Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 5)

[2024] FedCFamC2G 286

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286

File number(s):

SYG 2432 of 2020

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

28 March 2024

Catchwords:

INDUSTRIAL LAW – whether the respondent employer was justified in purporting to summarily dismiss the applicant from his employment – respondent employer not justified, and by purporting to summarily dismiss the applicant from his employment the respondent employer  repudiated the contract of employment – whether the applicant exercised workplace rights by making complaints or inquiries in relation to his employment – applicant exercised workplace rights – whether respondent employer proved that it did not dismiss the applicant from his employment because he exercised workplace rights or for reasons that did not include as a substantial and operative factor the applicant’s having exercised workplace rights – the respondent employer has not so proved – whether applicant’s service as an employee of a related company of the respondent employer in the United Kingdom counted as continuous service with the respondent employer for the purposes of the Long Service Leave Act 1955 (NSW) – the applicant’s service with related companies in the United Kingdom did not count as continuous service of the respondent employer – declarations made and directions made for the filing of submissions on damages and compensation.

Legislation:

Acts Interpretation Act 1901 (Cth) s 28A

Evidence Act 1995 (Cth) ss 32, 34, 60(1), 69(2)(b), 140, 190

Fair Work Act 2009 (Cth) ss 12, 44(1), 61(3), 62, 117(1), 117(2), 123(1), 340(1), 341(1)(c)(ii), 342(1), 360, 361(1), 793(1)

Workplace Relations Act 1996 (Cth) s 298K(1)

Inclosed Lands Protection Act 1901 (NSW) s 4(1)

Interpretation Act 1987 (NSW) s 12(b)

Interpretation of Legislation Act 1984 (Vic) s 48(b)

Long Service Leave Act 1955 (NSW) ss 4(1), 4(2)(a), 4(3), 4(5), 4(11), 4(13)(b), 4(13)(c),

Surveillance Devices Act 2007 (NSW)

Fair Work Regulations 2009 (Cth) reg 1.07

Cases cited:

Adami v Maison de Luxe Ltd (1924) 35 CLR 143

Alam v National Australia Bank Limited [2021] FCAFC 178

Associated Dominion Assurance Society Pty Ltd v Andrew (1949) 49 SR (NSW) 351

Australian Timken Pty Ltd v Stone (No 2) [1971] AR (NSW) 246

Banque Commerciale S.A. v Akhil Holdings Limited (1990) 169 CLR 279

Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Campbell v Backoffice Investments Pty Ltd [2009] HCA 25

Carter v The Dennis Family Corporation [2010] VSC 406

Childs v Metropolitan Transport Trust (1981) 29 AILR 24

Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329

Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157

Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421

Derry v Peek (1889) LR 14 App Cas 337

Edgington v Fitzmaurice (1885) 29 Ch D 459

El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260

Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39

Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 4) [2022] FedCFamC2G 743

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

Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923

Infosys Technologies Ltd v State of Victoria [2021] VSCA 219

International Computers (Australia) Pty Ltd v Weaving [1981] 2 NSWLR 64

Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75

Jonesco v Beard [1930] AC 298

Krakowski v Eurolynx Properties Ltd [1995] HCA 68

Lazarus Estates Ltd v Beasley [1956] 1 QB 702

Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 165 ALR 67

McIntyre v R [2009] NSWCCA 305

Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500

Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27

R v Court [1989] AC 28

R v Venna [1976] QB 421

Rankin v Marine Power International Pty Ltd [2001] VSC 150

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271

Smith v Land and House Property Corporation (1885) 28 Ch D 7

Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1

Wallingford v Mutual Society (1880) 5 App. Cas. 685

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Wipro Limited v State of New South Wales [2022] NSWCA 265

Wong v National Australia Bank Limited [2022] FCAFC 155

Division:

Fair Work

Number of paragraphs:

675

Date of last submission/s:

12 December 2022

Date of hearing:

19, 20, 21, and 23 September 2022 and 28 November 2022

Place:

Sydney

The Applicant:

Appeared in person (and on 28 November 2022 by video)

Counsel for the Respondent:

Mr R Jedrzejczyk (and on 28 November 2022 by video)

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:	28 MARCH 2024

THE COURT DECLARES THAT:

1.By purporting on 24 July 2020 to summarily dismiss the applicant from his employment, the respondent repudiated its obligations under the contract of employment the respondent made with the applicant on or about 25 July 2018.

2.By purporting on 24 July 2020 to summarily dismiss the applicant from his employment, the respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) (FW Act).

3.By failing to deliver personally to the applicant written notice of its purported summary dismissal of the applicant’s employment, or by failing to leave at, or send by pre-paid post to, the applicant’s address last notified to the respondent, the respondent contravened s 117(1) of the FW Act.

THE COURT ORDERS THAT:

4.By 12 April 2024 the applicant file and serve written submissions on whether it is open to the applicant to claim the respondent contravened s 117(2) of the FW Act, and on damages and compensation.

5.By 29 April 2024 the respondent file and serve written submissions on the issues referred to in order 4.

6.The matter be listed for a directions hearing at 4:15 pm (AEST) on 3 May 2024.

7.The parties have liberty to apply on such notice as the circumstances warrant for any reason, including varying orders 4, 5, or 6.

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

INTRODUCTION	[1]
QUESTIONS ARISING	[3]
ARRANGEMENT OF REASONS	[5]
PRELIMINARY MATTERS	[6]
Evidence of the Incident	[6]
Relevance of evidence of investigation(s)	[12]
Credibility of Mr Haley and Mr Chatwin	[21]
Some principles relating to fraudulent misrepresentations	[28]
Alleging and proving fraud	[35]
EVIDENCE AND SOME FINDINGS	[39]
Mr Haley’s employment and professional background	[39]
February 2018 – Mr Chatwin approaches Mr Haley to work for LOA	[41]
25 July 2018 – Mr Haley signs contract of employment	[48]
“Position Description” of Commercial Leader	[51]
LOA’s “Global Code of Conduct” and other policies	[59]
25 September 2018 - Mr Haley commences employment with LOA	[63]
Work performed by Mr Haley at commencement of his employment	[66]
Mr Haley expresses concerns about his role within LOA	[70]
The NSW Bushfire Clean-up Project	[74]
Mr Haley’s role in the Bushfire Project	[78]
Alleged complaints or inquiries made before 3 July 2020	[92]
Alleged Complaint/Inquiry No 1	[93]
Alleged Complaint/Inquiry No 2	[96]
Alleged Complaint/Inquiry No 3	[98]
Alleged Complaint/Inquiry No 4	[100]
Alleged Complaint/Inquiry No 5	[102]
Alleged Complaint/Inquiry No 6	[103]
Alleged Complaint/Inquiry No 7	[104]
The Incident – evidence	[108]
Persons who attended Pambula Property on evening of the Incident	[110]
Account apparently given by Ms P to “Amy”	[112]
Account apparently given by Ms P to Ms Woodford on 3 July 2020	[114]
Record of interview of Mr David Field – 8:48 am, 6 July 2020	[115]
Record of interview of Mr Shaun Boyle – 9:00 am, 6 July 2020	[117]
Record of interview of Mr David Grierson – 9:36 am, 6 July 2020	[121]
Record of interview of Ms P – 11:30 am, 6 July 2020	[125]
Ms P’s email sent at 1:55 pm on 6 July 2020	[127]
Record of interview of Mr Andrew Byrne – 12:02 pm, 6 July 2020	[128]
Record of interview of Ms Amy Lovell – 12:58 pm, 6 July 2020	[130]
Record of interview of Ms Lisa McKeever – 3:09 pm, 6 July 2020	[131]
Record of interview of Mr Shane Neely – 8:30 am, 8 July 2020	[132]
The audio recording	[133]
Record of interview of Mr Haley – 9:46 am, 8 July 2020	[156]
Record of interview of Mr Adam Neely – 1:32 pm, 8 July 2020	[166]
Second record of interview of Ms P and Mr P – 9:44 am, 9 July 2020	[167]
Second record of interview of Mr Andrew Byrne – 11:00 am, 13 July 2020	[168]
Second record of interview of Mr David Grierson – 3:00 pm, 14 July 2020	[171]
22 July 2020 - Show Cause Meeting	[174]
Alleged admissions	[188]
First Alleged Admission	[190]
Second Alleged Admission	[195]
Third Alleged Admission	[202]
The Incident – Principal Findings	[205]
What LOA submits occurred at the Incident	[205]
Mr and Ms P’s claims	[210]
Findings	[215]
LOA’s purported investigation of the Incident	[218]
Ms P sends photos and recording to Ms Woodford	[218]
Mr Barrie and others are notified of the Incident	[219]
Mr Curnow-Rose recommends standing down Mr Haley	[222]
3 July 2020 – Mr Curnow-Rose suspends Mr Haley’s employment	[225]
4 July 2020 – Mr Curnow-Rose sends letter to Mr and Ms P and Mr Haley	[227]
4 July 2020 – Mr Haley has a telephone conversation with Mr Curnow-Rose	[231]
6 July 2020 – Mr Curnow-Rose conducts further interviews including Ms P	[237]
1:55 pm 6 July 2020 – Ms P sends audio recording to Mr Curnow-Rose	[239]
6 July 2020 - Mr Curnow-Rose requires Mr Haley to meet him on 7 July 2020	[241]
6 July 2020 – Mr Curnow-Rose interviews Mr Byrne and others	[246]
8 July 2020 – Mr Curnow-Rose interviews Mr Haley and others	[247]
8 July 2020 – Mr Curnow-Rose submits First Purported Investigation Report	[248]
Was the First Purported Investigation Report a final report?	[250]
Contents of the First Purported Investigation Report	[252]
9 July 2020 – LOA sends letter to Mr Haley seeking further information	[257]
Matter #1	[269]
Matter #2	[272]
Matter #3	[276]
Matter #4	[279]
Matter #5	[281]
Matter #6	[283]
Matter #7	[288]
Implied representation that Mr and Ms P alleged Mr Haley uttered “the Offensive Words”	[290]
Process that lead to the Second Purported Investigation Report	[291]
13 July 2020 – Mr Curnow-Rose interviews Mr Byrne	[293]
13 July 2020 – Mr Chatwin sends text message to Mr Haley	[294]
Mr Cathal O’Rourke’s role in the purported investigation	[295]
14 July 2020 – Mr Curnow-Rose interviews Mr Grierson	[309]
14 July 2023 – Mr Haley has a conversation with Mr McDevitt	[310]
5:21 pm 14 July 2020– Mr Haley sends response to 9 July Letter	[313]
Recording without consent	[315]
Location of listening device	[316]
Conduct of complainants	[317]
Physical harm and personal injury	[318]
Response to matters identified in 9 July 2020	[319]
Concluding statement	[320]
Cross-examination of Mr Haley on Response to 9 July Letter	[322]
False and malicious allegations	[323]
Conduct warranting criminal charges	[325]
Matter #2	[329]
Preparation of Second Purported Investigation Report	[334]
First Draft Executive Summary	[336]
First Draft Mr Curnow-Rose sent to Mr Sleeman at 3:53 pm on 15 July 2020	[339]
Second Draft Mr Sleeman sends to himself as at 10:21 pm on 15 July 2020	[345]
Mr Sleeman prepares further drafts	[350]
Eleventh draft – 6:32 pm on 16 July 2020	[354]
Second Draft Executive Summary	[358]
Twelfth  Draft sent to Mr Cashin and Mr Chatwin	[359]
Further draft(s)	[361]
Mr Chatwin reviews Twelfth Draft and asks for further information	[362]
17 July 2020 – Second Purported Investigation Report Completed	[364]
The allegations the subject of the Second Purported Investigation Report	[365]
Identifying the person who made the purported finding	[374]
Additional matters	[375]
11:36 pm 15 July 2020 - Ms Haley communicates about the investigation process	[383]
20 July 2020 – Mr Haley sends Reflection Email	[392]
Events leading to the composition and sending of Reflection Email	[392]
The Reflection Email	[395]
Cross-examination on Reflection Email	[396]
Mr Haley’s motive(s) for sending Reflection Email	[410]
The Show Cause Letter	[419]
The drafting of the Show Cause Letter	[419]
The Show Cause Letter	[440]
Events after sending Show Cause Letter but before Show Cause Meeting	[448]
22 July 2020 – Show Cause Meeting	[449]
Events after the Show Cause Meeting but before Termination Letter sent	[450]
What the documents reveal	[450]
Mr Sleeman sends to Mr Chatwin and others “final” Termination Letter	[458]
Contents of the Termination Letter	[459]
The decision to terminate – was Mr Chatwin the decision maker?	[469]
Mr Chatwin’s first affidavit	[471]
Mr Chatwin’s second affidavit	[475]
Mr Chatwin’s cross-examination	[479]
Conclusion on Mr Chatwin’s evidence	[496]
Conclusion	[503]
MR HALEY’S CONTRACT CLAIMS BASED ON UNJUSTIFIED DISMISSAL	[507]
The “pleadings”	[507]
Whether LOA Response sufficient to raise dishonesty	[516]
LOA’s Case(s)	[517]
LOA’s Outline of Opening Submissions	[518]
Notice of need to amend	[523]
LOA’s Outline of Closing Submissions	[528]
Determination	[534]
Closing ground 1 – misconduct	[534]
Conclusion	[539]
Closing ground 2 – imminent and serious risk	[540]
Closing ground 3 – Misconduct based on alleged dishonesty and falsehood	[545]
Dishonest Non-Disclosure Allegation No 1 - Alleged Dishonest Failure to Disclose saying “the Offensive Words”	[546]
Untrue/Misleading Allegation No 1 - Mr Haley’s refuting allegation of aggressive etc behaviour	[551]
Untrue/Misleading Allegation No 2 - Statement Mr P “represent[ed] a risk and danger to the safety and welfare of the residents”	[552]
Untrue/Misleading Allegation No 3 - “That’s covered in my statement”	[556]
Dishonest Non-Disclosure Allegation No 2 - Mr Haley not disclosing it was his voice on the audio recording	[560]
Dishonest Non-Disclosure Allegation No 3 – “No change to make”	[564]
Untrue/Misleading Allegation No 4 – Mr and Ms P had made “false and malicious allegations”	[566]
Statement No 9 – Subjected to a physical assault	[568]
Statement No 9 –  Part 1: Subjected to a physical assault	[570]
Statement No 9 –  Part 2: Seeking to avoid criminal charges	[577]
Conclusion	[581]
MR HALEY’S CLAIMS UNDER S 340(1) OF THE FW ACT	[582]
Provisions and principles	[584]
Adverse action	[586]
Dismisses the employee	[587]
Injures the employee	[589]
Alters position of employee	[590]
Workplace right	[591]
Complaint or inquiry	[592]
“Is able”	[594]
“In relation to”	[599]
Adverse action because of exercise of workplace right	[600]
Did Mr Haley make a complaint or inquiry before 3 July 2020?	[607]
Did Mr Haley make a complaint or inquiry after 3 July 2024?	[609]
Alleged Complaint/Inquiry No 8	[610]
Alleged Complaint/Inquiry No 9	[613]
Did LOA summarily dismiss Mr Haley from his employment because he had made a complaint or inquiry in relation to his employment?	[614]
OTHER CLAIMS	[618]
Adverse action other than dismissal	[619]
Claims based on contraventions of National Employment Standards	[631]
Excessive hours (s 62 of the FW Act)	[632]
Notice of Termination (s 117(1) of the FW Act)	[635]
Termination without notice (s 117(2) of the FW Act)	[642]
“Final Pay” claim	[645]
Long Service Leave Claim	[651]
The LSL Act	[652]
Mr Haley’s claims and LOA’s response	[659]
Determination	[664]
DISPOSITION	[674]

