Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 3)

[2022] FedCFamC2G 97

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 3) [2022] FedCFamC2G 97

File number(s):	SYG 2432 of 2020
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	18 February 2022
Catchwords:	INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Application for leave to file a further amended Form 2 seeking to add three respondents – whether proposed amendments raise sufficiently arguable causes of action against each of the three respondents – application for leave to file a further amended Form 2 dismissed.
Legislation:	Fair Work Act 2009 (Cth), ss.117, 123, 323, 340, 343, 348, 361, 385, 550(2) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r.7.01(1) Federal Court Rules 2011 (Cth), r.16.43
Cases cited:	Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 Coote v Mainline Access Pty Ltd & Anor (No.3) [2019] FCCA 383 Esso Australia Pty Ltd v The Australian Workers' Union; The Australian Workers' Union v Esso Australia Pty Ltd [2017] HCA 54 General Motors-Holden’s Pty. Ltd. v Bowling (1976) 51 ALR 235 Haley v Laing O'Rourke Australia Management Services Pty Ltd [2021] FCCA 257 Haley v Laing O'Rourke Australia Management Services Pty Ltd [2021] FedCFamC2G 8 Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114 Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661
Division:	Fair Work
Number of paragraphs:	40
Date of last submission/s:	10 February 2022
Date of hearing:	4 February 2022
Place:	Sydney
The Applicant:	Appeared in person, by telephone
Counsel for the Respondent:	Mr R Jedrzejczyk, by telephone
Solicitor for the Respondent:	Mills Oakley Lawyers

ORDERS

SYG 2432 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

THOMAS HALEY

Applicant

AND:

LAING O'ROURKE AUSTRALIA MANAGEMENT SERVICES PTY LTD

Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	18 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The applicant’s application in a proceeding filed on 4 February 2022 for leave to file a further amended Form 2 is 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

INTRODUCTON

1. On 4 February 2022 the applicant, Mr Haley, filed an application in a proceeding for orders that he be granted leave to file a further amended Form 2 (Proposed Amendment) in which he seeks to add three individuals, Mr Chatwin, Ms Fraser, and Mr Bates, as parties to the proceeding.[1] I directed that Mr Haley’s application be listed before me at the directions hearing that had been previously listed at 4:30 pm on 4 February 2022.

   [1] The Proposed Amendment is exhibited to the affidavit of Mr Haley filed on 4 February 2022

2. On 4 February 2022, before the directions hearing, the respondent (LOA), by its lawyers, sent to Mr Haley a letter dated 4 February 2022 stating that LOA opposes Mr Haley’s application, and set out the grounds on which it opposes the application (LOA Letter).[2]

   [2] The letter is marked “MFI1”

3. At the directions hearing on 4 February 2022 Mr Haley proceeded, at my invitation, with his application for leave to file the Proposed Amendment, and I heard submissions from him and from counsel for LOA. At the conclusion of the hearing I directed Mr Haley to file written submissions in response to LOA’s Letter; and Mr Haley did so on 10 February 2022. I listed Mr Haley’s application for leave to file the Proposed Amendment for judgment at 4:30 pm on 18 February 2022.

4. In these reasons for judgment, therefore, I consider whether I should order that Mr Haley have leave to file the Proposed Amendment. These reasons for judgment assume familiarity with the judgment I published on 19 February 2021,[3] and the judgment I published on 3 September 2021.[4] That is so because I there describe the causes of action and claims Mr Haley makes against LOA.

   [3] Haley v Laing O'Rourke Australia Management Services Pty Ltd [2021] FCCA 257

   [4] Haley v Laing O'Rourke Australia Management Services Pty Ltd [2021] FedCFamC2G 8

   PRINCIPLES

5. Under r 7.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the Court has power to “allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court . . . thinks fit”; but the exercise of that power is within the discretion of the Court. In the case of applications to amend pleadings, the discretion is exercised according to the following principle:[5]

   [L]eave to amend should be granted unless the proposed amendment is obviously futile or would cause substantial prejudice or injustice which could not be compensated for. These considerations require the Court to take account of the nature of the proposed amendment, whether it is made in good faith, the stage in the proceedings at which leave is sought, the nature of the prejudice that may be caused and the means by which such prejudice might be redressed. The question of delay is relevant to these considerations however it is not the purpose of the Court to punish a party for delay in seeking an amendment.

