Forde v Asphalt Labour Hire Pty Ltd - [2024] FedCFamC2G 1381

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Forde v Asphalt Labour Hire Pty Ltd [2024] FedCFamC2G 1381

File number: MLG 1732 of 2023

Judgment of: JUDGE BLAKE

Date of judgment: 13 December 2024

Catchwords:
INDUSTRIAL LAW – Whether Applicant subject to adverse action for making complaint or inquiries – whether, inter alia, a failure to act may be considered adverse action – HELD that a failure to act is not adverse action in this matter – HELD further adverse action not taken for the making of complaints or inquiries.

INDUSTRIAL LAW – Whether Applicant subject to adverse action because of mental disability – where Applicant sent an email to the effect he was having a hard time and close to losing it all – whether Applicant has established he has a mental disability – HELD Applicant has not established he has a mental disability and he was not subject to adverse action because of a mental disability.

INDUSTRIAL LAW – Whether Applicant subject to adverse action because of family or carer’s responsibilities – HELD Applicant not subject to adverse action because of family or carer’s responsibilities.

Legislation:
Disability Discrimination Act 1992 (Cth).

Fair Work Act 2009 (Cth) Pt 3-1, ss 97(b), 340, 340(1), 341(1), 342, 342(1), 351, 352, 360, 361, 361(1)(a).

Workplace Relations Act 1996 (Cth) s 659.

Occupational Health and Safety Act 2004 (Vic).

Cases cited:
Alam v National Australia Bank Ltd (2021) 288 FCR 301

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83

Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46

Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531

Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697

Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162

Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

Farac v Pendal Group Ltd [2021] FedCFamC2G 25

Khiani v Australian Bureau of Statistics [2011] FCAFC 109

Kubat v Northern Health [2015] FCCA 3050

Lamont v University of Queensland (No 2) [2020] FCA 720

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

National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139

Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1

PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225

Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244

Qantas Airways v Gama [2008] FCAFC 69

RailPro Services Pty Ltd v Flavel [2015] FCA 504

Rowland v Alfred Health [2014] FCA 2

Serpanos v Commonwealth of Australia [2022] FCA 1226

Shizas v Commissioner of Australian Federal Police [2017] FCA 61

Stevenson v Murdoch Community Services Inc [2010] FCA 648

Tattsbet v Morrow [2015] FCAFC 62

Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456

Division: Division 2 General Federal Law

Number of paragraphs: 172

Date of hearing: 7, 8, 9 & 10 October 2024

Place: Melbourne

Counsel for the Applicant: Mr Muniz-Saavedra

Solicitor for the Applicant: McDonald Murholme Solicitors

Counsel for the Respondent: Mr Hooper

Solicitor for the Respondent: Stal Employment Lawyers
ORDERS

MLG 1732 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
CARL FORDE

Applicant

AND:
ASPHALT LABOUR HIRE PTY LTD

Respondent

ORDER MADE BY:

JUDGE BLAKE

DATE OF ORDER:

13 DECEMBER 2024

THE COURT ORDERS THAT:
1.The Application filed by the Applicant on 9 October 2023 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:

Carl Forde (‘Mr Forde’) was employed by Asphalt Labour Hire Pty Ltd (‘Company’) between 8 November 2017 to 28 July 2023. Mr Forde claims that during his employment, he was subject to adverse action in contravention of section 340 and section 351 of the Fair Work Act 2009 (Cth) (‘Act’). The Company denies that it has contravened any provision of the Act.
Mr Forde relied on his affidavit affirmed 6 May 2024, a further affidavit affirmed 1 August 2024, and documents he tendered into evidence. The Company relied on affidavits of Soner Kurt, General Manager (‘Mr Kurt’), Joji Varea, Field Senior Supervisor/Project Manager (‘Mr Varea’), Nektarios Psihountakis, Senior Operations Manager (whose preference throughout the proceedings was to be referred to as ‘Hector’), Natalie Georgiadis, Administration Manager (‘Ms Georgiadis’), John Loncaric, Director (‘Mr Loncaric’) and Elias Mantinaos, Director (‘Mr Mantinaos’), and documents tendered during the proceedings.
For the reasons that follow, I have decided to dismiss Mr Forde’s application.
FACTS
The Company specialises in road construction and asphalt maintenance. The directors of the company are Mr Loncaric and Mr Mantinaos. The Company employs over 50 employees. The terms and conditions of Mr Forde’s employment were governed by the Roadsafe Asphalt Enterprise Agreement (Asphalters) 2021 (‘Agreement’).
Mr Forde commenced employment with the Company in November 2017 in the position of Small Patch Crew. His employment was subject to a written contract of employment.
On 10 December 2020, Mr Forde says a fellow employee, Brett McLaughlin (‘Mr McLaughlin’), threatened to stab him in the neck when he was sleeping. Mr Forde says he was subsequently informed about this threat by other employees.
Between 7 February 2021 to 11 February 2021, Mr Forde was working near Ballarat and was required to travel one hour each way from his accommodation to the worksite. He says he was not paid a travel allowance for this trip. Mr Forde says later in February 2021, he complained to Mr Kurt and Mr Varea about not receiving a travel allowance. Mr Forde says that Mr Kurt told him he would not be receiving the payment on that occasion but failed to mention why (the ‘TA complaint’). The Company accepts that the TA complaint was made.
On 7 May 2021, Mr Forde says that he complained to Mr Loncaric about the threat made to him by Mr McLaughlin in December 2020 and that he also complained to Mr Kurt (‘McLaughlin Complaint’). Mr Forde says that Mr Loncaric did not take any further action to address the threat he had been subjected to. Mr Loncaric’s evidence was that he does not have any active management responsibilities in the Company, that he cannot recall Mr Forde informing him of any difficulties with Mr McLaughlin and that if it occurred, he would have referred Mr Forde to Mr Kurt. Mr Kurt was asked three times whether Mr Forde complained to him about Mr McLaughlin, and three times denied any knowledge of the complaint. On these issues, I am not satisfied that Mr Forde made any complaint to either Mr Loncaric or Mr Kurt for the reasons that follow:
(a)Mr Forde says he was ‘physically threatened’ by Mr McLaughlin. I do not accept Mr Forde can give that evidence when he gives other evidence that he was ‘in bed’ sleeping. Mr Forde attempts to explain this by saying he was informed about the threat the next day by others. None of the others, whom Mr Forde apparently knows, were called to give evidence about the threat. The nature of the threat about which Mr Forde says he is complaining is imprecise and based on hearsay;
(b)it took Mr Forde five months to complain about the alleged threat from Mr McLaughlin. The threat was, on Mr Forde’s evidence, a threat to his life. It stretches credibility to believe that Mr Forde would wait five months before making any complaint, given the apparent seriousness of any threat;
(c)Mr Forde says the reason he made the complaint was because of ongoing harassment by Mr McLaughlin which he directly experienced. Mr Forde offers no evidence as to what that other ongoing harassment was, despite it being the apparent reason he made the complaint;
(d)Mr Forde gave inconsistent evidence as to whom he made the complaint to. In his first affidavit, Mr Forde makes no mention of making a complaint to Mr Kurt, only identifying Mr Loncaric as the recipient of the complaint. It is only later, in response to Mr Kurt’s affidavit, that Mr Forde alleges that he also complained to Mr Kurt; and
(e)I accept Mr Kurt’s evidence that he had no knowledge of the complaint.
On 25 May 2021, Mr Forde injured himself when he fell backwards into a pit. He spoke to Mr Kurt about this and alleges that he ‘complained’ about the Safety Officer on site (‘Pit Injury Complaint’). In his affidavit, Mr Kurt agreed that Mr Forde ‘notified’ the Company he was injured. In cross-examination, Mr Kurt accepted that Mr Forde had called him to complain about the Safety Officer following the incident. Mr Kurt deposed further that he followed up with a contractor of the Company, Downer, and referred Mr Forde to a physiotherapist. Mr Forde confirmed Mr Kurt followed up with Downer.
On 8 September 2021, Mr Forde deposes that he sent an email to, inter alia, Hector and Mr Kurt regarding the expiry of his and other employees’ first aid certificates. He deposes that he raised these matters again on 20 April 2023 (collectively, the ‘First Aid Certificate Issue’). Both Hector and Mr Kurt accept that Mr Forde’s first aid certificate expired, and neither actively contested Mr Forde’s assertion that he raised concerns about the expiry of his first aid certificate.
In March 2022, Mr Forde was promoted to the position of Foreman. He signed a written contract of employment that is dated 21 March 2022 (‘Contract’). Mr Forde deposes that at the time of signing the Contract, he entered into an oral agreement with Mr Kurt that he would be entitled to a travel allowance when working away from home because he had not previously been paid a travel allowance. Mr Kurt gave evidence that he recalled a discussion with Mr Forde at the time he signed the Contract about being paid for time spent travelling, and that he told Mr Forde that when working away from home, he was to record his time as starting from when he left the accommodation before travelling to the worksite. Mr Kurt says he did not reach any agreement with Mr Forde about the payment of an additional allowance in circumstances where the Company paid for the petrol costs, accommodation, and provided a living away from home allowance in accordance with the relevant industrial agreement.
In the position of Foreman, Mr Forde reported to Hector and Mr Varea. Mr Forde’s responsibilities as Foreman included measuring up jobs, ordering asphalt, reporting to his managers, dealing with clients, and instructing and supervising employees. Hector indicated that Mr Forde had other responsibilities as Foreman including occupational health and safety matters, preparing, recording, and completing jobs’ status and documentation, quality control, delivering jobs in a timely manner and scoping sites for health and safety of the crew.
On 30 September 2022, Mr Forde’s eight-year-old son fractured his foot.
On 2 October 2022 at 3.39 pm, Mr Forde sent a text message to Hector in which he stated ‘Hi boys just a heads up I might need the week off my boy has fractured his foot on the weekend and won’t be able to make it in should be right for the weekend my mrs will be home to look after him then’. In response to that message, Hector sent a number of text messages including ‘Why Carl’, ‘How is that a reason for a week off?’, ‘I’m still not understanding’ and ‘Did you fracture your foot?’. While these messages convey an apparent confusion on Hector’s part as to what had occurred, in cross-examination, Hector accepted that in the text message, Mr Forde was referring to his son’s foot being injured.
Mr Forde deposed that following the text message exchange above, he telephoned Hector to ask for the week off work to care for his son (‘Carer’s Leave Inquiry’). Mr Forde says that Hector refused his request and directed that he take his son into work each day. Mr Forde ultimately did as Hector suggested and produced photographs that he says showed his son at work. Hector agreed he received a telephone call from Mr Forde, and stated under cross-examination that he might have been informed about the age of Mr Forde’s son, that Mr Forde did not request a week off work to care for his son, that he did not instruct Mr Forde to bring his son to work, and that Mr Forde told him it was all sorted. Hector maintained that position in cross-examination (save for the acknowledgement that he may have learned about the age of Mr Forde’s son) and stated further that he could not accept the photographs showed Mr Forde’s son at work because the trucks were not identifiable as trucks belonging to the Company. Mr Kurt’s evidence was that he was not aware Mr Forde had requested carer’s leave, and that the usual practice for an employee requesting leave is to file a request by their online APP system (‘APP’) that then notifies Hector of the request who either approves or denies it. Mr Kurt is then notified of the outcome of the leave request via the APP.
In respect of these matters, I find that Mr Forde asked Hector if he could take carer’s leave during a telephone call between the two of them. Mr Forde’s text message clearly foreshadowed his need to take leave. While the opening words in the text message indicated Mr Forde ‘might’ need to take the week off work, he went on to state that he would not be able to make it in. He did indicate that he would be okay for the weekend because his wife could care for his son. Arguably the text message itself was a request for carer’s leave. The text message certainly corroborates Mr Forde’s evidence that he needed time off work and asked Hector for it. There is then Hector’s response to the text. His responses could be fairly characterised as ‘hostile’ and lacking in empathy to the situation with which he was confronted. Hector was clearly resistant to the possibility that Mr Forde may need to take leave, and the text messages make plain his attitude to that concept. Hector’s text messages, in my view, corroborate Mr Forde’s account that he was refused permission to take leave when he later made that request by phone. Hector in cross-examination when pressed was ultimately uncertain as to the content of the conversation, indicating that ‘I don’t remember the full conversation that happened’. I therefore prefer the evidence of Mr Forde as to what happened during the telephone call, and I find that Mr Forde asked to take carer’s leave, and Hector denied that request. I also find that Mr Kurt had no knowledge of the Carer’s Leave Inquiry. Mr Forde does not claim that Mr Kurt had such knowledge in his affidavit in chief. Mr Kurt’s evidence is that he would only have found out about it had a request been made through the APP. It is understandable that no request was made by Mr Forde through the APP given Hector had orally denied his request.
On 27 February 2023, Mr Forde received a text from Hector that stated ‘fuck off you dumb nip cunt’ in response to a screenshot Mr Forde had sent about an RACV tow truck. Hector says this text was sent in jest and not intended to denigrate Mr Forde. Hector also says that Mr Forde regularly swore in the workplace. Mr Forde accepted he swore at work, but said he did not direct it at anyone.
On 22 March 2023, Mr Forde received an email from Hector (copied to Mr Kurt) that stated ‘Carl this is fucken shit. What the fuck you talking about you just missed one patch. You [sic] paperwork says otherwise. If you did all the work except 1, then where are all the emails with all the associated job numbers. Call me immediately when you wake up’. Hector regrets his language, but stands by the message that the work performed or overseen by Mr Forde was unsatisfactory.
In about March 2023, Mr Mantinaos deposes that he was informed about ongoing concerns by Mr Varea, Hector, and Mr Kurt about Mr Forde’s performance. I accept that Mr Mantinaos was so informed.
On 23 March 2023, Mr Forde was working on a freeway adjacent to a live lane without a buffer zone. At around 12.00 am, a serious motor vehicle crash and explosion occurred near the work area. Mr Forde completed an incident report and also sent an email to Hector, Mr Kurt, and the Company’s administration team about the incident. In the email, Mr Forde stated ‘the job was made bigger it was (18 x 3.4) x 150). Also can we see Sam when he does the MOA we didn’t have a buffer zone and the boys were working right next to the open lanes. Aaron had to cut against the traffic which isn’t ideal. We also had a car and truck smashe about 150 meters befor our job site last night. The car exploded in flames and they shut down the freeway for about three hours. So couldn’t get our truck in’ (‘Freeway Conditions Complaint’).
On 19 May 2023, Mr Forde was absent from work. Hector asked Mr Forde for photographic evidence of a job that was being undertaken as a result of concerns he had about that job. Mr Forde responded stating that his Leading Hand ‘has stuck them on the live sheets and didn’t know to email them directly’. Hector deposes that he was disappointed to receive this email from Mr Forde because it indicated he was not training his team appropriately. In his reply affidavit, Mr Forde somewhat curiously states (given the content of the email he sent to Hector) that ‘I provided sufficient training to my leading hand…with respect to the correct procedure in logging and completing live sheets’.
On 22 May 2023, Mr Forde received a ‘Letter of Concern’ from Mr Kurt (‘Warning Letter 1’). Mr Mantinaos was informed about the substance of this letter and approved its content. Warning Letter 1 provided as follows:
Dear Carl Forde
Letter of Concern
Further to our discussion held on 18/05/2023, I am writing to underline my concerns and confirm the outcome of that discussion.
As you are aware the topic of our conversation was in relation to the training of employees under your direction, as you had not properly provided training or access in relation to the Company's processes, it has led to a potential decrease in company profit.
This letter is to be treated as confirmation that I have discussed my concerns with you and that you are expected to make every effort to address the shortcomings that have been identified.
This letter confirms that you have been formally issued with a verbal warning which forms part of the Company's disciplinary process. This letter will be kept in your personnel file and is considered to be a reasonable written management instruction.
It is essential that you ensure that the required training is provided to employees under your direction and all policies are followed to the required standard. You are a valued member of the team and without consistency our business and your personal development will not grow. I hope you understand the need for me to set out my concerns in writing. Should these areas of concern not improve, your actions may be considered as misconduct and subject you to disciplinary action.
If you have any enquiries in relation to this matter, please contact me on [number].
Yours sincerely
Soner Kurt
Hector’s evidence is that there were numerous occasions between February 2023 and July 2023 where Mr Forde failed to complete administrative tasks. He also deposes that between 22 May 2023 and 3 June 2023, Mr Forde’s work performance did not improve. In his affidavit, he sets out a range of matters that Mr Forde failed to attend to. Mr Forde for his part, states that he was unaware of the concerns Hector had about his performance between 22 May 2023 and 3 June 2023.

