Kennedy v Qantas Ground Services Pty Ltd
[2023] ACTSC 404
•21 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kennedy v Qantas Ground Services Pty Ltd |
Citation: | [2023] ACTSC 404 |
Hearing Dates: | 27 February 2023 |
Submissions last received: | 28 March 2023 |
Decision Date: | 21 December 2023 |
Before: | McWilliam J |
Decision: | (1) Leave is granted to the plaintiff to file a further amended statement of claim substantially in the form comprised in Annexure A to these reasons. (2) The plaintiff is to file and serve a further amended statement of claim in accordance with Order 1 on or before 31 January 2024. (3) The operation of r 443 of the Court Procedures Rules 2006 (ACT) is dispensed with insofar as it extends to any requirement for the first and fifth defendants to plead to particulars. (4) The first and fifth defendants are to file and serve any defence on or before 28 February 2024. (5) The proceedings are listed for directions on 4 March 2024. (6) The plaintiff is to pay the first and fifth defendant’s costs of the application, with such costs not to be recoverable until the conclusion of the proceedings. |
Catchwords: | CIVIL LAW – PRACTICE & PROCEDURE – Interlocutory application – summary judgment – strike out application – whether pleading unintelligible – where arguable causes of action raised on existing pleading – majority of pleading struck out with no further opportunity to replead |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) rr 425, 509 Limitation Act 1985 (ACT) s 16A |
Cases Cited: | ACT Revenue v Arcidiacono t/as Rose Cleaning Service [2017] ACTSC 379 Agar v Hyde [2000] HCA 41; 201 CLR 552 Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 Bruce v Odhams Press Ltd [1936] 1 KB 697 Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Limited [2010] ACTSC 20; 4 ACTLR 114 Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132; 19 ACTLR 238 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Luigi Manna v Citra Constructions Pty Limited [1986] ACTSC 23 Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160 McColley v Commonwealth of Australia [2014] ACTCA 21 McGuirk v The University of NSW [2009] NSWSC 1424 Mendonca v Legal Services Commissioner [2020] NSWCA 84 Michel v The Queen [2010] 1 WLR 879; [2009] UKPC 41 Picos v Commonwealth Bank of Australia [2015] ACTSC 56 Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72 Roberson v Icon Distribution Investments Ltd (t/as ActewAGL Distribution) [2020] ACTSC 320; 15 ACTLR 256 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 Young v Hones [2014] NSWCA 337 |
Parties: | Ross Patrick Kennedy ( Plaintiff) Qantas Ground Services Pty Ltd ( First Defendant) Qantas Airways Limited (Fifth Defendant) |
Representation: | Counsel Self-Represented ( Plaintiff) D R Crowe ( First and Fifth Defendants) |
| Solicitors Self-Represented ( Plaintiff) Sparke Helmore Lawyers ( First and Fifth Defendants) | |
File Number: | SC 253 of 2019 |
McWILLIAM J:
1․This proceeding involves a claim made by Mr Ross Kennedy, the plaintiff, against his former employer, who is either Qantas Ground Services Pty Ltd (first defendant) or Qantas Airways Limited (fifth defendant) (the plaintiff alleges both).
2․Mr Kennedy’s claim was commenced in May 2020. He has been attempting to proceed on a claim brought in negligence, for breach of employment contract and for breach of statutory duty. He has also at various stages pleaded other contraventions, under the Fair Work legislation and the Australian Consumer Law, as well as alleging wrongful dismissal disability discrimination and what he describes as causes of action based on retaliation and coercion. Those claims were withdrawn shortly before hearing in February 2023.
3․The first and fifth defendants (hereafter, the defendants), have sought to strike out the claim and now also seek that the proceeding be dismissed pursuant to rule 425 of the Court Procedures Rules 2006 (ACT) (Rules). That is a result of the procedural history where the plaintiff has had a number of opportunities to plead the said causes of action. In short:
(a)The application to strike out the original claim was heard in June 2021. The plaintiff articulated the essence of his claim orally during the hearing. The plaintiff’s claims were recorded on transcript and with the consent of the defendants, a document entitled “Points of Claim” capturing the plaintiff’s case was then provided to him by the Court in September 2021 to finalise and file.
(b)The plaintiff then amended and finalised the document he wished to file in January 2022 and the court then worked through the revised pleading document at a hearing on 12 July 2022. The majority of the claim was struck out, but leave was granted to re-plead the claim.
