a supply “in relation to” the rights that attended upon ownership of that currency, and where it was evident that the currency was to be used overseas, the supply was therefore free from the imposition of the goods and services tax.[66] The principal majority judgment in Travelex observed that:
It may readily be accepted that “in relation to” is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that
“the subject matter of the inquiry, the legislative history, and the facts of the case" are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply “in relation to” rights.[67]and further that:
What the Act requires is that there be a supply “in relation to” rights; the operation of the Act does not call for attention to be given to the particular content of the rights.[68]
[65] (2010) 241 CLR 510; [2010] HCA 33 (“Travelex”).
[66] Travelex CLR at 518-522 per French CJ and Hayne J; HCA at paras.21-38 per French CJ and Hayne J; CLR at 524-526 per Heydon J; HCA at paras.46-57 per Heydon J.
[67] Travelex CLR at 519-520 per French CJ and Hayne J; HCA at para.25 per French CJ and Hayne J.
[68] Travelex CLR at 521 per French CJ and Hayne J; HCA at para.32 per French CJ and Hayne J.
In O’Grady v Northern Queensland Co Ltd[69] it was said that:
The words “in relation to”, read out of context, are wide enough to cover every conceivable connexion. But those words should not be read out of context, which in this case is provided by the … Act …. What is required is a relevant relationship, having regard to the scope of the Act. Where jurisdiction is dependent upon a relation with some matter or thing, something more than a coincidental or mere connexion – something in the nature of a relevant relationship – is necessary ….[70]
[69] (1990) 169 CLR 356 (“O’Grady”).
[70] O’Grady at 367 per Dawson J.
In O’Grady the phrase “in relation to” was said to be one which “subject to any contrary indication derived from its context or drafting history, … requires no more than a relationship, whether direct or indirect, between two subject matters”.[71] It has also been said to be a phrase of wide and general import, not to be read down in the absence of some compelling reason to do so.[72]
[71] O’Grady at 376 per McHugh J.
[72] Fountain & Anor v Alexander& Anor (1982) 150 CLR 615 at 629 per Mason J; see also Huntley Management Ltd & Anor v Timbercorp Securities Ltd & Ors (2010) 187 FCR 151 at 163 per Rares J; [2010] FCA 576 at para.47 per Rares J.
In HP MercantilePty Ltd v Commissioner of Taxation[73] the Full Court of the Federal Court of Australia observed that:
It was common ground that the words “relates to” are wide words signifying some connection between two subject matters. The connection or association signified by the words may be direct or indirect, substantial or real. It must be relevant and usually a remote connection would not suffice. The sufficiency of the connection or association will be a matter for judgment which will depend, among other things, upon the subject matter of the enquiry, the legislative history, and the facts of the case. Put simply, the degree of relationship implied by the necessity to find a relationship will depend upon the context in which the words are found.[74]
[73] (2005) 143 FCR 553; [2005] FCAFC 126 (“HP Mercantile”).
[74] HP Mercantile FCR at 563 per Hill J; FCAFC at para.35 per Hill J (with whom Stone and Allsop JJ agreed).
In Australian Communications Network Pty Ltd & Anor v Australian Competition & Consumer Commission[75] the Full Court of the Federal Court held that in determining whether a matter was “in relation to” another matter, “the question is whether there is a relevant, sufficient or material connection or relationship, rather than merely a causal connection or relationship.”[76] In Australian Communications Network the Full Court of the Federal Court said that the approach set out above in O’Grady emphasised “the need for attention to the legislative context and purpose” and was “an example of the primacy of context”.[77]
[75] (2005) 224 ALR 344; [2005] FCAFC 221 (“Australian Communications Network”).
[76] Australian Communications Network ALR at 351 per Heerey, Merkel and Siopis JJ; FCAFC at para.29 per Heerey, Merkel and Siopis JJ, following an earlier judgment of the Full Court of the Federal Court in J & G Knowles & Associates Pty Ltd v Commissioner of Taxation (2000) 96 FCR 402 at 408 and 410 per Heerey, Merkel and Finkelstein JJ; [2000] FCA 196 at paras.22-23 and 26 per Heerey, Merkel and Finkelstein JJ.
[77] Australian Communications Network ALR at 350 per Heerey, Merkel and Siopis JJ; FCAFC at para.26 per Heerey, Merkel and Siopis JJ.