On 3 June 2023, Hector sent Mr Forde an email copied to Mr Kurt. In the email, Hector stated ‘it appears that you may not fully understand the gravity of persistently neglecting your administrative tasks. Despite multiple warnings, you have continued to disregard them, and I must express my frustration… This will be your final warning about this’. Hector deposes that he communicated his concerns about Mr Forde’s performance directly to Mr Mantinaos and Mr Kurt up to July 2023.
Mr Forde received the email from Hector set out above and responded to it. In his email Mr Forde stated ‘Sorry you’re right I have not been with lately 100 percent I agree with you. I’m having a hard time at home and close to losing it all so sorry again but at the moment I’m fucking finding it hard just to get up in the mornings no sleep not eating so I’m sorry for letting work down but my family comes first I hope you understand I didn’t say anything because it’s my business not everybody’s at works so sorry again for letting you down’ (‘Mental Disability Notification’).
Hector responded to Mr Forde’s email. In his email, Hector expressed understanding, indicated the Company genuinely cared about his welfare personally and professionally, and stated that if there were specific ways the Company could support him, to please let the Company know.
Mr Forde deposes that Hector failed to follow up with him after this email exchange. Hector deposes that on or around 10 June 2023, he spoke to Mr Forde in person and Mr Forde told him that everything was okay.
On 6 June 2023, Mr Forde was instructed by Hector to pick up a steel drum roller for Downer using the Company’s truck. Mr Forde says he refused to complete the task requested by Hector because it was a violation of Downer’s policies. Mr Forde says that he spoke to Hector via phone about his concerns and that Hector was dismissive of those concerns and told him to just get it done. Hector denies he was dismissive. Mr Forde says he spoke to Mr Varea and told him, inter alia, that two round trips were required to pick up the steel drum roller, and that Mr Varea ended the call. Mr Varea recalls Mr Forde telling him two round trips were required, but denies that Mr Forde told him that he (Mr Forde) was refusing to act on Hector’s instructions. Mr Forde says he eventually spoke to a representative from Downer and agreed to an alternative course of action (‘Steel Drum Incident’).
Also on 6 June 2023, Mr Kurt received an email from Wayne Jansen, Project Supervisor. In his email, Mr Jansen referred to ‘Carl’s comments to myself and some of the actions of his crew relating to his leadership’. The matters raised by Mr Jansen and attributed to Mr Forde and his crew included comments that ‘Roadsafe is making so much money and we are all being underpaid’, ‘He was also questioning why they where doing the job and why Robs crew had an easy day compared to them’, ‘no one in the office knows what they are doing’ and ‘Got caught out in the rain and they wait until the end of the run before anyone bothers getting on the roller (Leadership issue)’. Mr Forde says in his reply affidavit that he was not provided with an opportunity to respond to the purported allegations.
On 7 June 2023, Mr Kurt arranged to meet with Mr Forde and his crew and reminded them of the importance of maintaining the Company’s culture. Mr Kurt subsequently sent a document to Mr Forde and his crew regarding corrective actions that needed to be taken. This document referenced cultivating a positive work attitude, maintaining a positive team culture and encouraging effective communication.
On 7 June 2023, Mr Forde was given a ‘Letter of Concern’ by Mr Kurt dated 6 June 2023 (‘Warning Letter 2’). In the letter, Mr Kurt states that ‘We have recently become aware of concerning behaviour and negative comments attributed to you regarding our company’ and that ‘It has come to our attention that you have engaged in negative discussions, openly criticised the company, and expressed dissatisfaction with our operations. Such behaviour is not aligned with our company’s values and professionalism…’. Mr Kurt also stated that ‘this warning signifies our serious concern about the impact of your negative behaviour. Further instances of such behaviour will result in escalated disciplinary action, up to and including termination of your employment’.
As a result of the above and other concerns he held, Mr Kurt informed Mr Mantinaos about his concerns with Mr Forde and discussed whether Mr Forde was a good fit as Foreman. Mr Kurt intended to meet with Mr Forde on 28 July 2023 to give him an opportunity to respond to the concerns, however, before that could occur, Mr Kurt became aware of concerns Mr Varea held about Mr Forde’s work performance on a job at ‘Miners Rest’.
Mr Varea stated that in the course of 2022 and 2023, he had concerns about Mr Forde’s work performance and spoke to Mr Mantinaos and Mr Kurt about them. These included discussions with Mr Forde about various matters on 4 April 2022, 4 October 2022 and 7 June 2023. He also deposed to concerns about other work undertaken by Mr Forde in relation to projects at Miners Rest, Maygar Barracks, Lilydale and Seddon. Mr Varea deposed that prior to the dismissal, he informed Mr Mantinaos about reworks because of bad workmanship on jobs where Mr Forde was in charge. Mr Mantinaos deposed that Mr Varea informed him of concerns about the projects at Miners Rest, Maygar Barracks, Lilydale and Seddon. I accept these discussions between Mr Varea and Mr Mantinaos occurred.
On 30 June 2023, Mr Forde was required to source a mix he had not used before. He sent Hector a text message asking for assistance as to where he should get the mix from. Hector responded by text stating ‘Ring around Carl. You’re the Fucken foreman, Ffs’. Mr Forde complained to Mr Kurt about being spoken to in a demeaning way (‘Hector Bullying Complaint’). Mr Kurt contacted Hector and told him, inter alia, that he was not to use that language again and was to treat Mr Forde courteously.
On 24 July 2023, Mr Forde deposes that the maintenance team sent out a truck with a broken windscreen and wiper arm. Mr Forde says he had previously raised similar defects with Mr Kurt and they were not responded to in a timely manner (‘Unsafe Equipment Complaint’). Mr Kurt told the Court he immediately advised the maintenance team to have the truck repaired. He also indicated that this was a standard example of an employee raising a maintenance issue and that employees are expected to raise such issues.
In early July 2023, Mr Forde received a request to meet with Mr Kurt and Mr Varea.
On 28 July 2023, Mr Forde met with Mr Kurt and Mr Varea. Mr Kurt told Mr Forde the Company had decided to part ways with him. Mr Forde was given a release agreement and asked to sign it, which he initially did.
Mr Kurt says that at the meeting above, he informed Mr Forde that his employment was ending because of ‘job failings’ and unsatisfactory performance over a long period of time. Mr Kurt annexed to his affidavit, a summary he relied on for the purpose of the meeting. That document provided as follows:
Reasons for Termination:
Defects:
•Terraform job at Lilydale Cemetery
•Terraform job at Maygar Barracks
•GP Bluestone at Thomson St
•Ballarat Ace Contracting
Over Ordering / Wasted Asphalt:
•Terraform job at Maygar Barracks: 30 tonnes
•Ballarat Boral Ace Contracting: 20 tonnes (first shift)
•GP Bluestones at Thomson St. Approximately 14 tonnes plus repair
•Ballarat Ace Contracting: To be confirmed, full scope of re-works yet to be determined.
Issues with IT Systems:
•Numerous discussions about IT systems not being filled in on time or correctly.
•Letters of concerns and warnings were provided to Carl.
Termination Offer:
•Due to the mentioned defects, over-ordering, and IT systems issues, Carl’s employment is being terminated.
•The termination offer is presented without prejudice in this meeting.
Mr Forde denied that the issues in Mr Kurt’s termination document were raised with him. Mr Forde says that Mr Kurt told him his employment was to be terminated for ‘costing the company too much money’. Mr Forde agreed, however, that he knew prior to his dismissal that the Company had issues with his performance, and he agreed that he acknowledged that fact at the meeting.
The Company admits Mr Forde’s employment ended on 28 July 2023.
A second meeting was held between Mr Forde, Mr Forde’s wife, Mr Varea and Mr Kurt on 28 July 2023. This occurred following a phone call from Mr Forde’s wife to Mr Kurt. At this second meeting, the Company agreed not to rely on the release agreement Mr Forde had signed previously. Mr Forde’s evidence is that at this meeting, he requested information relating to his performance issues. Mr Kurt agreed to provide the information.
In the following days, there were several communications that passed between Mr Forde and the Company. It is unnecessary to set those out in any detail save to note that on 31 July 2023, Mr Kurt sent an email to Mr Forde that summarised or set out ‘several non-conformances and warnings’ that had been given to Mr Forde, apparently in response to Mr Forde’s request for such information. The information in that email included the following:
•Foreman Meeting 28/08/2022 6:10 am (Topic: improvement in Communication by foreman's)
•Company Email- 02/11/2022 5:51 am Chain of command draft email sent to carl noting all HR issues to be sent to Soner Kurt.
•Company Toolbox and sent email-04/11/2022-Chain of command and showing on the projector and sent minutes.
•Email between management and Carl 18/01/2023 9:46am - not following completion process.
•Email between management and Carl 8/03/2023 7:32am - Faild to completing a job process
•Email between management and Carl 16/03/2023 7:46am - Faild to completing a job process
•Foreman Meeting 29/03/2023 6:10am -Process and Procedure Explained
•Email between management and Carl 19/04/2023 11:06am - Faild to follow process
•Letter of concern to Carl in relation 22/05/2023
•Email between management and Carl 03/06/2023 12:53pm - Faild to follow process and noting persistently neglecting foreman's tasks despite numerous email warnings and continuous to disregard them. Management asking if more support of training needed (no response from Carl).
•Email between management and Carl 05/06/2023 - Faild to follow process (Didn't follow specific instructions for the day's work)
•05/06/2023- Complaint from leading supervisor.
•Letter of Concern to Carl Forde 06/06/2023
•Crew Meeting regarding Corrective Actions for Carl Forde and Crew 07 /06/2023 (6:00am)
•Email between management and Carl 11/06/2023 - Faild to follow process.
•Email between Management and Carl 11/07/2023 7:53am
•Supervisor informing management of series of major defects regarding Carl Forde and Crew-26/07/2023
•Letter of separation 28/07/2023 2:00pm meeting with Carl Forde, Joji and Soner.
LEGAL PRINCIPLES
Section 340 of the Act
Section 340 of the Act is found within Part 3-1 of the Act. Relevantly, section 340(1) of the Act provides as follows:
(1)      A person must not take adverse action against another person:
(a)       because the other person:
(i)has a workplace right; or
(ii)has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)       to prevent the exercise of a workplace right by the other person.
The term ‘adverse action’ is defined in section 342(1) of the Act. Relevantly, ‘adverse action’ includes the dismissal of an employee from employment, injury to the employee in his or her employment, altering the position of the employee to the employee’s prejudice, or discriminating between the employee and other employees of the employer.
For the purposes of section 342 of the Act, an employer:
(a)‘injures [an] employee in his or her employment’ if it subjects him or her to legally compensable injury; and
(b)‘alters the position of [an] employee to the employee’s prejudice’ if, by its conduct, it visits any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.
See: Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 18 [4] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).
An alteration to the position of an employee will be prejudicial if it visits adverse consequences that are real and substantial, rather than merely possible or hypothetical: see Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244, 250 [32] (Gray, North and Besanko JJ); Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697, [48] (Katzmann J).
Section 341(1) of the Act identifies when a person has a ‘workplace right’. It relevantly provides as follows:
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
Extensive consideration has been given by Courts to the words ‘complaint or inquiry’, and to the meaning of the phrase ‘is able to make a complaint or inquiry…if the person is an employee – in relation to his or her employment’ in section 341(1)(c)(ii) of the Act. See for example: Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456 at [41], and [43]; Serpanos v Commonwealth of Australia [2022] FCA 1226 at [89]; Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 at [28] (‘Whelan’); Alam v National Australia Bank Ltd (2021) 288 FCR 301 at [94], [97]-[98] (‘Alam’).
Section 351 of the Act
Section 351 of the Act relevantly provides that an employer must not take adverse action against an employee because of the employee’s mental disability or family or carer’s responsibilities.
The reasons for the adverse action and the reverse onus
Sections 340 and 351 of the Act operate in conjunction with section 360, and 361 of the Act. Those sections provide as follows:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
In Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 (‘Hall’), a Full Court of the Federal Court examined closely the text of section 361 of the Act. The Full Court set out a number of important observations about what needs to occur before section 361 of the Act is engaged. The Full Court stated the following:
[13]Stated compendiously, s 361(1) places an onus or burden on a person involved in a proceeding relating to a contravention of Part 3-1 of the FWA to “prove otherwise” than that he or she took the contravening action for the particular reason, or with the particular intent, alleged in the applicant’s application. The consequence of a failure to discharge this burden is that it is presumed against the person concerned that the contravening action was taken for that particular reason or with that particular intent. Before this presumption operates, however, two pre-conditions must be met. First, under s 361(1)(a) the particular reason or the particular intent for the contravening action must be alleged in the application. It is with respect to that alleged reason or that alleged intent that the person concerned must prove otherwise. The word “particular” in s 361(1)(a) must be given its ordinary and natural meaning. Relevantly, that is: “2. being a definite one, individual, or single, or considered separately: each particular item. 3. distinguished or different from others or from the ordinary; noteworthy; marked; unusual. ... 6. dealing with or giving details, as an account, description, etc., of a person; detailed; minute; circumstantial”. See Susan Butler (ed), Macquarie Dictionary (Pan Macmillan, 7th ed, 2017) vol 2, 1096.
[14]It follows that an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct. This need for care and precision in making the allegations in connection with which the presumption may operate is similar to that required with respect to the analogous situation of averments in criminal prosecutions (see Gallagher v Cendak [1988] VicRp 70; [1988] VR 731 at 738–739 (Vincent J) and JD Heydon, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017) at [7105]). In Part 3-1 of the FWA, it is also heightened by the provisions of s 360. That section, when read with s 361(1)(a), requires a person who is alleged to have taken a contravening action to establish that the particular reason for which it is alleged that person took that action is not included among any of the reasons for which he or she took that action. It is important to note that, in contrast to s 361, s 360 only applies to a “particular reason” and it does not extend to a “particular intent”, both of which are covered by s 361. Section 360 therefore only applies to the “particular reason” component of s 361.
[15]The second pre-condition which must exist for the presumption in s 361(1) to operate is of equal importance in this matter. It is the requirement in s 361(1)(b) that “taking that action for that reason or with that intent would constitute a contravention of this Part”. This precondition therefore requires more than an allegation with respect to an action, reason or intent. Additionally, it requires that taking the alleged action, for the alleged reason or with the alleged intent (or both), “would constitute a contravention of that Part”.
[16]The Full Court alluded generally to this aspect of s 361 in Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62 albeit without mentioning the effect of s 361(1)(b). An issue under consideration in that proceeding concerned a contravention of s 340(1)(a) of the FWA. With respect to the question whether s 361 reversed the onus or burden of proof for such a contravention “upon nothing more than the making of an allegation”, Jessup J (with whom Allsop CJ and White J agreed) cited a long list of first instance judgments which supported the conclusion that “the party making an allegation that adverse action was taken ‘because’ of a particular circumstance needs to establish the existence of the circumstance as an objective fact”: at 75 [119].
[17]Of more direct relevance to the requirements of s 361(1)(b), an earlier Full Court said of a predecessor provision to s 361 (s 298V of the Workplace Relations Act 1996 (Cth)) that it did not “relieve the applicant ... from proving on the balance of probabilities each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise”: see Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 at 501; [1999] FCA 1108 at [109] (Wilcox and Cooper JJ).
[18]On this point, it is also worth mentioning the more recent Full Court decision in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273; [2015] FCAFC 157 which the primary judge cited in his reasons at [23] (see below at [98]). In that matter, Jessup J (with whom Rangiah J agreed) observed that the question whether the presumption in s 361 had been displaced fell to be determined at the end of the trial and its answer would depend on “the assessment of all of the facts by the trier of fact, including, most importantly in the conventional case, his or her assessment of the evidence given by the decision-maker acting on behalf of the employer” (see at [27]–[28]).
[19]Having regard to these observations and, in particular, to the provisions of s 361(1)(b), we consider that an applicant wishing to take advantage of the presumption in s 361, in addition to making the allegation in a form that meets the requirements of s 361(1)(a), must provide sufficient information about the action, and the related reason or intent (or both) for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of Part 3-1 of the FWA. This means that, in a proceeding such as the present one, which was conducted on pleadings, an applicant is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged against Services Australia. As French J said in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173; [1991] FCA 557 at 6, “[a] material fact is one which is necessary to formulate a complete cause of action. ... Material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet.”

