Huang v Allied Pinnacle Pty Limited
[2022] FedCFamC2G 932
Federal Circuit and Family Court of Australia
(DIVISION 2)
Huang v Allied Pinnacle Pty Limited [2022] FedCFamC2G 932
File number(s): SYG 1401 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 11 November 2022 Catchwords: PRACTICE AND PROCEDURE – Industrial law – application to strike out paragraphs of statement of claim that allege the exercise of workplace rights based on the making of complaints or inquiries in relation to employment – whether necessary to allege entitlement or right to make a complaint or inquiry in relation to employment – reasonably arguable it is not necessary to so allege – application to strike out paragraphs of the statement of claim is dismissed. Legislation: Fair Work Act 2009 (Cth) ss 340(1), 341, 352
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 169
Cases cited: Alam v National Australia Bank Limited [2021] FCAFC 178
Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16
El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
Division: General Number of paragraphs: 50 Date of hearing: 9 November 2021 Place: Sydney Solicitor for the Applicant: Mr R Aslanian of Connect Legal, by telephone Counsel for the Respondent: Mr H Pararajasingham, by telephone Solicitor for the Respondent: Gilbert + Tobin ORDERS
SYG 1401 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JING (NANCY) HUANG
Applicant
AND: ALLIED PINNACLE PTY LIMITED (ABN: 85 161 203 005)
Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
11 November 2022
THE COURT ORDERS THAT:
1.The application in a proceeding filed by the respondent on 1 October 2021 is dismissed.
2.Orders 3, 4, 5, and 6 of the orders made on 17 August 2021 are discharged.
3.By 9 December 2022 the respondent file and serve its defence
4.The matter be referred to a Registrar for mediation on a date to be fixed by the Registrar pursuant to s 169 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
5.If mediation is unsuccessful the matter be relisted for a directions hearing at a time and date to be fixed.
6.The parties have liberty to apply on such notice as the circumstances warrant, including liberty to apply to vary or discharge orders 3, 4, and 5 of these orders.
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
The respondent (APPL) applies for an order that a number of paragraphs of the statement of claim be struck out on the ground the paragraphs do not disclose a reasonable cause or causes of action. APPL contends that the statement of claim does not plead facts that could reasonably be held to disclose a reasonably arguable case that the applicant had a “workplace right” within the meaning of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (FW Act).
I will begin by setting out the allegations made in the statement of claim. (Expressions I have included in bold below are expressions used in the statement of claim.)
The statement of claim
The applicant, Ms Huang, commenced employment with APPL in about October 2017 as a costs accountant.[1] Ms Huang worked Monday to Friday, from 9:00 am to 5:00 pm and was paid a salary of $102,100 per annum, plus superannuation at the statutory rate.[2]
[1] Statement of Claim, [4]
[2] Statement of Claim, [6]
APPL is Australia’s largest end-to-end bakery ingredient supplier, producing flour, premixes, and prepared baker products. APPL employs approximately 1,300 workers, including at flour mills it operates in Kensington, Victoria, and in Picton, New South Wales.[3]
[3] Statement of Claim, [3]
In or about March 2018 Mr Wilkins, APPL’s manager of the Kingsgrove site, informed Ms Huang that APPL’s previous manager of the Kingsgrove site, Mr O’Connor, had been dismissed because of poor financial results; and Mr Wilkins would need to work closely with Ms Huang to improve APPL’s financial results, in circumstances where APPL was for sale, and a better financial result would mean a better sale price.[4]
[4] Statement of Claim, [17]
In or about April 2018 APPL’s finance manager, Mr Bozic, said to Ms Huang that APPL was for sale; there was interest from a buyer; and APPL would do anything to achieve the sales price it was aiming for, especially in circumstances where senior managers would receive a substantial bonus.[5]
[5] Statement of Claim, [18]
In or about May 2018 Ms Huang attended a meeting at the Kingsgrove site with Mr Wilkins, Mr Lam (APPL’s maintenance manager), and Mr Singh (APPL’s engineering manager).[6]
(a)Mr Wilkins said there was a potential buyer, but financial results required an immediate improvement. The maintenance expenses were too high, and Mr Lam and Mr Singh were required to identify maintenance expenses that could be transformed into capital expenditure.