   [5] Medich v Bentley-Smythe Pty Ltd [2010] FCA 494, at [8] (Stone J)

   PARTIES’ SUBMISSIONS

6. LOA submits that the additional matters alleged in the Proposed Amendment are incapable of raising reasonable causes of action based on any contravention of the Fair Work Act 2009 (Cth) (FW Act); there has been substantial delay in Mr Haley’s applying for leave to file the Proposed Amendment; even if the Proposed Amendment articulated reasonable causes of action there would be no forensic advantage in Mr Haley pursuing them; and, in any event, if the claims made in the Proposed Amendment were allowed, LOA would be required to incur substantial costs. Further, LOA submits that if leave were granted to file the Proposed Amendment Mr Chatwin would be entitled to claim the privilege against exposure to a penalty, and the protection afforded to Mr Chatwin “would be severely circumscribed in circumstances where [LOA] has already filed an affidavit from Mr Chatwin in the proceeding”.[6]

   [6] LOA Letter, [7]

7. Mr Haley submits he prepared the Proposed Amendment after LOA had filed 211 pieces of evidence on 24 January 2022, and the Proposed Amendment is based on that evidence. At the hearing on 4 February 2022 Mr Haley said that his delay in preparing, and applying for leave to file, the Proposed Amendment was due to his having access to documents that had only recently been provided to him. Mr Haley further submits that the Proposed Amendment sufficiently identifies the claims he proposed to make against Mr Chatwin, Ms Fraser, and Mr Bates.

8. The first question I must address is whether the claims made in the Proposed Amendment have sufficient merit to warrant leave being granted; and I will consider this question separately in relation to each of the three persons the Proposed Amendment seeks to be joined as respondents.

   MR CHATWIN

9. The Proposed Amendment in relation to Mr Chatwin contains the following allegations:

   (a)Mr Chatwin is employed by LOA in the position of Hub Commercial Director.[7]

   (b)Mr Chatwin was involved in the decision to terminate Mr Haley’s employment because, among other things, he has made an affidavit in which he deposes that he made the decision to terminate Mr Haley’s employment summarily.[8]

   (c)By being involved in the termination of Mr Haley’s affidavit, Mr Chatwin contravened s 385(b), s 342(1)(a), s 343(1)(a), and s 117(1) of the FW Act.[9] It appears that the Proposed Amendment’s reference to s 342(1)(a) is an error, and that Mr Haley intends to refer to s 340(1)(a) instead of s 342(1)(a). I will proceed on the assumption that the Proposed Amendment alleges contraventions of s 340(1)(a) of the FW Act.

   (d)Mr Chatwin’s decision was harsh, unjust, and unreasonable, contrary to s 385(b) of the FW Act.[10]

   (e)Mr Chatwin took adverse action against Mr Haley because Mr Haley exercised his workplace rights to raise complaints about his employment.[11] The principal basis of that allegation is that Mr Chatwin did not resolve complaints Mr Haley raised about his employment.

   (f)Mr Chatwin coerced Mr McDevitt on 18 July 2020 not to exercise Mr Haley’s workplace rights. The basis of that allegation is that on 13 July 2020 Mr Curnow-Rose confirmed that Mr McDevitt had agreed to act as Mr Haley’s support person; on 18 July 2020 Mr Haley raised complaints with Mr McDevitt about the investigation process; and, on the same day, Mr McDevitt told Mr Haley he had spoken to Mr Chatwin and Mr Haley was told not to pursue the complaints raised.[12]

   (g)Mr Chatwin’s communication of the decision to terminate Mr Haley’s employment summarily was designed to cause Mr Haley and his family maximum distress.[13]

   (h)Mr Chatwin “knew of the alleged contraventions”. Mr Haley relies on a large number of documents, and on observations in relation to matters stated in those documents.[14]

   (i)On the day Mr Haley’s employment was terminated Mr Chatwin was not a director of LOA. Mr Chatwin was acting under the direction of Mr Cathal O’Rourke who was the actual decision maker.[15]

   [7] Proposed Amendment, [111]

   [8] Proposed Amendment, [112]

   [9] Proposed Amendment, [113]

   [10] Proposed Amendment, [114]

   [11] Proposed Amendment, [115]

   [12] Proposed Amendment, [116]

   [13] Proposed Amendment, [117]

   [14] Proposed Amendment, [118]

   [15] Proposed Amendment, [119]-[132]

10. This Court does not have jurisdiction to entertain claims based on unfair dismissal, as that notion is defined in s 385 of the FW Act. Thus a claim against Mr Chatwin based on s 385 of the FW Act is not arguable and, therefore, to permit Mr Haley to amend the current Form 2 to include a claim against Mr Chatwin based on s 385 of the FW Act would be futile.