(c)In October 2022, after an extension, the plaintiff served a proposed amended statement of claim of over 400 pages. The defendants objected to leave being granted for that document to be filed.
(d)In February 2023, shortly before the Court was to consider the amended statement of claim, the plaintiff indicated that he wished to rely upon a further document, which the plaintiff described as a 2nd further amended statement of claim and which he says complements, but does not replace, the amended statement of claim of October 2022.
4․The latest iteration of the pleading proposed to be filed contains 50 purportedly separate causes of action and seeks to join the Transport Workers’ Union of Australia (TWU) as a defendant to the proceedings, the claim against them based on a formal statement prepared by a TWU organiser for a workers’ compensation insurer in relation to a different worker’s compensation claim.
5․The original strike out application in June 2021 also raised a limitation point. However, the defendants have not yet proceeded on that aspect (due to the uncertainty of the pleading and the facts on which the cause of action relied). The pleaded claim does seek damages for psychological injury suffered or exacerbated at least partly within the three-year limitation period provided by s 16A of the Limitation Act 1985 (ACT). It is mentioned here for completeness, to foreshadow that such an issue has not yet been determined and may still arise for consideration in due course.
The Court’s power to strike out a claim and grant summary judgment
6․Rule 425 of the Rules permits the Court to strike out a pleading in whole or in part if it:
(e)discloses no reasonable cause of action or defence appropriate to the nature of the pleading,
(f)may tend to prejudice, embarrass or delay the fair trial of the proceeding,
(g)is frivolous, scandalous, unnecessary or vexatious, or
(h)is otherwise an abuse of the process of the court.
7․The grant of summary relief (whether in part or in whole) is a discretionary remedy, to be exercised with the utmost caution and only in very clear cases: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130; Young v Hones [2014] NSWCA 337 at [163].
8․A case is not to be summarily dismissed unless there is a high degree of certainty that it would fail if it were allowed to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41; 201 CLR 552 at [57].
9․The principles applying to an application for summary judgment pursuant to r 1147 or striking out a pleading pursuant to r 425 have been set out in Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132; 19 ACTLR 238 (Galovac) at [5] per Jagot J. Her Honour there considered a similar application pursuant to rr 425 and 1147 and helpfully collected the leading authorities from which the principles guiding the exercise of the Court’s discretion have emerged at [5]:
There was no dispute about the principles that apply:
(1)The party seeking summary judgment faces a “very high threshold” (Financial Integrity Group Pty Limited v Farmer [2009] ACTSC 143 at 12).
(2)The lack of a cause of action must be “clearly demonstrated” (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129).
(3) The procedure calls for “exceptional caution” (General Steel at 129).
(4)The necessity for argument, even extensive argument, is no bar. However, as soon as it appears that there is a “real question” to be determined on which relief depends, the summary judgment procedure is not available (General Steel at 130 citing Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91).
(5)Mere implausibility of the claim or improbability of success is insufficient; there must clearly be no real question to be tried in the sense that the claim is bound to fail (Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686; [2005] FCA 244 at [14] citing Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 (Ch D)at 5; [1991] 4 All ER 961 at 965).
(6)The application is to be assessed on the assumption that every fact pleaded by the plaintiff is true (West v New South Wales [2007] ACTSC 43 at [9]).
(7)The application must be determined on the substance, not the mere form or expression, of the claim (Financial Integrity Group at [15]).
10․The principles set out in Galovac are well-established and have been reiterated by this Court in cases including Commissioner for ACT Revenue v Arcidiacono t/as Rose Cleaning Service [2017] ACTSC 379 at [18] per Murrell CJ; and McColley v Commonwealth of Australia [2014] ACTCA 21 at [31] per Murrell CJ, Refshauge and Penfold JJ.
11․The focus here, however, is not so much on the lack of a reasonable cause of action being disclosed (because the Defendants accepted the plaintiff had an arguable cause of action), but on the operation of r 425(1)(b) and whether the claim should be struck out because it may tend to prejudice, embarrass or delay the fair trial of the proceeding.
The guiding principles for pleading a case
12․Many of the problems of the proposed iteration of the pleading are related to a failure to properly adhere to the rules of pleading. It suffices to repeat what was said recently in
Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160 at [66]-[71]:66.The starting point is the originating claim, which must “state briefly and specifically the nature of the claim made and relief sought”: r 50 of the Rules.