(b)Mr Lam said that the maintenance expenses are related to repair, and are not related to capital expenditure.
(c)Mr Wilkins directed Ms Huang to move those selected maintenance expenses into the capital expenditure figures, and this needed to commence retrospectively from March 2018 (Capex Transfer direction).
(d)Ms Huang said the Capex Transfer direction was objectionable because the correct procedure was to apply for capital expenditure, have it approved, and then spend the capital (First Capex complaint).
(e)Mr Wilkins said to Ms Huang words to the effect of requiring her to undertake the Capex Transfer direction, irrespective of Ms Huang’s objection, and that procedures could improve later, and APPL needed to produce better financial results.
(f)Mr Singh and Mr Lam said that the better the financial results the higher the sale price.
[6] Statement of Claim, [19]
In or about May 2018 Ms Huang and Mr Wilkins had a discussion during which:[7]
(a)Mr Wilkins directed Ms Huang to allocate labour costs, associated with the loss of production caused by a capital expenditure project, to the capital expenditure project itself;
(b)Ms Huang said that any loss of production did not add any value to the capital expenditure project and, therefore, any labour costs associated with the production line could not be allocated as a capital expenditure on the project and should not be added to the capital expenditure project (Second Capex complaint); and
(c)Mr Wilkins said he could not lose any money by reason of the project, but the project should be accountable to the loss in labour costs, and Ms Huang should also add the loss associated with the tonnage of products that APPL should not produce and in addition to the loss of the labour cost, be moved to the capital expenditure project.
[7] Statement of Claim, [21]
In June 2018 Ms Huang and Mr Wilkins had a discussion during which:[8]
(a)Mr Wilkins directed Ms Huang to allocate the value of the loss of production caused by the lift being broken, to the lift capital expenditure project;
(b)Ms Huang objected to the direction on the basis that the project had been completed and the value of the production loss could not be allocated to the lift capital expenditure project (Third Capex complaint); and
(c)Mr Wilkins said there was more room in the budget for the lift capital expenditure project, and strongly asserted his direction.
[8] Statement of Claim, [22]
In meetings held in late May and June 2018 between Ms Huang, Mr Lam, and Mr Wilkins, Mr Wilkins and Mr Lam discussed which of the maintenance expenses would be transferred and re-categorised as capital expenditures; but Ms Huang repeated her objections in the same words by which she made the First Capex complaint (Fourth Capex complaint).[9]
[9] Statement of Claim, [24]
In July 2018 Mr Wilkins directed Ms Huang to allocate $7,000.00 of flour wastage, to the lift capital expenditure project; but Ms Huang objected to the direction “in circumstances the flour wastage had nothing to do with the lift capital expenditure project” (Fifth Capex complaint).[10]
[10] Statement of Claim, [25]
In or about August 2018 Ms Huang said to Mr Wilkins, words to the effect that: the capital expenditure forecasts were still open, even though projects were still closed; there was serious overspending in the capital expenditure figures; and the capital expenditure forecast needed to close immediately and should be closing after the project closes (Sixth Capex complaint).[11]
[11] Statement of Claim, [27]
Between June and September 2018 Mr Wilkins directed Ms Huang on a monthly basis to charge loss of production expenses to capital expenditure projects; and between June 2018 and January 2019 Mr Wilkins directed Ms Huang, Mr Lam, and Mr Singh to record the word “upgrade” on any capital expenditure application.[12]
[12] Statement of Claim, [29], [30]
In September 2018 Ms Huang told Ms Hedayati, APPL’s finance manager, that Mr Wilkins and APPL were improperly allocating maintenance and repair spending under capital expenditure, and were not following the proper processes and procedures, such as having the capital expenditure first approved (Seventh Capex complaint).[13]
[13] Statement of Claim, [31(a)]
On no less than three occasions, between September and December 2018, Ms Huang said to Mr Wilkins that capital expenditure forecasts were still open, even though projects were still closed; there was serious overspending in the capital expenditure figures; and the capital expenditure forecast needed to close immediately, and should be closing after the project closes (Eighth Capex complaint).[14]