Further, in Lamont v University of Queensland (No 2) [2020] FCA 720 at [91] (‘Lamont’), Raniagh J stated:
[91]The effect of the judgment in CFMEU v BHP at [62] is that the identity of each official of a body corporate whose state of mind is relied upon must be pleaded or particularised. Further, the presumption under s 361(1) will not be engaged unless the identity of the persons who took the relevant action for a particular reason is pleaded, or at least particularised: cf Hall at [18]–[19].
In Alam, a Full Court stated at [14] that several matters bearing upon the application of section 361 in relation to section 340 are settled as follows:
(a)in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria (2015) 249 IR 217; [2015] FCAFC 55 (Dowsett, Bromberg and Murphy JJ) at [55];
(b)the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow (2015) 233 FCR 46; 321 ALR 305; [2015] FCAFC 62 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; [2018] FCAFC 83 (ABCC v Hall) at [100];
(c)an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason: Bendigo v Barclay at [104] (Gummow and Hayne JJ).
(d)the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]–[44];
(e)the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; 314 ALR 1; [2014] HCA 41 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273; [2015] FCAFC 157 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];
(f)while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332; [2019] FCAFC 215 at [72];
(g)the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421; 302 IR 400; [2020] FCAFC 204 at [116] (Cummins South Pacific)), but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Coal at [27]; Australian Licensed Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd (2011) 193 FCR 526; [2011] FCA 333 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action; ibid at [113]; TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137 at [105]–[106];
(h)even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139; [2013] FCA 451 at [20]; PIA Mortgage Services Pty Ltd v R (2020) 274 FCR 225; [2020] FCAFC 15 at [154] (PIA Mortgage) (Snaden J);
(i)the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; 242 IR 1; [2014] FCA 271 at [777] (Shea v TRUenergy). Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]–[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150; [2015] FCAFC 76 at [32], [47]–[48] (Endeavour Coal) (Jessup J); and
(j)adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).
Given the manner in which the matter was run before me, it is necessary to have regard to and emphasise two further matters.
First, where an employer gives evidence of why it engaged in the conduct the employee complains about, the inquiry starts, and ends with whether, in fact, those reasons relevantly actuated that conduct. Importantly, in the context of the way this matter proceeded before me, and was argued by Mr Forde, it is not necessary for an employer to prove that the reasons that actuated its conduct were procedurally or substantively fair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [33] (Gray, Cowdroy and Reeves JJ). A claim under Part 3‑1 of the Act ‘…is not a broad inquiry as to whether [an applicant] has been subjected to a procedurally or substantively unfair outcome’: Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J).
Second, it is necessary to examine the minds of those who influence the decision of a corporation, or other organisation. Courts have held it necessary to examine the minds of more than one individual when a decision is made jointly, where a decision is made on recommendation, or where reliance is placed by a decision-maker upon another: see, for example, National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139, and Shizas v Commissioner of Australian Federal Police [2017] FCA 61.
MR FORDE’S CLAIMS
Mr Forde’s claims are as follows:
(a)that he was subject to adverse action in contravention of section 340(1) of the Act, being the failure to pay his travel allowance, because he made the TA Complaint;
(b)that he was subject to adverse action in contravention of section 340(1) of the Act, being the issuing of Warning Letter 1, because he made the TA Complaint, the McLaughlin Complaint, the Pit Injury Complaint, the regular employment complaints, the Carer’s Leave Inquiry, the Freeway Conditions Complaint and because of the ‘Instance of Family and Carer’s Responsibilities’;
(c)that he was subject to adverse action in contravention of section 340(1) of the Act in the form of dismissal from employment because he made TA Complaint, the McLaughlin Complaint, the Pit Injury Complaint, the regular employment complaints, the Carer’s Leave Inquiry, the Freeway Conditions Complaint, the Hector Bullying Complaint, and because of his mental disability (as disclosed by the Mental Disability Notification) and because of the ‘Instance of Family and Carer’s Responsibilities’;
(d)that he was subject to adverse action (in the form of the warning contained in Warning Letter 1 and in the form of his dismissal from employment) in that these events occurred for the reason of the ‘Applicant’s Family and Carer’s Responsibilities, by reason of which the Respondent has taken adverse action against the Applicant because of the Family and Carer’s Responsibilities and has breached section 351(1)’ of the Act (see paragraph [33] of the Statement of Claim); and
(e)that he was subject to adverse action in the form of his dismissal from employment ‘for the reason, or for reasons which included, the Applicant’s Mental Disability and/or the Applicant’s Carer’s Responsibilities’, by reason of which the Company has breached section 351(1) of the Act.
Mr Forde also claimed that the ‘failure to address’ the McLaughlin Complaint, the TA Complaint, the Carer’s Leave Inquiry, the Hector Bullying Complaint and the regular employment complaints constituted the Company taking adverse action against him.
During the course of the proceeding, Mr Forde indicated that:
(a)he did not press any claim relating to or relying on what is referred to as the ‘Second Underpayment’ as set out in paragraph [22] of the Statement of Claim;
(b)he no longer contended that the failure by the Company to address the Pit Injury Complaint constituted adverse action; and
(c)he no longer contended that the failure by the Company to address the Freeway Conditions Complaint constituted adverse action.
The Company:
(a)accepted that the TA Complaint and, apparently accepted, that the Hector Bullying Complaint were each the exercise of a workplace right by Mr Forde; and
(b)admitted that the termination of Mr Forde’s employment constituted adverse action.
THE REMAINING ALLEGED COMPLAINTS AND INQUIRIES
The McLaughlin Complaint
For the reasons given above, I am not satisfied this complaint was in fact made. Accordingly, it is not the exercise of a workplace right by Mr Forde.
The Pit Injury Complaint
There is not any dispute that Mr Forde telephoned Mr Kurt and complained to him about the Safety Officer following the incident. The relevant question is whether by doing so, Mr Forde exercised a workplace right as contemplated under section 341 of the Act. On this issue, it is relevant to note that Mr Forde pleads that the facts give rise to the making of a complaint or inquiry under section 341(1)(c). Mr Forde does not plead that the facts give rise to the exercise of a workplace right under section 341(1)(a) or (b).
I am satisfied that the complaint Mr Forde made to Mr Kurt is a complaint that falls within the meaning of section 341(1)(c)(ii) of the Act, and was the exercise by him of a workplace right. Mr Forde was clearly complaining about safety conditions in respect of his employment. The Occupational Health and Safety Act 2004 (Vic) (‘OHS Act’) requires employers to provide, as far as practicable, a workplace that is safe and without risk to health. There was a source to the complaint and Mr Forde was able to make a complaint in the sense contemplated in PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 (‘PIA’) and Whelan.
‘Regular’ Employment Complaints
In paragraph [8] of the Statement of Claim, Mr Forde pleads that from 14 May 2022 to 6 July 2023 he made ‘regular employment complaints to Mr Kurt about the Respondent’s equipment being damaged and/or faulty which was creating a safety risk to the Applicant and his direct line reports’. The particulars to that allegation are that he would send the Maintenance Team pictures demonstrating faults and damage, and that the Maintenance Team would regularly fail to act on those. It can be seen that there is a complete lack of precision to the pleading, and a complete failure to identify the precise material facts relied upon.
The matter was no clearer by the time the trial commenced. At paragraph [26] of his Outline of Submissions filed prior to trial, Mr Forde in respect of the allegation above, refers to paragraphs [24]-[29] of his affidavit. Paragraphs [24]-[29] of Mr Forde’s affidavit do not concern paragraph [8] of the Statement of Claim. That this is so can be seen from the following. First, paragraphs [24]-[29] of Mr Forde’s affidavit concern the Pit Injury Complaint. In other words, paragraphs [24]-[29] of Mr Forde’s affidavit are directed at paragraph [9] of the Statement of Claim. Secondly, and self-evidently, the Pit Injury Complaint does not concern the matters the subject of the pleading at paragraph [8] of the Statement of Claim i.e. ‘regular employment complaints [about]...equipment being damaged and/or faulty’. The Applicant’s oral submissions at the opening of the trial also did nothing to clarify matters.
By the time of closing submissions, Mr Forde sought to re-characterise his claim. The ‘regular’ employment complaint was said to be constituted by the Steel Drum Incident and also some brief evidence given by Mr Varea that a paver was leaking oil. With respect, neither of these matters could possibly constitute the ‘regular’ employment complaints that Mr Forde refers to in paragraph [8] of his Statement of Claim for the following reasons:
(a)neither matter is identified in paragraph [8] of the Statement of Claim;
(b)neither matter was identified by the Applicant in his opening submissions (whether orally or in writing) as being said to constitute the matters referred to in paragraph [8] of the Statement of Claim;
(c)the only reference to the paver leaking oil arises briefly in evidence given by Mr Varea during cross-examination. It does not feature at all in the Statement of Claim or in Mr Forde’s evidence;
(d)the Steel Drum Incident is identified in paragraph [17] of the Statement of Claim but:
(i)it is not pleaded nor identified as an employment complaint; and
(ii)nothing in the Statement of Claim or indeed Mr Forde’s evidence identifies this issue as having anything to do with equipment being damaged or faulty. It concerned something else entirely.
In circumstances where none of the pleadings or the Applicant’s opening submissions identify the material facts said to constitute the ‘regular’ employment complaints, where matters were raised only for the first time in closing submissions, and where in any event those matters do not give rise to complaints about equipment being damaged or faulty, this claim should be struck out.
Two matters did emerge in the evidence which it may be said could loosely relate to a complaint about equipment or safety. Out of an abundance of caution I deal with each of these below.
The First Aid Certificate Issue: In my view, Mr Forde’s own evidence discloses that the First Aid Certificate Issue was not a complaint falling within section 341(1)(c) of the Act, nor was it the exercise of a workplace right. Mr Forde was simply raising the issue that first aid certificates were out of date. Mr Forde’s communication was not a complaint. It was not the airing or conveyance of a grievance. The issue was never separately pleaded as a complaint, or otherwise identified as a complaint.
The Unsafe Equipment Complaint: In my view, Mr Forde’s own evidence also discloses that the Unsafe Equipment Complaint is not a complaint falling within section 341(1)(c) of the Act. Mr Forde’s evidence is that he ‘raised similar defects’ with Mr Kurt and the maintenance team. There was an expectation that he would do so. Mr Kurt’s evidence was clearly that this was a standard example of an employee raising a maintenance issue so that the issue could be addressed. Similar evidence was given by Mr Mantinaos who memorably stated that ‘We need to fix that equipment. We need to know about it. Why would I fire for – someone for that?’. It is understandable that Mr Kurt and Mr Mantinaos would want to know about defects to equipment so that the equipment could be fixed. The evidence taken as a whole discloses that Mr Forde was doing nothing more than notifying management of defects so they could be addressed. These were not employment complaints in the sense contemplated by section 341(1)(c) of the Act. Further, this complaint was not separately pleaded as a complaint. It could not on any view be one of the complaints to which paragraph [8] of the Statement of Claim is directed, because it occurred after the time period identified in paragraph [8] of the Statement of Claim.
For the reasons above, the ‘regular employment complaints’ identified at paragraph [8] of the Statement of Claim are not complaints or inquiries under the Act.
The Carer’s Leave Inquiry
I am satisfied that the Carer’s Leave Inquiry is an inquiry within the meaning of section 341(1)(c) of the Act, and was the exercise or proposed exercise of a workplace right by Mr Forde. Mr Forde was an employee. He was asking to take leave from his employment to care for his son. Section 97(b) of the Act entitles an employee to take paid carer’s leave to provide care or support to a member of the employee’s immediate family because of personal illness or personal injury affecting that family member.
Freeway Conditions Complaint
In my view, Mr Forde’s own evidence discloses that the Freeway Conditions Complaint was not a complaint falling within section 341(1)(c) of the Act, nor was it the exercise of a workplace right. The proper characterisation of the email sent by Mr Forde to Hector and Mr Kurt was that he was reporting on what had occurred on the job. Mr Forde reports on changes to the size of the job. He reports on the lack of a buffer zone. He reports on a person called ‘Aaron’ cutting against traffic. He reports on the vehicle crash. He also explains that because of the crash, the freeway was shut and the truck could not come in. The communication is a report on what occurred, not the raising of a complaint or grievance about the conditions. The making of this allegation, and Mr Forde’s attempt to characterise it as a complaint, does him little credit.
Hector Bullying Complaint
The Company’s position in relation to this complaint is far from clear. In its Defence, it denied Mr Forde made a bullying complaint. In the ‘Statement of Facts and Propositions of Law’ document, it identified that a fact in dispute was whether on 30 June 2023 Mr Forde ‘made a complaint to Mr Kurt’ about Hector. In the same document, however, under ‘Agreed Propositions of Law’, at item 3, it appeared to concede that this complaint was a complaint ‘as per s.341(1)(c) of the Act’. Whatever the formal position by the Company, however, it is Mr Kurt’s evidence that on 30 June 2023, Mr Forde phoned him and was upset about Hector’s conduct and, in particular, the text message sent that day from Hector to Mr Forde which stated ‘Ring around Carl. You’re the Fucken foreman, Ffs’. Mr Kurt was also aware of the earlier message sent by Hector to Mr Forde on 22 March 2023.
I am satisfied that the Hector Bullying Complaint is a complaint that falls within the meaning of section 341(1)(c)(ii) of the Act, and was the exercise by Mr Forde of a workplace right. Mr Forde was clearly complaining about what he regarded as being bullying behaviour. The OHS Act requires employers to provide, as far as practicable, a workplace that is safe and without risk to health. There existed, therefore, a source to the complaint, and Mr Forde was therefore able to make a complaint in the sense contemplated PIA and Whelan.
Summary of workplace rights exercised by Mr Forde
In summary, Mr Forde exercised the following workplace rights:
(a)exercised a workplace right under section 341(1(c) of the Act when he made the TA Complaint;
(b)exercised a workplace right under section 341(1)(c) of the Act when he made the Pit Injury Complaint;
(c)exercised a workplace right under section 341(1)(c) of the Act when he made the Carer’s Leave Inquiry; and
(d)exercised a workplace right under section 341(1)(c) when he made the Hector Bullying Complaint.
ADVERSE ACTION
‘Failure to address’ certain complaints, etc, said to constitute adverse action