67.The statement of claim is the “pleading” of the case (it is one of documents listed in the Dictionary to the Rules as being a pleading).
68.The purpose of a pleading is to expose the case the party intends to run. Properly exposing the case to be pursued has been described as falling within a party’s obligations under s 5A of the Court Procedures Act 2004 (ACT): Bolas v Calvary Health Care ACT Ltd [2016] ACTSC 58 at [17].
69.A pleading has formal requirements under the Rules (rr 405-407). Of relevance to the pleading here are the following:
(a) The pleading must be in writing.
(b) Each matter (or allegation) must be in a separate paragraph.
(c) The paragraphs need to be numbered consecutively.
(d)If the plaintiff seeks relief in relation to 2 or more distinct claims based on different grounds, they must be stated, as far as possible, separately.
(e)A breach of statutory duty must be specifically pleaded (that means, the pleading must set out the provision of the statute in question and the duty under it).
(f) Negligence must be specifically pleaded.
70.Under r 432, if a party pleads negligence or breach of statutory duty, the particulars of the pleading must “state the facts and circumstances of the negligent act or omission or breach of statutory duty”.
71.That means it is not enough to allege simply that a defendant breached its duty of care or breached its statutory duty. Under that allegation, particulars of the allegation must be provided, setting out what the defendant either did or did not do, which is said to constitute the relevant breach.
13․The defendant relied upon the governing principle that a Court will not allow an amendment “if it is so obviously futile that it would be liable to be struck out if it had appeared in the original pleading”: McGuirk v The University of NSW [2009] NSWSC 1424 (McGuirk) at [18]. The case of McGuirk has been referred to by Mossop M (as his Honour then was) in Picos v Commonwealth Bank of Australia [2015] ACTSC 56 at [48]. During that discussion, his Honour dealt with what constitutes an embarrassing pleading (emphasis added):
The various ways in which a pleading may be embarrassing were outlined by Johnson J in McGuirk v The University of New South Wales [2009] NSWSC 1424 at [30] - [35] . In Szanto v Bainton [2011] NSWSC 985 Ward J summarised the position as follows (at [107]):
What is meant by an embarrassing pleading in the context of an application such as the present relates, in essence, to whether the pleading can serve the function of a pleading under the Rules - namely, in succinct fashion, to put the defendant properly on notice of the real substance of the claim made against it and to know what case it is that the defendant has to meet. Thus a pleading is embarrassing if it is unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence (Gunns Ltd v Marr [2005] VSC 251 at [14]- [15]) or if it contains inconsistent, confusing or irrelevant allegations (Shelton v National Roads & Motorists Assn Ltd [2004] FCA 1393; (2004) 51 ACSR 278; at [18]).
14․His Honour went on to deal with the claim before him, and then stated at [53]:
These features mean that it is very hard to understand what is being claimed upon which cause of action. It is at best ambiguous and at worst not intelligible. It is therefore embarrassing.
The present proposed pleading
15․There are a number of difficulties with the plaintiff’s pleading, such that the same criticism of ambiguity and (legal) unintelligibility may be made here. It suffices to refer to two overarching problems.
16․The first difficulty is that the claim itself spans different versions of the pleading. Each version is hundreds of pages. The proposed further amended statement of claim cross-references and incorporates various causes of action in the proposed amended statement of claim. There is much repetition. However, it is a fresh document.
17․At the same time, the plaintiff has withdrawn parts of his previous pleading through correspondence and submissions made to the Court, but without the process of using one document that strikes through the parts not relied upon or that otherwise distinguishes the changes so that they are readily identifiable (as required by r 509 of the Rules). In short, there is no single document that may be said to encapsulate the plaintiff’s claim, with the result that the plaintiff’s claim is unwieldy and difficult to follow.
18․The second difficulty is that the claim suffers from overwhelming detail, which lacks the distinction between facts that are material to each element of a particular cause of action and matters that are more in the nature of background information, submission or evidence at trial. That is compounded by the plaintiff’s confusion of legal terms. For example, in the most recent version of the pleading, he names 75 different “causes of action”. When these are traversed, what is really being propounded is a series of complaints about specific conduct of officers or agents of the plaintiff’s employer that ultimately led to his dismissal, which may fall within a broader cause of action (such as negligence, breach of employment contract, or unfair dismissal).