That the expression “in relation to” gathers meaning from both the context in, and purpose for, which it appears, is a consistent theme in Federal Court judgments relating to that expression.[78] The consideration of context in each case limits the precedential value of prior judgments in considering the proper interpretation and reach of “in relation to” in the specific circumstances presently before the Court.[79] Context is also important to a consideration of whether the relationship need be:
a)direct or substantial;
b)indirect or less than substantial;
c)affecting one term of the relationship; or
d)affecting all of the terms of the relationship.[80]
[78] See, for example, Woodside Energy Ltd v Commissioner of Taxation (2006) 155 FCR 357 at 374-375 per French J; [2006] FCA 1303 at para.57 per French J (“Woodside Energy”); Australian Securities and Investments Commission v Citrofresh International Ltd & Anor (2007) 164 FCR 333 at 347 per Goldberg J; [2007] FCA 1873 at para.66 per Goldberg J (“Citrofresh”).
[79] Citrofresh FCR at 347 and 349 per Goldberg J; FCA at paras.67 and 71 per Goldberg J.
[80] Tooheys Ltd & Ors v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 614 per Dixon CJ and 620-621 per Taylor J; Joye v Beach Petroleum NL & Anor (1996) 67 FCR 275 at 285 per Beaumont and Lehane JJ.
The phrase “in relation to” does not extend to tenuous or remote relationships.[81] Rather, a statutory test of relationship requires that the relationship “must lie within the bounds of relevance to the statutory purpose”.[82]
[81] Citrofresh FCR at 347 per Goldberg J; FCA at para.66 per Goldberg J; Woodside Energy FCR at 374 per French J; FCA at para.57 per French J.
[82] Woodside Energy FCR at 375 per French J; FCA at para.58 per French J.
The Federal Court has held that 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.[83] In Pilbara Iron Company (No. 3) the Federal Court said of s.341(1)(c)(ii) of the FW Act that:
… the requisite relationship between the complaint or inquiry with the employee’s employment may be direct or indirect. No contrary indication may be gleaned from the context of the words or the drafting history. … the limits are to be found in the nature and purpose of the legislation, which includes the protection of workplace rights.[84]
[83] Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No. 3) [2012] FCA 697 at paras.61-64 per Katzmann J (“Pilbara Iron Company (No. 3)).
[84] Pilbara Iron Company (No. 3) at para.64 per Katzmann J.
Both the scope of the words “in relation to” and the arguably divergent approach of different Judges of the Federal Court has been succinctly captured in the Federal Court’s judgment in Walsh v Greater Metropolitan Cemeteries Trust (No. 2),[85] which although handed down after the argument in this matter deals with the cases (including cases referred to by the parties) determined before the argument in this case (save for Shea (No. 6)). In Greater Metropolitan Cemeteries Trust (No. 2) the Federal Court said that:
41 The words “in relation to” are words of wide import. The use of that phrase in s 341(1)(c)(ii) identifies that a relationship between the subject matter of the complaint and the complainant’s employment is required. The nature of that relationship need not be direct and may be indirect: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [61]-[64] (Katzmann J); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [631] (Dodds-Streeton J). I respectfully agree with Katzmann J’s observation in Pilbara at [64] that if some limit on the broad language utilised in the phrase “in relation to his or her employment” is to be imposed, it needs to be “found in the nature and purpose of the legislation, which includes the protection of workplace rights”.
42 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 at [69].
43 In this case, Ms Walsh raised a probity issue in relation to a contract with a supplier who supplied services including to an operation which Ms Walsh managed in the course of her employment. Whether or not Ms Walsh was under a contractual duty to report the possible misdeed of others (see the discussion in Irving, The Contract of Employment (LexisNexis Butterworths, 2012) at [7.21]), 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, the Alsco contract complaint made by Ms Walsh raised an issue with potential implications for Ms Walsh’s employment and was “in relation to…her employment” within the meaning of s 341(c)(ii) of the FW Act.
44 In determining the construction issue raised here, I have considered but have not been persuaded by GMCT’s reliance upon Rowland v Alfred Health [2014] FCA 2. In that case, Marshall ACJ determined that a complaint made by a doctor about the competency of another doctor with whom he worked was not a complaint in relation to the complainant’s employment. Whether the clinical competence of the doctor complained about had potential implications for the employment of the complainant is not a matter that appears to have been raised before or addressed by Marshall ACJ. His Honour does not appear to have been referred to Pilbara and did not have the benefit of Shea. A contention that an indirect nexus would be sufficient does not appear to have been relied upon by the applicant in that case. Further, his Honour’s conclusion seems to turn on a factual dispute as to whether the relevant complaint related to the complainant’s employment because it also included a complaint that the doctor concerned had taken a patient from the complainant: see Rowland at [29]-[38].[86]
[85] [2014] FCA 456 (“Greater Metropolitan Cemeteries Trust (No. 2)”).
