Johnson v A.T. Kearney Australia Pty Ltd
[2024] FedCFamC2G 1388
•13 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Johnson v A.T. Kearney Australia Pty Ltd [2024] FedCFamC2G 1388
File number(s): SYG 1455 of 2024 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 13 December 2024 Catchwords: INDUSTRIAL LAW – application to strike out statement of claim because it does not allege or sufficiently allege material facts that reasonably enable the respondent to meet the case against it – statement of claim be struck out with leave to replead. Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 351, 360, 361
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) Sch 1, r 1.06(1)
Federal Court Rules 2011 (Cth) rr 16.02, 16.21
Cases cited: Alam v National Australia Bank Limited [2021] FCAFC 178
Australian Building and Construction Commissioner v Hall [2018] FCAFC 83
Banque Commerciale SA (En liq) v Akhil Holdings Ltd (1990) 169 CLR 279
Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429; (1997) ATPR 41-434
Berry v CCL Secure Pty Ltd [2020] HCA 27
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Bruce v Oldhams Press Ltd [1936] 1 KB 697
Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Stanwell Corporation Ltd (No 2) [2014] FCA 593
Concrete (Vic) Pty Ltd & Ors [1997] FCA 1040; (1997) ATPR 41-591
Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Director of The Fair Work Building Industry Inspectorate v Construction, Forestry, Mining And Energy Union & Ors (No.2) [2016] FCCA 3322
Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162
El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260
Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; (2011) 209 IR 263
Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923
Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75
Letang v Cooper [1965] 1 QB 232
McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; (1999) 165 ALR 409
Messenger v Commonwealth of Australia [2022] FCA 677
Qantas Airways Limited v Transport Workers’ Union of Australia [2023] HCA 27
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
Toki v All Class Training Pty Ltd [2024] FedCFamC2G 566
Division: Fair Work Number of paragraphs: 40 Date of hearing: 29 November 2024 Place: Sydney Solicitor for the Applicant: Mr M Lynch of Gorval Lynch, by video Counsel for the Respondent: Mr R Glavas, by video Solicitor for the Respondent: Baker McKenzie ORDERS
SYG 1455 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TOYIN JOHNSON
Applicant
AND: A.T. KEARNEY AUSTRALIA PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
13 DECEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to r 16.21(1)(d) of the Federal Court Rules 2011 (Cth), the statement of claim be struck out.
2.The applicant have leave to file an amended statement of claim.
3.The proceeding be listed for a directions hearing at 9.30 am on 19 December 2024.
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 (ATKA) applies for an order pursuant to r 16.21(1)(d) of the Federal Court Rules 2011 (Cth) (FC Rules) [1] that the statement of claim be struck out or, in the alternative, that particular paragraphs of the statement of claim be struck out. ATKA contends that the statement of claim does not plead sufficient facts to enable it to meet the case the applicant, Mr Johnson, seeks to advance against it; and, for that reason, the statement of claim, in its current form, is likely to cause prejudice, embarrassment, or delay in the proceeding.
[1] Which is incorporated into the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (GFL Rules) by the operation of r 1.06(1) and Schedule 1 to the GFL Rules.
It is necessary to begin with the allegations made in the statement of claim.
THE STATEMENT OF CLAIM
In his statement of claim Mr Johnson alleges as follows:
(a)Mr Johnson commenced employment with ATKA on 25 September 2023 as a senior manager.[2]
[2] Statement of claim, [4]
(b)On 29 February 2024, while Mr Johnson was talking to Mr Bustos-McNeil, a “Partner of the Respondent”, about a task Mr Johnson had been working on with one of ATKA’s clients, Mr Bustos-McNeil raised his voice and swore at Mr Johnson, belittled him, accused Mr Johnson of “going rogue”; and discriminated against Mr Johnson on the basis of his race by saying that Mr Johnson was “an aesthetic addition” (Discrimination 1).[3]
[3] Statement of claim, [5]
(c)On 29 August 2024 Mr Johnson made a complaint to Mr Bustos-McNeil regarding Mr Bustos-McNeil’s conduct on 29 February 2024 (Complaint 1).[4] The particulars to this allegation are: “verbal conversation between the Applicant and Mr Bustos-McNeil on 29 February 2024”.
