Farac v Pendal Group Limited (No 4)
[2023] FedCFamC2G 225
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farac v Pendal Group Limited (No 4) [2023] FedCFamC2G 225
File number(s): SYG 2443 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 21 March 2023 Catchwords: PRACTICE AND PROCEDURE – application to strike out parts of statement of claim – whether application duplicative and an abuse of process – whether provisions should be struck out – relevant considerations.
PRACTICE AND PROCEDURE – application for leave to file a further amended statement of claim – relevant considerations.
Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 352
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 7.01, item 14 sch 1
Federal Court Rules 2011 (Cth) rr 1.32, 16.02, 16.21
Workers Compensation Act 1987 (NSW) s 248
Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256
Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd (2008) 78 IPR 586
Brosnan v Katke [2012] FCA 1249
Commonwealth v Verwayen (1990) 170 CLR 394
Farac v Pendal Group Limited (No 3) [2023] FedCFamC2G 220
Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41
J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581
Lamont v University of Queensland (No 2) [2020] FCA 720
National Parks and Wildlife Service v Pierson [2002] NSWCA 273
Nominal Defendant v Manning (2000) 50 NSWLR 139
Radisich v McDonald (2010) 198 IR 244
SZSRR v Minister for Immigration and Border Protection [2017] FCA 328
Tran v Singh [2019] FCA 70
Division: General Number of paragraphs: 66 Date of hearing: 9 March 2023 Place: Sydney Counsel for the Applicant: Ms R. Francois Solicitor for the Applicant: Kennedys Counsel for the Respondents: Mr D. Mahendra Solicitor for the Respondents: MinterEllison ORDERS
SYG 2443 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PETER ADAM FARAC
Applicant
AND: PENDAL GROUP LIMITED (ACN 126 385 822)
First Respondent
RICHARD BRANDWEINER
Second Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
21 March 2023
THE COURT ORDERS THAT:
1.The applicant have leave to file a further amended statement of claim in the form circulated by email on 17 February 2023 subject to the omission of the following proposed paragraphs: 12(f); 18A; 18B; 19A; 45A; 45B; 66(f)(i), (ii) and (iv); and 66(h)(i) and (iv).
2.The respondents’ application to strike out various paragraphs of the amended statement of claim and thus of the proposed further amended statement of claim be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicant in this proceeding, Mr Farac, has alleged in his amended statement of claim (“ASOC”) that Pendal Group Limited (“Pendal”) took various forms of adverse action against him in contravention of s.340 of the Fair Work Act 2009 (Cth) (“FW Act”), including a reduction of his remuneration and ultimately the termination of his employment on 1 October 2021 following his exercise, in March 2019 and subsequently, of a number of workplace rights. He alleged that Mr Brandweiner, the second respondent, was an accessory to Pendal’s contraventions. Mr Farac has sought compensation and pecuniary penalties against the respondents.
The relevant factual allegations were summarised in Farac v Pendal Group Limited (No 3) [2023] FedCFamC2G 220 in the following terms:
4.... In 2019 Mr Farac was one of Pendal’s long-term and senior employees and reported to a Mr Gor, whom he alleged bullied him. Mr Farac alleges that he raised these concerns in relation to Mr Gor’s conduct, initially on an informal basis with Mr Brandweiner and then on 14 October 2019 formally, but obtained no satisfaction. His formal complaint was referred for investigation by an external organisation. On 28 November 2019, before the investigation was concluded, Mr Farac was advised of his annual bonus figure, which was one-third less than he had been awarded in the previous year. On 3 December 2019 he made a formal complaint and inquiries about his bonus figure.
5.In the meantime, on 26 September 2019 Mr Farac had also taken stress leave. Ultimately he never returned to work because his position, according to Pendal, became redundant as a result of a restructure. On 13 March 2020 Mr Farac was told that the investigation of his bullying complaint had been completed and that his complaint had not been made out. He says that he was not provided with details of the outcome of the investigation. The letter also said that Pendal wanted to obtain detailed medical evidence about Mr Farac’s medical condition and its impact on his capacity to perform the inherent requirements of his role. On 27 April 2020, while he was on stress leave Pendal asked him for a detailed medical report from his doctor, as well as for other information and, he says, indicated that his employment might be terminated if he could no longer perform the inherent requirements of his position.
6.On 14 July 2020 Mr Farac commenced a proceeding in the Fair Work Commission alleging bullying, which was dismissed in large part on 17 August 2021. On 16 July 2020 he was advised that his personal leave had been exhausted and that from 14 July 2020 he was on leave without pay. He also made inquiries in relation to being placed on leave without pay. On 20 October 2020 this proceeding was commenced and on 28 September 2021 Mr Farac was advised that his role had been made redundant and that his employment would be terminated.