[86] Greater Metropolitan Cemeteries Trust (No. 2) at paras.41-44 per Bromberg J.
In Greater Metropolitan Cemeteries Trust (No. 2) the Federal Court determined that the contract probity complaint raised by Ms Walsh was a complaint in relation to her employment, but was not a reason for her dismissal.[87]
[87] Greater Metropolitan Cemeteries Trust (No. 2) at para.40 per Bromberg J.
Further observations
In light of the divergent approaches to s.341(1)(c)(ii) of the FW Act set out above the Court feels it necessary to make some further observations with respect to some of the cases, particularly those decided in the Federal Magistrates Court, but also with reference to cases decided in the Federal Court.
In In Control it was said that the judgments of this Court in Stevenson and Ramos (No. 2) proceeded upon the basis that this Court had not determined the issue as to whether it was sufficient to make out a workplace right for a complaint by an employee to simply be made to a relevant person in authority with the employer, and, seemingly, on that basis that considerations of judicial comity within the Court did not arise.
The context in which the complaint arose in Ramos (No. 2) is set out in that judgment as follows:
10. On 30 March 2010, Mr Ramos attended a manager’s meeting at GSI head office. At this meeting:
a) Ms Cameron answered in the negative a question from Mr Ramos whether the retail stores could close for Easter Saturday 2010.
b) Ms Cameron made Mr Ramos aware of his entitlement to claim motor vehicle usage for work purposes. GSI had apparently not previously informed him of this entitlement.
c) There was an exchange between Mr Ramos and Ms Cameron during a training scenario which became an issue of concern.
11. On 31 March 2010, Mr Michael Gordon met with Mr Ramos at the Dianella store. At that meeting:
a) Mr Gordon criticised Mr Ramos in relation to his behaviour at the manager’s meeting 30 March 2010;
b) Mr Gordon criticised Mr Ramos for his use of the word “darl”;
c) Mr Gordon criticised Mr Ramos for the 2009/2010 Dianella store sales figures being below budget;
d) Mr Ramos believed Mr Gordon should accept some responsibility or accountability for the 2009/2010 Dianella store sales.
e) Mr Gordon discussed with Mr Ramos his claims for overtime. Mr Ramos told Mr Gordon that he would not agree to work unpaid overtime. Mr Gordon invited Mr Ramos to rethink his position as the Dianella store manager.
12. On 6 April 2010, Mr Ramos submitted a complaint addressed to the human resources manager of GSI. The complaint was against GSI’s divisional operations manager Ms Cameron and the retail operations manager Mr Gordon.[88]
[88] Ramos (No. 2) at paras.10-12 per Driver FM.
There is no doubt that in Ramos (No. 2) the employer initially disputed the exercise of a workplace right, “but ultimately conceded” the exercise of a workplace right by Mr Ramos “making a complaint”.[89] That the Federal Magistrates Court considered the question of whether Mr Ramos had a workplace right independently of the concession made by the employer is evident from the following:
[89] Ramos (No. 2) at para.25 per Driver FM.
Did Mr Ramos have a workplace right?
45. Mr Ramos, being an employee at the time, will have had a workplace right if he can show that he was “able to make a complaint or enquiry… in relation to his … employment”[90]. Mr Ramos was concerned about statements made to him by Ms Cameron and Mr Gordon in the course of his employment. I am satisfied that Mr Ramos was able to make a complaint or enquiry about those statements.[91]
[90] Section 341(1)(c)(ii) of the Fair Work Act. This footnote is from the quoted passage.
[91] Ramos (No. 2) at para.45 per Driver FM.
It is therefore apparent that the question of whether Mr Ramos had a workplace right was considered, albeit prosaically and without in depth analysis, in Ramos (No. 2), and that the assertion to the contrary in In Control is wrong. In that respect, the judgment in In Control proceeded upon a false premise.
The judgment in Ramos (No. 2) was appealed to the Federal Court. The Federal Court handed down judgment in Ramos v Good Samaritan Industries[92] in January 2013 prior to the handing down of the judgment in In Control in March 2013. Ramos Appeal was not referred to in the judgment in In Control, but that is understandable given that Ramos Appeal was heard after the hearing in In Control, and would not therefore have been cited to the Court.
