Henry v Leighton Admin Services Pty Ltd & Anor
[2015] FCCA 1923
•16 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HENRY v LEIGHTON ADMIN SERVICES PTY LTD & ANOR | [2015] FCCA 1923 |
| Catchwords: INDUSTRIAL LAW – General protections - whether a person’s being “able” to make a complaint or inquiry within the meaning of s.341(1)(c)(ii) of the Act requires that the complaint or inquiry be grounded on some source of legal entitlement – whether a complaint about an employer’s financial disclosure obligations under the Corporations Act 2001 (Cth) (Corps Act) made by an employee whose duties included the development of a system that identified outstanding unapproved project revenue and under-claims of projects in which the employer was involved and to analyse key projects from a project delivery risk perspective was a complaint made “in relation to” the employee’s employment. INDUSTRIAL LAW – General protections – whether an opinion that a company should comply with obligations imposed by the Corps Act is a “political opinion” within the meaning of s.351(1) of the Act. INDUSTRIAL LAW – General protections – whether representations alleged to have been made were about workplace rights – whether on the pleadings the representations were or became false or misleading – whether on the pleadings the representations were made knowingly or recklessly. INDUSTRIAL LAW – National Employment Standards – redundancy – whether, within the meaning of s.119 of the Act, the first respondent terminated the applicant’s employment because the first respondent no longer required the job done by the applicant to have been done by anyone. PRACTICE AND PROCEDURE – Whether statement of claim pleads facts sufficient to disclose a cause of action based on the second respondent’s being a person involved within the meaning of s.550 of the Act in the contraventions of the Act alleged against the first respondent. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 44, 119, 119(1),176, 262, 323(1), 340, 340(1)(a)(ii), 340(1)(a)(iii), 341(1), 341(1)(a), 341(1)(b), 341(1)(c), 341(1)(c)(ii),341(2), 342, 345, 351, 351(1), 550 Federal Court Rules 2011 (Cth) r.16.02(1)(d) |
| Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 Kweifio-Okai v Australian College of Natural Medicine (No 2) [2014] FCA 1124 Miller v Executive Edge Travel & Events Pty Ltd [2014] FCCA 1895 |
| Applicant: | ALAN HENRY |
| First Respondent: | LEIGHTON ADMIN SERVICES PTY LTD |
| Second Respondent: | ADOLFO VALDERAS |
| File Number: | SYG 3121 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 1 June 2015 |
| Date of Last Submission: | 16 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Howell |
| Solicitors for the Applicant: | Harmers Workplace Lawyers |
| Counsel for the Respondents: | Mr A M Hochroth |
| Solicitors for the Respondents: | Herbert Smith Freehills |
ORDERS
Paragraphs 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 6.8(b), 6.9, 6.10, 9.1, 10.2(c), and 11.1 of the statement of claim are struck out.
The applicant has leave to re-plead paragraph 9.1 of the statement of claim, if so advised.
The application in a case filed by the respondents on 24 April 2015 is otherwise dismissed.
The costs of the application in a case filed by the respondents on 24 April 2015 are reserved.
The proceedings stand over for directions to a date to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3121 of 2014
| ALAN HENRY |
Applicant
And
| LEIGHTON ADMIN SERVICES PTY LTD |
First Respondent
| ADOLFO VALDERAS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first and second respondents apply for an order dismissing the proceeding the applicant, Mr Henry, has brought against them. The respondents, relying on s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act), submit Mr Henry has no reasonable prospect of successfully prosecuting the proceeding, or any part of the proceeding, against them.
These reasons are arranged as follows. First, I will identify the relevant principles I must apply to determine the respondents’ claim that Mr Henry has no reasonable prospect of successfully prosecuting the proceeding, or any part of the proceeding against them. Second, I will identify, in a general way, the causes of action Mr Henry alleges against each of the respondents. Finally, I will consider, by reference to each cause of action alleged in the statement of claim, the grounds on which the respondents contend Mr Henry has no reasonable prospect of successfully prosecuting the proceeding or any part of the proceeding against the respondents.
Principles governing the exercise of power under s.17A(2)
Subsection 17A(2) of the FCC Act provides:
The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
Sub section 17A(2) must be read with s.17A(3) of the FCC Act which provides:
For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
In Spencer v The Commonwealth of Australia[1]the High Court considered s.31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) which, in substance, is the same as s.17A of the FCC Act. The plurality said that, when applying the expression “no reasonable prospect”, “full weight must be given to the expression as a whole”, so that the Court may exercise the power under s.31A of the FCA Act “if, and only if, satisfied that there is “no reasonable prospect” of success”.[2] The plurality continued:
Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
[1] (2010) 241 CLR 118
[2] (2010) 241 CLR 118 at [60] (Hayne, Crennan, Kiefel, and Bell JJ)
The plurality also said:[3]
No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided.
[3] (2010) 241 CLR 118 at [58]
Counsel for the respondent relied on cases the Federal Court decided before Spencer for a number of propositions, including the following:
a)s.31A “not only permits, but requires, a consideration of matters outside the pleadings”;[4]
b)“the court determines whether there is a real or genuine dispute as to any material fact – whether any reasonable juror could find for the non-moving party on one or more of those material factual issues”;[5] and
c)when determining whether a party has “no reasonable prospect”, the Court “does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial”.[6]
[4] Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J)
[5] Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J) citing Boston Commercial [2006] FCA 1352; 70 IPR 146 at [43]
[6] Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 (Sundberg J), citing Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 at [23] (Finkelstein J), [74] (Rares J) and [130] (Gordon J); Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 at [28] (Emmett J); Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J).