In their amended defence, the respondents admitted that Mr Farac had exercised certain workplace rights, but denied that he made any complaints or matters said to satisfy s.341(1)(c) of the FW Act and denied that he had been injured in his employment within the meaning of s.342 of the FW Act. The respondents denied Mr Farac’s allegation that he had been dismissed because he had exercised any workplace right, alleging that it had been because of redundancy.
The proceeding was listed for hearing commencing on 8 February 2023 for five days but did not proceed to the evidence because of interlocutory applications filed by the parties and a dispute over various of the requirements of a notice to produce Mr Farac served on the respondents on 22 December 2022. The proceeding has been re-listed for hearing on 19 June 2023 for five days.
Mr Farac’s application in a proceeding had sought an adjournment of the hearing by reason of disagreements over production of documents pursuant to the notice to produce. The application was unsuccessful.
The respondents’ application in a proceeding sought orders striking out paragraphs 45(a), 45(b), 46(c), 48(b), 64L, 64N, 66(f), 66(g), 66(h), 66(m), 71, 72, 75A, 76A and 76B of the ASOC. Rather than striking out those paragraphs, I concluded that the shortcomings of the pleading could be remedied by better particularisation of various of the allegations made in it. Consequently, on 9 February 2023 it was ordered that:
1.The applicant provide detailed particulars of paragraph 66 of the amended statement of claim as soon as possible.
Following the expression of reasons for that decision, discussion regarding amendment of the statement of claim occurred. Mr Farac’s counsel indicated that she needed “to fix up some other things” in the pleading such as by pleading of additional material facts, but accepted that his case could not be changed in any significant way by amendment of the pleading. It was understood that it was changes to the pleadings, not the evidence, that was under discussion. That discussion led to a set of timetabling orders that were made on 13 February 2023, relevantly:
…
2.The applicant serve on the respondents and provide to the associate to Judge Cameron any draft further amended statement of claim on or before 5pm on 17 February 2023.
…
4.On or before 5pm on 24 February 2023 the respondents advise the applicant and the associate to Judge Cameron as to whether they consent to the filing of the further amended statement of claim or, instead, that they object and/or seek to renew their strike out application.
…
On 17 February 2023 Mr Farac circulated a proposed further amended statement of claim (“FASOC”) in compliance with the orders of 13 February 2023.
On 24 February 2023 the respondents provided their response to the proposed FASOC stating that they objected to certain proposed amendments, but did not oppose the document in its entirety, and intended to resume their application for the striking out of certain paragraphs of the statement of claim.
LEGISLATION AND RULES
The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“Rules”) relevantly provide:
7.01Power to amend
(1)At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.
…
Rule 16.21 of the Federal Court Rules 2011 (Cth) (“FCA Rules”), which applies in this Court by virtue of item 14 of sch.1 to the Rules provides:
16.21 Application to strike out pleadings
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
…
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
…
PROPOSED AMENDMENTS
In their letter of 24 February 2023, detailing which paragraphs of the proposed FASOC they objected to or did not object to, the respondents stated that they maintained their position that the paragraphs they had identified in their earlier strike out application ought still be struck out and foreshadowed a proposal to renew that application regardless of whether Mr Farac was granted leave to file his proposed FASOC.
Mr Farac objected to the proposal that the strike out application should be ventilated a further time, submitting that it was an abuse of process. However, repetition of an interlocutory application and its arguments is not necessarily an abuse of process: see Nominal Defendant v Manning (2000) 50 NSWLR 139 at 167 [122]; National Parks and Wildlife Service v Pierson [2002] NSWCA 273 at [17] and Tran v Singh [2019] FCA 70 at [16]. The strike out application argued and decided on 9 February 2023 was determined by the view I took that the deficiencies in the pleading of Mr Farac’s claims could be addressed by further particulars providing some fact-based clarity to the allegations. My preference for that course, for practical reasons, meant that it was not necessary to determine the merits of the respondents’ application which, it will be observed, was not dismissed in terms and whose reagitation was expressly contemplated in the orders of 13 February 2023. In all the circumstances I am not persuaded that the respondents commit an abuse of process by seeking to have their application considered in more particularity now.
CONSIDERATION
Proposed amendments
In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, the High Court identified various considerations relevant to whether an amendment should be permitted but, noting that the trial has already been delayed for other reasons, the parties in this matter were substantively concerned with only one issue – whether the allegations that Mr Farac wished to raise had sufficient merit that he should be permitted to plead them. Having regard to that focus and to the circumstance more generally, it is not necessary in these reasons to set out all the issues discussed in Aon v ANU or their subsequent consideration in the cases.
