Farrell v Choosewell Health Link Pty Ltd - [2021] FCCA 910

FEDERAL CIRCUIT COURT OF AUSTRALIA
Farrell v Choosewell Health Link Pty Ltd [2021] FCCA 910

File number(s): MLG 3163 of 2018

Judgment of: HER HONOUR JUDGE C. E. KIRTON QC

Date of judgment: 6 May 2021

Catchwords: INDUSTRIAL LAW – whether the First Respondent took adverse action against the Applicant contrary to s.340 of the Fair Work Act 2009 (Cth) – whether the Applicant exercised a workplace right – whether there was a breach of the Contract Call Centres Award 2010 – whether the First Respondent owes the Applicant unpaid monies in commission – whether the First Respondent failed to pay the Applicant her redundancy entitlements – whether the Second Respondent is accessorily liable for contraventions by the First Respondent pursuant to s.550 of the Fair Work Act 2009 (Cth) – where the First Respondent breached s.45 of the Fair Work Act 2009 (Cth) – no other breach found – the Application be otherwise dismissed

Legislation:
Contract Call Centre Award 2010 cls 4, 5, 8 and 22.3

Corporations Act 2001 (Cth) s 50AAA

Evidence Act 1995 (Cth) s 38

Fair Work Act 2009 (Cth) ss 45, 119, 121, 122, 335, 340, 341, 342 and 550

Cases cited:
Australian Building and Construction Commissioner v Parker [2017] FCA 564

Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16

Commissioner for Railways (NSW) v McCulloch [1946] HCA 27; (1946) 72 CLR 141

Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046

CumminsSouth Pacific Pty Ltd v Keenan [2020] FCAFC 204

EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombusdman v Hu [2019] FCAFC 133

Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754

National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709

PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15

Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) (No 2) [2019] FCA 1224

Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177

The Environmental Group Ltd v Bowd [2019] FCA 951

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

Number of paragraphs: 173

Date of last submission/s: 3 April 2020

Date of hearing: 9 & 10 December 2019

Place: Melbourne

Counsel for the Applicant: Mr Fuller

Solicitor for the Applicant: Pearce Webster Dugdales

Counsel for the Respondents: Mr Denton

Solicitor for the Respondents: HR Legal
ORDERS

MLG 3163 of 2018

BETWEEN:
JESSICA FARRELL

Applicant

AND:
CHOOSEWELL HEALTH LINK PTY LTD

First Respondent

ANDREW DAVIS

Second Respondent

ORDER MADE BY:

HER HONOUR JUDGE C. E. KIRTON QC

DATE OF ORDER:

6 MAY 2021

THE COURT DECLARES THAT:
1.The First Respondent breached s.45 of the Fair Work Act 2009 (Cth) by contravening cl.5 of the Contract Call Centre Award 2010 (Award) by failing to ensure that a copy of the Award was available to all employees to whom it applied on a notice board which was conveniently located at or near the workplace or through electronic means, depending upon whichever was more accessible.

THE COURT ORDERS THAT:
2.The Application filed on 23 October 2018 as amended is otherwise dismissed.
3.The matter be listed for further directions on 30 July 2021 at 9:30 am.