These passages are inconsistent with what the plurality in Spencer said is the correct approach to applying s.31A of the FCA Act. The passages I have set out in paragraph 7(b) and (c) use expressions – “real or genuine dispute as to any material fact”, and “sufficiently strong to warrant a trial” - that are different from “no reasonable prospect”. And the passage in paragraph 7(a), which is taken from the reasons for judgment of Finkelstein J in Imobilari Pty Ltd v Opes Prime Stockbroking Ltd, relies, at least in part, on Three Rivers DC v Bank of England (No 3)[7] which considered r.24.2 of the Civil Procedure Rules 1998 of England and Wales. That rule used a different criterion, namely, “no real prospect”. The plurality in Spencer said that the phrases “no real prospect” and “no reasonable prospect” “convey very different meanings”.[8]
[7] [2003] 2 AC 1
[8] (2010) 241 CLR 118 at [51]
Although the plurality in Spencer said that s.31A of the FCA Act (and hence s.17A of the FCC Act) must be applied on its terms, and without recourse to paraphrase, that does not mean the expression “no reasonable prospect” is self-evidently clear, or that its meaning is incapable of elucidation. And there are a number of observations that may be made about the scope and meaning of the expression “no reasonable prospect of successfully prosecuting the proceeding” as it appears in s.17A(2) of the FCC Act.
First, the expression “successfully prosecuting the proceeding” refers to the steps the applicant must take to become entitled to a remedy. Whether in any proceeding an applicant will be entitled to a remedy turns on two things. The first is the applicant’s asserting in some way a set of facts (asserted facts), and proving those facts at trial to the extent the respondent does not admit them. The second is the Court accepting there are principles of law which, when applied to the asserted facts, will entitle the applicant to some remedy, assuming the applicant proves the asserted facts.
Second, the word “prospect” directs attention to a future event and, more particularly, to the probability of the happening of a future event. The future event is what the Court will do after it hears the applicant’s claims at trial. Consistent with what is entailed in the notion of “successfully prosecuting the proceeding”, “prospect” directs attention to the probability of an applicant proving those asserted facts as are in issue and, assuming the applicant will prove those facts, the applicant persuading the Court there are principles of law that, when applied to the asserted facts, will entitle the applicant to a remedy.
Third, the considerations that apply to assessing the prospect of an applicant’s being entitled to a remedy, assuming he or she will prove the asserted facts, are different from considerations that apply to assessing the prospect of the applicant proving the asserted facts. The Court will, at least in most cases, be in as good a position to determine in advance of a trial, as it will be after a trial, whether the asserted facts, if established, will entitle the applicant to a remedy. Whether the asserted facts will entitle the applicant to a remedy can be determined on the assumption that the asserted facts will be proved. The Court, however, will rarely be in as good a position in advance of a hearing as it would be after a hearing to determine whether the applicant will prove the asserted facts. Under our system of procedure, contested issues of fact are determined by a court only after the parties have been given the opportunity to present evidence, to test or undermine or contradict evidence presented against them by cross-examination and by adducing responsive evidence, and to make submissions about findings the Court should make on the evidence that has been presented. Further, whether or not a party will be able to adduce the necessary evidence, or at least adduce all the reasonably available evidence, cannot in many cases be known until after the applicant has had the benefit of pre-trial procedures for obtaining evidence, such as the issuing of subpoenas.
Fourth, the differing considerations that apply to determining the prospect of the Court finding there are principles of law which will result in the applicant being granted a remedy if the asserted facts are proved, compared with the considerations that apply to determining whether the asserted facts will be proved, serve to identify the matters that are relevant to determining whether in any given case an applicant’s prospect of successfully prosecuting the proceeding is reasonable. Where the ground on which it is claimed an applicant has no reasonable prospect of successfully prosecuting a proceeding rests on the contention that there is no principle of law that would entitle the applicant to a remedy, even if the asserted facts are proved, the Court will answer the question whether the applicant has reasonable prospects of prosecuting his claim by assuming the asserted facts are true, and deciding whether there are principles of law which, on that assumption, will entitle the applicant to relief. If the Court finds there are no such legal principles or, at least, there are no reasonably arguable grounds for finding such legal principles exist, the Court will conclude the applicant has no reasonable prospect of successfully prosecuting the proceeding.
Where, on the other hand, the ground on which it is claimed an applicant has no reasonable prospects of successfully prosecuting the proceeding is that the applicant will not succeed in establishing one or more of the asserted facts, the proof of which is essential to the applicant being entitled to some relief, different matters must be taken into account in determining whether the applicant has reasonable prospects of successfully prosecuting the proceeding. The first matter is whether the respondent has adduced evidence that, if accepted, proves that one or more of the essential asserted facts do not exist. Without such evidence, it seems hardly possible that a respondent could reasonably contend the applicant has no reasonable prospects of proving any of the asserted facts. Assuming the respondent has put on evidence that, if accepted, would prove the non-existence of one or more of the asserted facts, the second relevant matter is whether the applicant has put on any evidence that supports one or more of the asserted facts to which the respondent’s evidence is directed. If, for example, the applicant does not adduce evidence that it is in the applicant’s power to adduce, the inference may reasonably be available that the applicant does not have evidence to support the asserted facts, and, therefore, does not have reasonable prospects of successfully prosecuting the proceeding. A third relevant matter is the nature of the evidence the respondent adduces. If, for example, the evidence is in the form of testimony, and the applicant adduces conflicting testimonial evidence, that would usually be a decisive consideration against the Court finding the applicant has no reasonable prospect of successfully prosecuting the proceeding. The resolution of the conflicting testimony is to be decided by the Court after the testimony has been tested by cross-examination and the presentation of other evidence. A fourth matter is whether it is within the power of the applicant to adduce all the relevant evidence that is available to be put against evidence the respondent adduces. If the Court cannot reasonably be satisfied that it is, that would be a factor against concluding that the applicant has no reasonable prospects of successfully prosecuting the proceedings.
What I have said is not intended to be an exhaustive list of matters that may be relevant to determining whether an applicant has no reasonable prospect of successfully prosecuting a proceeding. There may be other relevant matters. An application for an order under s.17A(2) of the FCC Act, however, should only be made where the respondent has good grounds for contending the applicant has no reasonable prospects of obtaining a remedy even if he or she proves the asserted facts; or where the respondent has evidence that contradicts or fatally undermines one or more of the asserted facts and there is no reasonable prospect that the applicant, even if he or she were to issue subpoenas and the like, would be able to obtain evidence to contradict the respondent’s evidence.