19․Because of those two difficulties which cut across the entire pleading, and the length of the documents under consideration, it is not useful to go through individual paragraphs or even categories of paragraphs where the same pleading issue arises. I accept that the bulk of the present pleading should be struck out as it meets the description of an embarrassing pleading discussed in McGuirk. The more efficient approach is a global one, to consider whether any of the causes of action have been pleaded sufficiently to disclose a reasonable cause of action, and in a form to which the defendants may be able to respond.
20․The real issue is whether the plaintiff should be permitted to go forward on those parts of the pleading that remain, or whether the entire proceeding should be dismissed.
21․In this regard, it has been cited in many ways that a plaintiff is not required to formulate his claim as an “elegant model of legal purity,” nor should the pleading be “scrutinised for elegance or perfect pleading practice”: Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Limited [2010] ACTSC 20; 4 ACTLR 114 (Canberra Data Centres) at [40] and the cases there-cited, and at [49]. This remains the applicable approach despite the introduction of the specific rules for pleading in the Rules and of s 5A of the Court Procedures Act 2004 (ACT) (CP Act).
22․The Court is not blind to the difficulties for a self-represented litigant navigating the court system. It can be hard to know what is a “material fact” and what is a particular that may be left to evidence to establish the fact. The two may overlap: see Bruce v Odhams Press Ltd [1936] 1 KB 697 at 711-713. The plaintiff here has endeavoured to provide every interaction with employees or agents of the defendants that he says collectively had an adverse impact on his mental health.
23․Understanding the difference between an allegation in a pleading and a submission is also harder for someone without legal training. The plaintiff has included the submissions about the law and the application of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act) that he would make at the conclusion of a case.
24․That makes the pleading impossible to respond to in its current form, but it does not mean that the causes of action contained in the pleading are unintelligible, such that the Court would deprive the plaintiff of pursuing a case which in justice, he ought to be able to bring: Trade Practices Commissioner v Pioneer Concrete (Qld) Pty Ltd (1994) 124 ALR 685 at 695, cited in Canberra Data Centres at [47].
25․What can be said of the pleading here is that there are various discernible causes of action that have been pleaded, but they are buried either among other immaterial facts, evidence supporting the facts, rolled up allegations or submissions. At the heart of this claim is a person who was employed by at least one of the Defendants. He says he experienced conduct at work by his supervisors and other employees that caused him to suffer a deterioration in his mental health. As a consequence, he alleges he had to take sick leave. He further alleges that any systems that were in place to deal with complaints, performance management and return to work processes were either not adequately implemented or not followed, and that as a result he suffered an exacerbation of his mental health problems. This in turn led to him being dismissed from his employment and he has not been able to work since. That is an arguable claim in negligence and contract for failure to provide a safe system of work. If the plaintiff establishes that the employer did not follow systems required by workplace health and safety laws, then the same conduct may also give rise to a statutory cause of action.
26․The defendants have accepted that there may be an arguable case on each of those causes of action, but they do not presently have a single cohesive document which enables them to understand the case they have to meet, let alone plead to it. They say that given the time it has taken, the case management obligations of s 5A of the CP Act should operate in favour of an order disposing of the proceedings in its entirety. That may well have been appropriate if the pleading had been struck out in its entirety.
27․I have endeavoured to apply Mendonca v Legal Services Commissioner [2020] NSWCA 84 throughout this protracted pleading process, where McCallum JA (with whom Basten and Leeming JJA agreed) said the following at [21]:
...The Court would not suffer its processes to serve unequal justice, as might occur if legal proceedings operated within a construct only accessible to the legally trained. To that end, there may be cases in which it is appropriate for the Court to give the correct legal construction to an arguable point poorly articulated by a self-represented litigant. However, the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point.
28․The difficulty for this case is that there is a difference between trawling for a point to make for a litigant (a partisan analysis) and investing the time in reading a lengthy and overly detailed document or even multiple documents to understand what the litigant’s pleaded point is.
29․The Court has previously (in September 2021) attempted to provide the correct legal construction for what the defendants accepted was three arguable causes of action, being negligence, contract and breach of statutory duty. Regrettably, this lengthy process did not achieve a document that the defendants could properly be expected to respond to as the plaintiff’s redrafting produced another voluminous document that suffered from the same vices as the first. I agree with the defendants that the plaintiff cannot be permitted endless opportunities to present a document that the defendants can deal with. He has had sufficient opportunities to replead his case and years have passed in trying to get a document to which the defendants can properly respond.