INTRODUCTION

1. At 5:09 pm on Friday, 24 July 2020, Mr Simon Chatwin, then the Commercial Director of the respondent (LOA), sent to the applicant, Mr Haley, an email attaching a letter (Termination Letter) dated 24 July 2020 stating that “Laing O’Rourke has made the decision to terminate” Mr Haley’s employment with LOA “for serious misconduct, with immediate effect”.[1] The Termination Letter asserted Mr Haley had engaged in two classes of serious misconduct. The first is that Mr Haley lied to another employee of LOA, Mr Curnow-Rose, in the course of a purported investigation by Mr Curnow-Rose of a complaint Mr and Ms P, the owners of a property at Pambula (Pambula Property), made to LOA about an incident (Incident) that occurred in the late night and early morning of 2 and 3 July 2020 at the Pambula Property. The second class of serious misconduct the Termination Letter asserted Mr Haley engaged in is conduct during the Incident that constituted “[s]erious breaches of company policies, including the Code of Conduct”, which “caused imminent and serious risk to the reputation of” LOA.

   [1] Exhibit TH-E4-168 (CB1733)

2. In this proceeding, Mr Haley, who is not legally represented, denies he lied to any person in the course of any investigation, or that he engaged in any conduct that justified LOA’s summarily dismissing him; and, in any event, Mr Haley says that LOA did not terminate his employment because LOA believed Mr Haley did any of these things. Mr Haley claims LOA terminated his employment because he had made complaints or inquiries in relation to his employment and, by so doing, exercised the workplace rights provided for by s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (FW Act). In these circumstances, Mr Haley claims that by terminating his employment LOA, in contravention of s 340(1) of the FW Act, took adverse action against him because Mr Haley exercised his workplace rights. Moreover, and in any event, Mr Haley claims LOA was not entitled to summarily dismiss him from his employment and, by doing so, LOA breached his contract of employment. Mr Haley also makes additional claims, which I will identify later.

   QUESTIONS ARISING

1. In these reasons for judgment, therefore, I consider two principal sets of questions. The first is whether LOA has discharged the onus of proving the matters on which, in its response (LOA Response) to Mr Haley’s amended Form 2 (Application), it relies as justifying its decision to summarily dismiss Mr Haley from his employment. The second is whether, as Mr Haley claims, he exercised any workplace rights and, if so, whether LOA, through Mr Chatwin, summarily dismissed Mr Haley from his employment for the reasons Mr Chatwin in his first affidavit says he decided LOA should summarily dismiss Mr Haley from his employment. There are other questions that arise; but I will identify and consider these after I consider and determine the two principal sets of questions.

2. I have framed the first set of questions in the terms I have because, as will appear later, LOA purported to advance a case based on substantial allegations, including allegations of dishonesty, it does not allege in the LOA Response, and on which its counsel did not open.

   ARRANGEMENT OF REASONS

3. These reasons are arranged as follows:

   (a)First, I address a number of preliminary matters. In particular, I identify in general terms the evidence that is relevant to determining what occurred during the Incident and the conduct in which Mr Haley engaged during the Incident, and the rulings I made to objections Mr Haley made to the admissibility of much of that evidence; I will say something about the relevance of the substantial evidence that was adduced that relates to LOA’s purported investigation or investigations of the complaints Mr and Ms P made; I will address LOA’s submissions on the general credibility of Mr Haley and Mr Chatwin; I will set out the basic principles concerning the elements of fraudulent misrepresentations; and I will discuss some principles relating to the procedure that must be observed when a party to litigation alleges dishonesty, and the standard of proof in relation to such allegations.

   (b)Second, I will set out in narrative form the evidence or the effect of the evidence. In the course of doing so I will make unqualified statements of fact which, unless the context suggests otherwise, are to be taken to reflect my findings of the facts stated. I will otherwise identify evidence that is relevant to an event of interest, and consider at that point, or later in my reasons, whether I should accept that evidence and consider what findings, if any, I should make in the light of such evidence I do accept.

   (c)Third, I will consider Mr Haley’s claims that LOA was not justified in summarily dismissing him from his employment.

   (d)Fourth, I will consider Mr Haley’s claims based on s 340(1) of the FW Act.

   (e)Fifth, I will identify and consider the other claims Mr Haley makes.

   PRELIMINARY MATTERS

   Evidence of the Incident

4. The central event out of which this proceeding arose is the Incident and, more particularly, Mr Haley’s conduct during the Incident. As will appear later, there were a number of employees of LOA who were present during the Incident. Mr Curnow-Rose, an employee of LOA who occupied the position of “Human Capital and Industrial Relations Lead”, interviewed a number of the employees (including Mr Haley), as well as Mr and Ms P, about their recollections of the Incident; Mr Curnow-Rose recorded what the employees and Mr and Ms P said (records of interview); and a report was prepared (which I later identify as the “Second Purported Investigation Report”) partly on the basis of which, LOA claims, Mr Chatwin decided that LOA should summarily dismiss Mr Haley from his employment.[2] LOA, however, has not called any of the employees, or Mr or Ms P, to give evidence about what occurred during the Incident and, in particular, about what Mr Haley said and did during the Incident; and the only witness LOA has called, Mr Chatwin, was not present at the Incident.

   [2] I have at this point used the passive voice in relation to the preparation of the Second Purported Investigation Report because there is an issue about whether one or more persons prepared that report.

5. In those circumstances, LOA relies on three classes of evidence to prove that Mr Haley lied in the course of Mr Curnow-Rose’s purported investigation of the complaints Mr and Ms P made, and to prove that Mr Haley otherwise engaged in conduct during the Incident that warranted his summary dismissal.

   (a)The first is evidence of what LOA claims are admissions Mr Haley made at “the show cause meeting” he attended on 22 July 2020 (Show Cause Meeting or Show Cause Meeting of 22 July 2020).

   (b)The second is part of the record of interview of Mr and Ms P of 6 July 2020 which has been incorporated, together with the other records of interview, as a schedule to the Second Purported Investigation Report on which LOA claims Mr Chatwin relied when deciding to summarily dismiss Mr Haley.

   (c)The third item of evidence is an audio recording (which I later identify as “the audio recording”) Ms P made towards the end of the Incident. Particularly relevant is no more than 15 seconds of the audio recording which captures two sets of words which (it is common ground) Mr Haley uttered. The first set of words are “Go home you fucking silly old cunt”. As I find later, these words are spoken in the background at the same time as words are being spoken to Mr and Ms P by other persons in the foreground; and Mr Haley’s words can be picked up only if attention is directed away from the words the audio recording records being spoken to Mr and Ms P in the foreground. The second set of words are “go home old man, old lady. Go home, go home, go home, go home”. These words are also spoken in the background, but they are more distinct because, for the most part, they are not uttered at the same time as words are being uttered in the foreground.

6. In its written submissions, LOA refers to the two sets of words the audio recording picked up Mr Haley uttering as “the Offensive Words”; and it represents these words as constituting one utterance which Mr Haley addressed or directed to Mr and Ms P. LOA submits that Mr and Ms P heard Mr Haley utter “the Offensive Words”. It is a prominent feature of this case, however, that there is no evidence that Mr or Ms P ever claimed or alleged that Mr Haley said, or said to them, “Go home you fucking silly old cunt”, or words to that effect; and although in the record of interview of 6 July 2020 (to which I will refer later) Ms P says that Mr Haley “started chanting, go home old man, old lady”, Ms P also alleged that Mr Haley “had to [be] restrained, said he was going to f-up the old man and lady. I don’t know who was restraining him”.[3] The audio recording, however, does not support that allegation; and LOA does not submit that Mr Haley “had to [be] restrained, said he was going to f-up the old man and lady”; nor was this claim or allegation the subject of what I later identify as the “First Purported Investigation Report”, or of the Second Purported Investigation Report. Further, in neither of the First Purported Investigation Report or the Second Purported Investigation Report is it recorded that Mr and Ms P alleged or claimed that Mr Haley said “the Offensive Words”, and LOA has not called Mr and Ms P to give evidence in this proceeding to say that they heard Mr Haley say “the Offensive Words”. Notwithstanding these matters, LOA submits that I should infer that Mr and Ms P in fact heard “the Offensive Words”. I address that submission later in these reasons; but it should be appreciated at the outset that much of LOA’s case, as alleged in the LOA Response, and as purportedly advanced in final submissions, that Mr Haley lied or otherwise engaged in misconduct warranting summary dismissal, relies on my drawing an inference about a matter that Mr and Ms P could have given direct evidence, if called and if true, that Mr Haley said to them, and they heard him say, “the Offensive Words”. LOA has given no evidence that it attempted to obtain evidence from Mr and Ms P, and LOA has otherwise not identified any reason why it did not call Mr and Ms P to give evidence.