[4] Statement of claim, [6]
(d)Complaint 1 was a complaint in relation to Mr Johnson’s employment, as it related to Mr Bustos-McNeil’s conduct in the workplace by a person with whom Mr Johnson regularly worked.[5]
[5] Statement of claim, [7]
(e)On 4 April 2024 Mr Johnson sent an email to Mr Bustos-McNeil requesting to redeem Friday, 29 March 2024, as a “day-in-lieu” (Inquiry 1).[6] That was an inquiry in relation to Mr Johnson’s employment as it related to the hours Mr Johnson worked for ATKA.[7] By email sent on 4 April 2024 Mr Bustos-McNeil denied Mr Johnson’s request.[8]
[6] Statement of claim, [8]
[7] Statement of claim, [9]
[8] Statement of claim, [10]
(f)On or about 5 April 2024 Mr Johnson informed Mr Bustos-McNeil by email that Mr Johnson would need to return to Sydney one day earlier than the rest of the team to partake in the Eid festivities at the end of Ramadan (Inquiry 2).[9] That was an inquiry in relation to Mr Johnson’s employment, as it related to an adjustment of Mr Johnson’s work-related travel.[10]
[9] Statement of claim, [11]
[10] Statement of claim, [12]
(g)On or about 3 April 2024 Mr Bustos-McNeil discriminated against Mr Johnson on the ground of Mr Johnson’s religion (Discrimination 2). The discrimination occurred in a face-to-face verbal conversation during which Mr Bustos-McNeil said to Mr Johnson: “Is this Ramadan thing going to keep being an interruption?”[11]
(h)On 11 April 2024 Mr Hone, the “Principal of the Respondent”, bullied Mr Johnson during a discussion regarding Mr Johnson’s scope of works on the project he was working on. The bullying is alleged to have occurred during a conversation between Mr Johnson and Mr Hone in which Mr Hone said to Mr Johnson: “We all know the nasty vibes you bring to your teams”.[12]
(i)On 11 April 2024 Mr Johnson made an inquiry of Mr Hone by asking Mr Hone if Mr Hone could elaborate on what he meant when he said to Mr Johnson: “We all know the nasty vibes you bring to you teams” (Inquiry 3).[13] That inquiry was in relation to Mr Johnson’s employment because it concerned the conduct of Mr Hone in the workplace, by a person who worked with Mr Johnson on a regular basis.[14]
(j)On 11 April 2024 Mr Hone responded to “Inquiry 3” by threatening to terminate Mr Johnson’s employment. The threat is alleged to have been conveyed by Mr Hone stating to Mr Johnson the following:[15]
You can laugh, or you can try to disguise your cruelty with this flowery accent or your affected vocabulary, but you should know one thing. Here at Kearney, we are a family. A family of nice people. You, Toyin, are not a nice person. Maybe you should think about that and ask whether you deserve to be here.
(k)On 11 April 2024 Mr Booth terminated Mr Johnson’s employment. This occurred during a face-to-face conversation in which Mr Booth told Mr Johnson that his employment with ATKA was terminated with immediate effect.[16]
(l)The termination constituted ATKA’s taking adverse action against Mr Johnson; and ATKA did so because of Complaint 1, and Inquiry 1, Inquiry 2, and Inquiry 3. In so doing, ATKA contravened s 340(1) of the Fair Work Act 2009 (Cth) (FW Act).[17]
(m)Discrimination 1 and Discrimination 2 constituted the taking of adverse action against Mr Johnson by injuring him in his employment, and discriminating between him and other employees of ATKA;[18] and, moreover, ATKA took adverse action against Mr Johnson because of his race and because of his religion.[19] In so doing, ATKA contravened s 351(1) of the FW Act.[20]
[11] Statement of claim, [13]
[12] Statement of claim, [14]
[13] Statement of claim, [15]
[14] Statement of claim, [16]
[15] Statement of claim, [17]
[16] Statement of claim, [18]
[17] Statement of claim, [19]-[21]
[18] Statement of claim, [22]
[19] Statement of claim, [23]
[20] Statement of claim, [24]
PARTIES’ SUBMISSIONS
ATKA submits that the statement of claim does not comply with the rules of pleading, and in particular with r 16.02(1)(d) of the FC Rules. ATKA’s principal submission is that the statement of claim does not plead material facts, but instead alleges conclusions which repeat the words of s 340, s 341, s 342, and s 351(1) of the FW Act. ATKA also submits that, in relation to the cause of action based on Complaint 1, and on each of the three inquiries, the statement of claim does not articulate any underpinning right or entitlement for Mr Johnson to have made Complaint 1 and any of the inquiries.