Mr Forde relevantly alleges that the failure to address the TA Complaint, the Carer’s Leave Inquiry and the Hector Bullying Complaint constitutes the taking of adverse action against him. The allegations are denied by the Company in its Defence.
There is a question as to whether a failure to do something, or omission or inaction, may constitute adverse action for the purposes of the Act. Judge Cameron in Farac v Pendal Group Ltd [2021] FedCFamC2G 25 at [23]-[24] concluded that it could, and cited Marshall ACJ in Rowland v Alfred Health [2014] FCA 2 at [48] as authority for that proposition. The difficulty with these decisions is that the analysis of the issue is cursory: Judge Cameron was dealing with an application to strike out paragraphs in a statement of claim, and the issue of adverse action by omission was ‘not one of consequence’ in the proceeding before Marshall ACJ. More recently, however, and on the other side of the ledger, Raper J in Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162 at [293] has cast doubt on whether adverse action by omission is possible, noting that the concept is ‘conceptually difficult’, but Raper J’s comments are also brief and clearly obiter.
Mr Forde’s claim, however, that a ‘failure to address’ certain matters constitutes adverse action suffers from more fundamental problems. Mr Forde has failed to identify in the Statement of Claim the identity of the persons who took (or failed to take) the particular action. It is a requirement that he do so: see Hall; Lamont. He is required to prove, on the balance of probabilities, each of the ingredients of the contravention: Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 at [109].
Mr Forde’s failure to plead the case properly is a sufficient basis upon which to dismiss his claims that a ‘failure to address’ certain matters constitutes adverse action. It is notable, however, that Mr Forde’s case is also not improved by the evidence that emerged. Consider the following:
(a)with respect to the TA Complaint, Mr Forde says he complained to Mr Kurt and Mr Varea. Mr Forde says Mr Kurt told him he would not receive the payment on that occasion. No other person is identified as ‘failing to address’ the TA Complaint;
(b)with respect to the Pit Injury Complaint, Mr Kurt’s evidence which was not subject to successful challenge, is that he followed up with Downer. Mr Forde agreed with this;
(c)with respect to the Carer’s Leave Inquiry, Mr Forde says he asked for a week off work which was denied by Hector. No other person is identified as failing to address the ‘Carer’s Leave Inquiry’; and
(d)with respect to the Hector Bullying Complaint, Mr Forde says he complained to Mr Kurt who took no further action (I have found above that Mr Kurt did take action). No other person is identified as failing to address the Hector Bulling Complaint.
There are thus two further problems with this aspect of the case brought by Mr Forde.
First, beyond raising the above complaints or inquiries with the relevant individuals, he did not in his pleading, or in his evidence in chief, identify the person or persons in the Company who had failed to address his complaints or inquiries, and thereby taken adverse action against him.
Second, to the extent Mr Forde can be taken to assert that the individuals to whom he spoke about the TA Complaint, the Carer’s Leave Inquiry, and the Hector Bullying Complaint failed to address the issue and thereby took adverse action against him, that proposition is not made good on the evidence.
The Macquarie Dictionary defines ‘address’ as being ‘to deal with (a problem, question, etc): these are the issues you should address in your essay’.
Mr Kurt addressed Mr Forde’s TA Complaint. He listened to the complaint and told Mr Forde he would not be paid travel allowance.
Mr Kurt also addressed the Pit Injury Complaint. He followed up with Downer, and referred Mr Forde to a physiotherapist.
Likewise, the Carer’s Leave Inquiry was addressed by Hector. Hector refused the request for carer’s leave, thereby addressing the inquiry. It may be that Hector’s rejection of the request to take carer’s leave was unlawful because it contravened a provision of the National Employment Standards. It may also be that Hector’s rejection of the request to take carer’s leave constituted a deterioration in the advantages enjoyed by Mr Forde in that he had to care for his son while at work, and thus constituted adverse action. The issue for Mr Forde, however, is that this is not the case he has pleaded, and it is not the case the Company has responded to.
The Hector Bullying Complaint was addressed. Mr Kurt’s evidence, which I accept, is that he spoke immediately to Hector and told him not to use that language again. Hector confirms he was spoken to in his evidence. The Hector Bullying Complaint was thus addressed.
For the reasons above, none of the pleaded claims of ‘failure to address’ employment complaints or inquiries constitutes adverse action.
Underpayment as adverse action
The TA Complaint was made in February 2021 and arises from paragraph [5] of the Statement of Claim. Paragraph [5] of the Statement of Claim is as follows:
In February 2021, the Applicant made a complaint to Soner Kurt (Mr Kurt) – General Manager and Joji Varea (Mr Varea) – Manager about not being paid the Travel Allowance (the First Employment Complaint) (the First Underpayment).
Particulars
The First Employment complaint was made orally to Mr Kurt and Mr Varea. The Applicant reiterated the agreement regarding the Travel Allowance and the fact that he had been required to stay away from home in accommodation for a job which entitled him to the payment. Mr Kurt advised the Applicant that he would not receive the payment on this occasion but failed to provide any further information.
Paragraph [26] of the Statement of Claim then relevantly pleads that the ‘First…Underpayment constituted adverse action against the Applicant’. The particulars to this paragraph identify the adverse action as being injury to Mr Forde in his employment by subjecting him to a compensable injury.
Paragraph [5] of the Statement of Claim and the particulars to it refer to ‘Travel Allowance’. The term ‘Travel Allowance’ is defined in paragraph [4] to the Statement of Claim. The difficulty with paragraph [4] of the Statement of Claim insofar as Mr Forde is concerned is that it refers to an alleged agreement reached about a ‘Travel Allowance’ in March 2022. Thus, the alleged ‘First Underpayment’ said to have occurred in February 2021 is then said to be based on an agreement to pay travel allowance that was reached later in time, in March 2022. The pleading is plainly confusing, and embarrassing. Despite its obvious defect, the Company took no issue with it when it filed its Defence.
Further, there is not sufficient evidence before me that establishes that Mr Forde was entitled to be paid travel allowance in February 2021. There is no pleading and no evidence of any written or oral term entitling Mr Forde to be paid travel allowance at this time, no evidence or pleading as to the conditions which must be satisfied in order for travel allowance to be paid, no evidence or pleading as to the amount of any travel allowance to be paid, and no evidence of the quantum that Mr Forde says he ought to have been paid for the trip in question.
In the circumstances, the claim that the ‘First Underpayment’ constituted adverse action should be struck out. Further, to the extent it is necessary to say so, I am not satisfied that Mr Forde was underpaid travel allowance such that he was subject to adverse action within the meaning of the Act.
Warning Letter 1 as adverse action
There is an issue about whether Warning Letter 1 constitutes the taking of adverse action against Mr Forde. Little attention was paid by the parties to this issue. In Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531 (‘Coal & Allied’), Branson J accepted that a written warning for a ‘serious or major breach’ could constitute adverse action by making an employee’s employment less secure, and described the situation as analogous to the receipt of driving demerit points at [95]-[96]. In National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709, Thawley J reviewed the authorities, including Coal & Allied, and accepted in the circumstances of that case that the issuing of a first warning made an employee’s position less secure at [200].
In the present matter, Warning Letter 1 is stated to be a ‘letter of concern’ and is said to confirm the issuing of ‘a verbal warning’, and to constitute a ‘reasonable written management instruction’. These matters tend to suggest that Warning Letter 1 was not a warning that made Mr Forde’s employment less secure. I observe, however, that the content of the letter does not end there. Among other things, in the letter, Mr Kurt goes on to say that if Mr Forde’s actions do not improve, ‘your actions may be considered as misconduct and subject you to disciplinary action’. What constitutes the ‘misconduct’ or ‘disciplinary action’ is not apparent on the face of the letter. The Company’s ‘disciplinary process’ (a matter referred to in the document) is not in evidence.
In the circumstances, I am satisfied that Warning Letter 1 constitutes adverse action taken against Mr Forde. By threatening disciplinary action, Mr Forde’s employment was rendered less secure.
Dismissal from employment as adverse action
The Company admitted that the dismissal of Mr Forde from employment constituted adverse action.
Summary of adverse actions
Accordingly, the adverse actions are first, the dismissal of Mr Forde from employment and second, the giving of Warning Letter 1 to him.
WAS ADVERSE ACTION TAKEN AGAINST MR FORDE FOR AN UNLAWFUL REASON?
Who decided to terminate Mr Forde’s employment?