30․With a view to achieving certainty and limiting the scope for any further pleading that does not adhere to the pleading rules set out above, what I have endeavoured to do is to strip from the material relied upon the paragraphs that broadly sustain the arguable causes of action referred to, and that have sufficient specificity and materiality to meet the basic test of putting an opponent on notice of what case it has to meet (as distinct from representing any model pleading). That process has required some edits arising from the removal of any obviously scandalous or otherwise objectionable language, which I accept should also be struck out. It has also required grouping particular allegations together to avoid repetition or otherwise to link the paragraphs to provide a cohesive document after the bulk of the document/s have been struck out. However, when that is done, somewhat unexpectedly, the plaintiff has in substance pleaded a case sufficiently, so as to avoid dismissal of the proceeding altogether.
31․The pared back pleading on which the plaintiff will be permitted to go forward is replicated in a form at Annexure A to these reasons. The documenting of the plaintiff’s allegations that have not been struck out by way of an annexure to these reasons is the most convenient way of ensuring there is no confusion in the future about what paragraphs the plaintiff has leave to rely upon.
32․It should be emphasised however that the pleading for which leave will be given is in no way an endorsement by the Court as to how the plaintiff should plead his claim. Such an approach is also not to be taken as expressing any view about the underlying merit of the causes of action the plaintiff wishes to bring. For example, the plaintiff continues to maintain in his pleading that the defendants were jointly his employer, rather than that one was a host employer or that there was an agency relationship. Whether a joint employer relationship is sustainable in Australian law is a separate issue from the important preliminary step of pleading the case and leave to plead that novel, but arguable, point does not equate to an acceptance of its ultimate merit.
33․There may also be a debate about whether any or all of the statutory breaches alleged give rise to a separate private cause of action, rather than informing whether there has been a breach of duty of care in negligence (see the obiter discussion by Crowe AJ in Roberson v Icon Distribution Investments Ltd (t/as ActewAGL Distribution) [2020] ACTSC 320; 15 ACTLR 256 at [280]-[288]), but again that is not a matter about which I express any view on a strike out and summary judgment application. The plaintiff will need to confirm in the further amended statement of claim that is filed whether he is pursuing the entirety of the statutory duty claim as a separate cause of action and if so, include the relief that he seeks in the pleading. It is anticipated that further particulars of any such claim may be requested by the defendants.
34․The remainder of the existing pleading will be struck out, including those paragraphs where the plaintiff has indicated he no longer presses a particular cause of action or allegation or where it was not established that there was an arguable cause of action (such as the reference to breaches of parts of the Corporations Act 2001 (Cth)). To the extent that the dispute surrounds proposed versions of pleading (so technically, the Court does not need to strike out the paragraphs), leave is not granted to file the documents proposed.
35․It will be apparent from what appears at Annexure A that although the plaintiff pleaded a claim in contract and the Defendants accepted there was an arguable claim for breach of contract, leave has not been granted to plead that cause of action in any form. The claim pleaded by the plaintiff was at Part 11 of the Amended Statement of Claim. The plaintiff did plead the elements necessary to constitute the cause of action: a contract, numerous express and implied terms, and their breach. However, the content of the terms pleaded was vexatious and oppressive and to the extent that there were any proper contractual terms pleaded, it was not clear which conduct pleaded earlier constituted the breach. The Court can only go so far. While I have been at pains to promote access to justice by recording what has been said orally to be the plaintiff’s case, and to better articulate and reorder what is already pleaded, I am not at liberty to redraft what is likely to be the plaintiff’s case in contract. That would offend the important institutional characteristic “underlying the adversarial system of trial, …that of having an impartial judge to see fair play in the conduct of the case against him”: Michel v The Queen [2010] 1 WLR 879; [2009] UKPC 41 per Lord Brown at [31], cited in Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 at [16]. In short, the Court can adjudicate or be the umpire, but not play the game.
36․It is unclear what advantage a separate breach of contract case would add to the negligence claim already pleaded in the circumstances of this case. A plaintiff who succeeds in contract and negligence based on the same conduct does not then receive double the damages. However, the present ruling does not preclude leave being granted in the future if a properly pleaded claim in contract were to be formulated.