Mr Johnson, on the other hand, while accepting that the allegation that constitutes Inquiry 2 may be insufficient because it relies on unstated implications, nevertheless submits that the statement of claim sufficiently pleads the material facts on which he relies and, for that reason, is not liable to be struck out in whole or in part.
PRINCIPLES
Pleading in general
I begin with the following statement from the judgment of Gageler J (as his Honour then was) and Edelman J in Berry v CCL Secure Pty Ltd :[21]
“The function of pleadings is to state with sufficient clarity the case that must be met” and thereby to “ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and . . . to define the issues for decision”.[22]. A plaintiff should be expected to plead all material facts on which the plaintiff relies to constitute the statutory cause of action, including any counterfactual on which that plaintiff relies to establish the requisite causal link between identified loss or damage and identified misleading or deceptive conduct. In the same way, a defendant resisting the statutory action should be expected to plead any different counterfactual on which that party might rely to deny the causal link. Unless and to the extent that the parties choose to depart from the pleadings in the way they go on to conduct the trial, choice between the competing pleaded counterfactuals on the balance of probabilities should then exhaust the fact-finding that is required to be undertaken by the court on the issue of causation.
[21] Berry v CCL Secure Pty Ltd [2020] HCA 27, at [72]
[22] Banque Commerciale SA (En liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286
The principal rule of pleading is that the pleading state the “material facts”. That is required by r 16.02(1)(d) of the FC Rules, which provides that a pleading must:
state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved . . .
The expression “material facts”, when used in the context of a statement of claim, are facts whose existence is “necessary for the purpose of formulating a complete cause of action”.[23] A “cause of action”, in turn, has been defined as “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”.[24]
[23] Bruce v Oldhams Press Ltd [1936] 1 KB 697 at 712 quoted with approval by Goldberg J in Angelo Mitanis & Anor v Pioneer Concrete (Vic) Pty Ltd & Ors [1997] FCA 1040; (1997) ATPR 41-591 at page 44, 152.
[24] Letang v Cooper [1965] 1 QB 232 at pages 242-243
Material facts are distinguished from a number of other things.[25] One is the evidence by which material facts are to be proved. Paragraph (d) of r 16.02(2) of the FC Rules requires that a pleading state the “material facts”, not the evidence by which the material facts are to be proved.
[25] In this and the following 2 paragraphs I repeat much of what I have said in Director of The Fair Work Building Industry Inspectorate v Construction, Forestry, Mining And Energy Union & Ors (No.2) [2016] FCCA 3322, at [16]-[19].
The second thing from which material facts are distinguished are “conclusions drawn from unstated facts”.[26] This expression, however, is not to be taken literally. The rule that a pleading must state material facts, but not the evidence by which they are to be proved, necessarily means that material facts will in most cases be conclusions of fact based on evidence and subordinate facts which the applicant intends to adduce and prove at the hearing, but which the applicant must not set out in the statement of claim. The expression “conclusions drawn from unstated facts”, rather, denotes two other classes of conclusion. One is conclusions that allege the breach of a legal rule without the applicant identifying the facts on which the applicant relies for alleging the breach of the legal rule. It is not permissible to allege such conclusions without alleging the facts on which such conclusion is based. This principle was stated by Weinberg J in McKellar v Container Terminal Management Services Ltd:[27]
A number of authorities support the proposition that a statement of claim must contain material facts, being the facts necessary for the purpose of formulating a complete cause of action, and that it is not sufficient simply to plead a conclusion drawn from unstated facts. . . A statement of claim which simply repeats the language of a provision of the Act, and then baldly asserts a contravention of that provision, without more, will be struck out.