Finally, what I have said has been restricted to proceedings where the respondent’s defence is based on his or her denying one or more of the asserted facts. The same analysis, however, would apply where the respondent defends a claim by alleging facts (confess and avoid facts) he or she claims, if proved, will defeat the applicant’s claim, even if the applicant were to prove all of the asserted facts. Thus, before the Court can be satisfied on the basis of the confess and avoid facts that the applicant has no reasonable prospect of successfully prosecuting the proceeding, it must be satisfied there is no reasonable prospect the applicant will be able to prevent the respondent from proving such facts and that, if the confess and avoid facts are proved, the applicant will fail in his claim.
I now turn to the causes of action Mr Henry pleads in his statement of claim.
Causes of action pleaded in statement of claim
Mr Henry pleads four causes of action against the first respondent (Leighton). The first (s.340 claim) is alleged to arise out of Leighton’s terminating Mr Henry’s employment on 28 August 2014. Mr Henry alleges Leighton’s terminating Mr Henry’s employment constituted Leighton taking “adverse action” against Mr Henry within the meaning of s.342 of the Fair Work Act 2009 (Cth) (Act). Mr Henry further alleges Leighton took that adverse action because Mr Henry had made “a complaint or inquiry” to Leighton “in relation to his employment”, and thus had exercised a “workplace right” within the meaning of s.341(1)(c)(ii) of the Act. Mr Henry, therefore, claims that, by terminating his employment, Leighton contravened s.340 of the Act.
The second cause of action (s.351 claim) is alleged to arise out of the same alleged facts that constitute the s.340 claim. Mr Henry alleges that the complaints or inquiries he made in relation to his employment, being the complaints and enquiries that caused Leighton to terminate Mr Henry’s employment, were based on a political opinion. Mr Henry, therefore, alleges that Leighton’s terminating Mr Henry’s employment constituted Leighton taking adverse action against Mr Henry because of Mr Henry’s political opinion.
The third cause of action is based on representations Mr Henry alleges Leighton made to him contrary to s.345(1) of the Act (misrepresentation claim). Mr Henry alleges that before he took annual leave during the period 18 July 2014 to 26 August 2014 Leighton made representations to Mr Henry that led him to believe he had a significant opportunity to further his career at Leighton’s and that, in reliance on that belief, he did not attempt to find alternative employment during his period of leave.
The fourth cause of action (redundancy claim) is based on the allegation that Leighton terminated Mr Henry’s employment because the position Mr Henry held had become redundant. Mr Henry alleges that, having been made redundant, Leighton became liable to pay, but has not paid, to Mr Henry the entitlements prescribed by s.119(1) of the Act.
In addition to these causes of action, Mr Henry alleges that the second respondent, Mr Valderas, was “involved” within the meaning of s.550 of the Act in Leighton’s alleged contraventions of the Act.
The statement of claim also contains allegations in relation to a bonus. I will say nothing further about those allegations because Mr Henry accepts they should be removed from the statement of claim.
s.340 claim
The respondents submit the alleged facts on which Mr Henry relies in support of the s.340 claim do not disclose a contravention of that section. The respondents so submit for two reasons. First, they submit the complaints Mr Henry alleges he made, and which, he alleges, was the reason for which Leighton terminated his employment, were not complaints Mr Henry was “able” to make within the meaning of s.341(1)(c)(ii) of the Act. That is so because the word “able”, as used in the expression “is able to make a complaint or inquiry”, requires that the complaint or inquiry “be grounded on some source of legal entitlement, whether contractual, in an industrial instrument or statute”;[9] that Mr Henry “does not rely upon any entitlement founded in contract, on an industrial instrument or statute upon which to make the complaints”; and that the allegations pleaded in the statement of claim “disclose no basis for such an entitlement”.[10]
[9] Respondents’ Outline of Submissions, [35]
[10] Respondents’ Outline of Submissions, [39]
When I first read these submissions, and early in the course of the respondents’ counsel’s address before me, I understood the respondents to be submitting that to be “able to make a complaint or inquiry . . . in relation to his or her employment” within the meaning of s.341(1)(c)(ii) of the Act, it is necessary for the employee to point to a provision in his or her contract of employment, or in an industrial instrument, or in a statute, which conferred a right on the employee to make a complaint or an inquiry in relation to his or her employment. My understanding was reinforced by the following exchange with counsel for the respondents:[11]
Counsel:. . . And so that’s what Dodds-Streeton J was referring to in paragraph 590, that “to be able to” refers to a right to. . . .
His Honour: So . . . there has got to be something, some law which expressly says, “You’ve got a right to complain”?
Counsel:Yes. . . . Some law, some obligation, whether it’s express or implied, found in the employment contract, found in the Fair Work Act, found in some other Act, found in . . . something that gives you the right to complain about what’s happening.
[11] T28.15-30
As I understood counsel for the respondents, the submission was in substance the same as the following submission that was made by the employer in Murrihy v Betezy.com.au. Pty Ltd:[12]
s 341(1)(c)(ii) is not invoked when the employee’s “ability” to make a complaint or inquiry arises from nothing more than the absence of a prohibition upon proceeding in that way: what the section requires . . . is a relevant provision of some kind, be it statutory, regulatory or contractual, or arising from some applicable grievance procedure, under which there is some provision for the making of a complaint or inquiry.
[12] [2013] FCA 908 at [140]
Later in his address, however, counsel submitted that an employee will have an implied right to complain or make an inquiry in relation to his or her employment, and thus, the employee will be “able” to make a complaint or inquiry in relation to his or her employment, if the employee has some legal right, whether under the contract of employment, or under an industrial instrument. In particular, counsel submitted “there will be an implied legal right to make the complaint where the complaint is grounded upon some legal right in the first place”.[13]
[13] T36.5
The second reason the respondents submit the alleged facts on which Mr Henry relies for the s.340 claim do not disclose a contravention of s.340 of the Act is that the complaints Mr Henry alleges he made were not made “in relation to” his employment within the meaning of s.341(1)(c)(ii) of the Act. The respondents submit that the complaints Mr Henry alleges he made, and which he alleges was the reason for which Leighton terminated his employment, did not relate to his employment but, instead, related to the financial reporting of Leighton.