Pleadings should be in a form that permits the real issues between the parties to be ventilated and decided, the rules of court having always provided that amendments to pleadings may be allowed for that purpose: Commonwealth v Verwayen (1990) 170 CLR 394 per Dawson J at 456. When considering whether the merits of a proposed pleading justify it being permitted, the Court is concerned with whether, as a matter of form, it discloses a reasonable cause of action and whether, as a matter of substance, it raises a real or genuine dispute as to any material fact that might reasonably be resolved in the applicant’s favour: cf Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41 at 43-44 [4]-[6]; J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581 at [6]; Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 at 272 [47]-[48]; Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd (2008) 78 IPR 586 at 593 [28].
Relevant principles were summarised by Greenwood J in Brosnan v Katke [2012] FCA 1249:
15 A statement of claim must, as briefly as the nature of the case permits, state the material facts on which the applicant relies that are necessary to give a respondent fair notice of the case to be made against that party at the trial of the action but not the evidence by which the material facts are to be proved: rule 16.02(1)(b) and (d). The pleading must identify the issues to be resolved at trial, make reference to any statute relied upon and identify the specific relief claimed: rule 16.02(1)(c), (e) and (f). A pleading must not be ambiguous or be likely to cause prejudice, embarrassment or delay in the proceeding or fail to disclose a reasonable cause of action or other case appropriate to the nature of the claim to be made at trial: rule 16.02(2)(c), (d) and (e). A pleading which offends against the rule is susceptible of strike-out: rule 16.21(1)(c), (d) and (e).
16 In considering whether a pleading fails in the relevant respects, the Court accepts at face value the facts asserted in the pleading.
17 An applicant must plead a fact if a failure to do so might take a respondent by surprise: rule 16.03(1)(b).
…
20 As to particulars, the applicant must state in the pleading or in a document filed and served with the pleading, the “necessary particulars of each claim pleaded by the party”: rule 16.41(1). The object of particulars is to limit the generality of the pleading. Particulars serve the purpose of telling the respondent the nature of the case the respondent has to meet at trial; preventing the respondent being taken by surprise at trial; and, enabling the respondent to gather evidence directed to answering the case to be made: rule 16.41(2).
21 Particulars do not operate to circumscribe, modify or alter the cause of action sued upon. The function of particulars is to limit the issues of fact to be investigated: Mummery v IrvingsPty Ltd (1956) 96 CLR 99 at 110 and 111; Katsilis v Broken Hill Pty Co Ltd (1977) 52 ALJR 189 at 201.
22 An applicant must plead the cause of action or case to be made at trial with sufficient particularity to serve these purposes.
23 The adequacy of the statement of claim is ultimately to be addressed by reference to whether the claim is pleaded at a level of particularity that is sufficient to define the issues and inform the respondent of the case it has to meet in the context of the particular allegations being made.
Not every element of r.16.02 of the FCA Rules cited by his Honour is incorporated in the Rules of this Court. However, in an application for leave to amend, those omitted elements ought nevertheless to be considered because they are found in r.16.21 of the FCA Rules, which is incorporated in the Rules, and there is no point in permitting an amendment if it is liable to be stuck out for being deficient by reference to any of those considerations: SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 at [47]-[48].
It is to those issues that I now turn.
As a preliminary matter I record that on 9 February 2023 Mr Farac was ordered to particularise his allegations and then on 13 February 2023 was granted leave to seek to amend his ASOC. The order that Mr Farac particularise his allegations of adverse action did not go so far as to permit particularisation that, in a pleading, would be liable to be struck out under rr.1.32 or 16.21 of the FCA Rules: cf. Brosnan v Katke at [176], [186]. Consequently, the fact that a particular might have been provided in correspondence rather than in the proposed amendment would not prevent it being excluded from an amendment to a pleading if that course were appropriate. Analogously, if any of the proposed particularisation propounded in the proposed FASOC were rejected, Mr Farac could not ignore the Court’s ruling and propound the rejected particular in correspondence purportedly providing further and better particulars of his allegations.
Merits of the proposed amendments
Paragraph 12(f)
Mr Farac seeks the inclusion of the following paragraph in the statement of claim:
12. It was a term of the Agreement (amongst others) that:
…
f. If Mr Farac's employment was terminated because his position was redundant, BT Financial's Redundancy Policy, as varied from time to time, will apply.
Particulars
i. Page 5 of the Agreement.
Mr Farac submitted that all this amendment did was add a reference to Pendal’s redundancy policy.
The respondents referred to para.1 of the ASOC and of the proposed FASOC where it was said:
1.At all material times, the Applicant, Peter Adam Farac (Mr Farac), was employed (Employment) by the First Respondent, Pendal Group Limited (ACN 126 385 822) (previously known as BT Investment Management Limited) (Pendal), in the position of Portfolio Manager (Role).