[26] Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Stanwell Corporation Ltd (No 2) [2014] FCA 593 at [12]
[27] McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; (1999) 165 ALR 409 at [23]
The second class of conclusions are “conclusory words”, that is, conclusions based on facts that are not stated. Examples of conclusory words include “false”, “sham”, “purported”, “sufficient”, “reasonable”, “agree”, and “representation”. In Fair Work Ombudsman v Eastern Colour Pty Ltd Collier J held the conclusory words “sham”, “purported”, and “sufficient” could not be asserted in a statement of claim without the applicant also stating the facts on which they are based.[28]
[28] Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; (2011) 209 IR 263
The reason it is objectionable for a pleader to state conclusory words without also stating the facts on which the conclusory words are based is not so much that conclusory words necessarily are not material facts. As Collier J noted in Eastern Colour, pleading a conclusion may in some circumstances constitute a material fact.[29] The objection is that, if an applicant pleads conclusory words without stating the underlying facts, the respondent will not be notified, or sufficiently notified, of the facts on which the person alleging the conclusory words relies, and therefore the respondent will not be notified or sufficiently notified of the case the respondent has to meet. For that reason, pleading conclusory words is likely to “cause prejudice, embarrassment or delay in the proceeding”,[30] where “embarrassment”:[31]
carries the connotation of a pleading which is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense.
[29] Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; (2011) 209 IR 263 at [40]
[30] FC Rules, r 16.02(2)(d)
[31] Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429; (1997) ATPR 41-434, at [25]
The material facts of a cause of action based on alleged contravention of s 340(1)(c) of the FW Act
The material facts an applicant must allege in a statement of claim based on an alleged contravention of s 340(1) of the FW Act is determined by the text contained of s 340(1), as construed in the authorities. Subsection 340(1) relevantly provides:
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.
Adverse action
Three matters must be alleged in a cause of action based on a person’s having allegedly contravened s 340(1) of the FW Act.[32] First, the person must have taken “adverse action against another person”. That expression is defined in the table contained in s 342(1) of the FW Act, and it includes an employer dismissing an employee, and also an employer discriminating between the employee and other employees of the employer.
[32] In this section of my reasons I have repeated much of what I said in Toki v All Class Training Pty Ltd [2024] FedCFamC2G 566, at [74]-[91].
“Has or has not exercised workplace right”
The second matter that must be alleged is that the employee against whom the employer has taken adverse action has, or has exercised, or has not exercised, a “workplace right”. That expression is defined in s 341(1) of the FW Act, which relevantly provides:
A person has a workplace right if the person:
. . . .
(c)is able to make a complaint or inquiry:
(i) . . . .
(ii) if the person is an employee – in relation to his or her employment.
Complaint or inquiry
The Full Federal Court recently explained the notion of “complaint” for the purposes of s 341(1)(c) of the FW Act as follows:[33]
In the context of s 341(1)(c), the term “complaint” connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy at [579]‑[581]; Cummins South Pacific at [13] per Dodds‑Streeton J. Her Honour continued, at [626]‑[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.
The distinction between a complaint and a mere request for assistance had been made in earlier authorities: Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99, (2005) 144 FCR 347 at [36]‑[37]; and Hill v Compass Ten Pty Ltd [2012] FCA 761, (2012) 205 FCR 94 at [48]. It is possible that some requests for assistance may be able to be characterised as “inquiries” for the purposes of s 341(1)(c) (for example, an inquiry as to whether the recipient is able to provide the requested assistance) but it was not suggested that a characterisation of that kind was appropriate in relation to any of the appellant’s alleged requests or inquiries.