11. That leaves the alleged contraventions of s 340(1)(a), s 343(1)(a), and s 117(1) of the FW Act. The Proposed Amendment claims Mr Chatwin contravened s 340(1)(a) and s 117(1) on the basis that he is a “person involved” in LOA’s contraventions of those provisions. As I noted in my reasons for judgment published on 3 September 2021,[16] to be a person involved under s 550(2) of the FW Act in another person’s contravention of a provision of the FW Act it is necessary to allege and prove that the person had “knowledge of the essential elements of the contravention”.[17] Thus, to plead a reasonable cause of action against Mr Chatwin based on his being involved in LOA’s contraventions of s 340(1)(a) and s 117(1) of the FW Act, it is necessary that the Proposed Amendment sufficiently identify the following:

    (a)LOA’s acts or omissions which it is alleged constitute LOA’s contraventions of s 340(1)(a), and s 117(1) of the FW Act;

    (b)the acts or omissions of Mr Chatwin it is alleged constitutes his involvement in each of LOA’s contraventions of s 340(1)(a), and s 117(1) of the FW Act; and

    (c)the facts, matters, and circumstances on which Mr Haley relies for alleging Mr Chatwin had knowledge of each set of acts or omissions it is alleged constitute LOA’s contraventions of s 340(1)(a), and s 117(1) of the FW Act.

    [16] Haley v Laing O'Rourke Australia Management Services Pty Ltd [2021] FedCFamC2G 8

    [17] Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661, at page 670

12. It is also relevant to note that it is a rule of pleading that, where a person alleges as a fact that a person had knowledge of some fact, particulars of the facts on which the person relies for so alleging must be provided.[18]

    [18] See, for example, r 16.43 of the Federal Court Rules 2011 (Cth)

    Involvement based on LOA’s contravention of s 340(1)(a) of the FW Act

13. The elements of a contravention of s 340(1)(a) of the FW Act are: (a) a person (first person) has a workplace right; (b) the first person has exercised or proposes to exercise the workplace right; (c) another person (second person) has taken adverse action against the first person; and (d) the second person has taken such adverse action because the first person has a workplace right, or because the first person has exercised a workplace right. Here “because” means “for the reason that”, and applies not only where a person’s having or exercising a workplace right is the only reason for another person taking adverse action, but also where such reason is one of a number of reasons that constitutes a “substantial and operative factor”.[19]

    [19] General Motors-Holden’s Pty. Ltd. v Bowling (1976) 51 ALR 235, at page 616; Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [62], [65], [104]

14. If this is applied to a claim that Mr Chatwin was involved in LOA’s contravening s 340(1)(a) of the FW Act, Mr Haley would need to allege the following:

    (a)Mr Haley had a workplace right, or he exercised a workplace right;

    (b)LOA took adverse action against Mr Haley;

    (c)LOA took adverse action against Mr Haley because Mr Haley has a workplace right or because he exercised a workplace right;

    (d)Mr Chatwin took part in at least some of the conduct that constituted LOA’s taking adverse action against Mr Haley because Mr Haley has or because he exercised a workplace right; and

    (e)Mr Chatwin took some part in the contravening conduct having knowledge of each of (a), (b), and (c).

15. It is relevant to note that s 361 of the FW Act, which casts on a person who is alleged to have taken adverse action for a particular reason the burden of proving that he or she did not take such action for such reason, does not apply to a person who is alleged to have been involved in another person’s contravention of s 340 of the FW Act.[20] Thus, where, as is the case with the Proposed Amendment, it is alleged a person is involved in another person’s contravention of s 340(1)(a) of the FW Act, it is necessary to allege and prove the persons alleged to have been involved knew that the person who is alleged to have contravened s 340(1)(a) took adverse action because the person against whom such action was taken has or had exercised a workplace right.

    [20] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525, at [242]

16. I turn to the Proposed Amendment. The Proposed Amendment does not expressly identify the acts or omissions it alleges constitute LOA’s contraventions of s 340(1)(a) of the FW Act and in which, therefore, it is alleged Mr Chatwin was involved. That, however, may be regarded as a drafting defect which may perhaps be tolerated because it was prepared by a person who is not legally qualified. Assuming this may be tolerated, it appears that the elements of the intended claim against Mr Chatwin are as follows:

    (a)LOA took adverse action against Mr Haley by terminating his employment because Mr Haley exercised his workplace right by making complaints in relation to his employment.