Approach
The respondents’ submissions in relation to the s.340 claim turns on the correct construction of the words “is able” and “in relation to his or her employment” as these words appear in s.341(1)(c)(ii) of the Act.
The basic principles that govern the construction of a statute are not in doubt; and these were stated by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:[14]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[14] [2009] HCA 41; (2009) 239 CLR 27 at 46-49 ([47]) (Hayne, Heydon, Crennan and Kiefel JJ), cases referred to omitted.
Also relevant is the following passage from the judgment of the plurality in Project Blue Sky v Australian Broadcasting Authority:[15]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[15] [1998] HCA 28; (1998) 194 CLR 355 at 381 ([69]) (McHugh, Gummow, Kirby and Hayne JJ).
One consequence of having to begin the task of statutory construction by considering the text itself is that, if that consideration yields a meaning that is not doubtful, “there is no occasion to look to the extrinsic material”.[16] That means “it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction”.[17]
[16] Catlow v Accident Compensation Commission [1989] HCA 43 at [6]; (1989) 167 CLR 543 at 550 per Brennan and Gaudron JJ
[17] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at 265 ([33]) (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). Heydon J noted (at 277 ([74]) that “as is very common, reading the Explanatory Memorandum and the Second Reading Speech is much less helpful than reading the legislation itself.”
I propose, therefore, to determine the proper construction of the words “is able” and “in relation to his or her employment” by considering the language that has actually been employed in the statutory context in which these words appear, but having regard to the cases the respondents submit have construed them in the manner which supports the construction for which they contend.
Statutory context
The words “is able” and “in relation to his or her employment” appear as part of the definition of “workplace right” contained in s.341(1) of the Act:
A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee – in relation to his or her employment.
“Workplace law” is defined in s.12 of the Act to mean the Act, or the Fair Work (Registered Organisations) Act 2009 (Cth), or the Independent Contractors Act 2006 (Cth), or any other law of the Commonwealth, a State or a Territory that regulates the relationship between employers and employees. “Workplace instrument” is defined to mean an instrument that is made under or recognised by a “workplace law”, and concerns the relationship between employers and employees. And the expression “process or proceedings under a workplace law or workplace instrument” is given an enumerative definition in s.341(2) of the Act. The elements of that definition include “court proceedings under a workplace law or workplace instrument” and “dispute settlement for which provision is made by, or under, a workplace law or workplace instrument”.
Section 341(1) of the Act defines three categories of workplace rights. The first is the “workplace right” defined in s.341(1)(a). This captures legal rights, and, in particular, rights that have accrued under a workplace law, or a workplace instrument, or an order of an industrial body. That is suggested by the words “is entitled”, and by those words being linked by the word “under” to a workplace law, or a workplace instrument, or an order of an industrial body. Section 341(1)(a) of the Act also captures roles and responsibilities conferred by a workplace law, or a workplace instrument, or an order of an industrial body.
The second category of “workplace right” - that defined in s.341(1)(b) of the Act - captures what may be described as the adjectival entitlements provided under the laws referred to in s.341(1)(a). That is, it captures a person’s present or future entitlements to initiate or participate in processes and proceedings that are available under a workplace law or workplace instrument (workplace proceedings). These are proceedings that may lead to the creation of fresh legal rights under a workplace law or instrument either by the operation of those laws or by order of an industrial body, or which may lead to a court declaring the existence of such legal rights, and making orders in support of the rights it has declared.
The third category of workplace rights - that defined in s.341(1)(c) of the Act - is a person’s being “able” to make a complaint or inquiry in two circumstances. The first is a person’s being “able” to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument. The second is where a person, being an employee, “is able” to make a complaint or inquiry “in relation to his or her employment”.
The Act defines “workplace rights” because persons who have workplace rights are protected by s.340 of the Act. That section provides:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
Construction of s.341(1)(c)(ii) of Act
The key expressions in s.341(1)(c)(ii) of the Act are “is able to make”, “complaint”, “inquiry”, “in relation to”, and “his or her employment”. The ordinary meaning of “is able” is “has a capability” or “has a capacity”.[18]The ordinary meaning of the word “complaint” is a statement expressing a grievance or a finding of fault, regardless of whether the grievance or finding of fault is factually correct or substantiated.[19] The ordinary meaning of “inquiry” is the act of seeking information about or concerning something.[20] And “Employment” must be taken to have its ordinary legal meaning; that is, it means the aggregate of the express and implied contractual and statutory rights and obligations an employee has under or as a consequence of the particular contract of employment into which the employee has entered.
[18] Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399 at [52]
[19] Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [600]
[20] Oxford English Dictionary
The meaning of “in relation to”, as it appears in s.341(1)(c)(ii) of the Act, requires a little more elaboration. On one analysis,[21] “in relation to” is a complex preposition; that is, although a phrase, the expression functions as a preposition. As a syntactic category, a preposition serves to link two or more other syntactical categories in the phrase or clause in which the preposition appears. At the very least, “in relation to” must appear in a phrase in the form “A in relation to B”. The linking function of “in relation to”, therefore, suggests that, in any given case, “in relation to” denotes some association or connection between the things denoted by the words it links. The expression, however, cannot by itself denote the nature of the association or connection between the things it links. In the absence of any additional words, the association or connection the expression “in relation to” denotes in any given case must be implied from the meanings of the things the expression denotes are connected or associated, and from the context in which “in relation to” is used.