[33] Alam v National Australia Bank Limited [2021] FCAFC 178, at [59], [60]
The ordinary meaning of “inquiry” is the act of seeking information about or concerning something.[34]
[34] Oxford English Dictionary
“Is able to”
There has been a divergence of views among the Judges of the Federal Court of Australia about whether the expression “is able to” imports a requirement that an ability to make a complaint or inquiry must be “underpinned by an entitlement or right”.[35] I reviewed some of the authorities in El-Hajje v Rissalah College Limited.[36] I there concluded that what I there identified as the most recent Full Federal Court authority[37] did not endorse the view that “is able to” in s 341(1)(c) of the FW Act requires that the ability to make a complaint be underpinned by an entitlement or legal right.
[35] The origins of that expression in the context of s 340(1)(c)(ii) of the FW Act is Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, at [625]
[36] El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260, at [19]
[37] Alam v National Australia Bank Limited [2021] FCAFC 178
After I gave judgment in El-Hajje, the High Court decided Qantas Airways Limited v Transport Workers Union of Australia, where the plurality construed “is able to” in s 341(1)(c) of the FW Act without reference to any “entitlement or right” to make a complaint or inquiry. The plurality said:[38]
The words “is able to” in s 341(1)(b) and (c), while not words of limitation,[39] necessarily indicate that circumstances have come into existence in which the person has a present capacity to exercise a power or freedom. These powers and freedoms are specifically identified in s 341(1)(b) (read with s 341(2)) and in s 341(1)(c).
[38] Qantas Airways Limited v Transport Workers’ Union of Australia [2023] HCA 27, at [36]
[39] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [34]; Alam v National Australia Bank Limited [2021] FCAFC 178, at [85]
The footnote to the words “not words of limitation” refers to two cases. The first is paragraph 34 of the judgment of Bromberg J in Cummins South Pacific Pty Ltd v Keenan, where his Honour said:[40]
The words “is able to” are not of themselves words of limitation. Their function when used in paras (b) and (c) of s 341(1) is to identify an actuating circumstance by reference to an ability held by the person that the scheme seeks to protect. The subject of that ability or those abilities is then specified in the remainder of the paragraph. The plain words of the provision only raise one inquiry. Does the protected person hold or possess the particular ability specified? That is a factual inquiry made as part of an exercise for discerning whether a particular circumstance does or does not exist. There is nothing in the text and in particular the words “is able to”, which suggests that any inquiry is required as to the provenance of the ability held, that is, how the ability was acquired or whether or not there is some underlying foundation for its existence. All that matters, on the plain words of the provision and in the context of its function, is whether or not the circumstance exists that the protected person has or holds the specified ability.
[40] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [34].
The second case the footnote the plurality in the passage I have quoted refers to is paragraph 85 of the judgment of the Full Federal Court in Alam; but that paragraph quotes paragraph 34 of the judgment of Bromberg J in Cummins South Pacific.[41]
[41] Alam v National Australia Bank Limited [2021] FCAFC 178, at [85]
The consequence of the construction the plurality in Qantas gave to the expression “is able to” is that it is not necessary for an applicant who relies on the workplace right provided for in s 341(1)(c)(ii) of the FW Act to allege he or she had some underlying entitlement or right to make a complaint or inquiry in relation to his or her employment; all that is required is that “circumstances have come into existence in which the [applicant] has a present capacity to exercise a relevant power or freedom”, that freedom or power, in relation to s 341(1)(c)(ii), being the freedom the applicant has to make a complaint or inquiry in relation to his or her employment. This appears to be the view Rares ACJ and Katzmann J expressed in Construction, Forestry, Maritime, Mining and Energy Union v Quirk,[42] although Colvin J may have held a different view.[43]
[42] Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163, at [43] (Rares ACJ) and [337] (Katzmann J)
[43] Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163, at [516], and [522].