37․Equally, the limited grant of leave does not prevent the defendant from requiring further particulars or information, or raising any other specific issues with the pleading, before filing a defence.
38․In relation to the filing of a defence, the particulars remain lengthy in terms of the conduct asserted. It used to be a fundamental rule of orthodox pleading that one does not plead to particulars: Luigi Manna v Citra Constructions Pty Limited [1986] ACTSC 23 at [7]; Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72 at 75 per Scott LJ cited in Canberra Data Centres at [56].
39․As observed by Refshauge J in Canberra Data Centres (at [56]), the modern tendency is to particularise fully. Rule 443 of the Rules now requires that in a defence for a claim that includes a claim for damages for personal injury, the defendant must traverse every material allegation of fact in the claim, including any allegation by way of particulars. I intend to dispense with that part of the rule as it does not serve the interests of the present litigation in progressing the matter past the pleadings stage and it is not necessary in this case for the parties to understand and join issue with each other’s case.
40․It will be apparent from the contents of Annexure A that leave has not been granted to add the TWU as a defendant. The substance of the communications outlined by the plaintiff amounts to poison-pen statements alleged to have been made by a TWU Organiser, including a statement that was prepared for an insurer in relation to that worker’s separate worker’s compensation claim. As far as I have been able to discern from the material, the person was not a decision-maker in relation to the plaintiff’s employment. The law does not provide a remedy for every bad thing co-workers might say about or to each other. On the material available, what was said by a TWU Organiser either at a coffee meeting or to an insurer does not, of itself, give rise to any separate sustainable cause of action. However, it may form part of the factual matrix for existing causes of action that have been already pleaded.
41․Finally, the work the plaintiff has done in relation to the various versions of the pleadings will not necessarily be wasted. It might be utilised as part of affidavit evidence and submissions in due course. That is certainly the case, for example, for the submissions that appear at various “parts” of the proposed Amended Statement of Claim of 10 October 2022. The plaintiff has gone through each of the relevant statutory provisions under the Wrongs Act and made submissions about how he says they operate in his case.
42․In relation to costs, the defendants have been substantively successful in their application to strike out the plaintiff’s claim. As costs are compensatory, they should have their costs of the application.
Orders
43․The orders are as follows:
(1)Leave is granted to the plaintiff to file a further amended statement of claim substantially in accordance with the content comprised in Annexure A to these reasons.
(2)The plaintiff is to file and serve a further amended statement of claim in accordance with Order 1 on or before 31 January 2024.
(3)The operation of r 443 of the Court Procedures Rules 2006 (ACT) is dispensed with insofar as it extends to any requirement for the first and fifth defendants to plead to particulars.
(4)The first and fifth defendants are to file and serve any defence on or before 28 February 2024.
(5)The proceedings are listed for directions on 4 March 2024.
(6)The plaintiff is to pay the first and fifth defendant’s costs of the application, with such costs not to be recoverable until the conclusion of the proceedings.
| I certify that the forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: 21/12/2023 |
Annexure A
In the Supreme Court of the Australian Capital Territory
No SC 253 of 2019
Ross Patrick Kennedy
Plaintiff
Qantas Ground Services Pty Ltd
First Defendant
Qantas Airways Limited
Fifth Defendant
FURTHER AMENDED STATEMENT OF CLAIM
Parties
Plaintiff
The Plaintiff is a natural person.
The Plaintiff brings these proceedings to the Court on his own behalf pursuant to r 53 of the Court Procedures Rules 2006 (ACT) (the Rules).
First Defendant
The 1st Defendant is Qantas Ground Services Pty Ltd (QGS).
QGS is and was at all material times:
a.a company incorporated under the Corporations Act 2001 (C’Wealth) and capable of being sued in its corporate name;
b.a trading corporation formed within the limits of the Commonwealth for the purposes of s 51(xx) of the Constitution;
c.a constitutional corporation for the purposes of s 12 of the Fair Work Act 2009 (C’Wealth) (‘the FW Act’);
d.a national system employer so far as it employs or usually employs, individuals for the purpose of s 14 of the FW Act;
e.an employer for the purposes of s 335 of the FW Act;
f.carrying on, among other things, a business providing labour hire services to the Qantas Group (‘QN’) at Canberra airport including baggage handling, fleet presentation, ramp, R&D and other related services; and
g.a wholly owned subsidiary of QN.