   [3] Exhibit STC-1, CB1539

7. At the hearing Mr Haley objected to my admitting into evidence the Second Purported Investigation Report, and the records of interview that formed schedules to that report, on the ground of hearsay.[4] Counsel for LOA submitted that LOA was relying on these documents for a non-hearsay purpose, namely, as evidence of material on which LOA submits Mr Chatwin relied when deciding to terminate Mr Haley’s employment.[5] I formed the view that this material was relevant for that (non-hearsay) purpose. In relation to another item of (hearsay) evidence, LOA submitted s 69(2)(b) of the Evidence Act 1995 (Cth) (Evidence Act) applied. After hearing further submissions, I decided I would deal with the evidence on which LOA relies, including the Second Purported Investigation Report, and the records of interview, on the basis that I would apply the rules of evidence to determine whether I would in fact rely on the evidence.[6] This is consistent with the basis on which I admitted into evidence Mr Haley’s affidavits:[7]

   Now, Mr Haley . . . can I say what my approach will be to evidence. Even though – and this saves time, and on one view, this is how the Evidence Act should apply – I will only act . . . in relation to evidence that’s relevant to a contested issue, [and] I will apply the rules of evidence to it. So it’s not a question of something being slipped in that I’m going to, or parties can take advantage of it. I will certainly apply the rules of evidence, and there’s only really two basic rules, and that’s the rule against hearsay and the many exceptions to it, and the other is opinions.

   [4] T207.20

   [5] T207.30

   [6] T220.30-T222.5

   [7] T40.30. My statement “on one view, this is how the Evidence Act should apply” was intended to be a reference to s 190 of the Evidence Act 1995 (Cth)

8. I have concluded that the representations contained in the records of interview, being relevant for a non-hearsay purpose, are admissible as hearsay pursuant to s 60(1) of the Evidence Act. That is to say, representations contained in the records of interview about the events that constituted the Incident are admissible as evidence of the fact intended to be asserted by the representations. LOA has not submitted that any of the representations contained in the records of interview are false, or should otherwise be given no credit.

9. Mr Haley also objected to my admitting into evidence the audio recording on the ground that it was made contrary to the Surveillance Devices Act 2007 (NSW). I overruled that objection and admitted into evidence the audio recording.[8]

   [8] Exhibit A

   Relevance of evidence of investigation(s)

10. Mr Haley makes a number of allegations and submissions about the adequacy, fairness, and lack of good faith of LOA’s purported investigation or investigations of the allegations Mr and Ms P made about his conduct. In the Application Mr Haley alleges, among other things, that the purported investigator, Mr Curnow-Rose, was neither independent nor impartial;[9] that his investigation was neither comprehensive nor complete;[10] Mr Haley was denied procedural fairness;[11] and the outcome of the investigation “had been determined prior to” the Show Cause Meeting of 22 July 2020.[12] In his opening address, by which time Mr Haley, by notices to produce, had gained access to LOA’s internal documents, Mr Haley claimed that LOA had conducted two investigations, one of which he was aware, and the other of which he was not aware;[13] the interviews that were conducted in connection with the investigation were targeted against Mr Haley personally;[14] and there was no evidence to substantiate the claim the investigator purportedly concluded had been “substantiated”.[15] In his closing written submissions, Mr Haley submitted that the purported investigation process was “procedurally unfair, non-compliant with [LOA’s] policies and evidently conducted in bad faith”;[16] and the purported investigation in relation to which the purported investigator found Mr Haley lied was not the subject of the original complaint Mr and Ms P made.[17]

    [9] Application, [34.c.iv]

    [10] Application, [19.a. b.]

    [11] Application, [34]

    [12] Application, [34.c.vii.]

    [13] T14.25

    [14] T14.20

    [15] T14.20

    [16] Applicant’s Submissions, [29]

    [17] Applicant’s Submissions, [34]

11. LOA, on the other hand, submits as follows:

    (a)Mr Haley’s contention that he was denied procedural fairness is misconceived and without substance; and that is because at common law an employer is not required to afford procedural fairness before dismissing an employee; and there was nothing in Mr Haley’s employment contract that required LOA to afford him procedural fairness.[18]

    (b)LOA’s guidelines relating to the investigations of complaints were not terms of Mr Haley’s employment contract; and, in any event, those guidelines provided that LOA would apply them “generally”, and could depart from them in circumstances LOA deemed it appropriate.[19]

    (c)Mr Haley’s contention that the investigation was not the subject of the original complaint Mr and Ms P made “is misconceived” because Mr Haley has not brought a claim of unfair dismissal; LOA was not obliged to conduct the investigation strictly within the bounds of the “original complaint”; and that, in any event, the description of the complaint, as it was communicated to Mr Haley, was broad enough to encompass the misconduct for which LOA eventually terminated his employment.[20]

    [18] Respondent’s Outline of Closing Submissions, [155]-[157]

    [19] Respondent’s Outline of Closing Submissions, [158]

    [20] Respondent’s Outline of Closing Submissions, [159]

12. It is the case that, subject to any express contrary term in the contract of employment, an employer is not obliged to afford an employee procedural fairness before the employer decides to summarily dismiss the employee; and it is also the case that an employer may investigate and make enquiries that relate to any matter within the scope of an employee’s employment. But that does not mean that evidence concerning the investigation or investigations LOA purportedly carried out of the complaints Mr and Ms P made, and the nature and quality of such investigation or investigations, are not relevant to Mr Haley’s claims. Such evidence is relevant in a number of ways.

13. First, LOA contends that Mr Chatwin was the person who made the decision, on behalf of LOA, to summarily dismiss Mr Haley from his employment. Mr Chatwin, in his first affidavit, says that he was provided with what I have described as the Second Purported Investigation Report; and he formed a view, “as reflected in the findings” contained in that report,[21] on the basis of which, together with other reasons, Mr Chatwin says he decided that LOA should summarily dismiss Mr Haley from his employment. Evidence of the investigation or investigations that led to the investigator to make the findings on which Mr Chatwin says he relied is relevant to identifying the persons who were involved, and the roles they played in the investigation. That, in turn, is relevant to assessing whether it should be accepted, as LOA contends it should be accepted, that Mr Chatwin, and Mr Chatwin alone, made the decision that LOA should summarily dismiss Mr Haley from his employment, or whether another person or persons made that decision or joined with Mr Chatwin in making the decision; or, even if Mr Chatwin alone made that decision, or joined others in making that decision, whether his mind is the only mind relevant to assessing whether LOA summarily dismissed Mr Haley from his employment for the reasons Mr Chatwin states in his first affidavit.[22]

    [21] Affidavit S T Chatwin 28.06.2021, [40]; CB305

    [22] See Wong v National Australia Bank Limited [2022] FCAFC 155, at [25]-[26]

14. Second, LOA seeks to contend (I say “seeks”, because LOA has not pleaded such a case, something to which I will return when I consider LOA’s contention) that Mr Haley manifested a “lack of candour in the investigation”, and he did so by “making certain non-disclosures”, and by failing to admit certain things.[23] LOA does not in its written submissions refer to the legal basis on which it submits Mr Haley had a duty of candour in the course of the investigation; but it may be taken that LOA has in mind the duty Herron J identified in Associated Dominion Assurance Society Pty Ltd v Andrew: [24]

    [A] duty lies on an employee in general terms to give information to his employer such as is within the scope of his employment and which relates to the mutual interest of employer and employee. If an employee is requested at a proper time and in a reasonable manner to state to his employer facts concerning the employee’s own actions performed as an employee, provided that these relate to the master’s business, the employee is bound, generally speaking, to make such disclosure. . . .

    Question asked relating to the employee’s activities could be so reasonable and fair that to refuse the information may well be disobedience justifying dismissal. Such conduct may be inconsistent with duty and may impede the employer’s legitimacy. It certainly could destroy all confidence between master and servant which is an essential feature of all such contract.

    [23] Respondent’s Outline of Closing Submissions, [143]-[152]

    [24] Associated Dominion Assurance Society Pty Ltd v Andrew (1949) 49 SR (NSW) 351, at pages 357 and 358

15. The employee’s obligations to answer his or her employer’s questions, and otherwise disclose information to his or her employer, however, are not unqualified. Habersberger J made that point in Carter v The Dennis Family Corporation. [25] After quoting from Herron J’s judgment in Associated Dominion Assurance Society Pty Ltd v Andrew, Habersberger J said: [26]

    [25] Carter v The Dennis Family Corporation [2010] VSC 406

    [26] Carter v The Dennis Family Corporation [2010] VSC 406, at [486]-[487] (footnotes omitted)

    The process of questioning must be fair and reasonable. Moreover, as Judd J said in Howard v Pilkington (Australia) Ltd the questioning must be:

    a genuine investigation ... to properly inform the employer of the true character or extent of the employee’s conduct.

    His Honour held that in the case before him:

    the investigation was a managed process, designed to accumulate material to justify Mr Howard’s early termination. Mr Kruger’s written interrogation of Mr Howard was demonstrated to be a charade, designed to justify his dismissal for failure to co-operate. This is no doubt why Pilkington did not rely upon Mr Howard’s responses as a justification.

    Counsel for the defendant correctly pointed out that the right to terminate an employee at common law is not subject to a right on the part of the employee to be heard in his own defence. However, the point made by the plaintiff is different. It is that DFC should not be entitled to submit that Mr Carter’s answers to the 28 questions constituted serious misconduct or a repudiation of the employment contract when the questions were not a genuine search for information and were not put in a fair and reasonable manner in that sufficient time was, quite unnecessarily, not allowed for the answering of the questions.

16. Evidence relating to the nature and quality of the purported investigation that led to a person or persons who purported to make the findings on which Mr Chatwin says he relied, therefore, is relevant to determining whether it was a genuine investigation; and, therefore, is relevant to determining whether questions asked of Mr Haley in the course of the purported investigation imposed an obligation on him to disclose information to LOA. As will appear later, I conclude that I cannot be satisfied that, at least after 6 July 2020, what LOA has described as an investigation into the allegations Mr and Ms P in fact made was a genuine investigation, that is, that it was a process by which LOA sought or intended to properly inform itself of the allegations Mr and Ms P made against Mr Haley. My non-satisfaction is based on LOA’s documents Mr Haley tendered into evidence, which LOA did not attempt to explain by calling as witnesses their apparent authors. The documents show the following:

    (a)By 5:03 pm on 8 July 2020, Mr Curnow-Rose completed a document titled “Investigation Report Into Complaint Made by [Mr and Ms P]” (First Purported Investigation Report),[27] in which he found that the allegations Mr and Ms P had made in relation to Mr Haley were “substantiated”. The allegations that were the subject of the First Purported Investigation Report, however, did not include an allegation by Mr and Ms P that Mr Haley said “the Offensive Words”; and in any event is incapable of being characterised as a finding that was made on the basis of any analysis of the extensive evidence Mr Curnow-Rose had collected on 6-8 July 2020, or on the basis of any, or any rational, reasoning.

    (b)Mr Curnow-Rose did not disclose, and no other employee or officer of LOA disclosed, to Mr Haley that Mr Curnow-Rose had completed his investigation into the allegations Mr and Ms P made against Mr Haley, or that Mr Curnow-Rose had found that those allegations had been “substantiated”.

    (c)Instead, on or shortly after  9 July 2020 an officer or officers of LOA, whose identity I will refer to later, embarked on a process that led to the drafting and finalisation of the Second Purported Investigation Report. The Second Purported Investigation Report found that “the allegation” Mr and Ms P made against Mr Haley was “substantiated”. However:

    (i)The “allegation” the Second Purported Investigation Report purportedly found was “substantiated” was not an allegation the First Purported Investigation Report found had been “substantiated”, and which that report identified; the allegation the Second Purported Investigation Report purportedly found was “substantiated” was an allegation that Mr Haley said “the Offensive Words” to Mr and Ms P. As I have already noted, however, there is no evidence that Mr and Ms P alleged Mr Haley said “the Offensive Words”, and neither the First Purported Investigation Report nor the Second Purported Investigation Report records that Mr and Ms P alleged Mr Haley uttered “the Offensive Words”.

    (ii)Further, and in any event, the purported finding that the “allegation”, namely, that Mr Haley said “the Offensive Words” “to” Mr and Ms P, was “substantiated” is incapable of being characterised as a finding that was made on the basis of any analysis of the extensive evidence Mr Curnow-Rose had collected on 6-8 July 2020, or on the basis of any, or any rational, reasoning.