[21] R. Quirk, S. Greenbaum, G. Leech, and J. Svartvik A Comprehensive Grammar of the English Language Longman Group Limited 1985 at [9.11]
These aspects of the expression “in relation to” have been recognised in a number of cases. In Australian Securities & Investments Commission v Citrofresh International Ltd, [22] Goldberg J observed that a consistent theme running through the cases is that the expression “in relation to” “gathers its meaning from the context in which it appears and the purpose for which it appears”. His Honour set out passages from a number of cases that bear out this observation. These included statements that “relating to”[23] “predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified”;[24] that “there will always be a question of degree involved where the issue is the relationship between two subject matters” and that the expression “will not, at least normally, apply to any connection or relationship no matter how remote”;[25] and that “it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connexion will suffice”.[26]
[22] [2007] FCA 1873 at [66]
[23] Which Goldberg J regarded as synonymous to “in relation to”.
[24] Tooheys Limited v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602 at page 620 (Taylor J)
[25] Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 at [70]; (2001) 114 FCR 472 at 487-488 (Hill J)
[26] Joye v Beach Petroleum NL [1996] FCA 1552 at [39]; (1996) 67 FCR 275 at page 285 (Beaumont and Lehane JJ)
The expression “in relation to”, as it appears in s.341(1)(c)(ii) of the Act, has been considered by the Federal Court on two occasions. But before I refer to those decisions, it would be useful to explore further from the language of s.341(1)(c)(ii) itself the nature of the association or connection denoted by “in relation to”. The first step is to refer to the meaning of the words the expression “in relation to” links, namely, a person’s ability “to make a complaint or inquiry” on the one hand, and “his or her employment” on the other.
One key to the association or connection denoted by “in relation to” is what is an essential feature of a complaint and inquiry, and that is their quality of “aboutness”. A complaint is about something; there must be a subject about which a person states a grievance or makes a finding of fault. Similarly with an inquiry. An inquiry is the act of seeking information about something; there must be a subject about which a person seeks information. The expression “in relation to”, therefore, may be considered as linking to the complaint or inquiry the subject about which the complaint or inquiry must be made; and the subject to which the expression “in relation to” links the complaint or inquiry is the employment of the person making the complaint or inquiry. The expression “in relation to”, therefore, could reasonably be construed as requiring that the complaint or inquiry must be about, or have as its subject, the express and implied contractual and statutory rights and obligations the person making the complaint or inquiry has under or as a consequence of his or her contract of employment (employee rights and obligations).
On this analysis, “in relation to” means “about”. Parliament, however, has not used the word “about”. Considered alone, “in relation to” is broader than “about”. Does that mean that “in relation to” captures an association or connection between the complaint or inquiry and a person’s employment if the subject of the complaint or inquiry is not about a person’s employee rights and obligations, but is about some subject that is related to the person’s employee rights and obligations? The first of the two Federal Court cases to which I have alluded suggests it does; and the second decision in terms says that it does.
The first Federal Court case is the decision of Katzmann J in Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3).[27] After reviewing a number of cases, her Honour said (emphasis added):[28]
In my view, in s 341(1)(c)(ii) the requisite relationship between the complaint or inquiry with the employee’s employment may be direct or indirect. No contrary indication may be gleaned from the context of the words or the drafting history. Mr Fernon SC, who appeared for the respondent, conceded that the words should be interpreted broadly, though he submitted they were not without limits. That qualification may be accepted but the limits are to be found in the nature and purpose of the legislation, which includes the protection of workplace rights.
[27] [2012] FCA 697
[28] [2012] FCA 697 at [64]
The words “direct or indirect” suggest that the subject of the complaint or inquiry need not be about employee rights and obligations; the complaint may be about some other subject that is related to the employee rights and obligations.
The second case is the decision of Bromberg J in Walsh v Greater Metropolitan Cemeteries Trust (No 2) where his Honour said:[29]
The words “in relation to” are words of wide import. The use of that phrase in s 341(1)(c)(ii) identifies that a relationship between the subject matter of the complaint and the complainant’s employment is required. The nature of that relationship need not be direct and may be indirect: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [61]- [64] (Katzmann J); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [631] (Dodds-Streeton J). I respectfully agree with Katzmann J’s observation in Pilbara at [64] that if some limit on the broad language utilised in the phrase “in relation to his or her employment” is to be imposed, it needs to be “found in the nature and purpose of the legislation, which includes the protection of workplace rights”.
[29] [2014] FCA 456 at [41]
Bromberg J also held that where “the subject matter of the complaint raises an issue with potential implications for the complainant’s employment, it is likely that the requisite nexus will be satisfied”.[30] The facts in that case illustrate this point. The applicant was employed as a client services manager. She complained about a number of matters including a complaint that a supplier to her employer was providing sub-quality service, and that the daughter of another employee of the employer worked for the supplier, and that, as a matter of probity, it was inappropriate for that other employee to be dealing with her daughter in relation to the contract with the supplier.[31] Bromberg J held:[32]
In this case, Ms Walsh raised a probity issue in relation to a contract with a supplier who supplied services including to an operation which Ms Walsh managed in the course of her employment. Whether or not Ms Walsh was under a contractual duty to report the possible misdeed of others (see the discussion in Irving, The Contract of Employment (LexisNexis Butterworths, 2012) at [7.21]), her failure to report suspected wrong-doing had the potential to reflect badly upon her and cause prejudice to her in her employment. By reason of either of those two factors, the Alsco contract complaint made by Ms Walsh raised an issue with potential implications for Ms Walsh’s employment and was “in relation to...her employment” within the meaning of s 341(c)(ii) [sic] of the FW Act.
[30] [2014] FCA 456 at [42]
[31] [2014] FCA 456 at [16]
[32] [2014] FCA 456 at [43]
Thus, according to his Honour, there will be a sufficient connection between an employee’s making a complaint or inquiry and the employee’s employment if the subject of the complaint or inquiry is a subject that has the potential to cause prejudice to the employee in his or her employment.