[14] Statement of Claim, [32]
On no less than two occasions in December 2018 and January 2019 Ms Huang said to Mr Wilkins that, pursuant to Mr Wilkins’ directions, approximately $500,000 in operational expenses had been moved to capital expenditure, of which $40,000 related to labour costs, $70,000 to loss of production, and $20,000 to silo cleaning, and $7,000 to flour waste; and APPL needed to drastically reduce its spending (Ninth Capex complaint).[15]
[15] Statement of Claim, [34]
In about January 2019 Mr Lam informed Ms Huang that Mr Wilkins had directed him to ask Ms Huang to charge fire and smoke testing expenses to the Kingsgrove Innovation Capital Expense Account, but Ms Huang said she objected to that request because the Kingsgrove Innovation Capital Expense procedure would be breached, and the relevant expenses were not related to a capital expenditure (Tenth Capex complaint).[16]
[16] Statement of Claim, [35]
In or about July 2019, after on 27 February 2019 a purchaser had entered into an agreement to acquire APPL, Ms Huang said to Mr Wilkins that employees were complaining that Mr Wilkins had not approved invoices; the non-approval meant Ms Huang could not document the expenses for the month and the financial outlook would look improved; and Mr Wilkins should immediately approve the invoices by the end of the month and release the purchase orders (First Invoicing complaint).[17]
[17] Statement of Claim, [37]
In or about September 2019 Ms Huang said to Mr Wilkins that employees were complaining that Mr Wilkins had not approved invoices; the non-approval meant Ms Huang could not document the expenses for the month and the financial outlook would look improved; Mr Wilkins should immediately approve the invoices by the end of the month and release the purchase orders; and, absent of approval, Ms Huang would have to undertake manual accrual for those expenses to properly account for them in the figures (Second Invoicing complaint).[18]
[18] Statement of Claim, [38]
Also in September 2019 Mr Singh said to Ms Huang that Mr Wilkins had approved a capital expenditure project, known as the GMP upgrade project, and Mr Singh requested Ms Huang provide invoices from the Veolia rubbish removal service to enable him to allocate $20,000 of those invoices to the new project; but Ms Huang said she objected because rubbish removal expenses were not a capital expenditure, and once those invoices were attached, Ms Chow (APPL’s head of operations, finance) would surely recognise it was not a capital expenditure, and would not authorise it (Eleventh Capex complaint).[19]
[19] Statement of Claim, [39]
In about early October 2019 Mr Wilkins said to Ms Huang that he was looking for a new customer to purchase 300 tonnes of mixture which did not pass “the QA for the Donut King account”, and directed Ms Huang to set up an accounting system so that the Kingsgrove facility would receive the sales profit, as opposed to the sales team. Ms Huang said to Mr Wilkins she could not do that because she did not have the authority or approval; it needed an agreement between sales and operations; and it would be inappropriate for her to reassign the sales profit without authority (First Unauthorised Profit complaint).[20]
[20] Statement of Claim, [40]
By email sent on 8 October 2019 Ms Chow directed Ms Huang to write off $55,000 of the Donut King account stock each month. Pursuant to that direction, Ms Huang recorded $55,000 of the Donut King account stock to be written off in the first week of October; but, in the second week of October, the inventory controller told Ms Huang that APPL could only move out $16,000 worth of stock, because of a lack of trucks. That led Ms Huang to replace the $55,000 figure with the $16,000 figure.[21]
[21] Statement of Claim, [41]
On 5 November 2019 Ms Huang attended a boardroom meeting with Ms Chow and Ms Hedayati during which Ms Chow told Ms Huang she had behavioural issues, and questioned Ms Huang about the Donut King account calculation, communication and business partnering; and if the performance did not improve there would be formal performance management (First Adverse Action). Ms Huang responded that her decision to record $16,000, rather than $55,000, was based on sound accounting principles (First Truthful Reporting complaint); and that Ms Hedayati did not provide enough support or direction and she was rarely at the worksite (First Bullying complaint). Ms Chow told Ms Huang she should really think about whether she was suitable for her job.[22] (The statement of claim includes this last allegation as part of the First Adverse Action.)