    [27] Exhibit TH-04-076, CB871

1. Third, if, as Mr Haley submits, the purported investigation was actuated by bad faith, and in particular, was a process that was directed to justifying an outcome that LOA had already determined, namely, to dismiss Mr Haley from his employment, this state of affairs would have a tendency to undermine LOA’s case that it summarily dismissed Mr Haley from his employment for the reasons stated in the Termination Letter, or for the reasons Mr Chatwin gives in his first affidavit, and that Mr Chatwin alone made the decision that LOA should summarily dismiss Mr Haley from his employment.

2. Fourth, evidence relevant to the nature and quality of the purported investigation that led to the investigator making the findings on which Mr Chatwin says he relied may be relevant to assessing the weight of evidence of what LOA alleges were admissions Mr Haley made. If the evidence supports Mr Haley having made the admissions LOA contends he made, the weight, if any, that is to be given to the admissions might need to be assessed by reference to the circumstances in which the admissions were made. Of potential relevance is the fact that LOA did not disclose to Mr Haley that by 5:03 pm on 8 July 2020 Mr Curnow-Rose had made a finding that “substantiated” the complaints Mr and Ms P made; and LOA did not disclose to Mr Haley that Mr and Ms P did not make the allegation which the Second Purported Investigation Report purported to find had been “substantiated”, namely, that Mr Haley said “the Offensive Words”. LOA’s failure to disclose these matters to Mr Haley may suggest that, to the extent I find he made the admissions LOA alleges he made, Mr Haley may have made the admissions on the basis of incorrect assumptions that may have been induced by LOA’s non-disclosures.

   Credibility of Mr Haley and Mr Chatwin

3. In its counsel’s written submissions, LOA submits Mr Haley “was generally an unsatisfactory witness”, and, for that reason, Mr Haley’s evidence on any matters which are in dispute should not be accepted unless it is corroborated by contemporaneous records.[28] On the other hand, LOA submits that Mr Chatwin was “an honest and forthright witness”.[29] Mr Haley, for his part, submits that Mr Chatwin is not a credible witness.

   [28] Respondent’s Outline of Closing Submissions, [20], [25]

   [29] Respondent’s Outline of Closing Submissions, [26]

4. There are a number of observations that may be made about these submissions: First, as will appear later, the account Mr Haley gave of the Incident to Mr Curnow-Rose on 8 July 2020, and later, on 22 July 2020, to Mr Chatwin at the Show Cause Meeting, was corroborated or otherwise supported by the accounts of the Incident other employees gave to Mr Curnow-Rose, being accounts that LOA does not submit deserve no credit. Moreover, the account Mr Haley gave was entirely inconsistent with the allegations Mr and Ms P in fact made against Mr Haley; so inconsistent, in fact, that the allegations Mr and Ms P actually made against Mr Haley were not considered in the Second Purported Investigation Report and, for that reason, were not the subject of a finding that they had been substantiated, which implies the allegations had not been substantiated. As I have already noted, and as will appear later, the subject of the Second Purported Investigation Report was not an allegation that Mr and Ms P, or any other person, made against Mr Haley. Further, and as will also appear later, Mr Haley made statements during the Show Cause Meeting of 22 July 2020 that were consistent with the account he gave to Mr Curnow-Rose, the truth of which LOA has not challenged, and does not submit is to be given no credit.

5. Second, Mr Haley’s evidence about the Incident, and about the conversations and communications he says he had with employees of LOA which he claims constituted his making complaints or inquiries in relation to employment, are to be weighed against LOA’s not calling as witnesses persons whom it may reasonably be supposed was in its power to call to give evidence that contradicts or otherwise explains away the evidence Mr Haley gave during the purported investigation, at the Show Cause Meeting on 22 July 2020, and at the hearing.

6. Third, if the position is reached that Mr Haley made one or more complaint or inquiry in relation to his employment and, for that reason, he had exercised his workplace rights within the meaning of s 341(1)(c)(ii) of the FW Act, any adverse credibility finding against Mr Haley will be irrelevant to determining whether LOA summarily dismissed Mr Haley’s employment for the reasons it claims it did. Whether LOA will be able to prove it summarily dismissed Mr Haley from his employment largely, but not exclusively, turns on whether Mr Chatwin was the only person who made the decision on behalf of LOA to summarily dismiss Mr Haley and, if so, whether his evidence should be accepted.

7. Fourth, it is unnecessary to make any finding about whether Mr Chatwin was an honest witness. I do not, however, accept LOA’s submission that Mr Chatwin was a “forthright witness”. As I show later, Mr Chatwin in the two affidavits he made went no further than asserting that he, and he alone, made the decision that LOA summarily dismiss Mr Haley from his employment. In evidence given under cross-examination, however, Mr Chatwin said that he and LOA’s managing director, Mr Cathal O’Rourke, had discussions in relation to the termination of Mr Haley’s employment. Moreover, Mr Chatwin gave evidence that the “decision” Mr Chatwin made that Mr Haley be summarily dismissed was subject to Mr Chatwin’s discussing his “decision” with Mr Cathal O’Rourke who had “the right to potentially overturn my decision”;[30] and that Mr Cathal O’Rourke, “as the ultimate managing director of the business, of course, has the right of objection or the right to request more information” and, for that reason, Mr Chatwin “had to keep him [that is, Mr Cathal O’Rourke] informed” and, to that extent, Mr Cathal O’Rourke “was involved” in the decision to summarily dismiss Mr Haley from his employment.[31] These are not matters Mr Chatwin volunteered in his affidavits, something a “forthright witness” would have done.

   [30] T393.25

   [31] T285.20

8. My not accepting LOA’s submission that Mr Chatwin was a “forthright witness” is a reflection of the manner in which LOA elected to conduct its case. LOA has not called any witness that casts any doubt of the account of the Incident Mr Haley gave in the course of the purported investigation or at the Show Cause Meeting of 22 July 2020; and LOA has not called Mr and Ms P to give evidence that they heard Mr Haley say to them or at all “the Offensive Words”. LOA relies on a few statements Mr Haley made in the Show Cause Meeting, which LOA submits constitute admissions that, LOA further submits, are inconsistent with his account of what Mr Haley claimed had occurred during the Incident and, moreover, are a basis on which I should find that Mr Haley had lied to Mr Curnow-Rose. Further, LOA has not called as witnesses the author or authors of documents LOA produced in answer to the notices to produce Mr Haley had issued, and which he tendered. LOA has elected to conduct its case in this way, even though, in reasons for judgment I published on 6 September 2022, I noted the following:[32]

   If, however, as Mr Haley appears to intend to submit at the hearing commencing on 19 September 2022, LOA’s documents suggest there were employees of LOA, other than Mr Chatwin, who were responsible for, or who joined in LOA’s decision to terminate Mr Haley’s employment, it may be open to Mr Haley to tender at the hearing the documents that he will submit show or suggest this; and to submit that LOA’s not calling the person or persons which the documents suggest may have made or joined in the making of LOA’s decision to terminate Mr Haley’s employment, is a basis for drawing with greater confidence inferences that are available to be drawn on the basis of the documents that other employees of LOA made or joined in the making of LOA’s decision to terminate Mr Haley’s employment.

   [32] Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 4) [2022] FedCFamC2G 743, at [34]. In that judgment I dismissed Mr Haley’s application for leave to issue subpoenas to testify to a number of LOA employees, including Mr Cathal O’Rourke, Mr Bates, and Mr Sleeman. As will appear below, the names of Mr Bates but particularly Mr Sleeman appear in documents Mr Haley has tendered.

9. Finally, just in case this may be lost in the mass of evidentiary material with which these reasons deal, it is necessary to note here that I find later in these reasons that the effect of the evidence Mr Chatwin gave under cross-examination is that LOA’s decision to summarily dismiss Mr Haley from his employment was not Mr Chatwin’s to make; the power to make that decision rested in the hands of LOA’s managing director, Mr Cathal O’Rourke. And LOA has not only not called Mr Cathal O’Rourke to give evidence; Mr Chatwin has not given any evidence that he had in fact met Mr Cathal O’Rourke after Mr Chatwin (as he says) made the decision that LOA should summarily dismiss Mr Haley from his employment.

   Some principles relating to fraudulent misrepresentations

10. In the LOA Response LOA alleges Mr Haley made 13 statements, each of which, it alleges, was false at the time he made them, and each of which, it further alleges, Mr Haley knew to be false at the time he made it. In short, LOA alleges that Mr Haley made 13 fraudulent misrepresentations.

11. There is a well-established, and substantial, body of principles that identify the type of representations that are capable of being made fraudulently, and the circumstances in which a person making them will be held to have made them fraudulently; and these principles have largely been stated in the context of actions in deceit. Under those principles, a false representation of fact will be held to have been made fraudulently if it has “been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false”.[33] A representation as to a persons’ state of mind is capable of being a representation of fact, and will be held to be fraudulently made in the same manner as any other representation of fact may be held to have been fraudulently made.[34]

    [33] Derry v Peek (1889) LR 14 App Cas 337, at page 374 (Lord Herschell)

    [34] Edgington v Fitzmaurice (1885) 29 Ch D 459, at page 483: “A misrepresentation as to the state of a man’s mind is . . . a misstatement of fact”.

12. A representation of an opinion is also capable of conveying one or more representations of fact. This has been noted in many cases. Thus, in Smith v Land and House Property Corporation, Bowen LJ said:[35]

    It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact. In a case where the facts are equally well known to both parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such opinion is in a sense, a statement of a fact, about the condition of the man’s own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally, known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion.

    [35] Smith v Land and House Property Corporation (1885) 28 Ch D 7, at page 15

13. And in Campbell v Backoffice Investments Pty Ltd, French CJ said:[36]

    Opinions may carry with them one or more implied representations according to the circumstances of the case. There will ordinarily be an implied representation that the person offering the opinion actually holds it. Other implied representations may be that the opinion is based upon reasonable grounds, which may include the representation that it was formed on the basis of reasonable inquiries. In the case of a person professing expertise or particular skill or experience the opinion may carry the implied representation that it is based upon his or her expertise, skill or experience.

    [36] Campbell v Backoffice Investments Pty Ltd [2009] HCA 25, at [33]

14. In these circumstances, a statement of opinion will be held to have been fraudulently made if the person expressing the opinion did not hold the opinion, or if the person was aware of facts that could not justify the opinion, or if the person was unaware of facts that could justify the opinion.

15. There are also cases where a person may fail to state something yet nevertheless be held to have made a fraudulent misrepresentation. These cases were described by George Spencer Bower:[37]

    [T]here are cases where a man may positively lie by saying nothing, and where the circumstances are such that reticence or concealment may amount to active misrepresentation. One (and the more obvious) of the two main types of such reticence is the omission from a statement of all reference to qualifying fact, leaving what is stated to stand as an absolute, and therefore a false, representation. The other is to be found in those who “do a wilful stillness entertain”, when their previous declarations or acts bid them speak, in order to remove a delusion for the creation of which they are themselves responsible.

    [37] Spencer Bower and Turner The Law of Actionable Misrepresentation, Butterworths, third edition 1974, at page 94

16. Finally, it may be useful to bear in the mind the following principles the plurality of the High Court stated in Krakowski v Eurolynx Properties Ltd:[38]

    In order to succeed in fraud, a representee must prove, inter alia, that the representor had no honest belief in the truth of the representation in the sense in which the representor intended it to be understood. In Akerhielm v. De Mare  the Privy Council said:

    The question is not whether the defendant in any given case honestly believed the representation to be true in the sense assigned to it by the court on an objective consideration of its truth or falsity, but whether he honestly believed the representation to be true in the sense in which he understood it albeit erroneously when it was made. This general proposition is no doubt subject to limitations. For instance, the meaning placed by the defendant on the representation made may be so far removed from the sense in which it would be understood by any reasonable person as to make it impossible to hold that the defendant honestly understood the representation to bear the meaning claimed by him and honestly believed it in that sense to be true. . . . .

    [38] Krakowski v Eurolynx Properties Ltd [1995] HCA 68; at [29]; (1995) 183 CLR 563, at pages 578-579

    Alleging and proving fraud

17. It is an important and long-established principle that, in all cases based on fraud, “particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such charge requires”;[39] and “if a case of fraud is to be mounted, it should be pleaded specifically and with particularity”.[40] The “mere labelling of an allegation as fraud amounts to little”,[41] because “[n]obody can be expected to meet a case . . . upon mere allegations of fraud without any definite character being given to those charges by stating the facts upon which they rest”.[42]

    [39] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, at page 538 (Kirby P). The quote was made in the context of actions to set aside judgments for fraud, but it was prefaced by the words: “As in all actions based on fraud”.