Construction of s.341(1)(c)(ii) – “is able”
I have already observed that the ordinary meaning of “is able” is to have the capacity or capability. The respondents, however, submit that the expression does not carry its ordinary meaning. The respondents submit that the expression “is able” in s.341(1)(c)(ii) requires that a complaint or inquiry “be grounded on some source of legal entitlement, whether contractual, in an industrial instrument or statute”.[33]
[33] Respondents’ Outline of Submissions, [35]
The construction for which the respondents contend implies into the text of s.340(1)(a)(ii) the words “because of some legal entitlement, whether contractual, in an industrial instrument or statute”. It is true that, when construing a statutory text in a particular litigious context, a court will often employ words not found in the text of the provision being construed to illuminate or illustrate or explain the meaning or operation of a given statutory text in that context. This point is recognised in the following passage from the reasons for judgment of Gageler and Keane JJ in Taylor v The Owners - Strata Plan No 11564:[34]
Statutory construction involves attribution of legal meaning to statutory text, read in context. “Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ... But not always.” Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
[34] [2014] HCA 9; (2014) 88 ALJR 473 at [65] (emphasis added)
There is, however, a distinction between using words to illuminate, illustrate, or explain the meaning of a text, and adding words to the text of the statutory provision. The border between the two uses is crossed when the words that are used purportedly to explain the meaning of the text are wholly ungrammatical or unnatural meanings of the words they purport to elucidate or explain. This point, too, was recognised by Gageler and Keane JJ in Taylor:[35]
Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.
[35] [2014] HCA 9; (2014) 88 ALJR 473 at [66] (emphasis added)
An easier way to determine whether the use of words to explain the meaning of a statutory text in truth constitutes the reading of words into the text is by asking whether the words can simply be substituted for the words of the text they purport to explain and still produce a grammatical meaning. If the substitution results in a wholly ungrammatical meaning, it can safely be concluded that the words are being read into the text. If that exercise is undertaken in relation to the words the respondents submit encapsulates the proper meaning of “is able”, it will be seen that the replacement of “is able” by the words “because of some legal entitlement, whether contractual, in an industrial instrument or statute” would result in a wholly ungrammatical construction of s.341(1)(c)(ii) of the Act; and that is because these words are being read into s.341(1)(c)(ii) to qualify the operation of the words “is able”.
That the construction for which the respondents contend relies on the reading of words into s.341(1)(c)(ii) does not necessarily mean that that construction is incorrect; for it is permissible to read words into a statutory text. That can be done, however, only in certain circumstances. The circumstances in which this may be done were considered by the plurality in Taylor:[36]
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.
[36] [2014] HCA 9; (2014) 88 ALJR 473 at [38], cases referred to omitted
The plurality[37] referred to the three conditions identified by Lord Diplock in Wentworth Securities Ltd v Jones,[38] as reformulated by Lord Nicholls in Inco Europe Ltd v First Choice Distribution (a firm),[39] that must be satisfied before words will be read into a statutory provision. The preconditions identified by Lord Nicholls are as follows:
So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation . . .
[37] [2014] HCA 9; (2014) 88 ALJR 473 at [39]
[38] [1980] AC 74 at 105
[39] [2000] UKHL 15; [2000] 1 WLR 586 at 592
The plurality in Taylor said it was unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient.[40] Nevertheless, the plurality noted that Lord Diplock “laid emphasis on the task as construction and not judicial legislation”, that Lord Nicholls in Inco Europe observed that “even when Lord Diplock’s conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament”, and that in “Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution”.[41]
[40] [2014] HCA 9; (2014) 88 ALJR 473 at [39]
[41] [2014] HCA 9; (2014) 88 ALJR 473 at [40]
The respondents have not sought to support the construction for which they contend by reference to any of these principles of statutory construction. The basis of their preferred construction is what they submit has been the construction given to the expression “is able” in decided cases. My next task, therefore, is to examine the cases on which the respondents rely. The first case is the decision of the Full Bench of Fair Work Australia in Nulty v Blue Star Group Pty Ltd.[42]
[42] [2011] FWAFB 975; (2011) 203 IR 1
In Nulty the applicant claimed she was dismissed because she complained to the respondent’s general manager about her having been bullied and harassed by a manager. The Full Bench said:[43]
The issue is whether the criterion in s 341(1)(c)(ii) is met whenever an employee makes a complaint to a responsible senior manager as a mere incident of the employment relationship. We are inclined to think that is it [sic] not and that s 341(1)(c)(ii) contemplates that the employee is “able” to make the complaint by virtue of some provision in a statute or in an instrument such as a [sic] enterprise agreement or contract of employment. However, the appellant made no submissions on s 341(1)(c)(ii) and the respondent was not given an adequate opportunity to be heard in relation to this question. We do not think it appropriate to express a concluded view on that issue in the absence of argument.
[43] [2011] FWAFB 975, at [49]; (2011) 203 IR 1
According to the Full Bench, “is able” implies that the ability required by s.341(1)(c)(ii) must be one that exists “by virtue of some provision in a statute or in an instrument”. With respect, however, it is not entirely clear what the Full Bench intended to mean by this. Whatever the Full Bench intended to mean, the construction involves the reading of words into s.341(1)(c)(ii) of the Act, yet there is nothing to suggest the Full Bench directed its attention to the principles of statutory construction that apply when words are sought to be read into a statute.
The second case on which counsel for the respondents relies is the decision of Burnett FM (as his Honour then was) in Harrison v In Control Pty Ltd.[44] His Honour there considered a claim that the employee was dismissed because he made a complaint about the manner in which his employer managed the workplace. After referring to an example given by the Explanatory Memorandum of what would constitute the making of a complaint or inquiry in relation to an employee’s employment, Burnett FM said:[45]
The illustrations however, also serve to amplify the fact that the complaint must be sourced in an underlining contractual and/or statutory obligation governing the employer/employee relationship. In the case illustrated by the Explanatory Memorandum the employer’s implied contractual obligations and or statutory obligations concern those in respect of Workplace Health and Safety. Such an approach is consistent with the obiter view in Nulty v Blue Star Group Pty Ltd (Supra).