[92] [2013] FCA 30 (“Ramos Appeal”).
In Ramos Appeal the Federal Court characterised the Federal Magistrates Court’s assessment of the workplace right finding as follows:
… In essence, the Federal Magistrate found the appellant had a “workplace right” as defined by s 341(1)(c)(ii) of the FW Act, as he was a person “able to make a complaint or inquiry” in relation to his employment. His Honour held that the appellant was “concerned about statements made to him by Ms Cameron and Mr Gordon in the course of his employment” and was satisfied he was able to make a complaint or inquiry about those statements.[93]
[93] Ramos Appeal at para.7 per Barker J.
The Federal Court went on to note that the Federal Magistrates Court had accepted the employer respondent’s evidence that the relevant action was not because of the complaint, and that therefore the employee, Mr Ramos, had failed to demonstrate any unlawful adverse action against him because of the complaint.[94] The Federal Court went on to find that the Federal Magistrates Court had not erred in making a finding that Mr Ramos had failed to demonstrate any unlawful adverse action against him because the relevant action taken was not because of the complaint.[95] In doing so, however, the Federal Court did not demur from the finding of the Federal Magistrates Court that Mr Ramos had a right to make a complaint,[96] and whilst finding that Mr Ramos was not dismissed because of his complaint made the following pertinent observations:
131 While there may be some cases where on the facts a different conclusion might be drawn and a different inference available, on the evidence presented in this case there is no basis upon which the Court below or this Court on rehearing could or should draw the inference that at material times the respondent had decided to squeeze the appellant out of his employment because he had made the complaint on 6 April 2010. Rather, the events culminating in the complaint of 6 April 2010 and the remedial steps taken thereafter, as noted, were designed, as Mr Knowles explained and his Honour in the Court below accepted, to achieve good management outcomes. No error is identified in this reasoning.
132 No doubt, there will be circumstances where, by reason of management issues raised upon a complaint, an employer may consider an employee to be difficult employee. Steps ultimately taken to respond to such management issues identified through a subsequent complaint or inquiry process are not thereby automatically to be identified as steps taken because the complaint was made, that is to say, to be identified as adverse actions taken because of the workplace right.[97]
[94] Ramos Appeal at para.10 per Barker J.
[95] Ramos Appeal at para.128 per Barker J.
[96] Ramos Appeal at paras.114-115 per Barker J.
[97] Ramos Appeal at paras.131-132 per Barker J.
In Ramos Appeal the Federal Court therefore 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.[98]
[98] Ramos Appeal at para.131 per Barker J.
It is unfortunate that Ramos Appeal was not seemingly brought to the attention of the Federal Magistrates Court prior to the judgment in In Control being handed down. Had that occurred, the Federal Magistrates Court would have been faced with a situation where the Federal Court did not demur from the Federal Magistrates Court finding that a complaint about statements made about work-related issues could give rise to a complaint under s.341(1)(c)(ii) of the FW Act, and would have had to consider whether that required a different approach on the issue of judicial comity, and whether or not the Federal Court’s observations were binding upon it and ought to be followed.[99]
[99] Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515 at 522 per Spender, Buchanan and Perram JJ; [2009] FCAFC 42 at para.29 per Spender, Buchanan and Perram JJ (“Suh”), and noting the admonition in Minister for Immigration & Multicultural & Indigenous Affairsv SZANS (2005) 141 FCR 586 at 591 per Weinberg, Jacobson and Lander JJ; [2005] FCAFC 41 at para.38 per Weinberg, Jacobson and Lander JJ “Even if the Federal Magistrate was correct in holding that the judgment of Madgwick J was not binding upon him, he most certainly was not correct in refusing to follow it. The judicial comity which ought to apply between the Federal Magistrates Court and judgments of single judges of this Court (when not exercising appellate jurisdiction) should at the very least be the same as that which exists between single judges of this Court.”
In Stevenson it is manifest that the Federal Magistrates Court considered that Mr Stevenson had exercised a workplace right by complaining about bullying and harassment by managers and employees in the workplace,[100] principally on the basis of behaviour in meetings or comments in emails by those other managers and employees.[101] As in Ramos (No. 2) the Federal Magistrates Court did not embark upon a detailed analysis of whether Mr Stevenson could exercise a workplace right by a complaint about conduct in the workplace not founded or exercised on the basis of a right or entitlement in a statute, regulation or under a contract of employment. It is noteworthy however that the Federal Magistrates Court accepted that Mr Stevenson had the ability to make such a complaint, observing that:
… the proceeding was concerned with whether Mr Stevenson’s dismissal was motivated by a prohibited reason, namely the fact that he had exercised his workplace right to make a complaint or complaints …[102]
and
In particular, the question Mr Stevenson raises is whether as Airservices subjected him to adverse action, specifically dismissal, for a reason or reasons that included the fact that he had made a complaint or complaints in relation to his employment.[103]
[100] Stevenson IR at 211, 213 and 217 per Cameron FM; FMCA at paras.4, 11 and 43 per Cameron FM.