Fifth defendant
The fifth defendant is Qantas Airways Limited (QAL).
QAL is and was at all material times:
a.a company incorporated under the Corporations Act 2001 (C’Wealth) and capable of being sued in its corporate name;
b.a trading corporation formed within the limits of the Commonwealth for the purposes of s 51(xx) of the Constitution;
c.a constitutional corporation for the purposes of s 12 of the FW Act;
d.a national system employer so far as it employs or usually employs, individuals for the purpose of s 14 of the FW Act;
e.an employer for the purposes of s 335 of the FW Act;
f.carrying on, among other things, a domestic and international airline business which included the provision of ground handling services in the Australian air services industry;
g.the ultimate holding company of QGS;
h.employs employees to perform management, supervision, information, training and instruction, administration and rostering, customer services, engineering and maintenance at Canberra airport; and
i.QAL’s HR services for Canberra airport were located at Mascot with no HR representative of any type including an harassment officer based at Canberra airport.
Employment
Employment Agreement
The Plaintiff was jointly employed by the 1st and 5th Defendants (Defendants) pursuant to a Letter of Employment Offer dated 26 February 2013, signed by the Plaintiff on 8 March 2013.
Particulars
(a) The Letter of Employment offer was express and in writing, containing a copy of the QAL’s ‘Standards of conduct policy’ which included a list of Qantas ‘Values’ and a set of Qantas ‘non-Negotiable Business Principles’.
(b) The letter of employment stated: “references to Qantas or the Qantas Group means Qantas Airways Limited and its related bodies corporate as defined in the Corporations Act 2001 (Cth)”.
(c) The letter of offer was made by Mr Meere as “Manager, Qantas Careers, Qantas People Services”. Mr Meere was an employee of the 5th Defendant and the Qantas Group at the same time.
(d) The Plaintiff claims that he was an employee of the Defendants jointly due to an ambiguous 3-way employment arrangement that each of the said defendants had with the Plaintiff.
The Employment Agreement comprised the following:
a.The Qantas Ground Services Pty Limited Ground Handling Agreement 2015 (QGS Enterprise Agreement)
b.The Letter of Employment offer
c.The Position description, QGS GC-2 role
d.QN Group Management System Standard
e.QAL Non-Negotiable Business Principles (the NNBPs).
f.QAL Beliefs
g.QN HR Policies
h.ACT laws and regulations
i.C’Wealth laws and regulations
j.Principle 6, United Nations Global Compact
k.Implied contract terms
Role
At all material times, the Plaintiff was employed as an on-going, part time employee and shift worker at the Canberra airport.
Terms of Employment
It was a term of the Employment Agreement that the Plaintiff would be provided with a minimum of 28 hours per week of paid work.
The following were implied terms of the Employment Agreement:
a.rights of the employee for the employer to act in good faith;
b.rights of the employee for the employer to consult with the employee;
c.rights of the employee for the employer to cooperate with the employee;
d.rights of the employee for the employer to not to prevent the employee from
e.fulfilling the employee’s purpose;
f.rights of the employee for the employer to not repudiate the Employment contract by a certain course of conduct;
g.rights of the employee for the employer to fully disclose his/her rights fully in a timely manner;
h.rights of the employee for the employer to disclose the identity of complainants to the employee as the complainee;
i.rights of the employee for the employer to do all things necessary to enable the employee to have the benefit of the employment agreement rights, benefits and entitlements;
j.rights of the employee for the employer to do all things necessary to enable the employee to have the benefit of ongoing employment security;
k.rights of the employee for the employer to exercise conferred statutory authority in a honest and reasonable manner;
l.rights of the employee for the employer to exercise only that statutory authority over the employee that has conferred been to it by the Employment agreement;
m.rights of the employee for the employer to exercise reasonable care, skill and judgment in the handling of the employee’s matters;
n.rights of the employee for the employer to hire and train competent supervision;
o.rights of the employee for the employer to provide the employee with procedural fairness;
p.rights of the employee for the employer to show due diligence in the handling of employee’s matters;
q.rights of the employee to be provided with a safe workplace by the employer;
r.rights of the employee for the employer to not use misuse an employee’s work records including not taking the records home; and
s.rights of the employee for the employer to not make misrepresentations in respect to the employee’s rights, performance, conduct, welfare or pertaining to any other employment matter.