    (b)Mr Chatwin participated in that contravention because he was the person who purportedly terminated Mr Haley’s employment on behalf of LOA.

    (c)Mr Chatwin was aware that Mr Haley had made a complaint or complaints in relation to his employment. The complaints of which it appears the Proposed Amendment alleges Mr Chatwin was aware are the complaints in paragraphs 52, 57, 61, 62, 63, 64, 66, and 68 of the current Form 2; and the matters on which the Proposed Amendment relies for claiming Mr Chatwin did terminate Mr Haley’s employment are those identified in paragraph 115 of the Proposed Amendment. As I have already noted, the Proposed Amendment there alleges that Mr Chatwin did not resolve the complaints Mr Haley made.

17. The Proposed Amendment sufficiently identifies the matters on which Mr Haley relies for claiming Mr Chatwin was involved in LOA’s contraventions of s 340(1)(a) of the FW Act. The question that arises, however, is whether the matters disclose a reasonable cause of action against Mr Chatwin based on his being involved in LOA’s alleged contraventions of s 340(1)(a) based on its having terminated Mr Haley’s employment because he exercised his workplace rights. In my opinion that question is to be answered in the negative. The allegations that Mr Chatwin was aware Mr Haley made complaints in relation to his employment, and that Mr Chatwin did not resolve those complaints, are incapable of rationally supporting the inference that Mr Chatwin on behalf of LOA terminated Mr Haley’s employment for the reason, or for reasons that included as a substantial and operative factor, Mr Haley’s having made the complaints he alleges to have made in relation to his employment.

18. I therefore do not propose to permit Mr Haley to file the Proposed Amendment to the extent it claims Mr Chatwin was involved in LOA’s alleged contraventions of s 340(1)(a) of the FW Act.

    Involvement based on LOA’s contravention of s 117 of the FW Act

19. Section 117 of the FW Act relevantly provides:

    (1)  An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

    (2)       The employer must not terminate the employee’s employment unless:

    (a)  the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

    (b) the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.

    . . . .

20. Section 117 of the FW Act is contained in Division 11 of Part 2.2 of the FW Act; but s 123 of the FW Act identifies employees to which the provisions of Division 11, which includes s 117, do not apply. One of these is s 123(1)(b) which identifies “an employee whose employment is terminated because of serious misconduct”.

21. In the current Form 2 Mr Haley alleges that LOA did not comply with s 117(1). Given that LOA claims it terminated, and was entitled to terminate, Mr Haley’s employment for misconduct, it may be taken that LOA relies on s 123(1)(b) of the FW Act as an answer to Mr Haley’s claim that LOA contravened s 117(1). In these circumstances, it appears to be the intention of paragraphs 117 and 118 of the Proposed Amendment to allege that Mr Chatwin knew LOA did not have the grounds to summarily dismiss Mr Haley’s employment for misconduct, or at the very least did not believe that LOA had such grounds. The question then becomes whether paragraphs 117 and 118 of the Proposed Amendment allege matters sufficient to support an allegation that Mr Chatwin knew LOA did not have the grounds to summarily dismiss Mr Haley’s employment for misconduct or at the very least did not believe that LOA had such grounds.

22. The Proposed Amendment relies on documents that reveal attempts by Mr Chatwin to obtain further information, statements of uncertainty, proposed communication plans, and asserted inconsistencies between what Mr Chatwin has affirmed in his affidavit and stated in the letter by which LOA terminated Mr Haley’s employment. The matters on which the Proposed Amendment rely are not capable of affording a basis on which it could reasonably be inferred that Mr Chatwin knew LOA did not have grounds to summarily dismiss Mr Haley’s employment for misconduct, or at the very least did not believe that LOA had such grounds.

1. I therefore do not propose to permit Mr Haley to file the Proposed Amendment to the extent it claims Mr Chatwin was involved in LOA’s alleged contraventions of s 117 of the FW Act.

   Mr Chatwin’s contravention of s 343(1)(a) of the FW Act

2. The Proposed Amendment does not allege Mr Chatwin contravened s 343(1) of the FW Act on the basis that he was a person involved in LOA’s contravention of that provision; the Proposed Amendment alleges Mr Chatwin contravened s 343(1)(a) of the FW Act on his own account. Section 343 is as follows:

   A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

   (a)  exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

   (b)      exercise, or propose to exercise, a workplace right in a particular way.