[22] Statement of claim, [42]
On 5 November 2019 Ms Hedayati sent an email to Ms Huang stating that Ms Huang was being performance counselled in relation to the accuracy of her work and partnership.[23] (The statement of claim also includes this last allegation as part of the First Adverse Action.)
[23] Statement of Claim, [43]
On 18 December 2019, during a budget meeting, Ms Hedayati criticised Ms Huang’s estimated labour costs for APPL’s Picton facility, in circumstances where Ms Huang’s estimations were correct, and Ms Huang’s estimations had already been read and approved in the budget by Ms Hedayati, Ms Chow, and Mr Wilkins (Second Adverse Action).[24]
[24] Statement of Claim, [44]
In January 2020 Ms Chow sent an email to Mr Wilkins, Ms Hedayati, and Ms Huang requesting a review of the repair and maintenance expenses for APPL’s Kingsgrove, Tennyson, and Picton facilities to see if they can be of a capital nature. Ms Huang told Mr Lam that senior management’s request that more expenses be identified as of a capital nature was contrary to policy and procedure, as capital expenses could not be retrospective in nature and had to first be approved (Twelfth Capex complaint).[25]
[25] Statement of Claim, [45]
At a meeting held on 20 February 2020 between Ms Huang, Mr Wilkins, Mr Singh, Ms Hedayati, and others, Ms Huang was directed to move into capital expenses costs APPL had incurred in rectifying an audit breach (Aryzta Capex direction); but Ms Huang objected stating that this would be contrary to policies, procedure, and truthful reporting as capital expenditure must first be approved before being spent (Thirteenth Capex complaint).[26] Later in the day, Mr Wilkins asked Ms Huang how much capex APPL needed to apply for February 2020. Ms Huang alleges this constituted adverse action (Third Adverse Action) because Ms Huang alleges Mr Wilkins asked this question knowing that capital expenditure had to be approved within the operations management, and this had not been approved or authorised by Ms Huang.[27]
[26] Statement of Claim, [46]
[27] Statement of Claim, [46]
On 25 February 2020 Ms Huang received an email from Ms Hedayati attaching a letter dated 24 February 2020 from Ms Govic, an officer in APPL’s Human Resources department, stating that Ms Huang would be placed on a formal performance review, including for reasons of her accuracy of numbers and communication and business partnering (Fourth Adverse Action).[28]
[28] Statement of Claim, [47]
On or about 27 February 2020 Ms Huang said to Mr Wilkins that Ms Hedayati was bullying her, and unreasonably criticising her work (Second Bullying complaint).[29]
[29] Statement of Claim, [48]
At a meeting on 28 February 2020 Ms Huang attended with Ms Hedayati and Ms Govic, Ms Govic told Ms Huang that Ms Huang was missing production meetings, and she did not accurately report figures. Ms Huang said she was reporting accurate figures using basic accounting principles; Ms Huang on some occasions did not attend production meetings with Ms Chow’s authority; Ms Hedayati was bullying and victimising Ms Huang; Ms Hedayati was a poor communicator and did not provide notice when she was on leave; and Ms Hedayati was prepared to mediate the matter with Ms Hedayati (28 February 2020 complaint).[30]