In the Statement of Claim, Mr Forde pleads that on 28 July 2023, he attended a meeting with Mr Kurt and Mr Varea during which he was advised that his employment was being terminated. The Company, in its Defence, admits that allegation. The pleadings identify Mr Kurt and Mr Varea as the agents of the Company that terminated Mr Forde’s employment. The Outline of Submissions filed by Mr Forde before trial, however, assert that Mr Mantinaos relied on information given to him by Mr Varea, Hector and Mr Kurt ‘in relation to conduct and performance’. In closing submissions, and having heard the evidence, Mr Forde contended that each of Mr Mantinaos, Mr Kurt, Hector and Mr Varea were decision-makers. The Company’s contention in its closing submissions, as best I can understand it, was that Mr Mantinaos and Mr Kurt were the decision-makers, though that appeared to be qualified by a later submission that all of the information that Hector and Mr Varea gathered ‘was fed into the decision-making process’.
In Pilbrow v University of Melbourne [2024] FCA 1140 (‘Pilbrow’), Snaden J stated at [78] that:
in assessing the reasons that animated conduct amounting to adverse action, a court must interrogate not merely the state or states of mind of the person or people who engaged in that conduct; but also that of others whose contribution to it rose beyond a threshold level. That threshold level has been described as “indispensable” (Elliot v Kodak Australasia Pty Ltd (2001) 129 IR 251), “material” (Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166, Qantas) and “‘significant’, ‘plainly important’, ‘major’, ‘substantial’ or ‘essential’” (Wong).
Mr Mantinaos deposed that he decided to terminate Mr Forde’s employment. His evidence was that he did so after concerns had been raised with him about Mr Forde’s work performance by Mr Kurt and also because of incidents he had been informed about by Mr Varea. In cross-examination, he expanded upon his affidavit evidence. He indicated that Mr Kurt was looking for his support and ‘if I said no, he wouldn’t do it’, that he was called in that day ‘looking for my decision… looking for my support to give it the go ahead’, and ‘if I said not to fire Carl, it wouldn’t have happened’. Within that context, Mr Mantinaos indicated that he wasn’t the sole decision-maker, and that there is a group, a team and the process.
Mr Kurt deposed that Hector and Mr Varea had raised concerns with him about Mr Forde’s work performance. Mr Kurt says in his affidavit that based on the information provided to him and his own personal experiences with Mr Forde, he informed Mr Mantinaos about his concerns and that ‘Mr Mantinaos and I agreed that [Mr Forde] was not a good fit as a Foreman’. Mr Kurt deposed that before he could discuss those matters, a further incident occurred and he ‘had a further discussion with Mr Mantinaos and we agreed we should offer the Applicant a separation agreement from the company, or otherwise terminate his employment for poor performance’. Mr Kurt says that he and Mr Varea subsequently met with Mr Forde on 28 July 2023 and told Mr Forde the Company wished to part ways with him. In cross-examination, Mr Kurt admitted that he was one of the decision-makers in relation to the decision to dismiss Mr Forde.
Hector deposed that he had concerns about Mr Forde’s work performance over a somewhat lengthy period of time. He deposed that he communicated his concerns about Mr Forde to Mr Mantinaos and Mr Kurt up to July 2023. In cross-examination, he elaborated on this stating that he had communicated that Mr Forde was not doing his ‘pre-starts’, fulfilling his job completions, job emails, and was not doing live sheet statuses. Hector denied that he was a decision-maker in dismissing Mr Forde from employment. He accepted, however, that he communicated concerns about Mr Forde’s work performance.
Mr Varea deposed that at numerous times in 2022 and 2023, he spoke to Mr Mantinaos and Mr Kurt in relation to concerns he had about Mr Forde’s work performance. Mr Varea also deposed to informing Mr Mantinaos about Mr Forde’s poor work performance on jobs at Miner’s Rest, Maygar Barracks, Lilydale and Seddon, and the rework that needed to be done on those jobs. Mr Varea denied that he was one of the decision-makers in terminating Mr Forde’s employment.
I did not understand Mr Forde to claim that Mr Loncaric was a decision-maker in relation to the termination of his employment. Lest it be otherwise, I am satisfied that Mr Loncaric played no role in relation to the decision to dismiss Mr Forde, or took any other adverse action against Mr Forde. I accept Mr Loncaric’s evidence that he does not have any active management responsibilities within the Company.
Mr Forde contended that the present matter was like that which occurred in Pilbrow and that the Company have been ‘unable to isolate the particular decision-maker or decision-makers’. That submission cannot be accepted, particularly when Mr Forde later accepted that the decision-makers were ‘clearly identified’ and had given evidence. Pressed on the matter, Counsel for Mr Forde contended that each of Mr Mantinaos, Mr Kurt, Mr Varea and Hector had given inconsistent evidence as to who was the ultimate decision-maker, and that therefore their evidence as to who the decision-maker was should not be accepted.
Neither Hector nor Mr Varea have given inconsistent evidence as to who made the decision to terminate Mr Forde’s employment. Hector did not claim in his affidavit that he made the decision to dismiss Mr Forde from employment and he stood by that evidence under cross-examination. Hector was clear that he provided information to Mr Kurt and Mr Mantinaos about Mr Forde’s performance. Likewise, Mr Varea did not claim in his affidavit that he made the decision to dismiss Mr Forde, and also stood by that evidence under cross-examination. Mr Varea clearly, however, provided information that was taken into account in making the decision to dismiss Mr Forde from employment. Importantly, each of Mr Varea’s and Hector’s evidence was confirmed by Mr Mantinaos, who clearly stated that neither was a decision-maker.
Mr Kurt’s evidence was not inconsistent. As General Manager, he is responsible for addressing human resource issues. His affidavit records his agreement with Mr Mantinaos to dismiss Mr Forde, and in cross-examination, he admitted to being a decision-maker in relation to Mr Forde’s employment.
The assertion that Mr Mantinaos has given inconsistent evidence requires close analysis of that evidence. Mr Mantinaos deposed that it was his decision to terminate Mr Forde’s employment. Asked if Mr Kurt was involved, he said, ‘No, I am the main person. I have the final say’. Asked if he was saying there was only one decision-maker, Mr Mantinaos said ‘Almost pretty much because it was Soner and I discussing it, and he looked for my support. If I said no, he wouldn’t do it. So in the end, with my support and my final decision, Soner and I decided on the termination of Carl Forde’. Mr Mantinaos expressly rejected the proposition that Mr Kurt was the decision-maker, saying only that he recommended it. Asked if he was one of the decision-makers, Mr Mantinaos stated ‘Like I said, if I said not to fire Carl, it wouldn’t have happened. I wasn’t the decision maker. It’s a – it’s a – it’s a group. We’re a team. There’s a management. There’s processes…The team looks for me to support them in order for them to support the company back’. Asked whether he accepted Mr Kurt was a ‘second decision-maker in firing Carl’, Mr Mantinaos said ‘Yes’.
Mr Mantinaos is an electrician who started the Company in 2007. It would appear to have grown since then to the point where a management team runs the Company. Mr Mantinaos relies on the management team to do its job. The members of that team, which would appear to include Mr Kurt, Mr Varea and Hector, clearly run key decisions past him and one such decision was whether Mr Forde’s employment was to end. Mr Mantinaos was clear in his evidence that he obtained information from others, including a recommendation from Mr Kurt, that he checked the position, and then gave his stamp of authority to terminate Mr Forde’s employment. He was clear Mr Kurt would not have acted without his say so. In my view, there is nothing remarkable or inconsistent about Mr Mantinaos’ evidence. He gave the final word to dismiss Mr Forde. In doing so, he was acting on Mr Kurt’s recommendation and providing Mr Kurt with the support he was asking for as General Manager. That Mr Mantinaos may have struggled to clearly articulate the decision-making process at times does not mean that he lacked credibility or should not be believed. An electrician by training, operating in the construction industry who has built his own company from the ground up can hardly be expected to dissect the nuances of corporate decision-making neatly. I found Mr Mantinaos to be an honest witness, doing his best to explain the mechanics of how the decision to terminate Mr Forde’s employment was made. I would observe, also, that his evidence is consistent with what one might expect of any person who has founded his or her own business, but then retained others to run it. His final approval is sought and obtained by his managers on certain issues, but he relies on them to do the work. I do not accept that Mr Varea, Mr Mantinaos, Mr Kurt or Hector gave inconsistent evidence about who made the decision to terminate Mr Forde’s employment.
In my view, Mr Mantinaos and Mr Kurt decided to terminate the employment of Mr Forde. They were the decision-makers. They made the decision after having received a variety of information from each of Hector and Mr Varea. Each of Hector and Mr Varea materially contributed to the ultimate decision to dismiss Mr Forde from employment by providing information to Mr Mantinaos or Mr Kurt about Mr Forde. Accordingly, it is necessary to interrogate the state of mind of both Hector and Mr Varea (as well as Mr Mantinaos and Mr Kurt) in order to arrive at a conclusion as to whether the Company has overcome the onus in section 361 of the Act.
Who decided to issue Warning Letter 1?