Particulars
i. The Employment was pursuant to:
a. a written contract of employment between BT Financial Group Pty Ltd (ACN 087 480 331) (BT Financial) and the [sic] Mr Farac dated 7 August 2007 (Agreement);
b. a variation to the Agreement dated 4 June 2010;
c. a variation to the Agreement dated 17 December 2010; and
d.a variation to the Agreement dated 21 June 2012.
They also referred to the 24 February 2023 affidavit of Nicola Kelly, a solicitor in the employ of the solicitor for the respondents. Ms Kelly deposed that on 20 September 2007 Mr Farac signed an employment agreement with NC1, “as the First Respondent was formerly known”, which replaced and superseded an agreement with BT Financial Group signed by Mr Farac on 14 May 2007. Copies of those agreements were reproduced in the exhibit to Ms Kelly’s affidavit. The 14 May 2007 agreement provided that Mr Farac would continue to be employed by BT Financial Group Pty Limited and that his employment under that agreement, which was stated to replace all previous employment agreements with any company in the Westpac Group, commenced on 7 August 2007. The agreement of 20 September 2007 included the provision:
You acknowledge that you and BTFG have, by mutual agreement, decided that your employment with BTFG will terminate, and that your employment with NC l will commence on l October 2007.
The respondents submitted that the 20 September 2007 employment agreement did not state that the BT redundancy policy would apply to the employment. A consideration of the document in question indicates that that statement is correct. The agreement did make express provision for redundancy but included no reference to a BT redundancy policy. Mr Farac did not lead any evidence to address the import of the documents cited by the respondents and did not submit that they said other than what the respondents said they said. In those circumstances, inclusion of the proposed para.12(f) would serve only to waste time and costs. Leave to include it in the amendments to the statement of claim will be refused.
Paragraphs 18A and 18B
Mr Farac seeks the inclusion of the following paragraphs in the statement of claim:
18A On or about 21 February 2019, Mr Farac:
(a)attended upon his general practitioner, Dr Michael Piliotis (Dr Piliotis), and reported a two-month history of feeling depressed which he claimed was predominantly due to Mr Gor’s conduct and Dr Piliotis referred him to a psychologist;
Particulars
iMedical Report of Dr Piliotis dated 1 December 2020 (CB 795).
(b)began consulting Dr Despina Sfakinos (Dr Sfakinos), a registered psychologist, to assist him to manage the workplace stress he was experiencing due to Mr Gor’s conduct.
Particulars
iMedical Report of Dr Sfakinos dated 15 October 2019 (CB 1821).
iiMedical Report of Dr Piliotis dated 1 December 2020 (CB 795).
18BDuring late August and September 2019, Mr Farac’s mental health deteriorated to such an extent as a result of his unresolved distress about Mr Gor’s conduct that he was no longer able to continue working.
Particulars
(i) Paragraph [96] of Mr Farac’s affidavit sworn on 5 April 2022.
(ii) Medical Report of Dr Sfakinos dated 15 October 2019.
(iii)Medical certificates issued by Dr Piliotis in the period between 21 October 2019 and 26 August 2021.
(iv) Medical Report of Dr Piliotis dated 1 December 2020
Mr Farac submitted that the state of his health had always been an issue, already being referred to in para.20 of the statement of claim where it is alleged that he took stress leave as a result of Mr Gor’s behaviour. He said that its proposed inclusion in a para.18A was to “flesh out” that injury and to give it “more context”, being material that would be relevant to understanding when he first sought treatment for workplace anxiety, and that proposed para.18B located the deterioration in his mental health in time, identified it by reference to various factual matters advanced in support of his case and put in context the timings and reason for the personal leave he took.
The respondents submitted that paras.18A and 18B did not seek to plead a material fact and were not relevant to any pleaded cause of action. They said that they would be prejudiced if they were to be required at this point to seek expert evidence in response to the proposed pleading. They also contended that the allegations were not supported by the particulars provided.
Although Mr Gor was not mentioned by name, the report of Dr Piliotis, general practitioner, dated 1 December 2020 records Mr Farac as having complained that his depression and anxiety had been caused by “the head of his department at his workplace” who had been “slandering” and “undermining” him, which is arguably sufficient to imply a reference to Mr Gor. Dr Skafinos, psychologist, did not relevantly go beyond referring to “work related matters” and to “work stressors”.
The respondents submitted that the reports did not expose a chain of reasoning by which the report writers concluded that Mr Farac’s condition, assuming for present purposes that he did suffer depression and anxiety, was caused or contributed to by Mr Gor. However, the fact is that that is the conclusion that Dr Piliotis implicitly states, and what Dr Sfakinos goes close to saying. Dr Piliotis and Dr Sfakinos did not appear to have tested the history Mr Farac gave them and so it remains to be seen whether they could have exposed a process of reasoning by which they concluded that Mr Farac’s psychiatric condition was caused by his work environment, other than one based on an acceptance of his account. For those reasons, I conclude that it is arguable that the reports cited do support the allegations that Mr Farac suffered depression and anxiety and that Mr Gor had some causative role in the onset of those conditions.