    [40] Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39, at [26]. See also Lazarus Estates Ltd v Beasley [1956] 1 QB 702, at pages 712-713, where Lord Denning said: “The court is careful not to find fraud unless it is distinctly pleaded and proved”.

    [41] Banque Commerciale S.A. v Akhil Holdings Limited (1990) 169 CLR 279, at pages 294-295 (Dawson J)

    [42] Wallingford v Mutual Society (1880) 5 App. Cas. 685, at page 701, being part of the passage set out in the judgment of Dawson J in Banque Commerciale S.A. v Akhil Holdings Limited (1990) 169 CLR 279, at page 295

18. The requirement of clearly stating and proving allegations of fraud applies whether or not the allegation is made in a pleading. That point was made by Lord Buckmaster in Jonesco v Beard, where his Lordship said that where a judgment is sought to be set aside on the ground of fraud other than in an action “the necessity for stating the particulars of fraud and the burden of proof are no whit abated and all the strict rules of evidence apply”.[43]

    [43] Jonesco v Beard [1930] AC 298, at page 301

19. It would also be useful to refer to the following passage from the speech of Lord Millett in Three Rivers District Council v Bank of England (No 3) (emphasis added):[44]

    [A]n allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.

    [44] Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1, at [186]

20. Allegations of fraud are to be assessed having regard to s 140 of the Evidence Act. Subsection 140(1) provides that a court must find the case of the party proved if it is satisfied that the case has been proved on the balance of probabilities; but this must be read with s 140(2) which provides that in deciding whether it is satisfied a party has proved his or her case, the court may take into account the nature of the cause of action, the nature of the subject matter, and the gravity of the matters alleged. I propose to apply s 140 of the Evidence Act having regard to the well-known principles expressed by Dixon J in Briginshaw v Briginshaw (emphasis added):[45]

    The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third statement of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

    EVIDENCE AND SOME FINDINGS

    [45] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at pages 361-362

    Mr Haley’s employment and professional background

1. Mr Haley is a citizen of the United Kingdom (UK). He commenced employment in England in 2003 with a company that was a member of the group of companies (LOA group of companies) of which LOA is a member;[46] and until 24 July 2020, when LOA purported to summarily dismiss him from his employment, Mr Haley had been continuously employed by one or other member of the LOA group of companies.

   [46] LOA is in fact a wholly owned subsidiary of Laing O’Rourke Australia Group Pty Ltd which, together with “its parent entity”, Laing O’Rourke Australia (Holdings) Limited is a member of the group of companies that is ultimately controlled by Laing O’Rourke Corporation Limited (Affidavit S T Chatwin 28.06.2021, [5] (CB299))

2. During his employment with one or other member of the LOA group of companies. Mr Haley studied for, and completed, a number of courses and qualified for a number of degrees and awards. These consisted of the following:[47]

   [47] Affidavit T Haley 26.04.2021, [5]-[9] (CB166)

Degree/Award	Institution	Year conferred
Bachelor of Science in Quantity Surveying	Leeds Beckett University	2009
Member	Chartered Institute of Arbitrators	2012
Master of Science in Construction Law & Dispute Resolution	Leeds Beckett University	2013
Chartered Surveyor, and Fellow	Royal Institution of Chartered Surveyors	2009, and 2016
Master of Studies in Construction Engineering	University of Cambridge	2020

February 2018 – Mr Chatwin approaches Mr Haley to work for LOA

1. On about 5 February 2018 Mr Chatwin telephoned Mr Haley and inquired whether Mr Haley would be interested in a role in Australia. After Mr Chatwin had made a verbal offer during a video conference in late February or early March 2018, Mr Haley sent an email to Mr Chatwin stating that the move to Australia “would require us to remove the girls from an environment where they are extremely happy and take them in to a new environment where we will need to re-create, or improve, what we currently have”; Mr Haley’s wife “would also need to sacrifice her career to allow me to pursue mine”; and that “[w]e live a good life here in the UK which we enjoy and we would not be too disheartened to maintain the status quo”. After further negotiations Mr Chatwin and Mr Haley agreed to the salary Mr Haley would be paid if he were to accept a position in Australia.[48]

   [48] Affidavit of T Haley, 26.04.2021, [36] (CB181-182)

2. On or before 19 June 2018 Mr David Sheehy,[49] an employee of LOA or of another member of the LOA group of companies, sent the following message to Mr Cathal O’Rourke requesting approval to offer Mr Haley employment with LOA:[50]

   [49] T242.25

   [50] Exhibit TH-E4-001 (CB339). The message was sent via LOA’s “SuccessFactor” system – see T240.45.

   Hi Cathal,

   Please req. to appoint Tom Haley – internal transfer from the UK

   Tom has a Grade 7a commercial leader who we would be bringing over for a number of potential roles (depending on which one falls into place first):

   •Commercial Leader to replace Cameron Richmond’s visiting role if we win RIA and Cameron goes onto that project.

   •Commercial Leader for Western Sydney Airport

   •Commercial Leader for Lina Wide

   •Commercial Leader for Victoria Cross

   •Commercial Leader for SCC

   Tom is a long serving LOR Commercial Leader, ex Young Guns and is a well-established commercial leader in the UK (currently commercial leader the manufacturing division in the UK). Tom would be a highly likely succession option for Simon in the long run.

   John O’Connor is really pleased with the move also to reinforce the team here.

   Simon has agreed a salary at $390k + Super (high end, above Al Smith).

3. The document by which this request was made includes a section headed “Approvers”; and it records that on 14 June 2018 Mr Chatwin approved the request to appoint Mr Haley, and Mr O’Rourke and “Shared Services” approved that request on 19 June 2018.

4. At the time Mr Chatwin approached Mr Haley, Mr Chatwin knew, as was the case, that Mr Haley had a young family; and Mr Chatwin accepted in cross-examination that Mr Haley had made Mr Chatwin aware of the sacrifice Mr Haley was making to support Mr Chatwin “in the Australia hub”.[51]

   [51] T252.5

5. There is in evidence a of copy of a letter dated 20 June 2018 addressed to Mr Haley from Ms Freckelton, LOA’s “Human Capital Advisor”, in which she confirmed “our offer of employment to you as a Commercial Leader”, and to which she attached “our Contract of Employment for your consideration”[52] There is also in evidence an email from “General HC Queries Australia – HC Shared Services” to Mr Haley sent on 20 June 2018 with the subject “LOR – Letter of Offer”.[53] The email was as follows:

   Dear Tom,

   Laing O’Rourke is delighted to offer you the position of Commercial Leader located at the Company’s North Sydney Office.

   Please review the attached Letter of Offer outlining your employment conditions and advise if you have any questions in relation to this contract.

   If you are satisfied with the details of this offer of employment please sign where indicated and return with a copy of your Passport and the Passport of those dependents being processed until your 482 visa application.

   Once received, we will put you in contact with Allison McMillin who is our internal Immigration Agent who will assist you with processing your 482 visa application/transfer.

   We will then make contact with yourself once your visa application has been approved to discuss a start date & commence relocation arrangements.

   Congratulations, we look forward to welcoming you as part of the Laing O’Rourke Team!

   [52] Exhibit TH-E-001 (CB340)

   [53] Exhibit B

6. It is open to find that the “Letter of Offer” to which this email refers is a reference to Ms Freckelton’s letter dated 20 June 2018; and that, by this email, Mr Haley received a draft contract of employment.

7. On 21 June 2018 Mr Haley sent an email to Mr Chatwin in which he identified a number of matters he said required clarification.[54] Mr Chatwin responded by email sent on 28 June 2018 in which he added a response to each of the issues Mr Haley raised in the email he sent to Mr Chatwin on 21 June 2018. Relevant to one of the issues I am required to decide is item 5 of section 5 of the draft employment contract, which dealt with removal costs to Australia. Mr Haley, in his email, asked whether the costs of returning would be covered. Mr Chatwin responded as follows:

   Return home isn’t included as part of the Contract of Employment as a return home sits outside of this. However, if you return back to LOR UK at our instruction then, if it is agreed and approved, we would pay. This all sits outside of the Contract of Employment.

   [54] Exhibit B

   25 July 2018 – Mr Haley signs contract of employment

8. It appears that on 28 June 2018 Ms Freckelton sent to Mr Haley a letter which is almost identical to the letter dated 20 June 2018 to which she attached a contract of employment.[55] I find that on 25 July 2018 Mr Haley signed the contract of employment that was attached to Mr Freckleton’s letter dated 28 June 2020 (Employment Contract).[56] Under the contract Mr Haley was to be employed on a full-time basis in the position of “Commercial Leader within the Clients & Markets Team”.

   [55] Exhibit STC-1, CB360

   [56] Exhibit STC-1, CB360

9. The Employment Contract contained terms that included the following:

   (a)Mr Haley’s employment would commence on a date as mutually agreed, and would continue until terminated “in accordance with this contract”.

   (b)Mr Haley would report to “the Commercial Director, Simon Chatwin”.

   (c)Mr Haley would be initially located at LOA’s North Sydney office working as part of the Commercial team, but he may be required to work at other locations as LOA may require.

   (d)Mr Haley would be required to work an average of 38 hours per week at times advised to him, and any reasonable overtime to meet the requirements of his role.

   (e)Mr Haley was required to familiarise himself with LOA’s “Global Code of Conduct, as well as detailed policies, procedures, and other business rules . . . which are available through the intranet”, although these policies did not form part of the Employment Contract.

   (f)Mr Haley’s employment was conditional on Mr Haley’s being legally entitled to work in Australia. In that regard, the Contract of Employment noted that Mr Haley intended that he would join LOA on a Long-Stay Temporary Business visa valid for four years, and that Mr Haley’s application for such visa would be “facilitated by [LOA’s] Migration and Relocation Officer”.

10. The Employment Contract also provided for the circumstances in which LOA could summarily terminate Mr Haley’s employment:[57]

    [57] Clause 2, section 4 (CB365)

    Summary Termination

    If you are guilty of misconduct or commit a serious or persistent breach of a term or condition of this document, the Company may terminate your employment immediately without notice. Without limiting the generality [of] this clause, your employment may be terminated immediately without notice if you:

    (a) engage in wilful, or deliberate behaviour that is inconsistent with the continuation of your employment;

    (b)engage in conduct that causes imminent and serious risk to a person's health and safety, or the reputation, viability, or profitability of the Company;

    (c) inappropriately use, copy or disclose of any personal information (including sensitive information) or Confidential Information other than for the purpose of performing your duties;

    (d) neglect the discharge of your duties;

    (e) become bankrupt or enter into any arrangement or composition with your creditors which in the opinion of the Company affects the discharge of your duties;

    (f) are convicted of any criminal offence other than an offence that in the opinion of the Company does not affect the discharge of your duties;

    (g)       commit any act that involves secret or undisclosed commissions: or

    (h) are precluded by any provision of the Corporations Act from holding your position.

    If you are terminated for misconduct, no payment will be made to you other than accrued entitlements up until the date of termination.

    “Position Description” of Commercial Leader

11. There is in evidence a LOA document that is titled “Position Description” (Position Description) which relates to the position of “Commercial Leader”.[58] It provides that the person occupying the position of “Commercial Leader” reports to a “General Manager/Project Leader” and has a “[f]unctional supervisory responsibility for commercial staff, and other designated functional reports within a Region of the Hub”.

    [58] CB398

12. In evidence given under cross-examination, Mr Haley said he first saw the Position Description as an annexure to Mr Chatwin’s affidavit; and that he never had any direct reports from the commercial team. Mr Haley said that persons from within the commercial team always reported through other people.[59] It was put to Mr Haley that this evidence was inconsistent with that part of his affidavit Mr Haley made on 13 July 2021 which responds to paragraph 23 of the affidavit Mr Chatwin made on 28 June 2021. In paragraph 23 of his affidavit, Mr Chatwin described the reporting structure in relation to the “Bushfire Project” (to which I will refer later). In Mr Haley’s affidavit he said that the “reporting line of the commercial team was direct to me”; and that this “was necessary due to the audit risk on the project and the necessary separation of those operationally overseeing the work and those who were processing and signing off payment”.[60] Mr Haley gave the following “clarification” about reporting lines on the “Bushfire Project”:[61]

    I am a functional leader. I’m not a leader of day to day activities. So each individual, as I did, have two reporting lines. I had a reporting line to Simon Chatwin, and I had a reporting line to Paul Barrie. I reported to Simon Chatwin on functional matters and governance matters, and Paul Barrie on day to day matters. The people in my team were exactly the same. Paul Barrie supervised me, not Simon Chatwin, and the relationship was the same. So I understand where there might be some differences in the wording and – but hopefully my clarification there helps. I didn’t report direct to Simon Chatwin. I reported to Paul Barrie, and my commercial team had the exact same relationship, and that’s all that we’re clarifying.