The position then is that correspondence in the lead up to the decision to dismiss Mr Forde supports the conclusion that Mr Forde’s employment was terminated for poor performance by Mr Kurt. Also, the contemporaneous accounts of the meeting at which Mr Forde was dismissed, and the communication that followed in its aftermath, all related to issues to do with Mr Forde’s work performance. Nothing in the documentation prepared at the time of termination refers at all to any complaints or inquiries made by Mr Forde during his employment as being a reason why he was dismissed from employment. Nor does any of the documentation refer to any mental health disability of Mr Forde or to his family or carer’s responsibilities.
When the above matters are considered, I am satisfied that Mr Kurt dismissed Mr Forde from employment because of long-standing and documented concerns about Mr Forde’s performance and conduct. Mr Kurt did not terminate Mr Forde’s employment because he had exercised any workplace rights to make any complaints or inquiries, or because he had a mental health disability, or because he had family or carer’s responsibilities.
Mr Mantinaos’ reasons
Mr Mantinaos’ evidence is that in or around March 2023, he was informed by Mr Varea, Mr Kurt and Hector about concerns they had in relation to Mr Forde’s work performance. Mr Mantinaos refers to those concerns as being a failure to complete job sheets, not submitting photographs of complete jobs, not undertaking his role as Foreman efficiently and productively, failing to solve problems on the job, and disparaging the Company. All of these matters referenced by Mr Mantinaos reflect the concerns Mr Kurt, Mr Varea and Hector had about Mr Forde’s performance. Mr Mantinaos says after reviewing these matters and other concerns raised with him by Mr Varea (including in relation to the works at Miners Rest, Maygar Barracks, Lilydale and Seddon), he decided Mr Forde’s employment was no longer tenable. Mr Mantinaos denies that he authorised the dismissal of Mr Forde because of any complaints or inquiries he made.
A number of matters emerged during the cross-examination of Mr Mantinaos. First, he had no knowledge of the TA Complaint, the Hector Bullying Complaint, or the Carer’s Leave Inquiry. He appeared to have some knowledge of the Pit Injury Complaint. Second, it is apparent that he relied on the recommendation or judgment of Mr Kurt in deciding whether to terminate Mr Forde’s employment. For example, Mr Mantinaos referred to the decision to terminate being ‘recommended’ to him, that he was there to give support, however, the final decision was his. It is plain that he was acting on the basis of Mr Kurt’s consideration of the information. Third, notwithstanding that he acted on the recommendation of Mr Kurt, Mr Mantinaos took some steps to satisfy himself of the matters Mr Kurt was putting to him. He referred to being in front of the computer and going over hours of non-performances and paperwork that hadn’t been filled out. Mr Mantinaos stated ‘And it just matched all the lack of accountability that my staff were telling me that he was showing’.
In my view, nothing Mr Mantinaos said or did discloses that he decided to terminate Mr Forde’s employment for any unlawful reason. Mr Mantinaos was informed about a range of performance issues by Mr Kurt and others. He discussed those matters with Mr Kurt. He verified to the best of his ability the information that Mr Kurt provided to him. He then authorised the dismissal of Mr Forde because of issues to do with his employment performance. In short, I am satisfied that Mr Mantinaos dismissed Mr Forde from employment because of long-standing and documented concerns about Mr Forde’s performance and conduct. Mr Mantinaos did not terminate Mr Forde’s employment for any unlawful reason.
Conclusion in relation to decision to dismiss Mr Forde from employment
In summary, none of Mr Mantinaos, Mr Kurt, Mr Varea or Hector dismissed or sought to dismiss Mr Forde from employment because he exercised workplace rights to make complaints or inquiries, because he had family or carer’s responsibilities or because he had a mental health disability. Each of these individuals were of the view that there were serious issues with Mr Forde’s performance at work. Mr Forde was dismissed because Mr Mantinaos and Mr Kurt (acting among other things, on information supplied by Mr Varea and Hector) were of the view that Mr Forde was performing poorly. Accordingly, Mr Forde’s claims that he was dismissed in contravention of section 340 of the Act must fail.
Was the decision to give Mr Forde Warning Letter 1 unlawful?
Mr Kurt’s evidence in respect of Warning Letter 1 is set out earlier. Mr Kurt deposed that because of Mr Forde’s consistent inability to complete job completion reports, he considered that ‘it was important that I provide the applicant and his leading hands with a letter of concern so that such sheets would be produced as required in the future’. Mr Kurt decided to give Warning Letter 1 to Mr Forde following Hector raising issues with him in the email of 19 May 2023.
I find that Hector raised issues with Mr Forde’s performance with Mr Kurt on or around 19 May 2023 because he had genuine concerns about Mr Forde’s performance. That Hector’s concerns about Mr Forde’s performance were the substantial and operative reason behind him raising the issue with Mr Kurt can be seen from the content of the email he sent to both Mr Kurt and Mr Forde on 19 May 2023. Not only that, but it is relevant that Mr Forde acknowledged that his Leading Hand did not know what to do. Moreover, Hector had previously (and in some instances, crudely) raised issues with Mr Forde about his work performance. I accept Hector’s evidence that he was regularly speaking to Mr Forde about issues to do with Mr Forde’s performance at work. In my view, when Hector communicated with Mr Kurt about Mr Forde’s performance on 19 May 2023, he was motivated only by Mr Forde’s failure to ensure that the work was being performed as it should. He was not concerned about whether Mr Ford had made complaints or inquiries, exercised workplace rights, whether Mr Forde had a mental health disability, or had family and carer’s responsibilities.
Mr Kurt, of course, was the recipient of Hector’s communication and the author (along with some assistance from an external organisation) of Warning Letter 1. In his affidavit, he deposed to giving Warning Letter 1 to Mr Forde because of an inability to complete job completion reports. He was challenged on this evidence during cross-examination on the basis that Warning Letter 1 did not refer to the failure to complete ‘administration’ but referred to failing to train employees properly. Mr Kurt stated that the two matters were related, that Mr Forde had not delegated properly and rejected any suggestion that his affidavit was not true. He maintained that Warning Letter 1 should have been given to Mr Forde. He disagreed with the proposition that he issued Warning Letter 1 because of complaints Mr Forde had made in the past.
I accept Mr Kurt’s evidence that he issued Warning Letter 1 because of Mr Forde’s lack of training of his team members. Mr Kurt was thoroughly challenged on this and maintained his position as to his reason for giving Warning Letter 1. Moreover, I accept Mr Kurt’s evidence because it is corroborated by the following:
(a)Hector identified an issue with Mr Forde’s performance in the days leading up to the issue of Warning Letter 1 and raised that matter squarely with Mr Kurt;
(b)the issue that Hector raised with Mr Kurt prompted Mr Kurt to issue Warning Letter 1. Warning Letter 1 was issued promptly after Hector raised his concerns; and
(c)the content of Warning Letter 1 in its terms expressly identified the issue about which Hector was concerned, i.e. Mr Forde failing to ensure that persons in his team knew what to do when he was absent.
In my view, the decision to issue Warning Letter 1 to Mr Forde was not unlawful or a breach of the Act. Neither Hector (in raising issues with Mr Kurt) nor Mr Kurt (in deciding to issue Warning Letter 1) were motivated by any complaints or inquiries Mr Forde may have made in the past or the exercise by him of any workplace rights. Nor were they concerned or influenced by any mental health disability of Mr Forde or Mr Forde’s family or carer’s responsibilities. Rather, Hector raised the issue with Mr Kurt, and Mr Kurt issued Warning Letter 1, because of genuine concerns each held about Mr Forde’s work performance. Accordingly, Mr Forde’s claims that the issuing of Warning Letter 1 to him constitute a contravention of section 340 of the Act must fail.
WAS MR FORDE’S EMPLOYMENT TERMINATED BECAUSE HE HAD A MENTAL DISABILITY?
I have already made findings above about the reasons for Mr Forde’s dismissal from employment, and that the reasons did not include that Mr Forde had a mental health disability. It is necessary, however, to address some other aspects of this claim.
The Applicant’s pleaded claim of adverse action being taken against him because of a mental disability was pursued somewhat inconsistently and haphazardly during the trial. The claim was pleaded at somewhat of a superficial level. It was then not addressed at all in the Outline of Submissions Mr Forde filed prior to trial. By the conclusion of the trial, the claim seemed to have shifted with Mr Forde’s Counsel submitting that what Mr Forde in fact had, was a ‘manifestation of a disability’.
It pays to revisit the pleadings in relation to this claim.
At paragraph [18] of the Statement of Claim, Mr Forde pleads as follows:
18.On 3 June 2023, the Applicant disclosed to Mr Psihountakis that his mental health had deteriorated and that it was adversely impacting him (the Mental Disability)
Particulars