However, although the proposed paragraphs do provide some factual background to the allegation made in para.20 of the statement of claim that Mr Farac took leave, the reason for that leave, which is the matter to which proposed pars.18A and 18B go, is not relevant to any of the causes of action alleged, all of which are found in para.66 and following. Consequently, leave to include proposed paras.18A and 18B in the proposed amendments to the statement of claim will be refused.
Paragraph 19A
Mr Farac seeks the inclusion of the following paragraph in the statement of claim:
19ASometime prior to 15 October 2019, Pendal requested evidence to support Mr Farac’s taking of Personal Leave.
Particulars
(i)Arises by inference from the provision, by the email to Ms Martin by Mr Farac, of the medical report of Dr Despina Sfakinos dated 15 October 2019.
Mr Farac made no argument in support of this amendment. The respondents submitted the proposed para.19A was not relevant to any pleaded cause of action and was not cited or relied on elsewhere in the FASOC.
This paragraph serves as background to the succeeding paragraph in the FASOC, presently numbered 19B, which pleads the provision to Pendal of Dr Sfakinos’s report. However, as the respondents submitted, the contended request by Pendal for a copy of that report is not relevant to any pleaded cause of action and so leave to include it in the FASOC will be refused.
Paragraphs 45A and 45B
Mr Farac seeks the inclusion of the following paragraphs in the statement of claim:
45APursuant to section 352 of the FW Act, Pendal could not dismiss Mr Farac while he remained on paid Personal Leave.
Particulars
(i)Regulation 3.1 and clauses (1), (2) and the effect of (5)(b) which renders that the exclusion in clause (5) did not operate while Mr Farac was on paid Personal Leave.
45BFurther, pursuant to section 248(1) of the Workers Compensation Act1987 (NSW) (WCA NSW), it was offence for Pendal to seek to dismiss Mr Farac from his employment prior to 25 March 2020.
Particulars
(i)Mr Farac first became unfit for his work on 26 September 2019 and only section 248(2)(a) of the WCA NSW applies.
Mr Farac submitted that although the proposed para.45A might not summarise the effect of s.352 accurately, its inclusion was not intended to raise a cause of action but, rather, to plead a fact material to why Pendal’s issuing of its 13 March 2020 letter (the “Medical Evidence Request”), in which it sought to have him medically examined and which raised his ability to perform the inherent requirements of the work was, under the FW Act, adverse action. Mr Farac submitted that, at a time when (apparently according to his construction of s.352 of the FW Act and s.248(1) of the Workers Compensation Act 1987 (NSW)) he could not be dismissed because of his illness, the letter threatened just that and so was adverse action.
The respondents submitted in relation to paras.45A and 45B that the proposed pleadings did not state the relevant legal proposition correctly and that an employer is entitled at all times to make inquiries about whether or not an employee can return to work at the conclusion of a period of personal leave. They also submitted that, in any event, Pendal did not seek to dismiss Mr Farac by its letter of 13 March 2020.
The fact that s.352 of the FW Act is not accurately summarised in proposed para.45A can be put aside given Mr Farac’s submission that the paragraph is intended only to provide factual context to the later allegation of prohibited adverse action. However, it is factual context of no value. Section 352 is concerned with dismissal because of an employee’s illness-related or injury-related absence, not because they are ill or injured, which is what Mr Farac contends. In any event, he was not dismissed by the letter of 13 March 2020. The Workers Compensation Act is similarly irrelevant as the provision cited, s.248(2)(a), is concerned with the dismissal of an employee within 6 months of him or her becoming unfit for employment. Again, Mr Farac was not dismissed by the letter of 13 March 2020. The provisions have no operation in the present case and raise a false issue that would only be productive of delay and expense: cf. Radisich v McDonald (2010) 198 IR 244 at 253 [33]-[34]. They will be rejected.
Paragraphs 66(f) and (g)
Mr Farac seeks amendment of the statement of claim by the inclusion of the following underlined passages:
66 Pendal has taken adverse action against Mr Farac in the Employment by:
…
(f) the Medical Evidence Request which injured him in his employment and/or altered his position to his prejudice;
Particulars
(i)The Medical Evidence Request was made at a time when Mr Farac could not lawfully be terminated as pleaded in paragraphs 45A and 45B above.
(ii)The Medical Evidence Request made clear that it was related to whether he would continue to be employed by its reference to his “capacity to perform the inherent requirements of his role” and thus made his employment less secure.
(iii)The Medical Evidence Request caused Mr Farac anxiety and distress.
(iv)The Medical Evidence Request failed to identify that Pendal had taken any steps to lessen the workplace stressors Mr Farac had identified which had prevented him from returning to work (being the breakdown of his working relationship with Mr Gor).