During oral address I asked counsel for ATKA whether the plurality in Qantas removed as an issue the question whether “is able to” in s 341(1)(c) of the FW Act requires that the ability to make a complaint or inquiry be underpinned by an entitlement or right. Counsel referred to the judgment of Snaden J in Messenger v Commonwealth of Australia, where his Honour surveyed the relevant case law.[44] His Honour’s judgment, however, precedes the plurality’s judgment in Qantas. Counsel also referred to the judgment of Steward J in Qantas; but, as Colvin J noted in Quirk, Steward J’s view “appears to be a minority view”.[45]
[44] Messenger v Commonwealth of Australia [2022] FCA 677, at [138]-[150]
[45] Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163, at [523]
“In relation to”
In Henry v Leighton Admin Services Pty Ltd I considered the construction of the expression “in relation to” as used in s 341(1)(c)(ii) of the FW Act, and concluded that a person will make a complaint or inquiry “in relation to” his or her employment if the complaint is about his or her employment rights or obligations, or “about a subject that may prejudice the person in his or her employment”.[46]
[46] Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923, at [77]
Adverse action because of exercise of workplace right
The third matter that must be alleged in a cause of action based on an alleged contravention of s 340(1) of the FW Act by an employer is that the employer has taken the adverse action for a particular reason, or for reasons that included a particular reason, namely, the existence of, or exercise of, or the failure to exercise, a workplace right.[47] That requirement arises from the presence of the word “because”: s 340(1) of the FW Act prohibits a person from taking adverse action “because” a person has a “workplace right”, or “because” the person has exercised, or has not exercised, or proposes to exercise, or proposes not to exercise, such a right (proscribed reasons). Further, where it is alleged a proscribed reason is one of a number of reasons for which the employer took adverse action, the proscribed reason must be “a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons”,[48] or must be an “operative or immediate reason for the action”.[49]
[47] FW Act, s 360
[48] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [127] (Gummow and Hayne JJ)
[49] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [140] (Heydon J)
An important aspect of determining whether in any given case a person has taken adverse action for a proscribed reason, that is, “because” of one or more of the matters specified in s 340(1) of the FW Act, is s 361(1) of that Act. That subsection provides:
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The effect of s 361 of the FW Act is that the onus lies on the employer to prove, and therefore to allege, that, if the employer took adverse action, the employer did not take it for a proscribed reason or for reasons that included a proscribed reason as a substantial and operative factor; or, stated positively, the employer must allege and prove he or she took the adverse action for a single reason that was not a proscribed reason, or for reasons that did not include a proscribed reason as a substantial and operative factor in the employer’s taking the adverse action. Before an applicant can rely on s 361 of the FW Act, however, two conditions must be satisfied. First, the applicant “must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct”;[50] and, second, the applicant must allege that the taking of “the alleged action, for the alleged reason or with the alleged intent (or both), “would constitute a contravention of that Part””.[51]
[50] Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, at [14]
[51] Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, at [15]
Subsection 351(1) of the FW Act
Subsection 351(1) of the FW Act provides:
An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
The elements of a contravention of s 351(1) of the FW Act are as follows:
(a)The employee has one or more of the attributes identified in s 351(1) (relevant attributes).
(b)The employer has taken adverse action against the employee.
(c)The employer has taken the adverse action because the employee has one or more of the relevant attributes.
A pleading that relies on an alleged contravention of s 351(1) of the FW Act, therefore, must allege facts that disclose the relation of the employer and employee; facts that show the employee has one or more of the relevant attributes; and facts that constitute the taking of adverse action. In addition, as is the case when pleading a cause of action based on a contravention of s 340(1) of the FW Act, it is necessary to precisely identify the alleged reason for the adverse action, and that the taking of the adverse action for that reason would constitute a contravention of s 351 of the FW Act.
DETERMINATION
Claim based on Complaint 1
As I have noted, “complaint” has been construed to connote “an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved”.[52] Paragraphs 6 and 7 of the statement of claim do not identify the matter about which it is alleged Mr Johnson expressed discontent or grievance to Mr Bustos-Neil, or the consideration, redress, or relief it is alleged Mr Johnson sought Mr Bustos-Neil give to any such expression of discontent or grievance. For these reasons, paragraphs 6 and 7 of the statement of claim, and any other paragraph that relies on those paragraphs, should be struck out.