REASONS FOR JUDGMENT
HER HONOUR JUDGE C. E. KIRTON QC:
INTRODUCTION

By an application filed in this Court (Application), the Applicant, Jessica Farrell (Applicant), alleges that the First Respondent, Choosewell Health Link Pty Ltd (First Respondent), contravened pt.3-1 of the Fair Work Act 2009 (Cth) (FW Act). The Applicant also alleges that the First Respondent has breached s.45 of the FW Act through contraventions of cls.5 and 8 of the Contract Call Centre Award 2010 (Award)[1] and failed to pay her commission.
[1] Note: after the date of the hearing of this matter, the Contract Call Centre Award 2020 came into effect.
The Applicant alleges that the Second Respondent is accessorily liable in relation to the First Respondent's contraventions.
The Applicant seeks that the Court make declarations against the First and Second Respondents.
BACKGROUND
The Applicant commenced employment with Choosewell Pty Ltd (Choosewell) in January 2017 as a Health Insurance Advisor. In December 2017, Choosewell merged with another company and from this date the Applicant was employed by Health Insurance Comparison Choosewell Pty Ltd (HICC) as a Senior Health Insurance Advisor. On or around April/May 2018, the Applicant was employed by the First Respondent as a Senior Sales Advisor.
The Second Respondent (Mr Davis) is a non-executive director of the First Respondent and Chief Executive Officer of HICC. He was the ‘decision-maker’ in relation to the Applicant's redundancy.
In addition to the Applicant and Mr Davis, the following individuals and their roles are relevant to these proceedings:
(a)Alistair Forbes was the other employee of the First Respondent and was the Applicant's manager;
(b)Hugh Funston was the General Manager of HICC;
(c)Nick Tsimeris was a Sales Manager at HICC and previously the Applicant's manager;
(d)Mr Tsimeris' manager was Mr Funston; and
(e)Ian McKenzie was the Compliance and Resolutions Manager at HICC. He reported directly to Mr Davis.
During the course of the Applicant's employment with the First Respondent she communicated with Mr Forbes, Mr Funston or Mr McKenzie (individually or collectively) in relation to a number of matters as follows:
(a)The Commission and Retention Structure for those who were involved in corporate sales;
(b)Unsafe workplace activities such as riding on hoverboards;
(c)Bullying and harassment experienced from Mr Tsimeris;
(d)Inappropriate workplace conduct such as employees speaking to one another inappropriately and managers intimidating other employees; and
(e)A workplace culture that was unsafe for women.
On 12 July 2018, the Applicant was advised that her employment was being terminated by way of redundancy.
The Issues in Dispute
By way of summary, the Applicant alleges that the First Respondent:
(a)Took adverse action against her contrary to s.340 of the FW Act as she had exercised her ‘workplace right’ to make various complaints in the course of her employment;
(b)Failed to pay her redundancy entitlements pursuant to the FW Act and her contract of employment;
(c)Breached contractual provisions relating to a safe workplace and harassment and vilification;
(d)Contravened terms of the Award; and
(e)Withheld monies that were owing to the Applicant by way of commission.
The Applicant pleads that Mr Davis, the Director of the First Respondent, and the ‘decision-maker’, was ‘involved in’ and therefore liable for the contraventions under s.550 of the FW Act.
The Respondents deny that the Applicant is entitled to any relief and that any of her claims are valid. In summary the Respondents say:
(a)The Applicant was dismissed for reason of genuine redundancy;
(b)The Applicant was not entitled to redundancy pay as she declined an offer to be redeployed in an equivalent position;
(c)The Applicant refers to aspirational and exhortatory statements in the employment contract. They do not amount to provisions capable of being contravened;
(d)The Award is not applicable to the Applicant. In the alternative, the Award was not breached; and
(e)The Applicant was paid all monies and entitlements that she was owed.
On the first day of the hearing, Counsel for the Applicant confirmed that the Applicant no longer claimed a breach of cl.22.3 of the Award and no longer pressed the unfair termination breach of contract claim.[2]
[2] Transcript (9.12.19) P14:L1-46; Amended Statement of Claim, filed 26.2.19 (Amended Statement of Claim), at [85]-[88].
Evidence
The evidence before the Court included:
(a)The affidavit of Jessica Laura Farrell, affirmed 30 September 2019 (First Farrell Affidavit);
(b)The affidavit of Jessica Laura Farrell, affirmed 13 November 2019 (Second Farrell Affidavit);
(c)The affidavit of Charvele Brown, sworn 30 September 2019 (Brown Affidavit);
(d)The affidavit of Alistair Sean Forbes, affirmed 29 October 2019 (Forbes Affidavit);
(e)The affidavit of Hugh Thomas Funston, affirmed 29 October 2019 (Funston Affidavit);
(f)The affidavit of Andrew Alfred Davis, affirmed 29 October 2019 (Davis Affidavit);
(g)The affidavit of Roxanne Eliza Hebbard Douglas, sworn 4 December 2019 (Douglas Affidavit); and
(h)The affidavit of Emma Jane Veness, sworn 4 December 2019 (Veness Affidavit).
All of the affidavits were admitted ‘under objection’. However, on the first day of the hearing the parties submitted that they simply proposed to address those objections by submissions as to weight during closing.[3] The parties also agreed that references to sexual misconduct and drug taking will not be taken to be evidence to prove the existence of those facts.
[3] Transcript (9.12.19) P3:L30-37.
The Applicant, Alistair Forbes, Hugh Funston and Mr Davis each gave oral evidence at the hearing.
Another witness, Andrea Wright, refused to give evidence voluntarily and was called on subpoena by the Applicant.
Exhibits tendered during the hearing were marked as follows:
(a)Exhibit A1, the Applicant's pay slips for the period 19 April 2018 to 2 May 2018;
(b)Exhibit A2, the Applicant's pay slips for the period 6 April 2018 to 19 April 2018;
(c)Exhibit R1, Sales Force data 2017-2018; and
(d)Exhibit R2, an email from Hugh Funston, dated 9 July 2018.
The Court has also read and reviewed the transcript of the proceedings, commencing on 9 December 2019 and concluding on 10 December 2019 (Transcript) prior to finalising these Reasons for Judgment.
The Applicant
The Applicant gave evidence in chief by way of two affidavits. She was also cross-examined. The affidavit evidence can be summarised as follows:
(a)The Applicant commenced employment with Choosewell on or about 3 January 2017 as a Senior Health Insurance Advisor.[4] From July 2017, the Applicant and two other employees took on corporate sales work in addition to retail sales work.[5] Around December 2017, following a merger, the Applicant became employed by HICC.[6]
[4] Affidavit of Jessica Laura Farrell, affirmed 30 September 2019 (First Farrell Affidavit), [3].
[5] First Farrell Affidavit, [5]-[6].
[6] First Farrell Affidavit, [7].
(b)As of 6 April 2018, the Applicant relocated to a separate office shared with Mr Forbes and another employee to commence work as Senior Sales Advisor of the First Respondent.[7] The Applicant's position change was treated as a promotion around the office and she was told she had ‘earned it’ and to return to her previous role would be a demotion in the eyes of other employees.[8] While no additional remuneration was provided, there was additional responsibility attached to the role which the Applicant enjoyed.[9]
[7] First Farrell Affidavit, [8]-[9].
[8] First Farrell Affidavit, [113]-[116].
[9] First Farrell Affidavit, [10]; Affidavit of Jessica Laura Farrell, affirmed 13 November 2019 (Second Farrell Affidavit), [10].
(c)When the Applicant received her employment contract she asked why a ‘redeployment clause’ was included. She was not advised why and at no time was she told that the position may be ‘temporary’.[10] The employment contract recognised that the Applicant would have continuity of service from her time with HICC and Choosewell, which she understood meant her employment between HICC and the First Respondent was ‘associated’.[11]
[10] First Farrell Affidavit, [15]; Second Farrell Affidavit, [6]-[8].
[11] First Farrell Affidavit, [17]; Second Farrell Affidavit, [8].
(d)On 21 May 2018, the Applicant wrote an email to the Second Respondent, Mr Forbes and another employee to ‘query’ the existing commission and retention structure (Commission Structure) for corporate sales.[12] The Applicant proposed a ‘better suited structure’, however she was told by Mr Forbes that Mr Davis did not agree.[13] On the Applicant's calculation she was prejudiced in the amount of $700-$800 by the Commission Structure on the sales that she had made during March 2018.[14]
[12] First Farrell Affidavit, [19] and Annexure “JLF-4”.
[13] First Farrell Affidavit, [20]-[21].
[14] First Farrell Affidavit, [22].
(e)In June 2018, the Applicant requested that the IT team remove her from sales group emails as she was no longer in that area and correspondence would often contain internal sales incentives for retail staff only or was generally of a social nature.[15] One week after her request for removal from the sales group emails the Applicant became aware of an incentive offer of a health fund that she had not been made aware of.[16] The Applicant required knowledge of all health fund offers and promotions in order to sell the most suitable option to clients.[17]
[15] First Farrell Affidavit, [24] and [26].
[16] First Farrell Affidavit, [25].
[17] First Farrell Affidavit, [27]; Second Farrell Affidavit, [15] and [17]-[19].
(f)The Applicant approached Mr Tsimeris to ask that he include the Applicant in any communications relevant to her corporate role.[18] Mr Tsimeris advised the Applicant that he would not include her in the emails and it was her responsibility to obtain information.[19] The Applicant felt Mr Tsimeris' refusal was contrary to the Anti-Bullying Policy and was not a reasonable action as it prevented the Applicant from working efficiently.[20] After advising Mr Forbes of what occurred, the Applicant approached another employee who provided the emails.[21]
[18] First Farrell Affidavit, [25].
[19] First Farrell Affidavit, [28].
[20] First Farrell Affidavit, [29]-[32] and “JLF-5”.
[21] First Farrell Affidavit, [32].
(g)On 15 June 2018, the Applicant almost collided with Mr Tsimeris in the office corridor while he was riding a hoverboard. When the Applicant advised him that this was not appropriate he laughed in her face and uttered expletives at her.[22] Other employees who had observed the incident laughed. The Applicant considered that this was a part of the ‘boys club’ culture in the workplace.[23] On 15 June 2018, the Applicant sent a complaint to Mr Davis amongst others containing the following (Bullying Complaint):[24]
[22] First Farrell Affidavit, [33]-[34].