The disclosure of the Mental Disability was made to Mr Psihountakis via email and advised that the Applicant was having difficulty eating and sleeping and was adversely impacting him.
Mr Forde then pleads:
(a)at paragraph [32] of the Statement of Claim that the ‘Dismissal occurred for the reason, or for reasons which included…the Mental Disability…by reason of which the Respondent has contravened section 340(1) of the Fair Work act 2009 (Cth)’; and
(b)at paragraph [34] of the Statement of Claim that ‘the Dismissal…occurred for the reason, or for reasons which included, the Applicant’s Mental Disability…by reason of which the Respondent has taken adverse action against the Applicant because of the Mental Disability and has breached section 351(1) of the Fair Work Act 2009 (Cth)’.
The content of the email pleaded at paragraph [18] of the Statement of Claim was contained in the evidence and has been set out earlier in these reasons at [25].
I pause there to observe that nothing in the Statement of Claim refers to any claim that what the Applicant was communicating on 3 June 2023 was a ‘manifestation’ of any disability.
In its Defence, the Company pleaded to paragraph [18] of the Statement of Claim that it ‘Denies paragraph 18 and says the Applicant stated to [Hector] that he had not been feeling 100% lately’. To paragraphs [32] and paragraphs [34] of the Statement of Claim, the Company pleaded that it ‘Denies paragraphs 29 to 34 and say further that the Applicant was given warnings and then dismissed solely because his performance and conduct was unsatisfactory’.
The term ‘disability’ or ‘mental disability’ is not defined in the Act. In RailPro Services Pty Ltd v Flavel [2015] FCA 504 (‘RailPro’), Perry J set out at [123]-[124] the manner in which the Courts had approached the term, and I accept and adopt Her Honour’s reasons and explanation.
As stated earlier, a party wishing to take advantage of the presumption in section 361 of the Act, in addition to making the allegation in a form that meets the requirements of section 361(1)(a), must provide sufficient information about the action, and the related reason or intent (or both) to which that action was taken to show that in combination, they would constitute a contravention of a provision of Part 3-1 of the FWA: Hall at [19]. That is, a ‘party making an allegation that adverse action was taken “because” of a particular circumstance needs to establish the existence of the circumstance as an objective fact’: see Tattsbet v Morrow [2015] FCAFC 62 at [119] (Jessup J, with whom Allsop CJ and White J agreed).
In proceedings under the Disability Discrimination Act 1992 (Cth) (‘DD Act’), it has been held that an applicant must identify the disability which allegedly caused the less favourable treatment: Qantas Airways v Gama [2008] FCAFC 69 at [89]-[91] (French and Jacobson JJ); Stevenson v Murdoch Community Services Inc [2010] FCA 648 (‘Murdoch’) at [87] (Gordon J).
Murdoch is particularly instructive. The Applicant asserted her disability was her thyroid condition. Gordon J, in considering the submission of the applicant, stated:
[87]…Ms Stevenson did not make any submissions establishing, on the balance of probabilities, that her thyroid condition was in fact a disability within the meaning of s 4 of the DDA. Indeed, the submissions of Ms Stevenson appear to assume it is a disability. No evidence was adduced concerning how the condition manifested itself or how the condition affected Ms Stevenson from May 2008 to June 2009. The only evidence concerning her condition was in the medical certificate of Dr Slipcevic (see [70] above) which stated that she had chronic hypothyroidism and that she needed an adjustment of medication to accommodate her “thyroid upset” due to stress.
[88]That evidence was not sufficient. I am not satisfied that Ms Stevenson demonstrated that her thyroid condition can be described as a disability in circumstances where limited evidence was adduced as to its existence and no evidence was adduced as to its seriousness or its impact.
Gordon J’s comments are not to be taken as confined to proceedings under the DD Act. In Murdoch, the applicant also brought a claim under section 659 of the Workplace Relations Act 1996 (Cth) (effectively a predecessor provision to section 351 of the Act) and asserted, inter alia, that her employment had been unlawfully terminated on the basis of her physical disability. Gordon J rejected that claim at [103] observing that ‘for the reasons identified above (see [87]-[94]), there was no or insufficient evidence to establish that Ms Stevenson had a physical or mental disability’.
Quite apart from whether a particular disability has been identified or established, there is also an issue about whether a respondent or person alleged to have engaged in adverse action because of a disability was aware of its existence. On this issue in RailPro, Perry J accepted a contention by Rail Pro at [126] that ‘a disability “does not include ordinary human responses to particular circumstances, such as nervousness”, and knowledge by a layperson that a person feels nauseous and has other feelings typically related to nervousness in a stressful situation like an assessment is likely to fall short of amounting to knowledge of a disability. In this case, in my view the evidence went no higher than to suggest that the decision-makers were aware that Mr Flavel had had an “attack of the nerves”’.
In a similar vein, in Kubat v Northern Health [2015] FCCA 3050, Judge Riley considered a claim under section 351 of the Act that an employee was subject to adverse action ‘because of her mental disability, namely, depression’. The applicant conceded that she had not told any employees of the respondent that she had a mental disability (depression), however, she contended that she had told other employees ‘she was not right in herself’. She also gave evidence that she sobbed frequently, and had said she had personal issues. She contended the respondent should have known from these behaviours that she did in fact have depression. Judge Riley rejected that submission at paragraph [61] and stated that:
By saying that she had personal issues and was not well in herself, the applicant did not effectively communicate that she had depression. Personal issues and not being well in oneself are vague and general concepts and can refer to a broad range of things. Being tearful might be a sign of depression. However, it is also, I daresay, a not uncommon reaction when subjected to a disciplinary meeting. Being repeatedly late for work might be a sign of depression. However, it might also indicate a lack of commitment to the job.
In this matter, I am not satisfied that the Applicant has established, on the balance of probabilities, that he has a ‘disability’. No attempt was made by the Applicant to address the Court as to what constitutes a ‘mental disability’ for the purposes of the Act. No disability has been identified by the Applicant on the pleadings or the evidence. There is not a scintilla of any evidence from a medical practitioner that confirms that the Applicant has a ‘mental disability’, or that the matters that the Applicant raises in his email to Hector of 3 June 2023 constitute any form of disability. There is no evidence, apart from this single communication, that Mr Forde had any ongoing conditions or symptoms or that the matters he describes in his email extended for any prolonged or indeed identified period of time. The mere communication by one person to another that he or she has ‘not been with lately 100 percent’, that they are ‘having a hard time at home and close to losing it all’ or that ‘I’m fucking finding it hard just to get up in the mornings no sleep not eating’ is not sufficient evidence of an identification of a disability or that a person has a ‘mental disability’. To the Applicant’s unpleaded contention that he was displaying ‘manifestations’ of a disability, there is no evidence of the identified disability, or the identified manifestations of that disability, in order for the Court to be in a position to draw any conclusion that the Applicant was displaying a manifestation of an identified disability.
What Mr Forde described were a range of human responses. They might be attributable to an identifiable mental health condition, or they might simply be responses to the ordinary stresses of life one faces, including personal issues at home. What he described is insufficient for any recipient of that information to reach the conclusion that Mr Forde was suffering from a mental disability.
I am not satisfied that Mr Forde was dismissed from employment because of his mental disability. Mr Forde has not established that he had a mental health disability. Mr Forde was dismissed for the reasons I have set out earlier at paragraphs [134]-[142], [145]-[146] above. Accordingly, this aspect of his claim under section 351 of the Act fails.
I also find for the reasons set out at paragraph [152]-[168] that Mr Forde was not given Warning Letter 1 because of his mental health disability. He was given Warning Letter 1 for the reasons set out earlier in paragraphs [145]-[151] above. Accordingly, Mr Forde’s claim under section 351 of the Act in this respect must fail.
WAS MR FORDE’S EMPLOYMENT TERMINATED BECAUSE HE HAD FAMILY OR CARER’S RESPONSIBILITIES?
I accept that Mr Forde is a father of a child and a person who has family and carer’s responsibilities. Mr Forde was not, however, given Warning Letter 1, nor was he dismissed from employment because he had family and carer’s responsibilities. Rather, Mr Forde was given Warning Letter 1 for the reasons set out [147]-[151] and was dismissed for the reasons set out at [134]-[142], [145]-[146]. Accordingly, Mr Forde’s claim under section 351 of the Act in this respect fails.
DISPOSITION
Mr Forde has not succeeded in any of the claims he advances. The only appropriate order is that his application to this Court be dismissed.