    [59] T95.5

    [60] Affidavit of T Haley 13.07.2021, [23] (CB216)

    [61] T109.35

13. I find that Mr Haley’s statement in paragraph 23 of his affidavit that the “reporting line of the commercial team was direct to [Mr Haley]” is incorrect. The only potential relevance of this finding, however, is to the general credibility of Mr Haley.

14. Mr Haley was also taken to the following sections of the Position Description:

    •Plus: Acts at all times in accordance with Laing O’Rourke guiding principles and values; which means; working collaboratively as One Team across businesses; teams and functions; behaving with integrity in all dealings with others; and owns the safety and corporate responsibility agendas putting them at the heart of everything we do.[62]

    . . . .

    •Take a lead role building and maintaining a flexible commercially proactive, well informed, qualified and professional commercial team, portraying appropriate behaviours, deployed in a timely manner, and delivering to the required company performance standards.[63]

    •Provide guidance to project teams in the handling of Main Contract and sub-contract contractual matters, disputes, notifications, correspondence and contractual claims. Support the project teams in the development, compilation, submission and agreement of such, including strategies and management plans to mitigate identified risks and maximise identified opportunities.[64]

    [62] CB399

    [63] CB402

    [64] CB401

15. Mr Haley was asked whether he agreed that these quoted passages reflected the requirements of his role as a “Commercial Leader”. Mr Haley said that he agreed with the “general principle” expressed by the passages.[65]

    [65] T98.20; T98.40

16. Mr Haley was also taken to that part of the Position Description which stated: “Promote and display Excellence + behaviours”.[66] That is a reference to the “Excellence Plus Behaviours” set out on the first page of the Position Description. These consisted of the following:

    [66] CB402

    •Executes: Drives lean execution; is structured and systematic; puts in place monitoring mechanisms and metrics.

    •Client Focus: Builds enduring relationships with clients and stakeholders; puts self in the client’s shoes and understands their strategic drivers; reaches out and networks across the industry.

    •Enthuses Others: Communicates a compelling vision of the future in a way which inspires and enthuses; helps people along the Laing O’Rourke journey; sets and upholds high standards; provides absolute clarity of outcomes but empowers and trusts people to deliver.

    •Looks Ahead: Thinks strategically, looking ahead to the long-term; thinks broadly, anticipating a range of factors, scanning the external environment; comfortable managing complexity and envisaging possibilities.

    •Learning and Innovation: Actively promotes organisational learning, continuous improvement and innovation to drive revenue and build margin.

    •Energy: Has exceptional energy and drive to grow themselves and Laing O’Rourke; radiates passion and a determination to succeed.

    •Nurtures Talent: Attracts, builds and develops talented teams with breadth and depth.

    •Courage: Has confidence and courage to make the bold move; is decisive; seizes accountability for decision making.

    •Emotions: Is resilient, tenacious and persistent; keeps on going despite setbacks; maintains a positive outlook; is open with feelings but not emotional.

17. Mr Haley was cross-examined about this part of the Position Description as follows:[67]

    MR JEDRZEJCZYK:   Yes.  So you understand what I’m referring to by “excellence plus,” Mr Haley, in terms of what that reference means and ‑ ‑ ‑?‑‑‑I understand the – I’ve read the words and I know that I’m familiar with that term.

    Yes, yes.  And again, the question is, without suggesting that this is somehow a matter of contractual force, as a matter of your own understanding of your role as commercial leader and your responsibilities, do you agree that those responsibilities included promoting and displaying behaviours that were, let’s say, consistent with a high level of professionalism and ethical business practices.  Do you agree with that?‑‑‑No.

    You don’t agree with that?‑‑‑I read the words as they are:

    Promote and display excellence plus behaviours

    [67] T100.30-T101.25

    And when you say, “excellence plus behaviours,” your understanding, Mr Haley, is that that’s a reference to the matters which are set out on page 398?‑‑‑I’ve seen the reference to “excellence plus behaviours” at the front.  “Excellence plus” was a term that was used regularly in corporate communications, so I was familiar with the term.

    Yes.  And I’m just ask [sic] you that, when you said you see the words and you agree that you were required to “display excellence plus behaviours,” I just want to make sure that we all understand what you meant by that.  And I’m suggesting to you that your understanding of “excellence plus behaviours” is derived from what’s set out on page 398.  Is that correct?‑‑‑Well, if I can clarify.  I think you’re putting words in my mouth.  I didn’t agree that I was required to perform in accordance with those behaviours.  I’ve said it’s in this document, in this position description, which isn’t in my contract.  It says:

    Promote and display excellence plus behaviours –

    and I’m aware what “excellence plus” or the term is from corporate comms. 

    All right.  And do you agree, Mr Haley, if I put it this way.  That your understanding of your role as commercial leader and your responsibilities entailed in that role included promoting and displaying high standards of professional conduct and ethical behaviour.  Do you agree with that?‑‑‑No.

    You don’t agree with that?‑‑‑No.

    So your evidence is that, in discharging your duties as commercial leader, your understanding was that there was no part of that job that involved displaying high standards of professional conduct and ethical behaviour?‑‑‑No.

18. This evidence is not relevant. As the cross-examiner himself stated, LOA does not suggest that the Position Description formed part of the Employment Contract; and LOA does not contend that, in deciding to summarily dismiss Mr Haley, it relied on Mr Haley’s not meeting the standards stated in the Position Description. Nor do I consider Mr Haley’s evidence to be relevant to his general credibility.

    LOA’s “Global Code of Conduct” and other policies

19. In his cross-examination,[68] Mr Haley was taken to a document titled “Doing the Right Thing Our Global Code of Conduct” (Code of Conduct).[69] The foreword to the Code of Conduct states that it sets out LOA’s “commitment to operating globally in accordance with our ethical standards and in compliance with applicable laws”. The foreword further states:[70]

    We will be judged on our actions and nothing - whether hitting targets, completing a job on time or even a direct instruction from a manager - is more important than doing the right thing. This Code applies to everybody within [LOA], at all levels, and we also expect our suppliers to follow and uphold the intent of the Code by complying with our related policies.

    [68] T92.20

    [69] T92.10. The document is at CB404.

    [70] CB405

20. The Code of Conduct included the following statements:

    (a)Everyone directly employed by LOA must follow the Code of Conduct.[71]

    [71] CB409

    (b)If any person thinks there may have been a breach of the Code of Conduct they must report it.[72]

    [72] CB410

    (c)Anything a person reports “will be treated in strict confidence and communicated on a need-to-know basis only.[73]

    [73] CB410

    You can raise concerns anonymously if you prefer to, although this may make it more difficult for us to investigate. We value the courage it takes to speak up about unethical behaviour and will never penalise you for raising a concern even if your suspicions prove to be unfounded. Raising a concern will not adversely affect your career. We will protect employees against malicious anduntrue allegations made against them.  In such cases we may take disciplinary action against the person making the allegation. 

    (d)LOA:[74]

    [74] CB410

    will not tolerate any retaliation or discrimination of any kind against anyone who does the right thing. If you or anyone else you know is experiencing retaliation or discrimination, don’t put up with it – report it at once.

    (e)LOA never “make or accept any improper payments to obtain, retain or improve business”.[75]

    (f)LOA never:[76]

    (i)falsify expenses or claim for expenses not incurred on legitimate company business;

    (ii)make a false claim by knowingly misrepresenting or inaccurately recording time spent or materials or services provided; and

    (iii)allow anyone else to act fraudulently on our behalf.

    (g)LOA always abstains from “any decision-making process where our motives, loyalty or independence could be questioned”.[77]

    [75] CB413

    [76] CB413

    [77] CB415

1. The second question was: “Did TH raised [sic] concern around project conditions allowance and office staff who were receiving the allowance?” In relation to that question:

   (a)Mr Barrie said:[524]

   [524] Exhibit TH-E4-196 (CB2014)

   No. He was more against giving people the allowance.

   (b)Mr Curnow-Rose said:[525]

   MR put together project terms + conditions + HRS req to get allowance. Put this to Axel – Dane, Helen, Taneal. Pat Cashin agreed for allowance in the regions – but not for office based staff linked also to roster.

   Tom was highly against the project allowance.

   (c)Ms Salisbury said:[526]

   Not to her directly. He was across some of his team to get the allowance + was supportive of them receiving it.

   [525] Exhibit TH-E4-196 (CB2016)

   [526] Exhibit TH-E4-196 (CB2023

2. There is other evidence about the subject of these questions. By email sent on 16 July 2020 to Mr Curnow-Rose and Ms Salisbury Mr Haley said he had not been provided “with the 30% project allowance on gross base salary despite working well in excess of the 53 hours per week and often working 6-7 day weeks”.[527] That email was forwarded to Mr Barrie who responded with the following email to Mr Curnow-Rose and Ms Salisbury:[528]

   Don’t know where this has come from. Tom was always an advocate of ‘not’ really supporting the roster uplift, as he was wary of it being abused. He only became a supporter of it (in my mind) when he was able to use it to help get . . .  on board, where he would work the weekends in support of the Grafton site team there.

   The roster was only ever for those people who were subjected to working away from home and/or working the Saturday each fortnight as part of a shift, as well as being an overall compensate for employees for the mobile and flexible nature of the work. It was never intended for PMO staff in the main, .... although on one occasion we granted it to . . .  who went to work away from home and did the shift hours too.

   Tom’s hours (and a large amount of us, including me) were not subjected to the Roster/Uplift. I guess if Tom worked longer than his 40 hours, then that’s seen as part of Tom's own effort (recognising that he's a grade 7a) and not subjected by a roster, or working away from home.

   [527] Exhibit TH-E4-161 (CB1683)

   [528] Exhibit TH-E4-161 (CB1682)

3. Mr Barrie followed up this email one and a half hours later with the following email:[529]

   Oh, and also, .... Tom held a meeting with his commercial and procurement staff and told them all why they wouldn’t qualify for the project uplift, which he was against. Holly Hatcher was in that meeting, she’d tell you how that one went. Apparently memorable

   [529] Exhibit TH-E4-161 (CB1682)

4. The second item of evidence is the email to which I have already referred Mr Chatwin sent to a number of people in which Mr Chatwin said “we might be on shaky ground with Tom knowing what he knows on all of the uplift debates that he would have been part of”.[530] Mr Haley did not cross-examine Mr Chatwin about what he intended to convey by this part of the email.

   [530] Exhibit TH-E4-162 (CB1685)

5. The third of the questions that was asked about Mr Haley’s complaints concerning the Project Allowance was: “Was TH the only member of the leadership group who did not receive the allowance and if so why?”. In relation to that question, Mr Barrie and Mr Curnow-Rose each answered “no”; and Ms Salisbury said: “No – PB didn’t get it. . . . only got it when he relocated”.

6. On the basis of this evidence I cannot be satisfied that Mr Haley was not offered the Project Allowance in circumstances where other persons in the same position as Mr Haley had been offered the Project Allowance.

   Claims based on contraventions of National Employment Standards

7. Mr Haley claims that LOA contravened two sets of provisions which, s 61(3) of the FW Act, identifies as the “National Employment Standards”.

   Excessive hours (s 62 of the FW Act)

8. In the Application Mr Haley says that, although the Employment Contract provided that Mr Haley would work for 38 ordinary hours a week, Mr Chatwin and Mr Barrie knew that Mr Haley was working for 70-80 hours per week.[531]

   [531] Application, [87.a]

9. It may be taken that Mr Haley intends to rely on s 62 of the FW Act, which relevantly provides:

   (1)An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:

   (a)       for a full-time employee — 38 hours; or

   (b)       for an employee who is not a full-time employee — the lesser of:

   (i)        38 hours; and

   (ii)       the employee’s ordinary hours of work in a week.

   (2)The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.