[23] First Farrell Affidavit, [34]-[35]; Second Affidavit, [32]-[38].
[24] First Farrell Affidavit, [36]-[39] and Annexure “JLF-6”.
I'm not too sure who to address this to so I have included you all.
I want to make a formal complaint about the way that I have been spoken to numerous times by Nick Tsermeris.
Nick (and all other team leaders) have been told a number of times by Kathy, Ian and Hayley not to ride the hoverboard in the office. It goes without saying that this is a major OH&S issue and is not to be used in the building. It is very apparent that as soon as Kathy, Ian and Hayley have left the building that the hoverboard is back in use. This afternoon Nick nearly ran into me while riding along on the hoverboard and I mentioned to him that it is not supposed to be used inside. Nick then laughed in my face, swore and told me he won't be getting off, and then accelerated down the primary corridor. This was in front of Dylan and Cahl, both of who also had a laugh and sheepishly followed behind Nick.
This is not the first time Nick has spoken inappropriately to me. I have requested before to be included in any important email communication that is circulated around the office, as I am no longer included in the Sales group email. Nick was quite abrupt and aggressive in his response to me, and basically told me he has no intention to send me any emails that may be relevant to me and that it would be my own responsibility to chase it up. This came across as extremely condescending and derogatory, and in no way exemplifies the values we all strive to adhere to.
I do not believe that Nick's attitude is being misread, I feel that he has full intent and malice enforcing his point of view on others.
It is completely inappropriate for Nick to be speaking to staff the way he does. His attitude and aggressive nature in the way he speaks to people is appalling and detrimental and has on numerous occasions crossed the line of being bullying and harassment. This kind of attitude and behaviour is completely unacceptable for any staff member let alone a business unit manager.
I want this matter to be escalated and dealt with in accordance with Choosewell's Anti-Bullying Policy and Procedure as Nick has clearly used:
-         Abusive, insulting and offensive language
- Behaviour or language that frightens, humiliates, belittles or degrades, including criticism that is delivered with yelling or screaming
- Withholding information that is vital for effective work performance
- Deliberately excluding, isolating or marginalising a person from normal work activities
All of these points are copied directly from Choosewell's Anti-Bullying Policy and Procedure.
It is my understanding that this kind of behaviour warrants a formal investigation and I would expect this will be treated with the utmost seriousness and acted upon in a timely fashion.
I would also expect a formal apology from Nick himself, and the other Team Leaders who have been present or witnessed his behaviour upsetting me and have not done anything about it.[25]
[25] First Farrell Affidavit, Annexure “JLF-6”.
(h)On 16 June 2018, Mr Davis advised the Applicant that Mr Funston and Mr Forbes would conduct an investigation.[26] The Applicant was interviewed in relation to the Bullying Complaint.[27] The Applicant found Mr Funston to be ‘disinterested’. The Applicant had been advised that when interviewing Mr Tsimeris, Mr Funston had stated that ‘We just need to sit in here and make it look like we are talking about this for 10 or 15 minutes’.[28] Mr Forbes advised the Applicant informally (i.e., did not take her through the investigation report) that there ‘wasn’t enough evidence’, however the Applicant never received a formal written report and the details of the Bullying Complaint were not kept confidential.[29]
[26] First Farrell Affidavit, [40] and Annexure “JLF-7”.
[27] First Farrell Affidavit, [43].
[28] First Farrell Affidavit, [44]-[45].
[29] First Farrell Affidavit, [46]-[47]; Second Farrell Affidavit, [20]-[25].
(i)On or around 21 June 2018, the Applicant was advised she should not contact Mr Tsimeris.[30] This direction hindered the Applicant from being able to obtain necessary information and restricted the Applicant from obtaining training or receiving material necessary to discharge her responsibilities.[31]
[30] First Farrell Affidavit, [50].
[31] First Farrell Affidavit, [51].
(j)The Applicant did not feel that the First Respondent had effective work safety practices.[32] The Applicant did not attend an end of financial year event on 30 June 2018 (Function) as she had previously attended an event in March 2018 where drugs were being offered.[33] The Applicant was aware of a number of employees using drugs and medications to enhance their working capacity and that it was promoted or discussed in the office, yet no action was ever taken in accordance with the Drug and Alcohol Policy.[34]
[32] First Farrell Affidavit, [53]-[58].
[33] First Farrell Affidavit, [60]-[63] and Annexure “JLF-8”.
[34] First Farrell Affidavit, [64]-[68].
(k)The Applicant became aware of alleged drink spiking at the Function.[35] The Applicant witnessed one of the alleged victims, Ms Douglas, visibly distressed at work and went to discuss the matter with Mr Funston and ask what action was being taken.[36] While Mr Funston initially hesitated to discuss the matter, he later did so with the Applicant to some extent.[37] On 11 July 2018, the Applicant and all employees received an email from Mr Funston asking if any employees had any information.[38]
[35] First Farrell Affidavit, [69].
[36] First Farrell Affidavit, [73]-[77].
[37] Second Farrell Affidavit, [29] and [31].
[38] First Farrell Affidavit, [78] and Annexure “JLF-9”.
(l)On 5 July 2018, the Applicant sent Mr Forbes an email about the ‘dark and damaging behaviours’ in the workplace. In this email the Applicant said ‘I just want to give you a heads up that I will probably be looking for a new job very soon’.[39] The Applicant was not expressing an intention to resign, rather she was expressing her unhappiness being in the workplace.[40] On 6 July 2018, the Applicant raised concerns with Mr Forbes and another employee about the way a male employee had spoken to another female employee, and also the way a male manager had spoken to Ms Brown.[41]
[39] First Farrell Affidavit, [81]-[82] and Annexure “JLF-10”.
[40] Second Farrell Affidavit, [39]-[43].
[41] First Farrell Affidavit, [86]-[90] and Annexure “JLF-11”.
(m)The Applicant attended a meeting with Mr Davis at 5:30 pm on 11 July 2018. Mr Davis asked the Applicant if she intended to leave, as a number of people had advised him she was ‘unhappy’ and she was ‘caus[ing] misery’.[42] When the Applicant queried who he had heard this from, Mr Davis did not answer.[43] The Applicant wrote an email to Mr Davis later that evening again seeking information on the comments about the Applicant ‘causing misery’.[44] Mr Davis responded on the evening of 11 July 2018 and disputed the Applicant's summary of the meeting and offered to meet the following day.[45]
[42] First Farrell Affidavit, [91].
[43] First Farrell Affidavit, [92]-[95].
[44] First Farrell Affidavit, [99] and “JLF-12”.
[45] First Farrell Affidavit, [100] and Annexure “JLF-13”.
(n)It appeared to the Applicant early on 12 July 2018, as though Mr Forbes had no knowledge of her redundancy. Nor did another Director of the First Respondent.[46] At or around 2:30 pm on 12 July 2018 the Applicant attended a meeting with Mr Davis and Mr Forbes where she was advised that her role would be made redundant and she would be redeployed to HICC. Mr Davis said ‘Due to low leads it is not cost effective to have both wages paid’, being the Applicant and Mr Forbes’s wages.[47] While the Applicant recognised that ‘leads’ were down, the sales revenues were significantly higher and the Applicant and Mr Forbes regularly consulted and felt that her role was ‘more cost effective’.[48] At no time was the Applicant consulted about her position prior to being made redundant.[49]
[46] First Farrell Affidavit, [102]-[103].
[47] First Farrell Affidavit, [104]-[105].
[48] Second Farrell Affidavit, [44]-[49].
[49] First Farrell Affidavit, [108] and Annexure “JLF-15” and [131]-[136] and Annexure “JLF-16”.
(o)On 13 July 2018, the Applicant received an email from Mr Davis as follows:
[…]
1. You are employed by [the First Respondent]. There are 2 employees, yourself and Alistair.
2. The volume of leads has reduced significantly and therefore revenue from sales in [the First Respondent] now produces significantly less revenue than the employment costs. This is not sustainable.
3. To reduce costs in [the First Respondent] we have decided to make the full time sales role (your role) redundant. Alistair will focus on business development so that, hopefully, from 2019 there is a significant growth in lead volumes. I explained that prior to Alistair's appointment in Jan this role had been basically vacant for an extended period, and this has resulted in the lack of a pipeline of new customers.
4. The 'sales' function will be outsourced to [HICC]. [The First Respondent] will pay HICC a 'success fee' for sales made, and this will result in a significant cost reduction to [the First Respondent]. Suitably trained staff of HICC will do the sales work as a minor part of their role. Our estimate is that for 3-4 people it will be about 10% of their role.
5. Staff of HICC involved in the sale of [the First Respondent’s] products will have no change to their terms and conditions of employment and         the work will be integrated. For example, sales will be treated in the    same way as retail sales for the purpose of commissions. Talk time on corporate customers will be included in the 4 hour daily minimum etc. They will be full members of the team they are allocated to.
6. Your contract of employment (dated 4 May 18) has a special condition in the Probation Period clause that gives you a right to return to HICC if the role at [the First Respondent] doesn't work out. We will therefore need to know if you will be exercising that right.
7. I said that this change would happen soon, but I didn't provide an exact date. The latest date is 1 August. I'd like a decision by you by next Friday 20th July. This will then give Alistair time to set up the operation moving forward. I'm also conscious of the fact that we are moving office in about 10 days.
8. I will also want to know from you whether you want to be one of the 3 or 4 agents that will deal with corporates. [50]
[…]
(p)The Applicant did not receive redundancy payments on her termination[51] and was not paid retention commissions that were owed to her at the date of her termination.[52]
[50] First Farrell Affidavit, [109]-[110] and Annexure “JLF-16”.
[51] First Farrell Affidavit, [122]-[126].
[52] First Farrell Affidavit, [127]-[130].