[44] [2013] FMCA 149
[45] [2013] FMCA 149 at [57]
Burnett FM does not in this passage purport to construe the words “is able” in s.341(1)(c)(ii) of the Act. It is unclear, however, what his Honour intended to mean by saying that the complaint must be “sourced in an underlining” statutory or contractual right or obligation governing the employer/employee relationship. It appears his Honour intended to say no more than that the complaint must relate to some statutory or contractual right or obligation governing, or which is incidental to, the employer/employee relationship.
Next, counsel relies on the decision of Jessup J in Murrihy v Betezy.com.au. Pty Ltd.[46] The employee in that case alleged her employer took adverse action against her by threatening to terminate her employment when the employee informed her employer that she proposed to seek legal advice about her entitlements. The employee submitted that her seeking advice from her solicitor about her entitlements constituted a complaint or inquiry in relation to her employment within the meaning of s.341(1)(c)(ii). The employer submitted that:[47]
s 341(1)(c)(ii) is not invoked when the employee’s “ability” to make a complaint or inquiry arises from nothing more than the absence of a prohibition upon proceeding in that way: what the section requires, they say, is a relevant provision of some kind, be it statutory, regulatory or contractual, or arising from some applicable grievance procedure, under which there is some provision for the making of a complaint or inquiry.
[46] [2013] FCA 908
[47] [2013] FCA 908 15 [140]
Jessup J did not expressly deal with this submission. His Honour, however, must have rejected it. His Honour found that the employee’s seeking legal advice “was a proposal by her to make an inquiry in relation to her employment within the meaning of s 341(1)(c)(ii) of the” Act, and that the employer’s threat to terminate her employment amounted to a contravention of s.340(1)(a)(iii) of the Act.[48] His Honour made these findings without finding, as his Honour would have had to find, had he accepted the employer’s submission, that there was some provision for the making of the complaint.
[48] [2013] FCA 908 15 [143]-[144]
Counsel for the respondents submit that the reasoning of Jessup J in Murrihy supports their preferred construction of “is able” because the complaint his Honour found came within s.341(1)(c)(ii) related to legal rights the employee had under her contract, and which were underpinned by the Act, and in particular by s.323(1) of the Act. Although it may be accepted this part of his Honour’s judgment is consistent with the construction for which the respondents contend, that does not mean his Honour’s reasoning supports that construction. There is nothing in his Honour’s reasons for judgment which suggest his Honour considered that the expression “is able” requires a complaint or inquiry “to be grounded on some source of legal entitlement, whether contractual, in an industrial instrument or statute”.
The fourth case on which the respondents rely is the decision of Dodds-Streeton J in Shea v TRUenergy Services Pty Ltd (No 6).[49] In that case the applicant submitted that “a complaint which an employee is able to make within the meaning of s 341(1)(c)(ii) of the Act should be broadly construed and requires no instrumental, statutory or contractual source”; and that, alternatively, “there were, in any event, statutory and/or contractual bases for her ability to make the relevant complaints”.[50] Her Honour held that “a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise”.[51] Her Honour also held (emphasis added):[52]
In my opinion, the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.
[49] [2014] FCA 271
[50] [2014] FCA 271 at [19]
[51] [2014] FCA 271 at [29(f)]
[52] [2014] FCA 271 at [625]
Whatever this passage may be taken to mean, her Honour did not intend to say that “is able” in s.341(1)(c)(ii) requires that there must be a statutory, instrumental, or contractual provision that conferred on the person an entitlement to make a complaint or inquiry. That is so because there was no statutory, instrumental, or contractual provision that entitled the applicant to make the complaints she alleged she made in relation to her employment. What, then, did her Honour intend to mean by the words “must be underpinned by an entitlement or right”? To answer that question, it would be useful first to examine how her Honour applied these words.
The applicant in Shea pleaded five matters which she alleged constituted complaints in relation to her employment within the meaning of s.341(1)(c)(ii) of the Act. In dealing with this part of the applicant’s case, Dodds-Streeton J first identified the statutory and contractual bases of the applicant’s complaints.[53] Although the applicant relied on a number of statutes, she principally relied on matters arising out of her contract of employment, and, in particular, elements of the employer’s policies that were incorporated as terms of her contract of employment. After identifying the relevant policies, her Honour examined each of the five pleaded complaints. In relation to the first pleaded complaint, her Honour found it “was a complaint that the applicant was able to make in relation to her employment”,[54] and that the “source of the ability to make such a complaint was the applicant’s contract of employment”.[55] In relation to the other four pleaded complaints, her Honour found that two were complaints the employee was able to make in relation to her employment.[56] It would appear from her Honour’s reasons that the requirement that the ability to make a complaint or an inquiry “must be underpinned by an entitlement or right” was intended to mean nothing more than that the complaint or inquiry must relate to a contractual, instrumental, or statutory entitlement held by the person who makes the complaint or inquiry.
[53] [2014] FCA 271 at [633]-[641]
[54] [2014] FCA 271 at [651]
[55] [2014] FCA 271 at [652]
[56] [2014] FCA 271 at [677], [730]
What I have said in the preceding three paragraphs assumes the respondents have correctly characterised Dr Interligi’s evidence as demonstrating that “shortly after the Applicant’s termination, recruitment for a replacement commenced and a replacement has since been hired”.[143] There are grounds, however, for doubting two aspects of that characterisation, and which provide additional reasons for not accepting the respondents’ submission that Mr Henry has no reasonable prospect of succeeding in his redundancy claim.
[143] Respondents’ Outline of Submissions, [60]
The first aspect is the submission that Dr Interligi’s evidence demonstrates it was “shortly after” Mr Henry’s termination that “recruitment for a replacement commenced”. It is true that in her affidavit Dr Interligi deposes that “[i]n or around early October 2014” she “began the process of internally recruiting a replacement for the Applicant’s former position”,[144] that she “hoped to locate an internal candidate who was familiar with the CIMIC Group’s project reporting methodology”,[145] and that she considered “whether there may be any potential candidates within the CIMIC Group’s operating companies who would be suitable for the Applicant’s former role”.[146] What Dr Interligi has deposed, however, could reasonably be characterised as being at odds with what she said in the email she sent to Mr Valderas on 28 November 2014. In that email, Dr Interligi said she “will [i]nvestigate potential internal candidates, including making contact with personnel on North West Rail as discussed”.[147] This could reasonably suggest Dr Interligi commenced her recruiting processes no earlier than 28 November 2014, some three months after Mr Henry’s employment was terminated.