(g)the Termination Threat which injured him in his employment and/or altered his position to his prejudice;
Particulars
(i)Mr Farac repeats the particulars to paragraph 66(f) above.
The “Termination Threat” was defined in the FASOC as Pendal’s letter of 27 April 2020, which asked Mr Farac for a detailed medical report from his doctor and other information and allegedly indicated that his employment might be terminated if he could no longer perform the inherent requirements of his position.
Mr Farac submitted that the proposition he sought to advance was that, although because of his illness it had not been open to Pendal to dismiss him when the Medical Evidence Request was made, the letter of 27 April 2020 effectively said that Pendal was thinking about doing so because he was not doing his job and they wanted to see whether or he was capable of returning to it and of performing its inherent requirements. He said that because the letter foreshadowed possible dismissal, it reflected a reduction in the security of his employment. The respondents submitted that no material facts had been provided to clarify the alleged injury or the alteration of Mr Farac’s position to his prejudice.
The first particular, para.66(f)(i), is adrift now that paras 45A and 45B have been rejected as being based on a misconstruction of the statutes they cited. Paragraph 66(f)(i) is similarly rejected. The respondents submitted in relation to the second particular, para.66(f)(ii), that it was contended by Mr Farac that the letter of 27 April 2020 “did certain things” when in fact it did nothing of the sort. In reality, the particular is a submission and seemingly advanced to provide some basis for the third particular, para.66(f)(iii), which is to the effect that the contents of the letter caused Mr Farac anxiety and distress. Being a submission, the second particular will be rejected.
The final particular, para.66(f)(iv), refers to inaction but does not arguably identify conduct injurious to Mr Farac, as distinct from conduct lacking in benefit to him. Allowing that particular to go forward would raise false issues and cause delay and expense. It will be rejected.
The third and remaining particular, para.66(f)(iii), is to the effect that the injury or prejudice suffered by Mr Farac as a result of Pendal’s “Medical Evidence Request” letter of 13 March 2020 or its “Termination Threat” letter of 27 April 2020 was anxiety and distress. In Lamont v University of Queensland (No 2) [2020] FCA 720, Rangiah J said at [71]:
… In my opinion, distress falling short of a recognisable psychiatric illness may be regarded as an injury if it causes sufficient harm, damage, hurt or impairment to the employee’s emotional state.
Given what his Honour said, the contention that the letters caused Mr Farac injury in his employment or a prejudicial alteration of his position in the form of anxiety and distress, is arguable whether or not, objectively, the letters conveyed the messages that Mr Farac allegedly drew from them. Consequently, leave to include the third particular, para.66(f)(iii), will be granted.
The effect of the foregoing reasons is that the only particular repeated in para.66(g) is 66(f)(iii).
Paragraph 66(h)
Mr Farac seeks amendment of the statement of claim by the inclusion of the following underlined passages
66 Pendal has taken adverse action against Mr Farac in the Employment by:
…
(h)the Failure to Provide Investigation Materials which injured him in his employment and/or altered his position to his prejudice;
Particulars
(i)The Failure to Provide Investigation Materials meant that Mr Farac was deprived of any early opportunity to understand, and potentially reconcile himself to, why his Formal Complaint had been rejected.
(ii)The Failure to Provide the Investigation Materials was in breach of clause 3.2.3 of the Grievance Handing Policy.
(iii)The Failure to Provide the Investigation Materials heightened Mr Farac’s concerns and anxiety about his workplace as:
AMr Farac had not been told prior to participating in the Bullying Investigation that it was being conducted by a law firm retained by Pendal purportedly for the dominant purpose of providing legal advice rather than ascertaining the true facts;
B.the claim of legal professional privilege as the basis of the Failure to Provide the Investigation Materials also meant the Bullying Investigation had not been conducted in accordance with clause 3.2.2 of the Grievance Handing Policy;
C.the process was procedurally unfair and opaque to Mr Farac; and
D.being treated unfairly by Pendal and in breach of its own policies was inherently distressing and disheartening and causative of further distrust for Mr Farac.
(iv) The Failure to Provide the Investigation Materials, thus:
A.entrenched the workplace dispute and distrust which had caused Mr Farac to be absent from work because Mr Farac could obtain no comfort that his Formal Complaint had been properly investigated and considered;
B.led to Mr Farac to [sic] commencing the Bullying Proceedings in the FWC to try and ensure his Formal Complaint was properly considered; and
C.significantly extended the period for which Mr Farac was absent from work thereby depriving him of the dignity, pride, enjoyment, social acceptance and social connections that employment provides as well as the ongoing skills enhancement and career opportunities that working provides.
Mr Farac made various references to findings made in the related Fair Work Commission proceedings but the Court is not bound by those findings and will draw its own conclusions from the evidence available to it.