The Applicant's evidence in cross-examination was broadly consistent with the evidence she had provided in her affidavits. The evidence given by the Applicant was for the most part candid, however there were occasions where the Applicant did become evasive, defensive or impatient when certain questions were asked of her that did not conform to her case.[53]
[53] Transcript (9.12.19) P35:L35; P37:L16-17; P40:L10-40; P41:L26-44; P42:L1-3.
When the Applicant was questioned about two of the central issues of this proceeding: whether the Applicant’s job was made redundant; and whether she refused to accept an alternative position on terms and conditions no less favourable overall; the Applicant became argumentative,[54] answered questions with her own questions[55] and avoided answering straightforward questions altogether.[56] When the Applicant was cross-examined on the First Respondent’s Salesforce data,[57] the Applicant was asked basic questions supported by the documentation that was produced to her, yet she refused to answer directly, as to do so would have been contrary to her interests.[58]
[54] Transcript (9.12.19) P37:L16-17.
[55] Transcript (9.12.19) P41:L30-35, L43-45; P60:L25-30.
[56] Transcript (9.12.19) P34:L30-35; P44:L41-45.
[57] Exhibit R1.
[58] Transcript (9.12.19) P42:L10-15.
Charvele Brown
Ms Brown gave evidence in chief by way of affidavit and was not cross-examined. Ms Brown's affidavit evidence can be summarised as follows:
(a)Ms Brown worked for the First Respondent as a retail sales agent/insurance advisor from August 2016 until around December 2017 when, as a result of a merger, she became employed by HICC. Ms Brown worked with the Applicant.[59]
[59] Affidavit of Charvele Brown, sworn 30 September 2019 (Brown Affidavit), [1] and [3]-[4].
(b)When the Applicant was appointed as Senior Sales Advisor in April 2018, it was considered a ‘promotion’ amongst team members and recognised the Applicant's skill and competence in sales work.[60] When the Applicant was offered to return to her previous role this was considered to be a demotion.[61]
[60] Brown Affidavit, [6]-[8].
[61] Brown Affidavit, [42].
(c)The First Respondent shares the same compliance, complaints and administration departments of HICC. They also share the same facilities and uniforms.[62]
[62] Brown Affidavit, [9].
(d)Ms Brown believes that the Commission Structure of the First Respondent and HICC ‘heavily disadvantaged’ people like the Applicant working in corporate sales. Specifically, employees who worked in corporate sales were not being ‘paid back’ the 20% that had been retained. Ordinarily (for retail employees) the 20% would be paid back after three months if the sale was retained, but this did not occur for corporate employees.[63]
(e)Ms Brown was concerned about the Commission Structure and spoke to other colleagues. She could not find any policies on the ‘intranet’ about the Commission Structure and thus approached her manager to discuss the issues she had with the Commission Structure.[64]
(f)Having raised a concern with the Commission Structure to her manager, Ms Brown was advised initially that it was believed her commission was incorrect. She was then advised that ‘that's just how it is’.[65] Ms Brown then submitted a ‘formal application’ to Mr Davis for a review of her commissions. Mr Davis refused to consider the application and terminated the discussion.[66] However, in or around April 2018 Ms Brown was advised that the Commission Structure would be replaced and a new calculation of commission would be used going forward.[67]
(g)Ms Brown had a conversation with the Applicant around 15 June 2018 where the Applicant told Ms Brown she had made the Bullying Complaint.[68] Ms Brown stated that the Applicant told her that her request to be included in sales group emails had been refused. Ms Brown believed that the Applicant could not have been informed of changes which were important to her role as a result.[69]
(h)Ms Brown attended the Function. An employee was not her ‘usual self’ and Ms Brown assisted her to return home safely.[70] She was advised on or about 3 July 2018 by the employee that she believed her drink had been spiked and that she had reported this to management.[71] Ms Brown was later advised that two other female employees had allegedly had their drink spiked.[72]
(i)On 11 July 2018, management circulated an email stating that an investigation would take place. No findings of any investigation were ever communicated to employees.[73]
(j)Ms Brown had witnessed drugs being used in the office during work hours and it was ‘widely known’ around the office that many employees had drug dependency issues.[74] Ms Brown has experienced workplace bullying.[75]
(k)The Applicant called Ms Brown in the evening of 11 July 2018 after the Applicant had met with Mr Davis. The Applicant told Ms Brown that Mr Davis had questioned her intentions and held the meeting after work hours without a support person present.[76] After the Applicant's meeting with Mr Davis on 12 July 2018, the Applicant told Ms Brown the reason for her redundancy was due to ‘low leads’ and because it was no longer cost effective to pay two wages for the First Respondent.[77]
(l)Ms Brown was surprised as she had been in meetings where it was suggested that corporate sales were steady and ‘on track’.[78] Ms Brown was still undertaking some corporate sales work in her day to day role as she was told that the work was too much for one person.[79] After the Applicant's redundancy, Ms Brown and three other employees were required to do most of the corporate work.[80] In or around September 2018, there was discussion in the office about whether the Applicant's former role would be ‘reopened’. When Ms Brown asked if she may apply, she was told that the position was required to be empty for at least six months due to the position previously being made redundant.[81]
(m)Ms Brown made a report to WorkSafe in relation to unsafe work practices and conditions. This resulted in an investigation. A view was formed around the office that the Applicant had made the report to WorkSafe.[82]
[63] Brown Affidavit, [10]-[12].
[64] Brown Affidavit, [13]-[14].
[65] Brown Affidavit, [14].
[66] Brown Affidavit, [15].
[67] Brown Affidavit, [16].
[68] Brown Affidavit, [17].
[69] Brown Affidavit, [18].
[70] Brown Affidavit, [22]-[25].
[71] Brown Affidavit, [26].
[72] Brown Affidavit, [27].
[73] Brown Affidavit, [28]-[30].
[74] Brown Affidavit, [31].
[75] Brown Affidavit, [32]-[34].
[76] Brown Affidavit, [35]-[36].
[77] Brown Affidavit, [37].
[78] Brown Affidavit, [38].
[79] Brown Affidavit, [39].
[80] Brown Affidavit, [40].
[81] Brown Affidavit, [41].
[82] Brown Affidavit, [44]-[49].
Apart from the matters discussed in paragraph 14 of these Reasons for Judgment, the Respondents made no submissions as to the weight to be afforded to Ms Brown's affidavit evidence. In those circumstances, the Court accepts Ms Brown's evidence.
Roxanne Douglas
Ms Douglas gave evidence in chief by affidavit. She was not required for cross-examination. Her evidence can be summarised as follows:
(a)Ms Douglas was employed as a retail health insurance telephone sales consultant with HICC from about April 2018.[83] HICC operated out of the same offices as the First Respondent and used the same facilities (i.e., kitchen and bathrooms).[84]
(b)In hindsight, Ms Douglas found the culture at the First Respondent and HICC to be ‘toxic’. There was regular discussion of recreational drug taking, alcohol consumption and female employees were not taken seriously.[85]
(c)Ms Douglas attended the Function. She began to feel ‘off’ during the night but has little clear recollection of what happened.[86] She believes she fell over and the next morning woke to messages asking if she was ‘okay’.[87]
(d)Ms Douglas believed her drink had been spiked and attended the doctor.[88] Mr Funston contacted Ms Douglas asking her to attend a meeting. Ms Douglas made a report to the police however the police investigation found that there was not enough evidence to charge anyone.[89] The Business Unit Manager advised Ms Douglas by email that the ‘accusations’ could not be proven and that they would ‘ruin the culture’.[90]
(e)Ms Douglas found it very difficult to return to work. When she did return to work on or about 16 July 2019 she felt that her team leader avoided discussing the incident and overheard people joking about the incident.[91] She did not feel the investigation was taken seriously and never received an outcome of the investigation, or the report that was prepared, was never provided to Ms Douglas.[92]
[83] Affidavit of Roxanne Eliza Hebbard Douglas, sworn 4 December 2019 (Douglas Affidavit), [1]-[3].
[84] Douglas Affidavit, [4].
[85] Douglas Affidavit, [5]-[6] and [22]-[24].
[86] Douglas Affidavit, [7]-[8].
[87] Douglas Affidavit, [10].
[88] Douglas Affidavit, [9].
[89] Douglas Affidavit, [12].
[90] Douglas Affidavit, [14].
[91] Douglas Affidavit, [15]-[16] and [21].
[92] Douglas Affidavit, [17]-[18].
Apart from the matters discussed in paragraph 14 of these Reasons for Judgment, the Respondents made no submissions as to the weight to be afforded to Ms Douglas' affidavit evidence. In those circumstances, the Court accepts Ms Douglas' evidence. The Court reiterates however that the evidence is not ‘proof’ of the facts that are stated in relation to the alleged drink spiking.
Emma Veness
Ms Veness gave evidence in chief by affidavit. She was not required for cross-examination. Her evidence can be summarised as follows:
(a)Ms Veness was employed at HICC as a retail health insurance broker in September 2017.[93] Ms Veness is no longer employed with HICC or the First Respondent. HICC operated out of the same offices as the First Respondent and used the same facilities (i.e., phone line and IT resources).[94]
(b)Ms Veness viewed the Applicant's engagement with the First Respondent as a ‘promotion’.[95]
(c)Ms Veness attended the Function.[96] Ms Veness became unwell during the evening and cannot recall much of the night.[97] The morning after the Function she was incredibly nauseous and she phoned Ms Douglas who believed that her drink had been spiked.[98] Ms Veness emailed Mr Davis who asked her a number of questions and, shortly after this, an investigation was commenced by Mr Funston.[99] During the investigation, Ms Veness felt that Mr Davis was more concerned with protecting the company then her wellbeing.[100]
(d)Ms Veness subsequently had conversations with the Applicant about this incident.[101] The Applicant attended the police station with Ms Veness to make a report.[102] Ms Veness did not return to work for two weeks after the incident and on her return she had a one on one meeting with one of the employees, who somewhat apologised for what had occurred.[103]
(e)Ms Veness felt the investigation into the incident was unsatisfactory. She was told that her complaint could not be ‘proved’.[104] Ms Veness did not feel safe in the workplace, found the general culture was too relaxed, that the workplace was male dominated and that male employees were often condescending towards the women in the office. There was ‘chatter’ about employees taking drugs.[105]
[93] Affidavit of Emma Jane Veness, sworn 4 December 2019 (Veness Affidavit), [1]-[3].
[94] Veness Affidavit, [4].
[95] Veness Affidavit, [5].
[96] Veness Affidavit, [6].
[97] Veness Affidavit, [7].
[98] Veness Affidavit, [8].
[99] Veness Affidavit, [9] and [15].
[100] Veness Affidavit, [10] and [17].
[101] Veness Affidavit, [11]-[13].
[102] Veness Affidavit, [14].
[103] Veness Affidavit, [16].
[104] Veness Affidavit, [18].
[105] Veness Affidavit, [19]-[24].
Apart from the matters discussed in paragraph 14, the Respondents made no submissions as to the weight to be afforded to Ms Veness' affidavit evidence. As the Court has stated with Ms Douglas it accepts Ms Veness' evidence however does not consider the evidence as ‘proof’ of the facts that are stated in relation to the alleged drink spiking.
Andrea Wright
Ms Wright was called on subpoena. During the course of Counsel for the Applicant examining Ms Wright he made an application under s.38 of the Evidence Act 1995 (Cth). The Court allowed the application.
Ms Wright's evidence can be summarised as follows:
(a)Ms Wright could not remember attending an interview with the Applicant, Mr Funston and Mr Forbes on 21 June 2018 in relation to the Bullying Complaint.[106] Ms Wright could recall the Bullying Complaint but not the interview.[107]
(b)Ms Wright said she was a senior female in the business and that it would not surprise her if she had been asked to attend the 21 June 2018 interview.[108] Ms Wright did not say she did not attend the interview with the Applicant, she said that she simply did not recall. Ms Wright also could not recall advising the Applicant about what occurred in the interview with Mr Tsmeris.[109]
(c)Ms Wright believed it might have been appropriate to advise the Applicant not to approach Mr Tsimeris but she could not recall if she so advised the Applicant.[110]
(d)Ms Wright vaguely remembered the Applicant coming in to her office on 11 July 2018 after a meeting with Mr Davis, and the Applicant saying something along the lines that Mr Davis had told her that he thought she would be happier not working at the First Respondent.[111]
[106] Transcript (10.12.19) P68:L1-3.
[107] Transcript (10.12.19) P68:L13-24.
[108] Transcript (10.12.19) P71:L6-15.
[109] Transcript (10.12.19) P71:L13-36.
[110] Transcript (10.12.19) P71:L39-45.
[111] Transcript (10.12.19) P73:L5-33.
Ms Wright's lack of recollection was somewhat troubling. The Applicant’s Counsel also made a suggestion to the effect that Mr Davis, her boss, was sitting in Court at the time and this may have hampered the truthfulness of her evidence.[112]
[112] Transcript (10.12.19) P70:L34-P71:L4.
The Court did not consider Ms Wright a very forthcoming witness and this detracted from her credibility and the capacity of the Court to accept her evidence. Accordingly, the Court places little weight on Ms Wright's evidence and prefers the Applicant's account of events.
Mr Davis
Mr Davis gave evidence in chief by way of affidavit and was cross-examined. The affidavit evidence can be summarised as follows:
(a)The ownership and board of HICC is substantially different to the First Respondent. The First Respondent and HICC cannot control or influence the operations of one another.[113]
[113] Affidavit of Andrew Alfred Davis, affirmed 29 October 2019 (Davis Affidavit), [3]-[6] and Annexure “AAD-01”.
(b)The First Respondent's business is to manage an existing book of corporate clients and to undertake corporate health insurance sales. The principal function of the First Respondent is to engage with corporate clients to conduct a process to select a preferred health insurance provider on behalf of its employees or to communicate directly with their employees to provide support in selecting health insurance.[114]
[114] Davis Affidavit, [9].
(c)Prior to the Applicant commencing employment with the First Respondent, the First Respondent outsourced its sales and other services to HICC.[115] In March 2018, it was decided that the First Respondent would no longer outsource its sales to HICC and instead the Applicant would become the second employee of the First Respondent.[116] When the decision was made, it was unclear if the new role would be viable and for that reason it was agreed that if the role with the First Respondent did not work out then the Applicant would return to her role at HICC.[117] The role at the First Respondent was ‘broadly equivalent’ to the Applicant's role at HICC and the only ‘material difference’ was the way in which leads were generated.[118]
[115] Davis Affidavit, [10]-[13].
[116] Davis Affidavit, [14].
[117] Davis Affidavit, [15] and Annexures “AAD-02” and “AAD-03”.
[118] Davis Affidavit, [16].
(d)Upon commencing with the First Respondent there was no need for the Applicant to continue receiving correspondence from HICC. The Applicant was not required to be in contact with Mr Tsimeris.[119]
[119] Davis Affidavit, [18].
(e)Between April 2018 and June 2018, the volume of leads to the First Respondent reduced and it was Mr Davis’ role to explore options to put an end to the losses.[120] On 10 July 2018, Mr Davis (having provided his co-directors with a report) decided that the Applicant's role with the First Respondent should be made redundant due to poor sales and the need to reduce overheads.[121] Mr Davis determined it necessary to revert to the previous arrangement in outsourcing to HICC.[122]
(f)On 11 July 2018, Mr Davis became aware of emails that the Applicant had sent to Mr Forbes which he interpreted as the Applicant's intention to resign from employment.[123] Mr Davis did not consider the Applicant to be making a complaint in her emails as she was aware of the complaints procedure and had not utilised this method. Accordingly Mr Davis took no action.[124]
(g)On 11 July 2018, Mr Davis met with the Applicant in order to determine what her intentions were.[125] The meeting was not a consultation meeting or a disciplinary meeting. It was purely a discussion providing an opportunity for the Applicant to discuss any intention to resign.[126] The Applicant's emails to Mr Davis after the meeting were not an accurate representation of what had occurred at the meeting.[127]
(h)On 12 July 2018, Mr Davis again met with the Applicant and advised her that her role was to be made redundant.[128] Mr Davis explained why this was the case. The Applicant was advised that she would be redeployed to her previous role, however the Applicant declined this offer.[129] The First Respondent did not pay the Applicant redundancy entitlements as she had rejected the offer of redeployment and therefore Mr Davis did not believe that she was entitled to these payments.[130]
(i)The email the Applicant sent on 21 May 2018 to Mr Forbes and Mr McKenzie was interpreted by Mr Davis as the Applicant's ‘opinion’ on the Commission Structure. Mr Davis did not believe it to be a complaint and did not take any action on this.[131]
(j)The Applicant was not employed by HICC and there was no need for her to be included in any emails. The Applicant always had access to a ‘Product Tool’ where she could obtain access to health fund offers and she was not required to engage or have any relationship with the HICC retail sales group in order to complete her role.[132]
(k)Mr Davis received a bullying complaint from the Applicant and caused an investigation to occur into the complaint by Mr Forbes and Mr Funston.[133] Interviews were conducted with employees and the outcome of the investigation was that the bullying and harassment complaints could not be substantiated.[134]
(l)The culture in the HICC and the First Respondent's workplace was productive and supportive and Mr Davis did not allow conversations of an offensive nature in the office.[135] A Drug and Alcohol Policy is in effect.[136] Mr Davis is aware of an occasion where alcohol was sprayed over an employee in celebration of achieving a sales record target. This was a one-off occurrence which did not require investigation.[137]
(m)The incident that occurred at the Function was comprehensively investigated.[138] The investigation was unable to find that any drink spiking occurred but nevertheless Mr Davis caused the Drug and Alcohol Policy to be updated and reissued.[139]
(n)The Applicant received commission in accordance with her commission scheme.[140] There has been no breach of contractual terms relating to harassment or vilification and at all times the First Respondent maintained a healthy and safe environment.[141] The First Respondent passed a WorkSafe inspection on 10 July 2018.[142]
[120] Davis Affidavit, [19].
[121] Davis Affidavit, [20]-[22] and Annexures “AAD-04” and “AAD-05”.
[122] Davis Affidavit, [20].
[123] Davis Affidavit, [23]-[26] and Annexures “AAD-06”, “AAD-07” and “AAD-08”.
[124] Davis Affidavit, [27].
[125] Davis Affidavit, [28].
[126] Davis Affidavit, [29]-[31].
[127] Davis Affidavit, [33]-[34] and Annexures “AAD-09” and “AAD-10”.
[128] Davis Affidavit, [39]-[40].
[129] Davis Affidavit, [41]-[45] and Annexures “AAD-11”, “AAD-12” and “AAD-13”.
[130] Davis Affidavit, [50].
[131] Davis Affidavit, [55]-[59] and Annexure “AAD-03”.
[132] Davis Affidavit, [61].
[133] Davis Affidavit, [63]-[66] and Annexures “AAD-17”, “AAD-18”, and “AAD-19”.
[134] Davis Affidavit, [67] and Annexure “AAD-20”.
[135] Davis Affidavit, [70] and [73].
[136] Davis Affidavit, [71] and Annexure “AAD-21”.
[137] Davis Affidavit, [72].
[138] Davis Affidavit, [75]-[79] and Annexure “AAD-22”.
[139] Davis Affidavit, [80].
[140] Davis Affidavit, [86]-[87].
[141] Davis Affidavit, [83]-[85].
[142] Davis Affidavit, [88]-[89] and Annexure “AAD-23”.