[30] Statement of Claim, [49]
On or about 6 March 2020 Ms Huang told Ms Hedayati that she objected to the Aryzta Capex direction in circumstances where a large number of expenses, including cleaning, waste treatment, consumables, and labour costs were not capex related, and senior management would not approve the expenditure (Fifteenth Capex complaint).[31] Ms Hedayati requested Ms Huang to email the expense list, in response to which Ms Huang emailed to Ms Hedayati the full list of expense items with a detailed description of items, dates, dollar amount, and category summary. Ms Huang then received a letter dated 5 March 2020 authored by Ms Govic stating that Ms Huang was being provided with a first warning for performance issues (Fifth Adverse Action).[32]
[31] Statement of Claim, [50]
[32] Statement of Claim, [50]
On 21 May 2020 Ms Govic sent an email to Ms Huang titled “Invite to Fact Finding Meeting”. The email alleged performance issues, including “the $18,000.00 MUV variants” and disobeying a direction from Ms Hedayati to not include labour spend in a “QA spending report” (Sixth Adverse Action).[33]
[33] Statement of Claim, [54]
On 26 May 2020 Ms Huang telephoned Mr Wilkins in which she said that Ms Hedayati’s complaints in relation to the “the $18,000 MUV variants” were untrue; that this was a form of bullying; and Ms Hedayati’s continued unreasonable criticisms of her work were without justification, and constituted a form of harassment (Third Bullying Complaint).[34] Further:
(a)at 12:57 pm on 27 May 2020 Ms Huang emailed Ms Hedayati’s supervisor, Mr Acharya, that she was being bullied and harassed;
(b)on 27 May 2020 Ms Huang telephoned Ms Govic telling her that she was being bullied and harassed by Ms Hedayati, and she would be making a formal complaint (27 May 2020 complaints);[35] and
(c)on 28 May 2020 Ms Huang sent multiple emails to Ms Hedayati and Ms Govic disputing the performance issues, setting out her truthful reporting obligations, and providing a detailed summary of events (28 May 2020 complaints).[36]
[34] Statement of Claim, [55]
[35] Statement of Claim, [56]
[36] Statement of Claim, [57]
On 29 May 2020 Ms Huang attended a fact-finding meeting with Ms Hedayati and Ms Govic during which Ms Huang said she did not have an attitude issue, and gave as an example Ms Huang’s not removing the labour costs in the “QA report” but subsequently doing so when Ms Hedayati asked her to do so (Second Truthful Reporting complaint).[37] Ms Huang later complained to Mr Wilkins that she was being bullied and harassed; that some directions to her were inappropriate, and contrary to accounting practices, which resulted in misleading reporting and did not reflect the actual finances (29 May 2020 complaints).[38] Mr Wilkins responded by stating Ms Huang was not suitable for the work; her position was low; she was not a senior executive; she was required to follow his directions; if Ms Huang was unhappy she should quit her job; she was not liked by other management; there would be a third performance meeting after which Ms Huang will be dismissed (Seventh Adverse Action).[39]
[37] Statement of Claim, [58.a.]
[38] Statement of Claim, [58.b.i.]
[39] Statement of Claim, [58.b.ii.]