I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:
Dated: 13 December 2024

File number:	MLG 1732 of 2023
Judgment of:	JUDGE BLAKE
Date of judgment:	13 December 2024
Catchwords:	INDUSTRIAL LAW – Whether Applicant subject to adverse action for making complaint or inquiries – whether, inter alia, a failure to act may be considered adverse action – HELD that a failure to act is not adverse action in this matter – HELD further adverse action not taken for the making of complaints or inquiries. INDUSTRIAL LAW – Whether Applicant subject to adverse action because of mental disability – where Applicant sent an email to the effect he was having a hard time and close to losing it all – whether Applicant has established he has a mental disability – HELD Applicant has not established he has a mental disability and he was not subject to adverse action because of a mental disability. INDUSTRIAL LAW – Whether Applicant subject to adverse action because of family or carer’s responsibilities – HELD Applicant not subject to adverse action because of family or carer’s responsibilities.
Legislation:	Disability Discrimination Act 1992 (Cth). Fair Work Act 2009 (Cth) Pt 3-1, ss 97(b), 340, 340(1), 341(1), 342, 342(1), 351, 352, 360, 361, 361(1)(a). Workplace Relations Act 1996 (Cth) s 659. Occupational Health and Safety Act 2004 (Vic).
Cases cited:	Alam v National Australia Bank Ltd (2021) 288 FCR 301 Australian Building and Construction Commissioner v Hall [2018] FCAFC 83 Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531 Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162 Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 Farac v Pendal Group Ltd [2021] FedCFamC2G 25 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Kubat v Northern Health [2015] FCCA 3050 Lamont v University of Queensland (No 2) [2020] FCA 720 National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709 National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 Qantas Airways v Gama [2008] FCAFC 69 RailPro Services Pty Ltd v Flavel [2015] FCA 504 Rowland v Alfred Health [2014] FCA 2 Serpanos v Commonwealth of Australia [2022] FCA 1226 Shizas v Commissioner of Australian Federal Police [2017] FCA 61 Stevenson v Murdoch Community Services Inc [2010] FCA 648 Tattsbet v Morrow [2015] FCAFC 62 Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456
Division:	Division 2 General Federal Law
Number of paragraphs:	172
Date of hearing:	7, 8, 9 & 10 October 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Muniz-Saavedra
Solicitor for the Applicant:	McDonald Murholme Solicitors
Counsel for the Respondent:	Mr Hooper
Solicitor for the Respondent:	Stal Employment Lawyers

MLG 1732 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	CARL FORDE Applicant
AND:	ASPHALT LABOUR HIRE PTY LTD Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	13 DECEMBER 2024