[52] Alam v National Australia Bank Limited [2021] FCAFC 178, at [59]
Claim based on Inquiry 1 and Inquiry 3
ATKA accepts that Inquiry 1 and Inquiry 3, being the facts alleged in paragraphs 8 and 15 of the statement of claim respectively, satisfy the technical meaning of “inquiry” in s 341(1)(c) of the FW Act. ATKA’s complaint, however, is that Inquiry 1 and Inquiry 2 are “untethered to any right or legal entitlement”. I have already noted that the plurality in the High Court in Qantas has held that the words “is able to” in s 341(1)(b) and (c) of the FW Act “necessarily indicate that circumstances have come into existence in which the person has a present capacity to exercise a power or freedom”. That means it is unnecessary for an applicant who alleges he or she made a complaint or inquiry in relation to his or her employment also to allege that he or she has some underlying right or entitlement to make the complaint or inquiry.
For these reasons, ATKA’s application that the statement of claim be struck out to the extent it relates to Inquiry 1 and Inquiry 3 fails.
Claim based on Inquiry 2
The alleged fact which paragraph 8 of the statement of claim identifies as an “inquiry”, namely, that Mr Johnson “would need to return to Sydney one day earlier than the rest of the team to partake in the EID festivities at the end of Ramadan”, is not capable of constituting an inquiry. In oral address Mr Lynch, who appeared for Mr Johnson, submitted that Inquiry 2 is implied. If that is what Mr Johnson intends to allege, he should so allege by pleading what the implied inquiry is alleged to be, and the facts and matters on which he relies for alleging that such inquiry was implied.
The paragraphs of the statement of claim that rely on Inquiry 2, therefore, should be struck out.
Claim based on s 351(1) of the FW Act
An employer’s discriminating “between an employee and other employees of the employer” is a species of adverse action provided for in paragraph (d) of the second column to item 1 of the table in s 342(1) of the FW Act. The statement of claim, however, alleges conclusory facts that go no further than to repeat the text of paragraph (d), namely, that Discrimination 1 and Discrimination 2 constituted discrimination between Mr Johnson and other employees of ATKA. The statement of claim alleges no facts which make it reasonably possible for ATKA to understand the basis on which Mr Johnson alleges that Discrimination 1 and Discrimination 2 each constituted ATKA’s discriminating between Mr Johnson and other employees of ATKA.
The statement of claim also alleges that Discrimination 1 and Discrimination 2 each constituted adverse action by “injuring the Applicant in his employment”. The statement of claim does not, however, plead the facts that identify the injury Mr Johnson is alleged to have suffered in his employment because of the facts that are alleged to constitute Discrimination 1 and Discrimination 2; and the statement of claim does not allege any facts that show how the facts that are alleged to constitute Discrimination 1 and Discrimination 2 injured Mr Johnson in his employment.
The part of the statement of claim that relies on Discrimination 1 and Discrimination 2 should be struck out.
DISPOSITION
The only paragraphs of the statement of claim that survive are those that rely on Inquiry 1 and Inquiry 3. Rather than make orders for the striking out of those paragraphs of the statement of claim that do not rely on Inquiry 1 and Inquiry 3, it would be more convenient if I were to order that the statement of claim be struck out, and grant Mr Johnson leave to file an amended statement of claim by a time to be determined at a directions hearing I propose to list at 9.30 am on 19 December 2024.
I will therefore order that the statement of claim be struck out, and order that Mr Johnson be granted leave to file an amended statement of claim within a period to be determined by the Court. I will also list the matter for a directions hearing at 9.30 am on 19 December 2024 for the purpose of then ordering the time by which Mr Johnson may file an amended statement of claim, and the time by which ATKA may file its defence.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 13 December 2024
At [523], however, Colvin J noted that in Qantas “Steward J at [116] referred to Shea and Whelan with approval as being correct in requiring the ability to make a complaint as expressed in s 341(c) to be ‘underpinned by some entitlement or right to do so’. However, this appears to be a minority view”. See also Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162, at [217] (Raper J, quoting the plurality in Qantas).
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