From at least 29 May 2020 Ms Huang has suffered a disability, being a “psychological injury caused by workplace stress and anxiety and clinically diagnosed with major depressive disorder, with anxious distress and hypertension”.[40] On 1 June 2020, when Ms Huang was diagnosed with depressive anxiety disorder, and was certified as unfit for work, Ms Huang emailed a Mr Lee and Ms Govic a formal complaint under APPL’s grievance policy, in which she complained she had been bullied and harassed (1 June 2020 complaint).[41]
[40] Statement of Claim, [59]
[41] Statement of Claim, [60]
On 24 June 2020 Ms Huang filed a worker’s compensation claim in which she claimed she suffers from a disability because of workplace bullying and harassment.[42] From 1 June 2020 to 18 December 2020 Ms Huang was absent from work because of her disability. On 24 November 2020 the insurer for APPL rejected Ms Huang’s worker’s compensation claim on the basis that the psychological injury was wholly or predominantly caused by APPL’s reasonable action; and Ms Huang’s worker’s compensation benefits were to cease on 18 December 2020.[43]
[42] Statement of Claim, [61]
[43] Statement of Claim, [62]-[63]
From 19 December 2020 to 4 February 2021 Ms Huang was absent from work because, due to her disability, she was unfit for work. Ms Huang was on a period of paid personal leave during this time.[44] Ms Huang was also absent from work, due to her disability, from 5 February 2021 to 12 March 2021. During this time Ms Huang was on a period of paid annual leave.[45]
[44] Statement of Claim, [64]
[45] Statement of Claim, [65]
By letter dated 28 January 2021 Ms Govic noted to Ms Huang that she had been absent from and had been unfit for work since 1 June 2020, and that APPL sought Ms Huang’s consent for APPL to have a discussion with Ms Huang’s doctor for the purpose of reviewing Ms Huang’s continued employment. On 19 February 2021 Ms Huang’s doctor emailed Ms Govic an opinion that Ms Huang would be unlikely to ever return to her pre-injury duties. On 2 March 2021 Ms Govic emailed Ms Huang stating that, given it is unlikely Ms Huang was ever to return to her pre-injury duties, APPL was forming the view there was no reasonable adjustment, and there were no other suitable duties for Ms Huang to perform; and invited Ms Huang to provide any written response before a decision is made to terminate Ms Huang’s employment.[46]
[46] Statement of Claim, [66]-[68]
On 5 March 2021 Ms Huang wrote to Ms Govic complaining that APPL failed to provide a safe workplace, and did not investigate the 1 June 2020 complaint (5 March 2021 complaint).[47]
[47] Statement of Claim, [70]
On 15 March 2021 APPL terminated Ms Huang’s employment (Dismissal Adverse Action).
In a way that it will be unnecessary to set out here, the statement of claim alleges that the complaints I have set out above constitute the exercise of workplace rights, and that APPL engaged in each of the adverse actions because Ms Huang exercised one or more of those workplace rights and, for that reason, contravened s 340(1) of the FW Act. Further, Ms Huang alleges that APPL terminated Ms Huang’s employment not only because she exercised workplace rights but also because of her disability and, for that reason, also contravened s 352 of the FW Act.
APPL’s aPPLICATION and parties’ submissions
APPL applies to strike out those paragraphs of the statement of claim that allege the following complaints (“Complaint Paragraphs”). These are:
(a)Paragraph 19 (First Capex complaint).
(b)Paragraph 21 (Second Capex complaint).
(c)Paragraph 22 (Third Capex complaint).
(d)Paragraph 24 (Fourth Capex complaint).
(e)Paragraph 25 (Fifth Capex complaint).
(f)Paragraph 27 (Sixth Capex complaint).
(g)Paragraph 31 (Seventh Capex complaint).
(h)Paragraph 32 (Eighth Capex complaint).
(i)Paragraph 34 (Ninth Capex complaint).
(j)Paragraph 35 (Tenth Capex complaint).
(k)Paragraph 37 (First Invoicing complaint).
(l)Paragraph 38 (Second Invoicing complaint).
(m)Paragraph 39 (Eleventh Capex complaint).
(n)Paragraph 40 (First Unauthorised Profit complaint).
(o)Paragraph 42(b)(i) (First Truthful Reporting complaint).
(p)Paragraph 45 (Twelfth Capex complaint).
(q)Paragraph 46(c)(iii) (Thirteenth Capex complaint).
(r)Paragraph 46(d) (Fourteenth Capex complaint).
