Henry v Leighton Admin Services Pty Ltd & Anor

In the Federal Circuit Court of Australia, Judge Manousaridis considered an application by Henry against Leighton Admin Services Pty Ltd and another party. The dispute concerned alleged contraventions of the Fair Work Act 2009 (Cth), including general protections and National Employment Standards relating to redundancy. A key procedural issue was whether the applicant had a reasonable prospect of successfully prosecuting these claims, as contemplated by s 17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth).

The court was required to determine several legal issues. These included whether a complaint or inquiry made by an employee under s 341(1)(c)(ii) of the Fair Work Act requires a legal entitlement, and whether a complaint about an employer's financial disclosure obligations under the Corporations Act 2001 (Cth) was made "in relation to" the employee's employment. Further, the court had to consider whether an opinion advocating for compliance with the Corporations Act constituted a "political opinion" under s 351(1) of the Fair Work Act, and whether alleged representations were about workplace rights and were false or misleading. Finally, the court examined whether the applicant's employment was terminated because the job was no longer required to be done by anyone, and whether the second respondent was a person involved in the alleged contraventions.

Judge Manousaridis reasoned that assessing a "reasonable prospect of successfully prosecuting the proceeding" involves two distinct considerations: the likelihood of proving asserted facts and the likelihood of persuading the court that applicable legal principles entitle the applicant to a remedy. The court is generally better positioned to determine the latter in advance of a trial, assuming the asserted facts are true. If no reasonably arguable legal principles exist that would grant relief even if the facts are proven, then the applicant will be found to have no reasonable prospect of success. The court's analysis focused on whether the pleaded facts, if established, could support a cause of action under the relevant provisions of the Fair Work Act and the Corporations Act.