[101] Stevenson IR at 220 and 222 per Cameron FM; FMCA at paras.62 and 73 per Cameron FM.
[102] Stevenson IR at 213 per Cameron FM; FMCA at para.11 per Cameron FM.
[103] Stevenson IR at 234 per Cameron FM; FMCA at para.151 per Cameron FM.
Once again, however, the employee failed because the Federal Magistrates Court found that the employee was not terminated “because of” the complaints made.[104]
[104] Stevenson IR at 235-236 and 237 per Cameron FM; FMCA at paras.158-159 and 165-166 per Cameron FM.
In Hodkinson v Commonwealth[105] the Federal Magistrates Court was faced with an adverse action claim which, amongst other things, asserted that the applicant had been dismissed because of the exercise or proposed exercise of a workplace right, namely the ability to make a complaint or inquiry, and the Federal Magistrates Court set out the gist of the applicant’s submission as follows:
[105] (2011) 207 IR 129; [2011] FMCA 171 (“Hodkinson”).
112 It was submitted that the dismissal amounted to adverse action contrary to the FWA on the basis that it was done for reasons which included the fact that the applicant exercised, and proposed to exercise, a workplace right. In this regard, the applicant referred to the definition of ‘workplace right’ in s 341(1)(c) of the FWA which states that a person has such a right if the person:
“(c)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment … ”
She said that if a person is able to make a complaint or an inquiry in relation to their employment then that is a workplace right. She submitted that the FWA did not restrict the person or body to whom such a complaint or inquiry could be directed and, by reference to para.1370 of the explanatory memorandum to the Fair Work Bill 2008 (Cth), submitted that it included situations where an employee makes an inquiry or complaint to his or her employer.[106]
[106] Hodkinson IR at 159 per Cameron FM; FMCA at para.112 per Cameron FM.
In Hodkinson, the Federal Magistrates Court then went on to specifically consider whether or not s.341(1)(c)(ii) of the FW Act gave rise to a workplace right of the type asserted by the applicant, and said as follows:
131 In her claim to have been dismissed because she had exercised or proposed to exercise a workplace right, the applicant relies on the workplace right provided by s 341(1)(c), which relates to a person’s ability to make a complaint or inquiry. In particular, she relies on s 341(1)(c)(ii) quoted above at [8]. That paragraph does not limit the class of persons to whom a complaint or inquiry may be made and, in particular, is not drawn in such a way as to exclude a person who makes a complaint or inquiry to his or her employer. This interpretation is borne out by para 1370 of the explanatory memorandum to the Fair Work Bill which stated:
Subparagraph 341(1)(c)(ii) specifically protects an employee who makes any inquiry or complaint in relation to his or her employment. Unlike existing paragraph 659(2)(e) of the WR Act, it is not a pre-requisite for the protection to apply that the employee has “recourse to a competent administrative authority”. It would include situations where an employee makes an inquiry or complaint to his or her employer.[107]
[107] Hodkinson IR at 163 per Cameron FM; FMCA at para.131 per Cameron FM.
In Hodkinson, the Federal Magistrates Court did not however characterise what was asserted to be a complaint or inquiry by the applicant as such, but, in any event, found that even if it were a complaint or inquiry it did not form any part of the basis for the relevant decision-maker’s decision to dismiss the applicant.[108]
[108] Hodkinson IR at 163 per Cameron FM; FMCA at para.133 per Cameron FM.