Mr Farac said that Pendal’s grievance policy stated at cl.3.2.3:
At the conclusion of the investigation the employee who raised the grievance will usually be given a summary of the investigator’s findings ...
and that its letter of 13 March 2020, advising him of the outcome of the external investigation, relevantly said:
… Pendal has determined that Mr Farac was not subjected to bullying.
Mr Farac submitted that Pendal’s failure to give him anything more than a one line summary of the outcome of the investigation into his bullying complaint breached the “usual process” described in the grievance policy. He contended that such an approach was unreasonable and submitted that it was arguable that to unreasonably provide only a one-line summary was a breach of the grievance policy. He contended that the failure to provide him with any detail “entrenched the workplace dispute and distrust” which led to him remaining on leave. The continuation of that situation was said to have been “a very significant detriment”, although how it amounted to a change in circumstances was not identified.
The respondents submitted that no material facts had been provided to clarify the alleged injury and/or alteration of Mr Farac’s position to his prejudice, or evidence supportive of the pleading identified and, in any event the proposed amendments at 66(h)(iii) B – D were not supported by the contents of Pendal's grievance policy.
The proposed particulars of this allegation of injury in employment and prejudice to Mr Farac’s position might be stripped down to:
(a)Mr Farac did not know why his complaint had been unsuccessful or whether he ought to accept that outcome;
(b)the grievance policy had been breached;
(c)Mr Farac suffered worry and distress as a result of not knowing why his complaint had been unsuccessful; and
(d)Mr Farac felt the same way about Pendal after the failure as he had before it and was, more generally, in the same position as he had been before he received the 13 March 2020 letter.
The first and last of the particulars do not identify any change in Mr Farac’s position, which is an essential element of the allegation of injury in employment and prejudicial alteration of position and so it would waste time and costs to permit them to be included in the FASOC. However, it is arguable that a failure to observe a workplace policy, if that is what happened, was an injury in employment or a prejudicial alteration of position. I have not overlooked the respondents’ argument that the policy did not provide a right to information and relevantly did no more than say in a non-committal way what generally happened but Mr Farac apparently sees things differently and should not be prevented from explaining why his position is the better one. It is also arguable that the alleged causing of worry and distress was an injury in employment or a prejudicial alteration of position.
Consequently, leave to include the second and third particulars, para 66(h)(ii) and (iii), will be granted while para.66(h)(i) and (iv) will be rejected.
Paragraph 66(m)
Mr Farac seeks amendment of the statement of claim by the inclusion of the following underlined passages:
66 Pendal has taken adverse action against Mr Farac in the Employment by:
…
(m) the Failure to Provide Redundancy Materials which injured him in his employment and/or altered his position to his prejudice; and/or
Particulars
(i)The Failure to Provide the Redundancy Materials meant that Mr Farac was unable to meaningfully engage with Pendal’s purported offer to discuss the redundancy with Mr Farac as he could not understand the purported framework which applied to the process and he could not assert any rights he had under the Redundancy Materials.
(ii)This meant that Mr Farac was not able to, prior to his dismissal on 1 October 2021 (being only two business days after receipt of the 28 September Letter), invoke or query with Pendal: clause 4.2 of Pendal’s Redundancy Policy as to its six week notice requirements; clause 4.6 in relation to outplacement services; clause 4.7 in relation to his shares or rights under the Pendal Share Plan; clause 4.8 in relation to his variable reward; and clause 7 as to his rights to be considered for redeployment.
(iii)The Failure to Provide the Redundancy Materials also caused distress and anxiety to Mr Farac as it a continued Pendal’s lack of regard for his rights and well-being.
The “Failure to Provide Redundancy Materials” was defined in the FASOC as Pendal’s failure, prior to its implementation of Mr Farac’s redundancy, to supply him with a copy of its redundancy policy notwithstanding that his solicitors had “inquired” about it in their 30 September 2021 letter to the respondents’ solicitors. Mr Brandweiner’s 28 September 2021 letter to Mr Farac advising the impending redundancy of his position and his related dismissal had stated:
In addition, subject to you signing a deed of release prepared by Pendal, you will also be eligible for an increased redundancy payment as outlined under Pendal's Redundancy Policy.
It is to be noted that the defined term “Failure to Provide Redundancy Materials” refers only to a failure to provide the Pendal redundancy policy and the redundancy deed.
Mr Farac submitted that this failure meant that he had been unable to engage meaningfully with Pendal’s offer to discuss the redundancy, or to assert any rights “under the redundancy materials”, as he was unable to understand the framework. He submitted that his inability to invoke, or query with Pendal, the various particularised clauses of the redundancy policy caused him detriment and that it was therefore arguable that the conduct he cited amounted to an injury in his employment or a prejudicial alteration of his position. He argued that Pendal’s implicit message was:
You’ve got to come and discuss something with us, but we won’t tell you the basis upon which redundancy policies operate in this organisation. Come and just chat to us, knowing nothing.