Annexed to the Second Farrell Affidavit were two videos that the Applicant downloaded from social media sites.[143] These videos were shown to the Court on the second day of the hearing. They depict two managers spraying another employee with sparkling wine in close proximity to computer and electrical equipment. To the extent that the Applicant relies on this material to undermine Mr Davis’ credibility, as it was inconsistent with his affidavit evidence of there being only ‘one’ such incident, the Court considers this inconsistency minor.
[143] Second Farrell Affidavit, Annexures “JLF-1” and “JLF-2”.
To the extent that the videos are used to reflect upon the character of Mr Davis by implication of what occurs in the workplace, the Court does not consider that any such adverse implication on Mr Davis’ credibility can be drawn. Mr Davis himself was not present and in cross-examination he made it clear that the ‘managers’ were largely responsible for the day to day running of the workplace.
Mr Davis was cross-examined at length. The Court considered Mr Davis to be candid. He made concessions when necessary and did not appear to evade matters which clearly were not supportive of his case or his character generally. When considering Mr Davis’ evidence, the Court preferred his oral evidence to his affidavit evidence, unless otherwise indicated.
Alistair Forbes
Mr Forbes gave evidence in chief by way of affidavit and was cross-examined. The affidavit evidence can be summarised as follows:
(a)Mr Forbes is the National Business Development Manager for the First Respondent and is the only employee of the First Respondent.[144]
[144] Affidavit of Alistair Sean Forbes, affirmed 29 October 2019 (Forbes Affidavit), [1] and [3]-[4].
(b)The First Respondent's business is to manage an existing book of corporate clients and to undertake corporate health insurance sales. Mr Forbes engages with corporate clients or their employees to provide support in selecting health insurance. It is not the role of the First Respondent to supply outbound customer contact services to clients on a contract basis and whose business is independent of the client.[145]
[145] Forbes Affidavit, [5]-[6].
(c)At the time the Applicant commenced with HICC there was uncertainty as to whether her role would be viable. The role was dependent on how many sales leads Mr Forbes could generate. The Applicant's role was to communicate directly with employees of the First Respondent's corporate clients. The Applicant would review health insurance cover for employees and sell a suitable policy if necessary. She did not need access to HICC information to undertake her role. The Applicant would take inbound calls and also make outbound calls.[146]
[146] Forbes Affidavit, [7]-[11].
(d)Between April 2018 and June 2018, leads reduced and sales were running at a loss.[147] As a result, the Applicant's position was made redundant and the First Respondent returned to the previous model where the work was outsourced to HICC.[148] Since the Applicant's redundancy, her position has not been reinstated and Mr Forbes is the sole employee of the First Respondent.[149]
[147] Forbes Affidavit, [12].
[148] Forbes Affidavit, [13]-[16].
[149] Forbes Affidavit, [16].
(e)On 21 May 2018, the Applicant emailed Mr Forbes what he believed was her ‘opinion’ on the Structure. Mr Forbes did not view this as a complaint.[150]
[150] Forbes Affidavit, [18]-[20] and Annexure “ASF-01”.
(f)On 15 June 2018, Mr Forbes received an email from the Applicant concerning workplace bullying.[151] Mr Forbes was advised the following day by Mr Davis that he would be required to jointly investigate the Bullying Complaint.[152] Interviews were carried out during the investigation and Mr Forbes asked the Applicant to refrain from communicating with Mr Tsimeris.[153] Mr Forbes briefed the Applicant at the conclusion of the investigation. He prepared a report which found there was no conclusive proof or evidence to substantiate the bullying allegations however, [154] the hoverboard incident did result in a caution to Mr Tsimeris.[155]
[151] Forbes Affidavit, [24] and Annexure “ASF-02”.
[152] Forbes Affidavit, [26] and Annexure “ASF-04”.
[153] Forbes Affidavit, [27]-[30].
[154] Forbes Affidavit, [31]-[32] and Annexure “ASF-05”.
[155] Forbes Affidavit, [32].
(g)On 5 July 2018, Mr Forbes received an email from the Applicant stating as follows:
[…]
I just want to give you a heads up that 1 will probably be looking for a new job very soon. Not in the next couple of weeks or anything, but maybe soon after my holiday at the end of August. I just can't be a part of a business that promotes such dark and damaging behaviours, which is being emphasised now almost on a daily basis.
I think maybe it's time that we start looking into training someone else up in my role so they can take over, and I definitely will not leave until that has happened as I don't want to leave you in the lurch at all.
It's really sad because I love working with you and Ian, and I also love the work I am doing and the varied opportunities I get to go off-site etc. I would definitely stay on if we could be more separate from the retail side of things, but I feel like at the new office, being in an even more open space, these issues will only get worse.
I'm really torn of when I would want to leave because I feel like I am one of the very few people in this business that is actually advocating for people who are vulnerable or do not understand what rights and processes they have access to. I don't need to give you a list of examples, but it's very obvious with the recent events in minds, and multiple other occasions, that things will not change, and that no one wants to even try.
It's becoming really exhausting, and I find myself being anxious simply being in this building at the moment, and my time is better spent somewhere that doesn't make me feel this way. I don't feel like this is a safe work environment for most women who work here at the moment, and sadly most do not have the luxury of falling back on their partner's income if they are unable to find immediate employment somewhere else.
I'm sorry to load this on you. But like I say, I won't leave you hanging. I will make sure that there is enough time to have a clean changeover so that it won't disrupt the corporate business too much. I will definitely have a conversation about this at some point, but it probably won't be at all productive to do that today. I am absolutely livid at the business position and actions over the most recent events, and I am also heartbroken and devastated for my friends that have been affected. [156]
[…]
(h)Mr Forbes interpreted the Applicant’s email to him on 5 July 2018 as a statement of her intention to resign from her employment soon.[157]
(i)On 6 July 2018, Mr Forbes received a further email from the Applicant about things she ‘wanted to make [him] aware of’.[158] While the Applicant had stated she did not wish to make a formal complaint, Mr Forbes did raise the matters in the email with Mr Davis.[159] Mr Forbes confirmed with the Applicant that she did not wish to make a formal complaint and therefore the complaint was not referred to Mr McKenzie (the individual responsible for handling complaints).[160]
[156] Forbes Affidavit, [36] and Annexure “ASF-06”.
[157] Forbes Affidavit, [38].
[158] Forbes Affidavit, [39] and Annexure “ASF-08”.
[159] Forbes Affidavit, [41]-[42].
[160] Forbes Affidavit, [44] and Annexure “ASF-09”.
Mr Forbes was a careful but credible witness. It was evident that he had a high degree of respect for the Applicant and that he was positive about her performance. While Mr Forbes was cross-examined on certain matters that were not included in his affidavit or the language that was used in his affidavit, the Court does not consider these matters detract from his credibility. His oral evidence was broadly consistent with his written evidence. The Court, however, places more weight on Mr Forbes’ oral evidence.
Hugh Funston
Mr Funston provided his examination in chief by way of affidavit. He was also cross-examined. The affidavit evidence can be summarised as follows:
(a)Mr Funston commenced employment at HICC as the General Manager of Sales and Operations in February 2018.[161] HICC's business is to sell health insurance products to the mass consumer market.[162]
(b)When the Applicant commenced employment with the First Respondent she was no longer required to stay in touch with the HICC employees.[163]
(c)Following the receipt of a compliant by the Applicant for bullying and harassment, Mr Funston and Mr Forbes carried out an investigation. Mr Funston advised the employee the allegations were made against to avoid communication with the Applicant.[164] The Applicant was advised of the outcome on or about 29 June 2018 by Mr Forbes.[165]
(d)Mr Funston became aware of the incident at the Function and said he was ‘handling it’.[166] The incident was comprehensively investigated however, there was a lack of evidence to substantiate what had occurred.[167] On 8 August 2018, Mr Funston sent an email to HICC employees stating that the investigation had concluded. However, he advised employees that should any further information come to light, they should still come forward and report anything.[168]
[161] Affidavit of Hugh Thomas Funston, affirmed 29 October 2019 (Funston Affidavit), [1] and [3].
[162] Funston Affidavit, [6].
[163] Funston Affidavit, [9].
[164] Funston Affidavit, [10]-[14] and Annexures “HTF-01”, “HTF-02” and “HTF-03”.
[165] Funston Affidavit, [15].
[166] Funston Affidavit, [20]-[21].
[167] Funston Affidavit, [23].
[168] Funston Affidavit, [24].
Mr Funston's oral evidence largely corroborated his affidavit. There was nothing in the way that Mr Funston gave his evidence that suggested to the Court that he was being untruthful. Mr Funston's evidence was descriptive and detailed. Overall, the Court considers Mr Funston a credible witness.
ISSUES WITH THE PLEADINGS
A significant portion of the Respondents’ Outline of Submissions, filed on 25 November 2019 (Respondents’ Outline of Submissions) [169] and the Applicant and the Respondents’ closing submissions concerned the state of the pleadings. [170] The Respondents contend that as the Applicant has failed to plead the ‘source’ of the workplace right she claims to have exercised, the entire claim must fail.[171] The Applicant counters that the ‘source’ of the alleged workplace right is not a ‘material fact’.[172]
[169] Respondents’ Outline of Submissions, filed 25.11.19 (Respondents’ Outline of Submissions).
[170] Closing Submissions on Behalf of Applicant, filed 19.2.20 (Applicants’ Closing Submissions); Respondents’ Closing Submissions, filed 5.3.20 (Respondents’ Closing Submissions); Reply Submissions on Behalf of Applicant, filed 27.3.20 (Applicant’s Reply Submissions); Respondents’ Final Submissions in Reply, filed 3.4.20 (Respondents’ Reply Submissions).
[171] Respondents’ Closing Submissions, [4]-[36].
[172] Applicant’s Reply Submission, [26].
The Respondents also state that, as the Applicant failed to include the ‘source’ of the workplace right in the pleadings and subsequently addressed the ‘source’ of a workplace right in the Applicant’s Closing Submissions for the first time, the Applicant has changed her case. This has occurred after the Court had heard all of the evidence and has deprived the Respondents of the opportunity to lead evidence in relation to the source of the workplace right. The Respondents state that the Applicant should be confined to her pleading.[173] The Applicant states that the pleadings are sufficient and that, should it be the case that the Court considers that the Applicant’s pleadings are not sufficient, the Applicant applies to ‘re-open’ her case on the basis of a change in the case law.[174]
[173] Respondents’ Closing Submissions, [37]-[48].
[174] Applicant’s Reply Submissions, [18]-[26] and [44]-[49].
The Court does not propose to address the issue with the pleadings, the late inclusion of the ‘source’ of the workplace right in the Applicant's Closing Submissions and whether leave should be granted to re-open the Applicant’s case. For reasons which will become apparent, the Court will adopt the approach of Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) (No 2) [2019] FCA 1224 (Richens). In Richens, Mortimer J refrained from engaging in the debate and determining whether there was an ability to exercise a workplace right, as her Honour was satisfied that adverse action had not been taken and that the respondent had met the onus in any event.[175]
[175] Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) (No 2) [2019] FCA 1224, [429].
The Court does however wish to comment that it does not agree with the Applicant's submissions that the state of the law was ‘unclear’ prior to 24 February 2020 when the Full Court of the Federal Court of Australia (Full Federal Court) handed down judgment in PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 (PIA Mortgage Services).
The existence of an ‘ability’ (that is, a source) to complain was, if not made clear earlier, was confirmed in Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 (Cigarette & Gift) in a judgment delivered on 8 February 2019. In Cigarette & Gift the Full Federal Court said that it was ‘unremarkable and correct’ that a complaint must be founded on a source of entitlement, whether instrumental or otherwise.[176] A decision of the Full Federal Court is binding on this Court. The Court also considers it to be more persuasive than the decision of a single Judge of the Federal Court given it was a considered (and unanimous) decision of three Judges.
[176] Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 (Cigarette & Gift), [28].
Furthermore, on 20 June 2019 Steward J delivered judgment in The Environmental Group Ltd v Bowd [2019] FCA 951 (Bowd). Justice Steward considered in Bowd that he was bound to follow Cigarette & Gift, and stated that the Full Federal Court in Cigarette & Gift ‘confirmed’ (in the sense that it was already the case) that there must be a ‘source’ for an entitlement, to complain.[177] Further, on 29 October 2019 Rangiah J delivered judgment in Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754 (Morton). Justice Rangiah in Morton stated that the Full Federal Court in Cigarette & Gift had ‘approved’ that there must be a ‘source’ for an entitlement to complain.[178]
[177] The Environmental Group Ltd v Bowd [2019] FCA 951 (Bowd), [128].
[178] Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754 (Morton), [34]-[35].
More recently, the Full Federal Court delivered judgment in CumminsSouth Pacific Pty Ltd v Keenan [2020] FCAFC 204 (Cummins South Pacific) on 24 November 2020. In CumminsSouth Pacific the majority (Bromberg and Mortimer JJ) expressly disagreed with the ‘holding of the majority’ in PIA Mortgage Services, however the majority considered that it was not necessary to decline to follow that holding for the disposition of the appeal.[179] In CumminsSouth Pacific, Anastassiou J disagreed with the majority and was of the view that the Court should follow Cigarette and Gift and PIA Mortgage Services unless shown to be clearly wrong. His Honour considered that PIA Mortgage Services had not been shown to be plainly wrong.[180]
[179] CumminsSouth Pacific Pty Ltd v Keenan [2020] FCAFC 204, [67]-[68] (Bromberg J); and [209]
[180] CumminsSouth Pacific Pty Ltd v Keenan [2020] FCAFC 204, [214], [291].
In National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709, Thawley J considered PIA Mortgage Services and Cummins South Pacific and said:
[186]As a single judge, I am bound by PIA Mortgage Services and have to follow it irrespective of my view about whether it was plainly wrong on this point. It follows that there is no point in me expressing a view about it. Nevertheless, the existence of the debate and the carefully reasoned decision of Bromberg J in Cummins, suggest that I should also consider the position on the basis that PIA Mortgage Services was wrongly decided. For the reasons which follow, the result would not have been different if Dr Anderson only had to show that the complaints were “in relation to” his employment and did not need a relevant entitlement or right to complain in the sense indicated in PIA Mortgage Services.
[187]In its closing submissions, the University contended that the applicants had not identified the source of the entitlement of the right to complain. Cummins had not been delivered before the conclusion of the hearing and, accordingly, was not addressed by the parties. In closing reply submissions, the applicants identified the source of the entitlement as partly the Code of Conduct, partly the Complaints Policy and that it was also “underpinned by the contract of employment”. When asked whether it was necessary to identify more specifically what gave rise to the right to complain, it was submitted that it was not necessary to be specific. If PIA Mortgage Services was correctly decided, and I am bound to proceed on the basis that it was, this submission is not correct. It may be accepted that it is not necessary for the employee, when making a complaint, to identify the source of the right or entitlement to complain. However, if PIA Mortgage Services is correctly decided, it would be necessary to identify the source of the contended right in proceedings which allege a contravention of s 340. Ultimately, little turns on this. The contraventions are not made out even if it is unnecessary to establish that the asserted complaints were “founded on a source of entitlement” contrary to what was said in PIA Mortgage Services. [181]
[181] National Tertiary Education Industry Union v University of Sydney [2020] FCA 1790, [186]-[187].
The Applicant concedes in her submissions that until at least 29 November 2019, the Applicant conducted her case on the basis she did not need to identify the source underpinning her rights.[182] The Applicant did so, notwithstanding that the authorities of Cigarette & Gift, Bowd and Morton were handed down well prior to the filing of the Applicant’s Outline of Argument.[183] While it is stated in the Applicant’s Outline of Argument that there was a ‘source’ for the complaints, the source was in no meaningful way identified or advanced. At the very least, having suggested there was ‘tension’ in the Outline of Argument, the appropriate course would have been to identify that ‘source’ or more appropriately, seek leave to amend the pleading.
[182] Applicant’s Outline of Argument, filed 29.11.19 (Applicant’s Outline of Argument), Summary of Argument Part E, Adverse Action.
[183] Judgment in Cigarette & Gift was delivered on 8.2.19; Judgment in Bowd was delivered on 21.6.19; and Judgment in Morton was delivered on 29.10.19.
Undoubtedly a decision of the Full Federal Court which has subsequently been applied by two single Judges of the Federal Court is binding on this Court. While the Applicant submits that the statement in Cigarette & Gift was obiter, this does not alter the Court's view that the decisions were binding on this Court. The decisions repeatedly echoed that the principle the Applicant suggests was unclear, was ‘unremarkable’ and was the state of the law since 2014.
Insofar as the Applicant submits that PIA Mortgage Services, and inter alia Cigarette & Gift, Bowd and Morton, are all incorrectly decided, such does not change the fact that they are binding.
Accordingly, to succeed the Applicant was required to have a source of entitlement to make the alleged complaints. Only then would the complaints be an exercise of a workplace right.
CONSIDERATION
Was Adverse Action Taken?