In In Control it would appear that the applicant did not submit that the Court ought to follow Hodkinson on the basis of judicial comity, as it had done in relation to Ramos (No. 2) and Stevenson. The Federal Magistrates Court in In Control was however aware that Hodkinson[109] formed part of the applicant’s case, setting out the applicant’s contention as follows:
48. The applicant particularly contended that the relevant workplace right being pursued by him was a right under s 341(1)(c)(ii) to make a complaint or inquiry as an employee in relation to his employment. It was submitted that the subsection does not limit the class of persons to whom a complaint or inquiry may be made and by its drafting does not exclude a person who makes a complaint or inquiry to his or her employer: Hodkinson v Commonwealth (2011) 207 IR 129; 248 FLR 409 at [131]. Accordingly it was submitted that consistent with the construction of the subsection in the broadest possible terms, complaints about interoffice issues or workplace conflict have been held to constitute the exercise of a workplace right for the purposes of the subsection: Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341; Stevenson v Airservices Australia (2012) 218 IR 210.[110]
[109] Albeit mis-cited as “Hodgkinson”.
[110] In Control FLR at 199 per Burnett FM; FMCA at para.48 per Burnett FM.
Having cited Hodkinson in setting out the applicant’s contentions the Federal Magistrates Court did not refer to it again, or analyse its findings, in determining the issues in In Control. Had it done so, and had it set out paragraph 131 of Hodkinson cited in the applicant’s contentions, which is set out above,[111] it would have observed that the Federal Magistrates Court had determined that s.341(1)(c)(ii) of the FW Act does not limit the class of persons to whom a complaint or inquiry may be made, and that that interpretation was borne out by paragraph 1370 of the FW Bill – Explanatory Memorandum. Had the Federal Magistrates Court in In Control had regard to the findings in Hodkinson it would then have been necessary for it to consider whether judicial comity required that Hodkinson be followed, unless it determined that Hodkinson was plainly wrong.[112]
[111] See para.52 above.
[112] SZANS FCR at 592 per Weinberg, Jacobson and Lander JJ; FCAFC at para.38 per Weinberg, Jacobson and Lander JJ; See v Granich & Associates [2008] FMCA 27 at paras.16-17 per Lucev FM.
The Court also observes that the construction placed on s.341(1)(c)(ii) of the FW Act in In Control by reference to the connector “or” between placitas (i) and (ii), namely, that it is to be read cumulatively, and not disjunctively, and therefore to have a restrictive effect in the manner set out above[113] is arguably at odds with:
a)the ordinary meaning and use of “or”;[114]
b)the usual approach to a remedial statute where there is ambiguity or where the words used admit of more than one outcome, namely to construe the words beneficially to give the fullest relief the fair meaning of the language allows,[115] or to give the words a fair, large and liberal interpretation rather than one which is literal or technical;[116]
c)the ordinary meaning of s.341(1)(c) of the FW Act as set out in the passages cited above from Murrihy,[117] and in that regard noting especially the Federal Court’s:
i)examination of the history of the predecessor to s.341(1)(c) of the FW Act; and
ii)referencing of the relevant provisions of the FW Bill – Explanatory Memorandum,
to support a wide meaning and a disjunctive interpretation, culminating in the ultimate result that Ms Murrihy was able to invoke s.341(1)(c)(ii) of the FW Act to support a workplace right based upon an inquiry made to her solicitor as to her entitlement to be paid under s.323(1) of the FW Act.
[113] See paras.17-18 above.
[114] Finance Facilities Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1971) 127 CLR 106 at 133 per Windeyer J (with whom Barwick CJ at 128 agreed) and 139 per Owen J; Nettlefold Advertising Pty Ltd v Nettlefold Signs Pty Ltd (1998) 90 FCR 453 at 471 per Wilcox J (with whom Tamberlin and Merkel JJ at 472 agreed).
[115] Bull & Ors v The Attorney-General for New South Wales (1913) 17 CLR 370 at 384 per Isaacs J.
[116] IW v The City of Perth & Ors (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J.
[117] See para.21 above.
Schneider Electric arguably supports the view that a workplace right might be founded on conduct unrelated to any entitlement arising from a contract of employment, legislative instrument or Act. In Schneider Electric the applicant asserted he had exercised a workplace right to make a formal complaint against fellow employees about their behaviour towards him.[118] In relation to that alleged workplace right this Court found that:
115. There is no dispute between the parties that Mr Daw was entitled to make a complaint to Schneider about Mr Moyano and Mr Pine. In making that complaint he was exercising a workplace right.[119]
The Court went on to find, however, that the applicant’s dismissal was not “because of” the exercise of a workplace right in making the complaint about other employees,[120] but that “[t]he real reason for Mr Daw’s dismissal from Schneider’s employment was that he would not accept instructions ….”[121]
[118] Schneider Electric FLR at 377 per Judge Jarrett; FCCA at para.85(b) per Judge Jarrett.
[119] Schneider Electric FLR at 383 per Judge Jarrett; FCCA at para.115 per Judge Jarrett.