   (3)In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:

   (a)any risk to employee health and safety from working the additional hours;

   (b)the employee’s personal circumstances, including family responsibilities;

   (c)the needs of the workplace or enterprise in which the employee is employed;

   (d)whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;

   (e)any notice given by the employer of any request or requirement to work the additional hours;

   (f)any notice given by the employee of his or her intention to refuse to work the additional hours;

   (g)the usual patterns of work in the industry, or the part of an industry, in which the employee works;

   (h)  the nature of the employee’s role, and the employee’s level of responsibility;

   (i)whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;

   (j)  any other relevant matter.

10. To establish LOA contravened s 62(1) of the FW Act, Mr Haley must prove that LOA requested or required him to work the additional hours referred to in s 62(1), and that LOA’s requirement or request was unreasonable. Mr Haley has not alleged, and has otherwise not identified evidence that is capable of identifying the requests LOA conveyed to, or the requirement LOA imposed on, Mr Haley to work the additional hours he claims to have worked. Nor has Mr Haley adduced evidence that is capable of proving, in relation to any particular request LOA conveyed to, or the requirement LOA imposed on, Mr Haley, to perform additional work, that the additional hours LOA may have so requested or required were unreasonable.

    Notice of Termination (s 117(1) of the FW Act)

11. In the Application Mr Haley alleges as follows:[532]

    [532] Application, [87.b.]

    Notice of Termination:

    i.NES requires employers to give notice to the employee by either:

    1.        Delivering it personally;

    2.        Leaving it at my last known address; or

    3.        Sending it by pre-paid envelope to my last known address

    ii. I confirmed my address to Murray Rose at the meeting on 08 July 2020.

    ii.The decision to dismiss me was initially delivered by phone call at 4:45pm on Friday, 24 July 2020.

    iv. This was followed up with a letter attached to an email and sent my personal email address at around 6:00pm on Friday, 24 July 2020.

    v.Laing O’Rourke failed to meet the NES requirements in respect of giving notice of termination . .

12. Although he does not expressly so allege, it is apparent that Mr Haley relies on s 117(1) of the FW Act, which provides:

    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).

13. Section 117(1) must be read with s 28A(1) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act), which provides:

    For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then the document may be served:

    (a)       on a natural person:

    (i)        by delivering it to the person personally; or

    (ii)  by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or

    (b) on a body corporate–by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.

14. Subsection 117(1) of the FW Act does not apply to an employee identified in s 123(1) of the FW Act, one of which is “an employee whose employment is terminated because of serious misconduct”. Section 12 of the FW Act provides that “serious misconduct” has the meaning prescribed by the regulations, being reg 1.07 of the Fair Work Regulations 2009 (Cth), which relevantly provides as follows:

    (1)For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

    (2)For subregulation (1), conduct that is serious misconduct includes both of the following:

    (a)wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

    (b)       conduct that causes serious and imminent risk to:

    (i)        the health or safety of a person; or

    (ii)the reputation, viability or profitability of the employer’s business.

15. Regulation 1.07 does not apply to Mr Haley because I have not accepted LOA’s claim that Mr Haley engaged in serious misconduct. For that reason, Mr Haley is not an employee whose employment has been terminated because of serious misconduct.

16. It is the case that at his meeting with Mr Curnow-Rose on 8 July 2020 the following words were exchanged:[533]

    MCR – Can I pleas [sic] get your home address?

    TH - . . .  Street, Balgowlah NSW, 2093. It might be different in the system, we moved a couple months ago.

    [533] CB846

17. It is also the case that LOA communicated the Termination Letter by email Mr Chatwin sent at 5:09 pm on 24 July 2020; and LOA, therefore, has not “given”, within the meaning of s 28A(1) of the Acts Interpretation Act, to Mr Haley “written notice of the day of the termination”. That means that LOA contravened s 117(1) of the FW Act, being one of the “National Employment Standards” as defined in s 61(3) of the FW Act; which, in turn, means LOA contravened s 44(1) of the FW Act, which provides that an “employer must not contravene a provision of the National Employment Standards”.

    Termination without notice (s 117(2) of the FW Act)

18. In the Application, in a section headed “Breach of Contract (Notice Period)”, Mr Haley alleges as follows:[534]

    Laing O’Rourke are obliged to provide three months’ notice in writing or make payment in lieu of all or part of the notice period, in accordance with clause 2, section 4 of the Contract.

    Laing O’Rourke breached this obligation by summarily dismissing me and not providing three months’ notice in writing or making payment in lieu of all of the notice period.

    Laing O’Rourke issued their final payment statement on 28 July 2020 and an amount equal to all of the notice period was not paid.

    [534] Application, [26]-[28]

19. These allegations reflect the evidence; and given Mr Haley was not an employee referred to in s 123(1) of the FW Act, the allegations fall within s 117(2) of the FW Act, which provides:

    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. I will invite submissions on whether it is open to Mr Haley to claim that the matters he alleges in the Application constitute not only a breach of the Employment Contract, but also a contravention of s 117(2) of the FW Act.

    “Final Pay” claim

21. In the Application Mr Haley alleges that, pursuant to cl 4 of s 5 of the Employment Contract, there had accrued to him an amount that represents the costs of an annual flight. That clause provides as follows:

    The Company will provide you and any dependents with one way direct business class airfares from Manchester, United Kingdom to Sydney, Australia. The Company will also provide you and any dependents with one return direct business class airfares, from Sydney, Australia to Manchester, United Kingdom, per financial year, while you are based in the Australia Hub. These airfares will in most circumstances be booked by the Company. If they aren’t, please retain your receipts for reimbursement of your airfare costs.

22. Mr Haley submits that his right to receive payment accrued during what Mr Haley submits was the LOA financial year from April 2020 to March 2021.[535]

    [535] Applicant’s Submissions filed 21 November 2022, [9]

23. LOA submits Mr Haley’s case is that LOA was obliged to pay Mr Haley an amount equal to the monetary value of flights which he did not take. LOA submits this is not a plausible construction of cl 4 of s 5 of the Employment Contract; the correct view, LOA submits, is that LOA “promised to reimburse Mr Haley for the cost of return flights that he and his family actually took during each financial year that he was based in the Australia Hub”.[536]

    [536] Respondent’s Outline of Closing Submissions, [296]

24. I accept LOA’s submission that, on its proper construction, cl 4 of s 5 of the Employment Contract obliged LOA to reimburse Mr Haley once a year the cost Mr Haley would incur for he and his dependants flying business class from Sydney, Australia to Manchester, United Kingdom, per financial year, while Mr Haley is based in the Australia Hub; and it is the case that that obligation, being a contingent and executory obligation, was discharged when LOA repudiated (as I have found) the Employment Contract.

25. That, however, is not the end of the matter; the question that must be asked is whether, but for LOA’s repudiation of the Employment Contract, Mr Haley and his dependents would have travelled from Sydney, Australia to Manchester, United Kingdom and, by so doing, he would have become entitled to being reimbursed the costs of business class tickets. It is highly likely that, had LOA not repudiated the Employment Contract, Mr Haley and his dependents would have done that at least once. It is in fact the case that following LOA’s repudiation of the Employment Contract, Mr Haley and his dependents did fly from Sydney, Australia to Manchester, UK. Mr Haley, therefore, would be entitled to damages that would equate to the costs of the business class ticket he paid when he and his dependents left Australia less any amount LOA contributed towards the cost of Mr Haley and his dependents returning to the UK.

26. I will not now consider whether Mr Haley has adduced evidence to support such a claim for damages. The parties have agreed that, if Mr Haley succeeds on any of his claims, I should defer hearing submissions on damages, compensation, and penalty until after I publish my reasons on Mr Haley’s claims.

    Long Service Leave Claim

27. Mr Haley claims he is entitled to be paid long service leave pursuant to s 4(2)(a)(i)(A) and (B) of the Long Service Leave Act 1955 (NSW) (LSL Act). Before I identify the grounds on which Mr Haley claims he is entitled to long service leave, it will be necessary to set out the relevant provisions of the LSL Act.

    The LSL Act

28. The starting point is s 4(1) of the LSL Act which provides:

    Except as otherwise provided in this Act, every worker shall be entitled to long service leave on ordinary pay in respect of the service of the worker with an employer. . . .

29. The amount of the long service leave for which an employee is entitled is provided for in s 4(2)(a) of the LSL Act, which, so far as is relevant, provides as follows:

    Subject to paragraph (a2) and subsection (13) the amount of long service leave to which a worker shall be so entitled shall—

    (i)in the case of a worker who has completed at least 10 years service with an employer be—

    (A)      in respect of 10 years service so completed, 2 months, and

    (B)  in respect of each 5 years service with the employer completed since the worker last became entitled to long service leave, 1 month . . .

30. A critical notion is a worker’s “service with an employer”. The long service leave to which a worker is entitled under the LSL Act turns on the worker’s length of “service with an employer”. Paragraph (a) of s 4(11) of the LSL Act provides a “service of a worker with an employer means continuous service, whether on a permanent, casual, part-time or any other basis, under one or more contracts of employment”; and s 4(11)(a1) identifies circumstances in which service of a worker with an employer shall be “deemed to be continuous”.

31. Subsection 4(13) of the LSL Act provides circumstances where a worker will be considered to be in the continuous service of an employer even though the worker had been in the service of two or more employers. Relevant is s 4(13)(c) of the LSL Act, which provides:

    Where . . . a worker has transferred from the service of an employer (in this paragraph called the first employer) being a corporation to the service of another employer being a corporation related to the first employer at the time of that transfer, then for the purposes of this section—

    (i) the continuity of the period of service of the worker shall be deemed not to have been broken by reason of the transfer, and

    (ii) the period of service which the worker has had with the first employer before the commencement of the service of the worker with that other employer (including any service which by reason of a prior transfer or prior transfers or for any other reason the worker is deemed by this section or, for the purposes of long service leave for such service, the worker is deemed by any Act or award to have had with the first employer) shall be deemed to be service of the worker with that other employer.

32. Paragraph (ii) of s 4(13)(b) specifies when a worker is “deemed to have transferred from the service of an employer to the service of another employer”, and that is:

    only if before, concurrently with or within a period of two months after the termination of the worker’s services with the first mentioned employer the worker entered into a contract of employment with that other employer, and the transfer shall be deemed to have occurred at the time of that termination.

33. The word “corporation” is defined in s 4(13)(a) of the LSL Act to mean “any body corporate formed or incorporated in or outside New South Wales”; and s 4(13)(b)(i) of the LSL Act identifies when a corporation shall be deemed to be related to another company, and that is where the corporation is a “holding company”, a “subsidiary”, or a “subsidiary of the holding company”.

34. Potentially relevant to the determination of Mr Haley’s claim under the LSL Act are the provisions that identify the liability of the employer that accrues under the LSL Act. The liabilities are provided for in s 4(3) of the LSL Act, which is subject to s 4(5). These subsections are as follows:

    (3) Subject to subsection (5), where a worker has become entitled to long service leave in respect of the service of the worker with an employer, the employer shall give to the worker and the worker shall take the leave—

    (a) as soon as is practicable having regard to the needs of the employer’s establishment, or, where the employer and the worker agree that the taking of the leave be postponed until an agreed date, as from that date,

    (b) in one continuous period or, if the worker and the employer so agree, in the following separate periods and not otherwise—

    (i) where the amount of the leave is 2 months, in two separate periods,

    (ii)where the amount of the leave exceeds 2 months and does not exceed nineteen and one-half weeks, in two or three separate periods,

    (iii) where the amount of the leave exceeds nineteen and one-half weeks, in two, three or four separate periods—

    Provided that where any leave has been given to and taken by the worker pursuant to subsection (3A), this subsection shall apply to and in respect of so much only of the leave to which the worker has become entitled as has not been so given and taken.

    . . . .

    (5)

    (a)Where the services of a worker are terminated otherwise than by the worker’s death and any long service leave—

    (i)        to which the worker was entitled has not been taken, or

    (ii)accrues to the worker upon such termination and has not been taken,

    the worker shall, subject to subsection (13), be deemed to have entered upon the leave from the date of such termination and the employer shall forthwith pay to the worker in full the worker’s ordinary pay for the leave less any amount already paid to the worker in respect of that leave.

    Mr Haley’s claims and LOA’s response

1. In the Application Mr Haley alleges he had continuous service with “the Respondent”, that is, with LOA, from 1 December 2003 to 24 July 2020 and, for that reason, he had accrued long service leave under the LSL Act.[537] Mr Haley also alleges he is entitled to long service leave under the Employment Contract.