3. The claim based on a contravention by Mr Chatwin of s 343(1) of the FW Act is based on the matters alleged in paragraph 116 of the Proposed Amendment. As I have already noted, this part of the Proposed Amendment alleges Mr Chatwin coerced Mr McDevitt on 18 July 2020 not to exercise Mr Haley’s workplace right. That allegation, if taken literally, and assuming it is sufficiently pleaded, does not engage s 343(1) of the FW Act. It alleges that Mr Chatwin coerced Mr McDevitt not to exercise Mr Haley’s workplace rights. Section 343 of the FW Act is not directed to a person who exercises another person’s workplace right.

4. Perhaps what paragraph 116 of the Proposed Amendment intends to allege is that Mr Chatwin directed Mr McDevitt to inform Mr Haley that he should not pursue his complaint about the investigation process. If that is the intended meaning, it is not capable of engaging s 343(1) of the FW Act; and that is because Mr Chatwin’s directing Mr McDevitt is incapable of constituting coercion. In Esso Australia Pty Ltd v The Australian Workers' Union; The Australian Workers' Union v Esso Australia Pty Ltd the High Court considered the meaning of “coercion” in s 343 and s 348 of the FW Act. The plurality said:[21]

   [A] contravention of s 343 or s 348 is constituted of organising, taking or threatening action against another person with intent to negate the other person's choice. It is unnecessary that the person organising, taking or threatening the action know that the action is, or intend that the action be, unlawful, illegitimate or unconscionable.

   [21] Esso Australia Pty Ltd v The Australian Workers' Union; The Australian Workers' Union v Esso Australia Pty Ltd [2017] HCA 54 , at [2] (Gageler J agreeing at [65])

5. In National Tertiary Education Industry Union v Commonwealth, Weinberg J described the nature of coercion in the following terms:[22]

   The approach to the expression “intent to coerce” taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce.  Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.

   [22] National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114, at [103]

6. The matters alleged in paragraph 116 of the Proposed Amendment are incapable of supporting a conclusion that Mr Chatwin directed Mr McDevitt to inform Mr Haley not to pursue his complaint about the investigation process with the intention of exerting pressure on Mr Haley such as to deprive him of a realistic choice as to whether to comply with the direction.

7. I therefore do not propose to permit Mr Haley to file the Proposed Amendment to the extent it claims Mr Chatwin contravened s 343(1)(a) of the FW Act.

   MS HELEN FRASER

8. The Proposed Amendment makes the following allegations:

   (a)Ms Fraser was LOA’s General Manager for human capital.

   (b)On 28 July 2020 Ms Fraser sent an email to Mr Haley which included a statement of termination advice.

   (c)In the statement of termination advice accrued entitlements for long service leave, bushfires project conditions allowance, and allowance for annual business class flights were not paid to Mr Haley.

   (d)Ms Fraser contravened s 323(1) of the FW Act “as amounts payable to” Mr Haley “in relation to the performance of work in full were not paid to” Mr Haley.

   (e)Ms Fraser knew LOA’s not paying the amounts referred to in (d) “contravened the Act”.

9. In short, the claim against Ms Fraser is that she contravened s 323(1) of the FW Act because she sent to Mr Haley a payment advice which did not include amounts Mr Haley claims LOA was liable to pay him.

10. Section 323 of the FW Act provides:

    (1)An employer must pay an employee amounts payable to the employee in relation to the performance of work:

    (a)in full (except as provided by section 324); and

    (b)in money by one, or a combination, of the methods referred to in subsection (2); and

    (c)at least monthly.

    (2)The methods are as follows:

    (a)cash;

    (b)cheque, money order, postal order or similar order, payable to the employee;

    (c)the use of an electronic funds transfer system to credit an account held by the employee;

    (d)a method authorised under a modern award or an enterprise agreement.

    (3)Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.

11. The Proposed Amendment assumes that an employer’s failure to pay any amount payable to an employee in relation to the performance of work constitutes a contravention of s 323(1) of the FW Act. There is some authority that supports this assumption;[23] and I will assume that it is sufficiently arguable that a failure by an employer to pay to an employee an amount payable in relation to the performance of work by itself constitutes a contravention of s 323(1) of the FW Act.