[120] Schneider Electric FLR at 383 per Judge Jarrett; FCCA at para.117 per Judge Jarrett.
[121] Schneider Electric FLR at 383 per Judge Jarrett; FCCA at para.118 per Judge Jarrett.
The other workplace right asserted in Schneider Electric was a right not to comply with a direction from an employer that was unlawful or unreasonable or would require the performance of work that was illegal or unlawful under the PE Act,[122] but the Court found in that regard that whilst the applicant was entitled to refuse to perform the work in so doing it had not been established that he was exercising a workplace right for the purposes of the FW Act.[123] It is pertinent to observe that the Court did not consider whether the refusal to perform illegal or unlawful acts was a complaint or inquiry in relation to the applicant’s employment for the purposes of s.341(1)(c)(ii) of the FW Act, but only considered that part of the definition of “workplace right” relating to s.341(1)(a), (b) and (c)(i) of the FW Act. The Court did not consider the question of whether a refusal to perform duties might be a complaint or inquiry. In that regard, it did not give consideration to Ratnayake v Greenwood Manor Pty Ltd[124] where an employee’s refusal to accept a letter from an employer in relation to a change of working hours, but which change was accepted “under strong protest”, constituted a complaint or inquiry for the purposes of s.341(1)(c)(ii) of the FW Act, even if it was only implicit.[125] Even if it be accepted that a refusal to carry out unlawful duties does not give rise to the exercise of a workplace right, Schneider Electric can be distinguished on the basis that such a refusal is not a complaint or inquiry, and therefore s.341(1)(c)(ii) of the FW Act does not arise for consideration. Given, however, that there may not be bright lights illuminating the distinction between a complaint, a protest and a refusal, a distinction of that kind must remain open to a contrary argument which was clearly not put or considered in Schneider Electric.
[122] Schneider Electric FLR at 377 per Judge Jarrett; FCCA at para.85(a) per Judge Jarrett.
[123] Schneider Electric FLR at 383 per Judge Jarrett; FCCA at para.114 per Judge Jarrett.
[124] [2012] FMCA 350 (“Ratnayake”).
[125] Ratnayake at paras.115-117 per Riley FM.
The outcome in Schneider Electric, that no workplace right arises from the refusal to perform duties which were illegal or unlawful, also does not sit easily with the Federal Court’s judgment in Greater Metropolitan Cemeteries Trust (No. 2) where the raising of a contract probity issue in relation to a supply contract, which if not raised might have reflected badly on the employee and caused her prejudice in her employment, was held to give rise to a workplace right under s.341(1)(c)(ii) of the FW Act.[126]
[126] Greater Metropolitan Cemeteries Trust (No. 2) at para.43 per Bromberg J.
In Schneider Electric this Court was referred to Ramos (No. 2), but referred to it only in the context of whether or not there was a constructive dismissal.[127] The Court notes that Stevenson, Hodkinson and Ratnayake were not considered by this Court in Schneider Electric. Because Schneider Electric was argued in November 2012 and judgment handed down in September 2013 there was also no consideration given in Schneider Electric to Ramos Appeal, Murrihy, In Control and Magellan Powertronics, which were all judgments delivered whilst Schneider Electric was reserved for consideration. Had the above cases been considered by the Court in Schneider Electric then issues of binding precedent, in the case of the Federal Court cases, and judicial comity, in the case of decisions of the former Federal Magistrates Court, would have arisen for consideration.
[127] Schneider Electric FLR at 377 per Judge Jarrett; FCCA at para.87 per Judge Jarrett.
Conclusion – divergent approaches and “in relation to”
For the purposes of determining whether or not Mr Evans has an arguable case it is not necessary for this Court to determine which of the divergent approaches might be right or wrong as a matter of law, but as the rights of the parties depend upon it, it is obviously appropriate that the matter goes to hearing.[128] It is evident from the cases set out above that it is arguable that a complaint or inquiry need:
a)not arise from a statutory, regulatory or contractual provision before it can be a complaint or inquiry in relation to a person’s employment for the purposes of s.341(1)(c)(ii) of the FW Act;[129] and
b)only have an indirect nexus with a person’s terms or conditions of employment to come within the scope of s.341(1)(c)(ii), and may be a complaint about the conduct of another person in the workplace or about a workplace process which concerns or has implications for an employee’s employment.[130]
[128] Dandaven at para.6 per Gilmour J.
[129] Murrihy at paras.141-143 per Jessup J.