Section 342 of the FW Act defines adverse action as follows:
(1)The following table sets out circumstances in which a person takes adverse action against another person.

Meaning of adverse action

Item

Column 1

Adverse action is taken by…

Column 2

if…

1

an employer against an employee

the employer:

(a) dismisses the employee; or

(b) injures the employee in his or her employment; or

(c) alters the position of the employee to the employee’s prejudice; or

(d) discriminates between the employee and other employees of the employer.

Section 335 of the FW Act provides that:
In this Part, employee and employer have their ordinary meanings.
The Applicant pleads that adverse action has been taken on three occasions as follows:
(a)The Applicant was excluded from sales group emails and this constitutes adverse actions pursuant to s.342(1) items 1(c) and (d) (First Adverse Action);[184]
(b)The Applicant was directed that she was not to approach Mr Tsimeris for information and this constituted adverse action pursuant to s.342(1) items 1(c) and (d) (Second Adverse Action);[185] and
(c)The Applicant's employment was terminated (by reason of redundancy) and this constituted adverse action pursuant to s.342(1) item 1(a) (Third Adverse Action).[186]
[184] Amended Statement of Claim, [28] to [31].
[185] Amended Statement of Claim, [36]-[38].
[186] Amended Statement of Claim, [63]-[69].
First Adverse Action
By the First Adverse Action, the Applicant pleads that she was excluded from ‘sales group emails’ by Mr Tsimeris and that when she asked Mr Tsimeris to be sent ‘sales group emails’ she was refused. The Applicant alleges that this was a prejudicial alteration of her position as she was excluded from becoming notified of relevant work matters which made it difficult for her to perform her duties to a high standard. She also claims that as she was the only sales consultant excluded from the emails, she was discriminated against.[187]
[187] Amended Statement of Claim, [28] to [31].
On a plain reading of the statute, adverse action has not been taken. Mr Tsimeris was not the Applicant's employer, nor was he employed by the Applicant's employer.
As is clear from the Applicant's own affidavit evidence, she was ‘employed’ by the First Respondent. Her contract of employment states as much. Her pay slips indicate that it is the First Respondent who paid her wages. Her statement of claim also pleaded as much. Her ‘employer’ for the purpose of s.342 of the FW Act was the First Respondent.
While the Applicant has advanced evidence to the effect that the First Respondent and HICC are related, this does not change the Court's view that the First Adverse Action must fail on the basis that the alleged adverse action was not taken by the employer against the Applicant. They are separate corporate entities.
It is clear that Mr Tsimeris was not under the direction or control of the First Respondent. While Mr Davis may have been his ‘boss’ just as Mr Davis was the Applicant's ‘boss’, it remains that Mr Davis was the ‘boss’ of two separate employing entities. The sending of the emails by Mr Tsimeris was an action that arises in the context of his employment with HICC and, therefore, any actions he undertook were representations and actions taken on behalf of his employer.
Accordingly, as the action of not sending the Applicant the sales group emails was not an action of her employer, it cannot meet the definition of s.342(1) of the FW Act.
Even if the Court were wrong in its conclusion that the action was not taken by the ‘employer’, the Court still does not consider the failure to include the Applicant in the sales group emails prejudiced her position or was ‘discrimination’.
On the evidence before the Court, it appears that the only ‘alteration’ to the Applicant's position was that information was not obtained as easily as it once had been. The effect of the Applicant's evidence was that being excluded from the emails was, at its highest, an inconvenience as it required the Applicant herself to obtain information.[188] It may be that there was no disadvantage to Mr Tsimeris providing the emails, however it is also the case that there was no real or substantial alteration of the Applicant's position and ability to carry out her role.
[188] First Farrell Affidavit, [31].
While receiving the emails undoubtedly made the Applicant's role easier, the Second Farrell Affidavit states that the information that was contained in the sales group emails was available on the ‘Product Tool’ used by the First Respondent and HICC employees.[189] Albeit less detailed, the Applicant's non-receipt of the emails did not deprive her of access to information that was necessary for her to competently act in her role. This is particularly so in circumstances where the Applicant only required the information from ‘time to time’ and thereby when it was the case she needed the information she had the means to access it.
[189] Second Farrell Affidavit, [19].
Further, the Court is unable to accept that the Applicant was treated ‘less favourably’ than other staff in not being included in the sales group email. This is misguided. The evidence before the Court is that the emails were circulated to the Retail Sales Group and the Applicant affirms that she was no longer in retail sales.[190] The evidence does not suggest that other ‘sales consultants’ who were not part of the Retail Sales Group were included and the Applicant was the only person excluded.
[190] First Farrell Affidavit, [24].
As noted above, the First Adverse Action cannot be sustained on the basis that the action was not taken by the Applicant's employer. In any event, the action does not meet the definition of s.342(1) items 1(c) and (d) of the FW Act.
Second Adverse Action
The Second Adverse Action alleged was a direction by Mr Forbes and Ms Wright on or around 21 June 2018 that the Applicant should cease contacting Mr Tsimeris for information about her role and work activities. The Applicant submitted that this direction prejudiced her position as she was unable to obtain necessary information that was required for her role. The Applicant also submitted that this direction also had the effect of discriminating between her and other employees.[191]
[191] Amended Statement of Claim, [36]-[38].
Evidence was advanced by the Applicant that she was required to go to Mr Tsimeris with questions on a number of matters which others did not have the knowledge in (for example, retail products) or oversight of (for example, training), to answer. In cross-examination, the Applicant stated that she was not required to specifically go to anyone with her questions.[192]
[192] Transcript (9.12.19) P51:L32-36.
The evidence from the Respondents was that the Applicant could obtain whatever information that she required without having to contact Mr Tsimeris.[193]
[193] Forbes Affidavit, [11]; Funston Affidavit, [9]; Transcript (10.12.19) P164:L10-29; P167:L40-P168:L27.
There is no doubt that an employer giving a lawful direction to an employee does not amount to adverse action. It is an inherent part of the employment relationship that an employer can instruct and direct an employee as to how to carry out their role. The Court does not consider that directing the Applicant to not contact Mr Tsimeris amounts to a prejudicial alteration of the Applicant's position or discrimination.
The Applicant's own evidence was that she was not required to specifically go to any person for information.[194] Again, it seems that it was convenient for the Applicant to ask questions of Mr Tsimeris, however there was no obligation on Mr Tsimeris to answer the questions. Further, the evidence of Mr Forbes indicates that the Applicant was advised that she should direct all her questions to Mr Forbes who was her direct line manager. If it was the case that Mr Forbes did not know the answer then, accordingly, Mr Forbes would make inquiries or perhaps direct the Applicant to ask another individual.
[194] Transcript (9.12.19) P51:L32-36.
While the Court accepts that the boundaries between HICC and the First Respondent may have been blurred in the office environment, the direction not to raise questions with Mr Tsimeris was a lawful direction which clearly established that boundary. It was not adverse action.
Furthermore, applying the ‘before and after’ test,[195] it cannot be said that the Applicant’s employment was injured as a result of the alleged direction. Mr Tsimeris is not an employee of the First Respondent and therefore not someone that the Applicant was required to communicate with prior to the direction. Further, it cannot be said that the Applicant was discriminated between other employees of the First Respondent, as the only other employee was Mr Forbes who also had no reason to communicate with Mr Tsimeris.
[195]Unsworth v Tristar Steering and Suspension Australia Limited [2008] FCA 1224; at [24]-[25].
In the circumstances, the allegation concerning the Second Adverse Action must fail.
Third Adverse Action
The Applicant alleges that the Third Adverse Action comprised of her dismissal for reason of redundancy. More specifically, the Applicant claims that the redundancy was not genuine and that it was a ‘concoction’.[196] Accordingly, the redundancy has resulted in the ‘dismissal’ of the action for the purposes of s.342(1) item 1(a) of the FW Act.[197] The Court will consider the reasons for this further below.
[196] Applicant’s Closing Submissions, [4].
[197] Amended Statement of Claim, [63]-[69].
Workplace Rights
As noted, a significant dispute arose regarding whether the Applicant had exercised ‘workplace rights’ as that term is defined in s.341 of the FW Act. The Respondents did not deny the fact of complaints or inquiries being made. Rather, the Respondents denied that the complaints or inquiries were workplace rights as opposed to just a general complaint at large.
The Applicant claims that each of the following are ‘complaints and inquiries’ that she made during her employment:
(a)The Applicant sent an email to Mr Davis, Mr Forbes and Mr McKenzie concerning issues she had identified in relation to the commission and retention structure in place;
(b)The Applicant requested that Mr Tsimeris include her in any important email communication circulated to employees;
(c)The Applicant made the Bullying Complaint;
(d)The Applicant spoke to Mr Furston about her concerns that two female employees of HICC had, had their drinks spiked at the Function and questioned what actions were being taken;
(e)The Applicant emailed Mr Forbes stating that she felt anxious being in the building and that she could not be a part of a business that promotes ‘dark and damaging’ behaviours;
(f)The Applicant emailed Mr Forbes and Mr McKenzie about events she had witnessed in the office including profane language directed towards employees and again, the management of the alleged drink spiking incident at the Function;
(g)In a discussion with Mr Davis, the Applicant made remarks about the workplace culture that existed and the behaviours of senior management and asked about the complaints that were allegedly made against her and referred to in the conversation with Mr Davis; and
(h)In an email sent to Mr Davis following the discussion referred to above, the Applicant sought ‘clarity’ in order to ensure she understood what was discussed and for examples of her ‘causing misery’.
The Court does not consider that it is necessary to determine whether or not the complaints and inquiries were ‘workplace rights’. Not having the benefit of hearing full argument and evidence on the nature and source of the alleged workplace rights, the Court considers it would be unfair to both parties to make a determination.
Was the Redundancy Genuine?
The Court has concluded that the only adverse action taken against the Applicant was the redundancy which, ultimately, saw the Applicant dismissed from her employment.
The Respondents submit that the Applicant was dismissed for reason of redundancy. The Applicant submits that the redundancy was not genuine and that it was a ‘concoction’.[198] The issue for the Court is whether to accept that the Applicant was dismissed because her position was redundant as the Respondents allege.
[198] Applicant’s Closing Submissions, [4].
The principles for determining whether adverse action was taken for a prohibited reason were summarised in Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046 and the Court adopts that summary as follows:
[297] First, the question is one of fact: Barclay at [41], [45], [101]; BHP at [7].
[298] Second, the question is why the adverse action was taken: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision-maker: Barclay at [101], [127], [140], [146]; BHP Coal at [7], [19], [85]. More particularly, the question is whether the alleged prohibited reason was a "substantial and operative" reason for taking the adverse action: Barclay at [56]-[59], [104], [127]; or an operative or immediate reason: Barclay at [140].
[299] Third, the test does not involve any objective element: Barclay at [107], [121], [129]; BHP Coal at [9]. To speak of objectively obtained reasons risks the substitution by the court of its view, rather than making a finding of fact as to the true reasons of the decision-maker: Barclay at [121]; BHP Coal at [9].
[300] Fourth, the inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected workplace rights and the adverse action: BHP Coal at [18]-[20]. Any such connection, however, may necessitate some consideration as to the true motivation or reasons of the decision-maker: BHP Coal at [22].
[301] Fifth, the question must be answered having regard to all of the relevant facts and circumstances and the inferences available from them: Barclay at [45], [127]; BHP Coal at [7].
[302] Sixth, direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the burden imposed by s 361: Barclay at [45], [71]; BHP Coal at [38]. However, declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127].
[303] Seventh, it is not necessary for the decision-maker to establish that the reason for the adverse action was entirely disassociated from the relevant protected workplace right: Barclay at [62]. [199]
[199] Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046, [297]-[303].
In the Applicant’s Closing Submissions, the Applicant maintains that the redundancy was ‘the culmination of frustration towards the applicant by Mr Davis’ from ‘repeated’ complaints and inquiries that had been made by the Applicant.[200]
[200] Applicant’s Closing Submissions, [141].
The First Respondent was a small business with two employees. The Applicant’s redundancy was effected while the Applicant was still on her probationary period and during such time her contract provided that her employer would ‘consider your suitability for ongoing employment and confirmation of ongoing employment will be at the discretion of the [First Respondent]’.[201] In the Respondents’ Closing Submissions, the Respondents maintained that the Applicant’s job was made redundant because of the financial difficulties the First Respondent encountered and the Applicant’s employment was terminated because she did not accept a validly offered alternative position.[202]
[201] First Farrell Affidavit, [13] and Annexure “JLF-1”
[202] Respondents’ Closing Submissions, [80].
Mr Davis was the sole decision-maker for the Applicant’s redundancy. Mr Davis gave evidence that:
Over the period of April 2018 to June 2018, the volume of leads to the First Respondent reduced materially and consequently revenue from sales was running at such a low level that employment costs were not being covered.[203]
[203] Davis Affidavit, [19].
Mr Davis subsequently prepared a six month report to July 2018 (First Respondent’s 6 Month Report July 2018), which stated:
In line with the broader health insurance market, conditions in the corporate market a[re] tight with new business difficult to come by.
[…]
Leads have declined quite dramatically […]
[…] our substantive costs in the business is labour. With 2 FTE employees, labour costs in the business exceed new revenue that is being generated.
[…]
The employment cost is circa $95k. Given we are only likely to do about 500 sales in CY18 we would be better off outsourcing the sales function and de-risking. There will be interest from HICC in this business at a payment level of $100 per sale and this will result in a net saving of about $45k.
In the absence of any objection, I will talk to Jessica this week. There are obviously no other roles in [the First Respondent]. […][204]
[204] Davis Affidavit, [21] and Annexure “AAD-04”.
In the First Respondent’s 6 Month Report July 2018 Mr Davis included a table of corporate leads, which compared leads on a monthly basis in the first half of 2018 with those of the first half of 2017. This table demonstrated that in 2018 corporate leads for the First Respondent:
(a)       Decreased 7% in January;
(b)       Decreased 13% in February;
(c)       Decreased 52% in March;
(d)      Decreased 20% in April;
(e)       Increased 12% in May; and
[205] Davis Affidavit, [21] and Annexure “AAD-04”.
(f)       Decreased 47% in June.[205]
On 13 July 2018, following meetings and emails exchanged with the Applicant on 11 and 12 July 2018, as discussed in sub-paragraphs 32(g) and (h) of these Reasons for Judgment, Mr Davis sent the Applicant an email (13 July 2018 Email) which stated the following:
Hi Jessica
I’m sorry that I haven’t had an opportunity to email you since we met yesterday afternoon.
Here’s a summary. I’m happy to put it in a more detailed form next week.
1. You are employed by [the First Respondent]. There are 2 employees, yourself and Alistair.
2. The volume of leads has reduced significantly and therefore revenue from sales in [the First Respondent] now produces significantly less revenue then (sic) the employment costs. This is not sustainable.
3. To reduce costs in [the First Respondent] we have decided to make the full time sales role (your role) redundant. Alistair will focus on business development so that, hopefully, from 2019 there is a significant growth in lead volumes. I explained that prior to Alistair’s appointment in Jan this role had been basically vacant for an extended period, and this has resulted in the lack of a pipeline of new customers.
4. The ‘sales’ function will be out sourced to [HICC]. [The First Respondent] will pay HICC a ‘success fee’ for sales made, and this will result in a significant cost reduction to [the First Respondent]. Suitably trained staff of HICC will do the sales work as a minor part of their role. Our estimate is that for 3-4 people it will be about 10% of their role.
5. Staff of HICC involved in the sale of [the First Respondent’s] products will have no change to their terms and conditions of employment and the work will be integrated. For example, sales will be treated in the same way as retail sales for the purpose of commissions. Talk time on corporate customers will be included in the 4 hour daily minimum etc. They will be full members of the team they are allocated to.
6. Your contract of employment (dated 4 May 18) has a special condition in the Probation Period clause that gives you a right to return to HICC if the role at [the First Respondent] doesn’t work out. We will therefore need to know if you will be exercising that right.
7. I said that this change would happen soon, but I didn’t provide an exact date. The latest date is 1 August. I’d like a decision by you next Friday 20^th July. This will then give Alistair time to set up the operation moving forward. I’m also conscious of the fact that we are moving office in about 10 days.
8. I will also want to know from you whether you want to be one of the 3 or 4 agents that will deal with corporates.
I think that’s it.
Happy to discuss on Monday.
regards (sic)
Andrew[206]
(Emphasis added)
[206] Davis Affidavit, [42] and Annexure “AAD-12”.