    [23] See Coote v Mainline Access Pty Ltd & Anor (No.3) [2019] FCCA 383, at [40]-[57]

12. In the current Form 2 Mr Haley alleges that LOA failed to pay amounts that he alleges had become due to him under his employment contract, and under the Long Service Leave Act 1955 (NSW). But neither the current Form 2 nor the Proposed Amendment allege that by failing to pay to Mr Haley these amounts LOA, Mr Haley’s employer, contravened s 323(1) of the FW Act. In those circumstances, the only way Ms Fraser could be liable under s 323(1) of the FW Act is if she is a person who was involved in LOA’s contravention of s 323(1). Given that neither the current Form 2 nor the Proposed Amendment allege that LOA contravened s 323(1) of the FW Act, it would be futile to permit Mr Haley to file the Proposed Amendment that alleges that a person who was not his employer contravened s 323(1) of the FW Act.

13. I therefore do not propose to permit Mr Haley to file the Proposed Amendment to the extent it claims Ms Fraser contravened s 323(1) of the FW Act.

    MR DANE BATES

14. The Proposed Amendment makes the following allegations:

    (a)Mr Bates was the head of Industrial Relations and Employee Operations when LOA terminated Mr Haley’s employment.

    (b)Mr Bates was involved in the investigation and disciplinary process that led to LOA’s terminating Mr Haley’s employment.

    (c)In doing so Mr Bates contravened s 340(1)(a) of the FW Act.

    (d)Mr Bates took adverse action against Mr Haley because Mr Haley exercised his workplace right to raise complaints about his employment. The matters on which the Proposed Amendment relates are stated in paragraph 152. They disclose actions that Mr Bates undertook when he became aware Mr Haley had made complaints in relation to his employment. The actions consisted in Mr Bates undertaking tasks in connection with the investigations LOA was then undertaking in relation to Mr Haley.

    (e)Mr Bates knew “this contravened” the FW Act. The Proposed Amendment relies on the matters stated in paragraph 153. These include Mr Bates having been appointed “contact person” following the termination of Mr Haley’s employment, Mr Bates having “coerced Murray Curnow-Rose to mislead an investigator” appointed by LOA, and Mr Bates’ being regularly briefed.

    (f)Mr Bates was involved in Mr Chatwin’s harsh, unjust, and unreasonable decision to terminate Mr Haley’s employment, contrary to s 385 of the FW Act.

    (g)Mr Bates contravened s 323(1) of the FW Act by instructing Ms Cassandra Byrne to process Mr Haley’s final payment which excluded long service leave, and the bushfire project conditions allowance.

15. As with the claims against Mr Chatwin based on his involvement in LOA’s alleged contraventions of s 340(1)(a) of the FW Act, the Proposed Amendment does not identify the acts or omissions it alleges constitute LOA’s contraventions of s 340(1)(a) of the FW Act and in which, therefore, it is alleged Mr Chatwin is alleged to have been involved. It is not possible, therefore, to identify with sufficient certainty LOA’s contravening acts or omissions in which the Proposed Amendment alleges Mr Bates was involved. Further, assuming the Proposed Amendment does sufficiently identify LOA’s contravening acts or omissions, the matters alleged in the Proposed Amendment are not reasonably capable of supporting the allegation that Mr Bates knew that Mr Chatwin or any other person on behalf of LOA took adverse action because Mr Haley had exercised his workplace rights by making complaints in relation to his employment.

16. As for the claim against Mr Bates based on s 385 of the FW Act I repeat what I have said in relation to the claims against Mr Chatwin, namely, that the Court does not have jurisdiction to entertain claims based on unfair dismissal, as that notion is defined in s 385 of the FW Act. As for the claim against Mr Bates based on s 323(1) of the FW Act, I repeat what I have already said in relation to the claim made against Ms Fraser, namely, that neither the current Form 2, nor the Proposed Amendment in terms allege LOA contravened s 323(1) of the FW Act, and thus it would be futile to permit an amendment that alleges involvement in a contravention of a provision of the FW Act that it is not alleged LOA contravened.

17. I therefore do not propose to permit Mr Haley to file the Proposed Amendment to the extent it claims Mr Bates contravened s 323(1), s 340(1)(a), or s 385 of the FW Act.

    DISPOSITION

18. The consequence of my conclusions is that I am satisfied that Mr Haley should not be given leave to file any of the allegations contained in the Proposed Amendment. I therefore propose to order that Mr Haley’s application for leave to file the Proposed Amendment be dismissed.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Dated:       18 February 2022