(s)Paragraph 50(a) (Fifteenth Capex complaint).
(t)Paragraph 58(a)(iii) (Second Truthful Reporting complaint).
APPL also applies to strike out three paragraphs of the statement of claim - paragraphs 29, 30, and 41 - that do not allege any complaint.
APPL relies on the one ground to strike out the “Complaint Paragraphs”; and that is that none of the paragraphs identify the source of any entitlement or right to make a complaint. This submission is premised on the legal proposition that “is able” in s 341(1)(c) of the FW Act to “make a complaint or inquiry . . . in relation to [a person’s] employment” requires “an entitlement or right to make a complaint in relation to the employee’s employment”, and, for that reason, there “must be an identifiable source of that entitlement or right”. The quoted words are taken from the judgment of Rangiah and Charlesworth JJ in PIA Mortgage Services Pty Ltd v King, who also said:[48]
There are three obvious potential sources of an employee’s ability to make complaints which fall outside s 341(1)(a), (b) and (c)(i), but within (c)(ii). Those sources are legislative provisions that are not workplace laws, contractual terms providing a right to make complaints and the general law.
[48] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, at [12], [14], [16]
Ms Huang, on the other hand, refers to a number of authorities in the Federal Court of Australia and submits that at the very least it is reasonably arguable that “is able” does not require proof of an entitlement or right to make a complaint. In her written submissions Ms Huang referred to the Full Federal Court judgments in Cigarette & Gift Warehouse Pty Ltd v Whelan,[49] and Alam v National Australia Bank Limited.[50]
[49] Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16
[50] Alam v National Australia Bank Limited [2021] FCAFC 178
determination
I considered these authorities in El-Hajje v Rissalah College Limited and concluded as follows:[51]
I do not interpret the Full Federal Court in Alam as having endorsed the view that “is able” in s 341(1)(c)(ii) of the FW Act necessarily requires that such ability be underpinned by an entitlement or legal right. I interpret the Full Federal Court either as having decided that “is able” in s 341(1)(c)(ii) of the FW Act does not necessarily require that an ability to make a complaint or inquiry in relation to a person’s employment be underpinned by an entitlement or legal right, or as having decided that it is an open question, to be determined in an appropriate case, whether an ability to make a complaint or inquiry in relation to a person’s employment must be underpinned by an entitlement or legal right.
[51] El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260, at [23]
Having considered the parties’ submissions in this case, there is nothing that would lead me to revise my understanding of the cases I have set out in El-Hajje, or the conclusion I arrived at in that case. For those reasons, I am not satisfied that Ms Huang does not have reasonable prospects of succeeding on any of her causes of action based on her having made an alleged complaint, only because the statement of claim does not allege Ms Huang had an entitlement or legal right to make a complaint or inquiry in relation to her employment. APPL’s application to strike out the “Complaint Paragraphs”, therefore, fails.
APPL applies to strike out paragraphs 29 and 30 of the statement of claim because it submits it is not apparent how they relate to a workplace right. I accept Ms Huang’s submission that these paragraphs relate to the complaints in paragraphs 31-35 of the statement of claim. APPL applies to strike out paragraph 41 on the ground it is not apparent how that paragraph relates to a workplace right. Ms Huang has stated she does not press this paragraph as an exercise of rights.
Disposition and further progress
APPL has succeeded in relation to one paragraph of the statement of claim. I will not make an order to strike out paragraph 41 of the statement of claim to avoid unnecessary costs. APPL in its defence need only note that Ms Huang does not rely on paragraph 41.
I will therefore order that APPL’s application in a proceeding be dismissed. I will also set aside orders 3, 4, 5, and 6 of the orders I made on 17 August 2021. In their place I will order that APPL file and serve its defence by 9 December 2022, and refer the matter to mediation. I will grant the parties liberty to apply to vary or discharge the orders I propose to make for the filing of a defence, and the referral of the matter to mediation.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 11 November 2022
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