[144] Interligi affidavit, [11]
[145] Interligi affidavit, [11]
[146] Interligi affidavit, [12]
[147] Interligi affidavit, annexure LI-4
The second aspect of the respondents’ characterisation of Dr Interligi’s evidence that is doubtful is that her evidence shows that Mr Henry’s position had been replaced. It is not obvious to me from Dr Interligi’s evidence that the job Mr Granda was engaged to undertake is the same as the job Mr Henry was required to undertake. Dr Interligi asserts that Mr Granda’s and Mr Henry’s jobs are the same, but that assertion is not immediately supported by comparing the job descriptions that applied to Mr Henry[148] and Mr Granda,[149] or comparing Mr Granda’s job description with the tasks Mr Henry undertook, as he alleges in his statement of claim.
[148] Interligi affidavit, annexure LI-3
[149] Interligi affidavit, annexure LI-13
For these reasons, I do not accept Mr Henry has no reasonable prospect of successfully prosecuting his redundancy claim.
Knowing Involvement
In his statement of claim, Mr Henry alleges Mr Valderas was involved within the meaning of s.550 of the Act in Leighton’s contraventions of s.340 and s.351 of the Act.[150]
[150] Statement of claim, [9.1]
I considered the principles governing the application of s.550 of the Act in Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd, where I said:[151]
[151] [2014] FCCA 721 at [246]-[248] (references omitted).
Section 550 of the Act is “drawn in terms very similar to those of s.75B” of what is now the Competition and Consumer Act 2010 (Cth). That means that authorities which expound and construe s.75B of that Act are relevant to the meaning of s.550 of the Act. A useful statement of those principles was given by Lindgren J in Australian Competition and Consumer Commission v Giraffe World Australia Pty Limited (No 2).
In Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661, in which the managing director of a vendor’s corporate agent was held not liable by reason of s.75B(1) for the vendor’s misrepresentation, Mason ACJ, Wilson Deane and Dawson JJ held in a joint judgment (at 670) that:
· for a person to be “knowingly concerned in” a contravention, he or she must have “knowledge of the essential facts constituting the contravention”;
· The word “knowingly” in para (c) qualifies the expression “concerned in” and not “a party to”; and
· “the proper construction of par (c) requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention.”
In the same case, Brennan J said that under s.75B, civil liability is imposed only on “those who engage in the conduct prescribed in s.75B with the state of mind ... call[ed] mens rea” (at 673).
Lindgren J noted, however, that it “is not required that the accessory should have appreciated that the conduct was unlawful”.
Also relevant is the following passage from the reasons for judgment of the Full Federal Court in Construction, Forestry, Mining and Energy Union v Clarke:
Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators . . . . The words “party to, or concerned in” reflect that concept. The accessory must be implicated or involved in the contravention . . . or . . . must participate in, or assent to, the contravention.
From these principles, it will be seen that before a person can be taken to be involved within the meaning of s.550 of the Act in another person’s contravention of a provision of the Act, it is necessary that the person participate in the contravening conduct, and that the person had actual knowledge of the essential facts which constitute the contravention of the provision of the Act.
The statement of claim does not allege any facts that indicate Mr Valderas participated in the contraventions of s.340 and s.351 alleged against Leighton. Nor does the statement of claim plead facts which indicate the knowledge Mr Valderas is alleged to have had of the facts constituting the elements of Leighton’s contraventions of s.340 and s.351 of the Act as alleged in the statement of claim. For this reason, this part of the statement of claim should be struck out because it does not state the material facts on which Mr Henry relies.[152]
[152] Federal Court Rules 2011 (Cth) r.16.02(1)(d)
In his written submissions, Mr Henry asserts that Mr Valderas was the decision-maker, and there could be no doubt he was knowingly involved. Whether that is so or not is not to the point. The minimum requirement of procedural fairness is that the person who makes a claim against another person must give the other person fair notice of the claim. In these proceedings, Mr Henry has elected to give notice of his claim against Leighton and Mr Valderas by filing a statement of claim. Under the rules that govern pleadings in this Court, a pleading must state the material facts on which the person pleading relies that is necessary to give to the opposing party fair notice of the case to be made by that person at trial.[153] There can be no doubt that it is necessary for Mr Henry to state the material facts on which he relies in his claims against Mr Valderas to give Mr Valderas fair notice of the case Mr Henry will make at trial against Mr Valderas.
[153] Federal Court Rules 2011 (Cth) r.16.02(1)(d)
Conclusions and disposition
In my opinion, the respondents:
a)have not succeeded in their contention that Mr Henry has no reasonable prospect of succeeding in his claims against Leighton based on s.340(1), s.351(1), and s.119 of the Act;
b)have succeeded in their contention that Mr Henry has no reasonable prospect of succeeding in his claims against Leighton based on s.345 of the Act; and
c)have succeeded in their contention that the statement of claim does not plead valid causes of action against Mr Valderas based on his being involved in the contraventions Mr Henry alleges against Leighton.
I propose, therefore, to order that there be struck out from the statement of claim those paragraphs that relate to the misrepresentation claim and the involvement claim. Those claims are expressed in paragraphs 6.8(b), 6.9, 6.10, 9.1, 10.2(c), and 11.1 of the statement of claim. I propose, however, to grant Mr Henry liberty to re-plead his claims against Mr Valderas, if he is so advised. I will also order that there be struck out paragraphs 4.1-4.9 of the statement of claim which relate to Mr Henry’s bonus. I will otherwise dismiss the respondents’ application in a case filed on 24 April 2015, reserve the question of costs, and stand the matter over for directions to a date to be fixed
I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 16 July 2015
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