   [537] Application, [98]

2. LOA accepts that:[538]

   during the period from 1 December 2003 to 23 September 2018, Mr Haley worked for different employers within the Laing O’Rourke group of companies. [LOA] is also a member of that group. Thus, each of Mr Haley’s employers during the period 1 December 2003 to 24 July 2020 was “related” to each other within the meaning of subsection 4(13)(b)(i) of the LSL Act (see paragraph 300 above). By the operation of the deeming provisions in subsection 4(13)(c), Mr Haley’s period of “service” for the purposes of s 4(1) may be taken to be 1 December 2003 to 24 July 2020, which amounts to approximately 17-and-a-half years.

   [538] Respondent’s Outline of Closing Submissions, [310]

3. LOA submits, however, that Mr Haley is not entitled to long service leave under the LSL Act because, a worker’s entitlement to long service leave requires that the worker’s service with an employer have a “substantial connection” with New South Wales, and Mr Haley has not demonstrated that his service with LOA had a sufficient connection with New South Wales.[539]

   [539] Respondent’s Outline of Closing Submissions, [311] – [320]

4. LOA relies on the following passage from the following reasons for decision of the Industrial Commission of New South Wales in Australian Timken Pty Ltd v Stone (No 2) (emphasis added):[540]

   We are, therefore, in agreement with the appellant’s approach to the problem to the extent that it contends that the service involved must be connected with New South Wales. We think, however, that its submissions go too far when they involve the proposition that the service (subject to temporary absences) which is to be rewarded must be performed entirely in New South Wales. We think that the benefits provided for in the Act accrue if at the time the relevant event occurs (that is, completion, termination or cessation) the service which was being performed up to that time has a substantial connection with this State. This interpretation seems to us to accord with the purpose and policy of the Act without being in any way inconsistent with its language. …This view does not make it necessary, as in the case of workers’ compensation legislation, that the relevant event must occur within the State but it is essential that, at the time of its occurrence, the service, looked at as a whole, may fairly be said to be to a substantial extent New South Wales service. Whether it is or not must be a question of fact and degree in each case. If, however, the service is actually being performed here at the time when the relevant event occurs, this is strong although not conclusive evidence that the service has a substantial connection with New South Wales. … In summary we find that, while the place where the relevant event occurs is of important evidentiary significance, the critical test of liability is that, when that event occurs, there is service which, when looked at as a whole, is substantially connected with New South Wales.

   [540] Australian Timken Pty Ltd v Stone (No 2) [1971] AR (NSW) 246, at pages 253-254

5. LOA, in its written submissions,[541] notes that in International Computers (Australia) Pty Ltd v Weaving, the Industrial Commission of New South Wales affirmed the approach it had taken in Timkem by holding that although “it is not necessary that all service should be substantially connected with New South Wales”, it “is essential that, at the time when the relevant event occurred, the worker’s service may be fairly said to be New South Wales service”.[542] LOA also referred to the judgment of Bromberg J in Cummins South Pacific Pty Ltd v Keenan (with whom Mortimer J, as her Honour then was, agreed) where his Honour considered whether the employee’s service in that case under the Long ServiceLeave Act 1992 (Vic) (Victorian LSL Act) demonstrated a substantial connection with Victoria.[543]

   [541] Respondent’s Outline of Closing Submissions, [304]

   [542] International Computers (Australia) Pty Ltd v Weaving [1981] 2 NSWLR 64, at page 74

   [543] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [199]

   Determination

6. There are three matters to note. The first is that, although Bromberg J in Cummins applied “the substantial connection” test, his Honour expressed “some doubt . . . about the correctness of the “substantial connection” test”.[544] The basis of his Honour’s doubt was that the only connection that was required to be shown between the obligation the Victorian LSL Act imposed on the employer and the territory of Victoria was the employer have some sort of connection with Victoria:[545]

   Division 6 of the LSL Act imposes a liability on an employer to either provide an employee with leave or, on the termination of an employment, pay monies in lieu of untaken leave. The subject matter of that legislation is the imposition of a liability upon employers in respect of entitlements owed to their employees. The imposition of such a liability would only be valid where there exists a “relation of the person to the territory” and as Dixon J further stated that relation may consist of “presence within the territory, residence, domicil, carrying on business there, or even remoter connections”. It is those characteristics which may be regarded providing a real, even if a remote or general connection, between the State and the subject matter of the legislation.

   The LSL Act should be construed as intended to have a valid operation.

   Accordingly, by reference to the territorial limitation upon the legislative power of the Victorian Parliament, the provisions of Div 6 must be read as only imposing a liability upon an employer with a relation to or real connection with Victoria. Here, there can be no issue that the imposition of liability upon [the employer] in respect of long service leave entitlements owed to Mr Keenan is founded upon the requisite relation or connection between the imposition of liability upon [the employer] and Victoria. [The employer] has operated its business from premises in Victoria since 1995 at the latest.

   [544] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [185]

   [545] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [172]-[174]

7. The second matter to note is that two intermediate courts of appeal have concluded that the “substantial connection” test, and the approach of Bromberg J in Cummins, are wrong. In Infosys Technologies Ltd v State of Victoria,[546] the Court of Appeal of the Supreme Court of Victoria accepted that it is competent for the Parliament of Victoria to impose a liability on an employer to pay long service leave on the basis of even a remote connection between the employment and the territory of Victoria; but the question before it was one of construction. The Victorian LSL Act did not contain any provision about the territorial operation of that Act; in those circumstances, it is necessary to identify the “hinge” or “central conception” of the Victorian LSL Act, and require that to bear a connection with Victoria. All three judges held that the “central conception” of the Victorian LSL Act was “continuous employment”; and that s 48(b) of the Interpretation of Legislation Act 1984 (Vic) (Victorian Interpretation Act) applied to that conception, which required that the Victorian LSL Act applied only to continuous employment that has a connection with Victoria. Kennedy JA and McDonald AJA stated their conclusions as follows:[547]

   Consistent with this approach, ‘continuous employment with one employer’, construed in light of s 48(b) of the ILA means ‘continuous employment with one employer in and of Victoria’. As to the meaning of ‘in and of’, in Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society, McTiernan J stated in respect of s 17 of the Interpretation Act 1897 (NSW) (which is relevantly indistinguishable from s 48(b) of the ILA):

   The phrase ‘in and of’ imports both situation and a close identification of the matter or thing with New South Wales. The phrase is a composite one and perhaps should not be divided.

   [546] Infosys Technologies Ltd v State of Victoria [2021] VSCA 219

   [547] Infosys Technologies Ltd v State of Victoria [2021] VSCA 219, at [88]

8. Their Honours further said:[548]

   Continuous employment in and of Victoria with one employer requires a close identification between the continuous employment and Victoria. It is unnecessary to exhaustively define the circumstances as to when such close identification will arise. However, as indicated already, they can extend beyond circumstances where an employee’s service with the employer is in Victoria. In any event, wherever the line is drawn, the employment of each of . . . . in India had no connection with Victoria at all.

   [548] Infosys Technologies Ltd v State of Victoria [2021] VSCA 219, at [92]

9. In Wipro Limited v State of New South Wales,[549] the Court of Appeal of the Supreme Court of New South Wales substantially followed the approach of the Court of Appeal of the Supreme Court of Victoria in Infosys Technologies, without, however, relying on s 12(b) of the Interpretation Act 1987 (NSW), being the equivalent provision of s 48(b) of the Victorian Interpretation Act. Macfarlan JA (with whose reasons Simpson and Basten AJJA agreed) said:[550]

   The decision of this Court in DRJ points clearly to the need to identify the “central conception” or “hinge” of the LSL Act for the purpose of determining its intended operation in relation to extraterritorial circumstances such as workers’ service at a place outside New South Wales. As the plaintiff submits, it is fundamental to the operation of the LSL Act that there be “continuous service” by the worker with an employer for one or other of the periods specified in the Act. This is evident from the central provision of the Act (s 4(1)), which confers an entitlement to long service leave based upon “the service of the worker with an employer”, this expression being defined in s 4(11) to mean “continuous service” under a contract of employment. . . .

   As made clear in DRJ, once the relevant “central conception” of an Act has been identified, an inquiry as to its connection with New South Wales is to be undertaken. The performance of service within New South Wales is an obvious connecting factor but, depending upon the circumstances of particular cases, there may be other factors connecting the service to New South Wales, such as the relevant contract having been made in New South Wales or directions having been given in New South Wales for an employee to work outside the jurisdiction. As Kennedy JA and McDonald AJA, indicated in Infosys Technologies, the relevant substantial connection with the State (in that case Victoria) might be constituted by “employment performed inside Victoria, or in obedience to a direction emanating from Victoria, as well as employment formed in Victoria” (at [85]). This is not, and was not intended to be, an exhaustive description of possible connecting factors.

   [549] Wipro Limited v State of New South Wales [2022] NSWCA 265

   [550] Wipro Limited v State of New South Wales [2022] NSWCA 265, at [40]-[41]

10. A third matter to note is that Mr Haley’s claim is a claim under s 4(5) of the LSL Act. Even so, it would be incorrect to characterise that claim as being the central conception of the LSL Act. As Kennedy JA and McDonald AJA, in Infosys Technologies, said in relation to the equivalent provisions of the Victorian LSL Act, s 4(5) of the LSL Act is “simply the occasion for an employee with an accrued long service leave entitlement, to receive the entitlement”.[551]

    [551] Infosys Technologies Ltd v State of Victoria [2021] VSCA 219, at [77]

11. I am not bound to apply the approach Bromberg J applied in Cummins, and which the courts in Infosys Technologies and Wipro held to be wrong, because his Honour did not in fact apply that approach, and his Honour was doubtful that the “substantial connection” test was correct. I therefore propose to apply to Mr Haley’s claims under the LSL Act the approach that was applied in Infosys Technologies and Wipro. Under that approach, the question I must ask when determining Mr Haley’s claim under the LSL Act is whether his continuous service with members of the LOA group of companies constituted a connection with New South Wales, such as to give rise to a right to long service leave under the LSL Act. That question must be answered in the negative. Mr Haley’s employment with companies within the LOA group of companies had no connection with New South Wales until 25 September 2018 when he commenced employment with LOA; and the time for which Mr Haley continued with his employment with LOA after that day is not sufficient to give rise to an entitlement of long service leave under the LSL Act.

12. As at 24 July 2020, therefore, when LOA purported to terminate his employment, Mr Haley had accrued no entitlement to long service leave under the LSL Act.

13. Mr Haley also relied on the following paragraph from the letter dated 28 June 2018 by which LOA offered Mr Haley employment:[552]

    Your accrued statutory entitlements, if any, will transfer with you, and Laing O’Rourke will recognise your employment as continuous. This means that your original commencement date, 1 December 2003, will be used to calculate any applicable statutory entitlements.

    [552] Exhibit STC-1, CB358

14. The statutory entitlements to which this paragraph referred included statutory entitlements that had as at 28 June 2018 accrued to Mr Haley. Given that Mr Haley had not been employed in New South Wales before the date of the letter, there were no entitlements under the LSL Act that were capable of being transferred.

15. Mr Haley’s claims for long service leave, therefore, fail.

    DISPOSITION

16. I propose to make a declaration that, by purporting to summarily dismiss Mr Haley from his employment LOA repudiated Mr Haley’s contract of employment, and contravened s 340(1) of the FW Act. I also propose to make a declaration that LOA contravened s 117(1) of the FW Act by not giving to Mr Haley written notice of the purported termination of his employment by delivering the notice to Mr Haley personally, or by leaving it at, or by sending it by pre-paid post to, Mr Haley’s address he last notified to LOA.

17. The parties have agreed that, if Mr Haley succeeds on any of his claims, I should defer hearing submissions on damages, compensation, and penalty until after I publish my reasons on Mr Haley’s claims. I am of the view that I should hear and determine the question of penalties after I have considered and determined the question of compensation and damages. I will therefore make directions for the filing and serving of written submissions on damages, compensation, and whether it is open to Mr Haley to claim on the basis of the findings I have made that LOA has contravened s 117(2) of the FW Act. I will reserve to the parties liberty to apply if the parties require further time than the time I propose to allow. I will otherwise list the matter for a directions hearing for the purpose of fixing the matter for hearing on the questions of damages and compensation.

I certify that the preceding six hundred and seventy-five (675) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       28 March 2024