The respondents submitted that the proposed particulars of para.66(m) did not accurately represent the contents of Pendal's Redundancy Policy. They also submitted that no material facts were particularised to clarify the injury in employment or the prejudicial alteration of position alleged by Mr Farac.
The first particularised injury or prejudice to Mr Farac said to have been caused by the failure to provide the redundancy policy was an inability on his part to discuss the redundancy in an informed way. It is arguable that information inequality of the sort and in the circumstances alleged was an injury in employment although perhaps not a prejudicial alteration of position. The second particular is a variation on the theme of the first particular, providing specific examples of the contended inability to hold informed discussions regarding the redundancy. The third particular is a further assertion of distress and anxiety, a matter that has been considered earlier in these reasons. Leave will be granted to include those particulars in the FASOC.
Strike out
As recorded earlier, the respondents revived their application that paras.45(a), 45(b), 46(c), 48(b), 64L, 64N, 66(f), 66(g), 66(h), 66(m), 71, 72, 75A, 76A and 76B of the present ASOC be struck out and, implicitly, that such allegations be excluded from any FASOC.
Paragraph 45(a)
Paragraph 45(a) alleges that on 13 March 2020, while on personal leave, Mr Farac was notified:
… of the outcome of the Bullying Investigation, which simply advised that Mr Farac was not subjected to bullying (Investigation Outcome). Mr Farac was not provided with any documents and/or materials to further understand how Pendal had determined the Investigation Outcome; …
I accept that this perhaps infelicitously located allegation lays a factual foundation for the allegation made later in the pleading that the 13 March 2020 letter injured Mr Farac in his employment and/or altered his position to his detriment and so was adverse action. In the circumstances striking it out of the pleading would not be useful and leaving it in would not be prejudicial. Whether or not this particular allegation is accurate or supports the later allegation of adverse action, which in any event is the critical allegation concerning this aspect of the correspondence, is not a question for determination at this stage of the proceeding.
Paragraph 45(b)
Paragraph 45(b) alleges that on 13 March 2020, while on personal leave, Mr Farac was asked to provide:
… detailed medical evidence about his medical condition and its impact on his ability to perform the inherent requirements of the Role (Medical Evidence Request) …
For the reasons given in relation to para.45(a), para.45(b) will not be struck out.
Paragraph 46(c)
In para.46(c) it is alleged that in its letter of 27 April 2020 Pendal advised Mr Farac that it would:
… if it was determined that Mr Farac was unable to perform the inherent requirements of his role, consider (amongst other things) the termination of Mr Farac’s employment (Termination Threat).
Mr Farac submitted, amongst other things, that the Pendal letter of 27 April 2020 threatened the security of his employment by advising that its continuity might depend on medical advice. [T99] The respondents submitted that the letter in question did not, in fact, intimate a potential dismissal and that what it did say did not amount to an injury in employment.
Mutatis mutandis, for the reasons given in relation to para.45(a), para.46(c) will not be struck out.
Paragraphs 48(b), 64L and 64N
Mutatis mutandis, for the reasons given in relation to para.45(a), paras 48(b), 64L and 64N will not be struck out.
Paragraphs 66(f), (g), (h) and (m)
I have already found, in the context of the application for leave to amend, that paras, 66(f), (g), (h) and (m) should be allowed subject to the rejection of some particulars. The reasons for allowing various particulars also imply findings that paras.66(f), (g), (h) and (m) should not be struck out.
Paragraphs 71, 72, 75A
Paragraphs 71, 72, 75A were not addressed separately in submissions but in Ms Kelly’s affidavit in support of the application in a proceeding for strike out, affirmed on 8 February 2023, it was said that the matters those paragraphs pleaded did not amount to an injury to Mr Farac in his employment. That is correct but irrelevant. These paragraphs are concerned to allege a prohibited motivation for conduct alleged to be adverse action in breach of the FW Act. Given the findings in relation to paras.66(f), (g), (h) and (m) these are necessary pleadings if Mr Farac is to succeed in his action. Therefore they will not be struck out.
Paragraphs 76A and 76B
Although they were pleaded in the ASOC, these paragraphs are not included in the FASOC and so need not be considered further.
CONCLUSION
The respondents’ application to strike out various paragraphs of the ASOC, and thus of the proposed FASOC will be dismissed.
Mr Farac will have leave to file his FASOC subject to the omission of the following proposed paragraphs: 12(f); 18A; 18B; 19A; 45A; 45B; 66(f)(i), (ii) and (iv); and 66(h)(i) and (iv).
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 21 March 2023
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