Mr Davis’ evidence clearly concedes that the Award was never put up in the office. The only way in which cl.5 of the Award could be satisfied was if it was available via ‘electronic means’.
The Respondents submit that at all times the Award was available online and the Applicant was never prevented from accessing it. Mr Davis’ evidence as to how the First Respondent enabled the Applicant to access the Award was by virtue of giving the Applicant internet access.
It cannot be said that the mere fact an employer gives an employee internet access is sufficient to discharge the positive obligation on the employer to ensure that an employee is able to access the Award. The fact that the Applicant was completing a Human Resources course and would have been aware of how to access the Award is of no significance. Further, there was no evidence adduced by the Respondents that the Applicant was undertaking such a course.
The Respondents overlook the phrase ‘more accessible’. Hence, the Award being made available by ‘electronic means’ had to be ‘more accessible’ than the Award being available ‘in or near a noticeboard in the workplace’. Were it the case that the Award were on an intranet, for example, this would be sufficient in the Court's view. An intranet is akin to a noticeboard.
But that is simply not the case. To suggest that giving access to the internet alone satisfies cl.5 of the Award casts responsibility on the employee to search for the Award (albeit using a company resource) as opposed to the positive obligation on the employer to make the Award accessible as is clearly intended by cl.5.
Accordingly, cl.5 of the Award has been breached.
Clause 8 of the Award states:
8.1 Consultation regarding major workplace change
(a) Employer to notify
(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.
(b) Employer to discuss change
(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.
(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).
(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.
8.2 Consultation about changes to rosters or hours of work
(a) Where an employer proposes to change an employee’s regular roster or ordinary hours of work, the employer must consult with the employee or employees affected and their representatives, if any, about the proposed change.
(b) The employer must:
(i) provide to the employee or employees affected and their representatives, if any, information about the proposed change (for example, information about the nature of the change to the employee’s regular roster or ordinary hours of work and when that change is proposed to commence);
(ii) invite the employee or employees affected and their representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities);and
(iii) give consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives.
(c) The requirement to consult under this clause does not apply where an employee has irregular, sporadic or unpredictable working hours.
(d) These provisions are to be read in conjunction with other award provisions concerning the scheduling of work and notice requirements.[237]
[237] Court Book 568-569.
The Applicant submits that as Mr Davis had made the decision to make the Applicant's position redundant on 10 July 2018, he was required to notify her and commence discussions ‘as soon as reasonably practicable’. The Applicant submits that Mr Davis did not do so, as he did not mention redundancy to the Applicant at the meeting on 11 July 2018, and in the meeting on 12 July 2018 he did not ‘discuss the ramifications’ of the decision.
In relation to the breach of cl.8.1 of the Award, Mr Davis’ evidence as to why he did not advise the Applicant of the redundancy on 11 July 2018 was as follows:
In the meeting I wanted to find out if she was going to resign. If she was going to resign then the role wouldn't have been made redundant - sorry, the role would have been made redundant but there would have been no need to have a redundancy discussion with her.[238]
[238] Transcript (10.12.19) P132:L12-16.
Mr Davis’ affidavit evidence was:
If the Applicant was resigning, I would have recommended that the First Respondent would have waited until the Applicant ended her employment before outsourcing her role and I would not have had to implement any corporate restructure. [239]
[239] Davis Affidavit, [35].
Mr Davis’ evidence is somewhat inconsistent, though the crux of it is that Mr Davis did not mention the redundancy to the Applicant because he was, in effect, hoping for the easier option of the Applicant resigning. Mr Davis, despite having made the decision on 11 July 2018, was still gathering the relevant information to enable (or determine) the logistics of the redundancy. In the Court's view, the ‘discussions’ did occur as soon as practicable after the decision had been made.
The relevant discussion for the purposes of cl.8.1(b) of the Award occurred on 12 July 2018. The Applicant's affidavit evidence on what occurred at this meeting was as follows:
104. At or around 2:30pm on 12 July 201[8], I was asked to attend a meeting between Mr Davis and Mr Forbes. Again, I was not offered the opportunity to have a support person present at this meeting.
105. Mr Davis proceeded to say to me words to the effect, "I didn't think I would have to have this conversation but as you said you were going to stay I have to do this. Due to low leads it is not cost effective to have both wages paid [mine and Mr Forbes' wages], and your role is going to be made redundant". Mr Davis also informed me that my role would be disbursed back into the retail division of HICC, as this would be a more cost-effective approach. At this time, I raised with Mr Davis that I did not believe that this would be an appropriate approach, given the unworkability of this 'hybrid' role previously and my complaints regarding the unfair commission entitlements of such a role.
106. At this time, Mr Davis asked me whether I would like to return to the retail team of HICC. I expressed to Mr Davis that I wished to consider this proposal. The meeting was then terminated, although after I had left, Mr Forbes remained in the room with Mr Davis. [240]
[240] First Farrell Affidavit, [104]-[106].
Mr Davis’ evidence was as follows:
On 12 July 2018, Mr Forbes and myself met with the Applicant again, during which I explained to the Applicant that I had undertaken a review of the First Respondent's business and had decided that the Applicant's role would be made redundant. It was explained to the Applicant that the reason for her job being made redundant was due to reduced volume of leads, consequent negative earnings of the business, and that the costs to the First Respondent would be materially lower if the sales function was outsourced rather than supporting a full-time salary of a sales consultant where the volume leads did not support the position. [241]
[241] Davis Affidavit, [40].
The evidence of both the Applicant and Mr Davis is consistent. What the Applicant recounts satisfies cl.8.1(b) of the Award. She was advised of the changes (i.e., that the role would be disbursed back into the retail division of HICC), that the effect of this was that her position would be made redundant and the ‘measure to avoid’ the adverse effect a redundancy would have on the Applicant would be to redeploy the Applicant to her previous role. It is apparent that there was a ‘discussion’ and the Applicant was not ‘merely told’ of the decision. The Applicant herself deposes in her affidavit that at that meeting she stated that she did not believe that moving back to her previous role was appropriate.
Clause 8.1(b) of the Award was met in these circumstances.
The Court is satisfied that the 13 July 2018 Email sent by Mr Davis was sufficient. The 13 July Email is set out in full at paragraph 86 of these Reasons for Judgment.
The 13 July 2018 Email states the nature of the changes, the effect on the Applicant and other relevant information such as her right to move back to her previous role at HICC and how that role will interact with the corporate work of the First Respondent. Were it the case that the Applicant had an issue with this written statement relating to her redundancy (or perceived it as inadequate) she could have discussed it on the ‘Monday’ or asked for a ‘more detailed form’ as Mr Davis stated in the second line.
While the formality of the 13 July 2018 Email is not what one would expect when discussing the details of an employee's redundancy, the 13 July 2018 Email contains the substantive information required and is ‘in writing’. It therefore meets cl.8 of the Award.
No breach of cl.8 of the Award has been established.
Contractual Claims
As noted previously in paragraph 12 of these Reasons for Judgment, on the first day of the hearing, Counsel for the Applicant confirmed that the Applicant no longer pressed the unlawful termination of employment contract claim at paragraph 88 of the Amended Statement of Claim.[242]
[242] Transcript (9.12.19) P14:L28-37.
At paragraphs 94-97 of the Amended Statement of Claim, the Applicant pleads a breach of employment contract in relation to terms referring to health and safety and also harassment and vilification. The Respondents made opening submissions on these claims.[243]
[243] Transcript (9.12.19) P26:L46-P29:L13.
In the Applicant’s Closing Submissions, the Applicant stated at trial that it no longer pursued the claims at paragraphs 94-96.[244] This is incorrect. At no time during the two days of hearing did the Applicant indicate that these two contractual claims were abandoned. It is also troubling that the Applicant refers only to paragraphs 94-96. Paragraph 97 pleads how the First Respondent breached the contractual clause relating to harassment and victimisation. The Court will treat this incorrect reference as a typographical error.
[244] Applicant’s Closing Submissions, [8.c] and [8.d].
In any event, in the absence of submissions on this point, the Court is not satisfied that the Applicant has established any breach of contract as purportedly pleaded at paragraph 97.
Redundancy Payments
The Applicant claims, in the event that the Court determines that the redundancy was genuine, that the First Respondent has breached s.119 of the FW Act which provides as follows:
(1) An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:
(a)at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
[…]
The First Respondent pleads that the First Respondent is exempt from making a redundancy payment by operation of s.121 of the FW Act.[245] Section 121(1)(b) of the FW Act provides:
(1)Section 119 does not apply to the termination of an employee's employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):
[…]
(b) the employer is a small business employer.
[245] Defence, [91].
A ‘small business’ is one that employs less than 15 employees.[246] There is no dispute that the First Respondent employs less than 15 employees. At the time of the Applicant's termination, the First Respondent employed only two persons. Therefore, s.121(1)(b) of the FW Act exempts the First Respondent from being required to provide redundancy pay to the Applicant.
[246] Fair Work Act 2009 (Cth) (FW Act), s.23(1).
The Applicant however submits that for the purpose of s.121(1)(b) of the FW Act, HICC must be included as it is an ‘associated entity’ of the First Respondent.[247] The Applicant referred to the fact that the two businesses operated in the same office, shared resources (office space, toilets, kitchen, IT equipment, intranet, power and internet access) and there was no strict physical separation between the businesses. The Applicant asserts that by reason of the ‘dynamics between the two businesses’ ‘for all intents and purposes, the two businesses operated in many respects, as one’.[248]
[247] FW Act, s.23(3).
[248] Applicant’s Closing Submissions, [82(c)].
An associated entity is defined in s.50AAA of the Corporations Act 2001 (Cth) (Corporations Act) which provides:
(1)One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.
(2)This subsection is satisfied if the associate and the principal are related bodies corporate.
(3)      This subsection is satisfied if the principal controls the associate.
(4)      This subsection is satisfied if:
(a)      the associate controls the principal; and
(b)the operations, resources or affairs of the principal are material to the associate.
(5)       This subsection is satisfied if:
(a)the associate has a qualifying investment (see subsection (8)) in the principal; and
(b)      the associate has significant influence over the principal; and
(c)        the interest is material to the associate.
(6)      This subsection is satisfied if:
(a)the principal has a qualifying investment (see subsection (8)) in the associate; and
(b)      the principal has significant influence over the associate; and
(c)        the interest is material to the principal.
(7)      This subsection is satisfied if:
(a)an entity (the third entity) controls both the principal and the associate; and
(b)the operations, resources or affairs of the principal and the associate are both material to the third entity.
(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:
(a)      has an asset that is an investment in the second entity; or
(b)      has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.
Both parties provided the Court with company extracts for the First Respondent and HICC. Mr Davis also gave evidence, which was unchallenged, that neither the First Respondent nor HICC could exert control or influence over one another.[249] Accordingly, the First Respondent and HICC do not meet the criteria in s.50AAA of the Corporations Act. The First Respondent is a ‘small business employer’ and is therefore exempt from paying redundancy entitlements pursuant to s.121(1)(b) of the FW Act.
[249] Davis Affidavit, [3]-[6]. Transcript (10.12.19) P81:L3-47; P83:L44-P84:L2; P99:L8-31.
Another reason why this claim must fail is because the Applicant is not entitled to redundancy pay by operation of s.122(3) of the FW Act which provides:
(3)An employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with an employer (the first employer) if:
(a)the employee rejects an offer of employment made by another employer (the second employer) that:
(i)is on terms and conditions substantially similar to, and, considered on an overall basis, no less favourable than, the employee's terms and conditions of employment with the first employer immediately before the termination; and
(ii)recognises the employee's service with the first employer, for the purpose of this Subdivision; and
(b)had the employee accepted the offer, there would have been a transfer of employment in relation to the employee.
In the Applicant’s affidavits (and supported by Ms Brown) the Applicant stated that she viewed her role at the First Respondent as a ‘promotion’. At the hearing, the Applicant stated that while the offer to return to her previous role was the same job title, the ‘job role’ was different. The Applicant stated that she felt there were ‘additional responsibilities’ in her role with the First Respondent.
On the Applicant's own evidence, the terms and conditions of her previous role at HICC (which she would return to) were ‘the same’ as those applying to the First Respondent's role. In fact, save for the reference to the probationary period, the Applicant stated only that the employer title had been changed from her previous contract.[250] The contract is the evidence of her terms and conditions.
[250] Transcript (9.12.19) P37:L16-40.
In Commissioner for Railways (NSW) v McCulloch [1946] HCA 27; (1946) 72 CLR 141 the phrase ‘not less favourable’ was considered and it was stated:
In my opinion, the Federal Act, s. 16 (3) (a), does not alter or purport to alter the conditions upon which persons are employed by their employers. It entitles a person qualified under the Act to be replaced in employment under conditions not less favourable than those which would have applied to him if he had remained in the employment, that is, conditions as determined by the terms of his contract with his employer, of any applicable law and of any applicable award. [251]
[251] Commissioner for Railways (NSW) v McCulloch [1946] HCA 27; (1946) 72 CLR 141, 154-155.
The only matter referred to in the Amended Statement of Claim as to how the offer of redeployment was less favourable, is particularised under paragraph 93. The Applicant alleges that:
[…] had Applicant accepted the redeployment role at HICC, she would have reported directly to Mr Tsimeris and/or Mr Cahlini De Castro. [252]
This was said to be less favourable as the Applicant ‘did not want to be in a team with such a manager’, being Mr Tsimeris.[253]
[252] Amended Statement of Claim, [93], Particulars.
[253] Amended Statement of Claim, [93], Particulars.
The Applicant’s pleaded case therefore centred entirely upon who she would be working with at HICC, and her subjective view was that this would be unsuitable. This has no correlation with the words of s.122(3) of the FW Act and is rejected.
Consistent with the pleading in the Amended Statement of Claim, the Applicant’s evidence under cross-examination was not that the terms and conditions of her employment would be less favourable overall, but rather her evidence was that she:
[…] didn’t think it was suitable for me to go back there after what had been going on. I would have had to report directly to people that I had been advised not to go near. [254]
[254] Transcript (9.12.19) P45:L7-9.