[130] Greater Metropolitan Cemeteries Trust (No. 2) at paras.41 and 43 per Bromberg J; Ratnayake at paras.115-117 per Riley FM.
Application to the facts of this case
The High Court’s judgment in Spencer v The Commonwealth[131] described the task of determining whether there is no reasonable prospect of success as one of “practical judgment”.[132] For practical and present purposes the Court accepts that practical judgment can be achieved by application of the matters set out in the submissions of Trilab summarised above.[133]
[131] (2010) 241 CLR 118; [2010] HCA 28 (“Spencer”).
[132] Spencer CLR at 132 per French CJ and Gummow J; HCA at para.25 per French CJ and Gummow J.
[133] See para.14 above.
Shortly after taking up employment with Trilab as State Manager – Engineering (Perth) Mr Evans took issue with the manner of testing being conducted in Trilab’s Perth laboratory, and inquired as to why it was not being conducted following the Australian Standards. On Mr Hamilton’s evidence there was an exchange with Mr Evans about the Australian Standards and how they were to be applied. Taking Mr Evans’ version of events at its highest, as the Court must, Mr Hamilton came to Perth and dismissed Mr Evans because Mr Evans had questioned the way in which the testing was being conducted. That questioning of the way in which the testing was conducted is arguably capable of being characterised as a “complaint” or “inquiry”.[134] For present purposes it does not matter whether it was a complaint or inquiry, and its ultimate characterisation, including whether it was a complaint or inquiry, might depend on the evidence to be led, and is therefore an issue for hearing.[135]
[134] Greater Metropolitan Cemeteries Trust (No. 2) at para.43 per Bromberg J; Ratnayake at paras.115-119 per Riley FM.
[135] Dandaven at para.6 per Gilmour J.
It appears arguable that under Mr Evans’ contract of employment his duties included leadership of Trilab’s Perth laboratory, including its day-to-day management and development, being a signatory to approval of test results, and being responsible for the delivery of test results to Trilab’s corporate office, and responsible for the management of the laboratory staff retention and performance programme with the overall objective of leading a highly performing laboratory both from a financial performance and a technical standard perspective.[136] It is Mr Evans’ service, ordinarily including the performance of these duties, which constitutes Mr Evans’ work, which forms part of the contractual consideration, and in return for which Mr Evans had a right to another part of the contractual consideration, that is to be remunerated and to ongoing employment, subject to any relevant contractual or statutory constraints.[137]
[136] Claim Form, Part G, Item 24, para.5, attachment 3, Schedule 2.
[137] Automatic Fire Sprinklers Proprietary Limited & Anor v Watson (1946) 72 CLR 435 at 465 per Dixon J; Csomore & Anor v Public Service Board of New South Wales (1987) 10 NSWLR 587 at 595 per Rogers J.
Having regard to the above duties, and the width of meaning of the expression “in relation to”, it appears to be arguable that a complaint or inquiry was made by Mr Evans, and was made about the testing methods in Trilab’s Perth laboratory, and is, therefore, arguably a complaint or inquiry in relation to Mr Evans’ employment. It is not in dispute in these proceedings that it was Trilab to whom the alleged complaint or inquiry was made, a fact which supports an argument that what was done was “in relation to” Mr Evans’ employment.
Even if the questioning of testing methods has no basis in any statutory, regulatory or contractual right or entitlement conferred on Mr Evans, that does not, on an arguable view of s.341(1)(c)(ii) of the FW Act, based on the judgments in Murrihy and Magellan Powertronics, preclude Mr Evans from being able to make that complaint or inquiry.
On the above analysis it appears that it is arguable that Mr Evans was able to make a complaint or inquiry in relation to his employment under s.341(1)(c)(ii) of the FW Act, which was therefore arguably a workplace right for the purposes of s.341(1) of the FW Act.
In the above circumstances Trilab’s assertion that Mr Evans’ application has no reasonable prospect of success whether:
a)because there was not a complaint or inquiry in relation to Mr Evans’ employment; or
b)because Mr Evans was not able to make such a complaint or inquiry,
must fail.
Conclusions and orders
The Court has concluded that Trilab has failed to prove that Mr Evans’ application has no reasonable prospect of success. It follows that Trilab’s application to have Mr Evans’ application summarily dismissed must be dismissed. There will be an order accordingly. There will also be an order that the matter be adjourned to a directions hearing at 9.30am on 7 November 2014.
The Court will hear the parties as to costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 30 October 2014
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
479
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