The Court is satisfied that the redeployment of the Applicant to her previous role meets s.122(3)(a) of the FW Act. It does not matter whether the Applicant viewed her role with the First Respondent as a promotion. The Applicant’s subjective belief is not supported by any objective documentation and it is not a relevant consideration for s.122(3) of the FW Act. Nor does it matter that the Applicant may have felt uncomfortable returning to work under Mr Tsimeris. The terms and conditions of her employment were substantially similar and no less favourable.
The payroll evidence demonstrates that the Applicant commenced employment with the First Respondent on 19 April 2018.[255] While the Applicant states she commenced earlier in the month of April 2018, the objective evidence that the Court finds definitive of the issue was the first payslip from the First Respondent. The Applicant was within her three month probationary period and had a contractual right to return to HICC in her previous (and equivalent) role. Accordingly, a transfer of employment would have occurred had the Applicant accepted the offer. There was no compulsion on the Applicant to accept the job, however the result of the Applicant’s decision not to be deployed to HICC means that she is not entitled to receive redundancy pay under s.119 of the FW Act.
[255] Exhibit A1.
The redundancy pay claim is dismissed.
Commission Claim
The Applicant claims that the First Respondent owes the Applicant $595.04 in unpaid commission.[256] This claim concerns unpaid commission that the Applicant deposes that she assumes that she would have achieved.[257]
[256] Amended Statement of Claim, [98]-[101]; First Farrell Affidavit, [130].
[257] First Farrell Affidavit, [130].
The Applicant’s claim is founded upon the First Respondent’s Commission Policy.[258] The Applicant’s employment contract provides that:
Policies and Guidelines
You are required to comply with all of CHOOSEWELL HEALTHLINK’s policies and procedures, as instructed and/or amended by CHOOSEWELL HEALTHLINK from time to time. Whilst applying to you, the policies and guidelines are not incorporated into this contract and do not create enforceable contractual rights for you. [259]
[…]
(Emphasis added)
[258] Applicant’s Closing Submissions, [177]; First Farrell Affidavit, [128] and Annexure “JLF-20”.
[259] First Farrell Affidavit, [13], “JLF-1”
In Romero v Farstad Shipping (Indian Pacific) Pty Ltd[260] the Full Federal Court was required to consider the approach to be taken when considering whether a policy was part of an employment contract. The Full Federal Court said:
[34].One point that is clear is that whether or not a policy will be incorporated into a contract of employment will depend upon the parties’ intentions as objectively ascertained: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 (at [40]-[41]).
[35]In approaching the task of ascertaining the parties’ intention, the starting point will be the language of the contract. The language adopted is to be viewed in context, not in abstract isolation. Further, regard must be had to the purpose and object of the transaction.
[36] In Toll (at [40]), the High Court said (footnotes omitted):
This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction. [261]
[260] [2014] FCAFC 177; (2014) 231 FCR 403.
[261] Ibid, [34]-[36].
The Court concludes that it was objectively clear that the Applicant’s employment contract did not include the First Respondent’s policies, by reason of the clear wording under the heading ‘Policies and Guidelines’ in the employment contract. In the circumstances, the Commission Policy does not have any contractual force that the Applicant is capable of suing on.
Further, the commission payments are discretionary. There is no obligation on the First Respondent to pay employees retention commissions at all. Even if there was, that obligation must certainly cease once an employee has left the First Respondent’s employment. The unpaid commission that is alleged to be due and payable to the Applicant was triggered by an event that occurred whilst the Applicant was no longer employed by the First Respondent. In the circumstances there is no amount owing.
Further, as a matter of contract, it is insufficient for the Applicant to ‘assume’ that she would have earned a certain amount and then seek an order from the Court representing that amount. The Applicant has not adduced any evidence as to what clients she sold products to, nor has she adduced any evidence as to whether the clients in fact remained signed up to their products for a full three months. The Applicant’s claim is based entirely on what she assumes would probably have happened, given what she experienced in the months leading up to her redundancy.
The Applicant’s claim for unpaid commission is therefore dismissed.
Accessorial Liability
The Applicant pleads that Mr Davis was ‘involved’ within the meaning of s.550 of the FW Act in the following contraventions:
(a)The First Adverse Action, Second Adverse Action and the Third Adverse Action;
(b)The two breaches of the Award; and
(c)The failure to pay the redundancy pay.[262]
[262] Amended Statement of Claim, [102]-[103].
Section 550 of the FW Act is an accessorial liability provision. It provides as follows:
Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly knowingly concerned in or party to the contravention; or
(d) has conspired with others to affect the contravention.
The Applicant relied upon contraventions of s. 550(2)(a) and (c) of the FW Act.[263]
[263] Amended Statement of Claim, [103].
For the purposes of s.550 of the FW Act, the Applicant must establish that Mr Davis had knowledge of the essential matters which made up each of the alleged contraventions of the FW Act. If knowledge of an essential element is not made out, a claim of accessorial liability will fail.[264] In order to have the requisite intention, the person must have knowledge of ‘the essential matters’ which go to make up the events. Actual rather than imputed knowledge is required.[265] For a person to be ‘knowingly concerned in or a party to the contravention’ for the purposes of s.550(2)(c) of the FW Act, the person must have been an intentional participant with knowledge at the time of the contravention of the essential elements constituting the contravention.[266]
[264] EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134, [11]-13]; Fair Work Ombusdman v Hu [2019] FCAFC 133, [15] and [36].
[265] Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365, [176]-[178].
[266] Australian Building and Construction Commissioner v Parker [2017] FCA 564, [126].
The Amended Statement of Claim does not plead any material facts that could establish that Mr Davis had actual knowledge, or the requisite intention, to be involved in any of the alleged contraventions by the First Respondent. It is not acceptable for an applicant to seek to rely upon evidence provided by a respondent during cross-examination and then seek to rely upon this evidence to establish civil penalty contraventions. Mr Davis was entitled to be put on notice prior to the trial as to how the case was being put against him. In the circumstances, all accessorial liability allegations against Mr Davis must fail.
The allegations against Mr Davis for accessorial liability are dismissed.
Conclusion
On the basis of the above it has been concluded that:
(a)The First Respondent did not take adverse action against the Applicant for a prohibited reason;
(b)The First Respondent has breached cl.5 of the Award;
(c)The First Respondent has not breached cl.8 of the Award;
(d)The Applicant is not entitled to a redundancy payment under s.119 of the FW Act;
(e)The commission claim is dismissed; and
(f)The claims for accessorial liability against Mr Davis pursuant to s.550 of the FW Act are dismissed.
In light of these Reasons for Judgment, the parties are directed to confer in relation to a proposed minute of orders reflecting any declarations and other orders to be made. Those orders should also make provision for any compensation or penalty hearing. The Court will list the matter for further directions on 30 July 2021. The proposed minute of orders should be emailed to Chambers prior to this directions listing.

I certify that the preceding one hundred and seventy-three (173) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C. E. Kirton QC.
Associate:
Dated: 6 May 2021

(Mortimer J).

File number(s):	MLG 3163 of 2018
Judgment of:	HER HONOUR JUDGE C. E. KIRTON QC
Date of judgment:	6 May 2021
Catchwords:	INDUSTRIAL LAW – whether the First Respondent took adverse action against the Applicant contrary to s.340 of the Fair Work Act 2009 (Cth) – whether the Applicant exercised a workplace right – whether there was a breach of the Contract Call Centres Award 2010 – whether the First Respondent owes the Applicant unpaid monies in commission – whether the First Respondent failed to pay the Applicant her redundancy entitlements – whether the Second Respondent is accessorily liable for contraventions by the First Respondent pursuant to s.550 of the Fair Work Act 2009 (Cth) – where the First Respondent breached s.45 of the Fair Work Act 2009 (Cth) – no other breach found – the Application be otherwise dismissed
Legislation:	Contract Call Centre Award 2010 cls 4, 5, 8 and 22.3 Corporations Act 2001 (Cth) s 50AAA Evidence Act 1995 (Cth) s 38 Fair Work Act 2009 (Cth) ss 45, 119, 121, 122, 335, 340, 341, 342 and 550
Cases cited:	Australian Building and Construction Commissioner v Parker [2017] FCA 564 Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 Commissioner for Railways (NSW) v McCulloch [1946] HCA 27; (1946) 72 CLR 141 Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046 CumminsSouth Pacific Pty Ltd v Keenan [2020] FCAFC 204 EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fair Work Ombusdman v Hu [2019] FCAFC 133 Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754 National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709 PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 Richens v Commonwealth of Australia (as represented by the Commissioner of Australian Federal Police) (No 2) [2019] FCA 1224 Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177 The Environmental Group Ltd v Bowd [2019] FCA 951 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Number of paragraphs:	173
Date of last submission/s:	3 April 2020
Date of hearing:	9 & 10 December 2019
Place:	Melbourne
Counsel for the Applicant:	Mr Fuller
Solicitor for the Applicant:	Pearce Webster Dugdales
Counsel for the Respondents:	Mr Denton
Solicitor for the Respondents:	HR Legal

ORDER MADE BY:	HER HONOUR JUDGE C. E. KIRTON QC
DATE OF ORDER:	6 MAY 2021