Period of Employment
The Plaintiff’s employment period was from 8 March 2013 to 2 November 2017 (Employment Period).
Termination of Employment
The Plaintiff’s employment was terminated by QGS on 2 November 2017.
On 9 November 2017, the Plaintiff appealed the termination decision.
On 17 November 2017, the HR Manager, Ms Moloney, refused the appeal.
The Plaintiff has not been employed since November 2017.
Claim in Negligence
Duty of Care
By virtue of the Employment Agreement, the Defendants owed the Plaintiff a non-delegable duty of care.
Particulars
(e) An employer owes a duty of care to an employee if the employer can reasonably be expected to have foreseen that if they did not take care or take precautions, the employee would suffer a personal injury or some mental harm.
The Defendants are also vicariously liable for any acts or omissions constituting negligence by each of their employees and agents during the Employment Period.
Particulars
(a) The agents of the first defendant included the head, manager, supervisor, leading hand, acting leading hand, co-worker, and return-to-work coordinator.
(b) The agents of the fifth defendant included the Qantas Group Chief Executive Officer, Group Executive HR, office of the CEO, manager, Australian regional operations, airport manager, operations manager, duty manager, acting duty manager, Head of finance, customer experience and operations, supervisor, training manager, leading hand, acting leading hand, co-worker, company witness, medical officer, WHS Committee chair, WHS Committee member, return-to-work coordinator, rehabilitation manager, HR manager, HR officer, Industrial relations manager, case manager, and QantasLink engineer.
Standard and Content of the Duty of Care Owed
The standard of care required of the Defendants is that of the reasonably skilled and reasonably competent employer in the Defendants’ position, who was in possession of all knowledge and information that the first or fifth Defendant either had or ought reasonably to have acquired at the time that the negligent acts and omissions took place, and out of which the harm to the Plaintiff as an employee arose.
Each of the Defendants owed the Plaintiff a duty to competently devise, establish, maintain, monitor, resource, commit to and enforce a safe system or safe place of work, including:
a.Safe plant and premises, tools, machinery and equipment;
b.Hiring and/or retaining competent supervisors, officers and agents;
c.Providing such information, instruction, training or supervision to its persons, officers and agents as was necessary to enable those persons, officers and agents to perform their work in a way that was safe and without risks to the psychological health of the Plaintiff;
d.Ensuring that its persons, officers and agents did not expose the Plaintiff to a foreseeable risk of psychological injury;
e.Ensuring that its persons, officers and agents complied with their contractual obligations.
Particulars
(a) In relation to (b) and (e) above, this included:
1. Preparing and circulating a HR policy on topic;
2. Searching and identifying a competent agent including identifying on-line reviews;
3. Not short-listing discredited agents who had previously been engaged by the Defendants or Qantas Group;
4. Competently supervising an agent including any follow-up work conducted by the agent; and
5. Competently reviewing work performed by an agent.
(b) In relation to (c) above, the information, instruction, training or supervision included ensuring:
1. That HR policies and codes of conduct were complied with;
2. That risk assessments were competently carried out; and
3. That reasonable steps were taken to control or minimise known risks so that the Plaintiff was not exposed to any unreasonable risk of psychological injury.
Foreseeable risk of harm
The foreseeable risks of harm included the risk that a worker with a pre-existing psychological injury might suffer a new psychological injury or a relapse or exacerbation of the pre-existing injury from:
a.That worker attending an unsafe workplace over a sustained period of time (Risk A); and
b.In the event of injury, any subsequent mismanagement of the worker’s injury and return to work by the employer (Risk B), including –
c.Processes that may result in the Plaintiff sitting at home alone on medical leave for a lengthy period (Risk C).
Particulars
(a) The Plaintiff communicated directly both orally and in written form during the Employment Period as to the increasing exposure of the Plaintiff to the risks of such injury.
(b) The Plaintiff also relies on findings from internal and external workplace investigations supervised by the 5th Defendant on bullying complaints made by the Plaintiff.
(c) Expert medical knowledge as communicated in medical reports provided to the Defendants during the Employment Period as to the increasing exposure of the Plaintiff to the risks of injury.
(d) Self-Assessments undertaken by the Defendants in supervising the performance assessment context.
(e) 180º performance feedback provided by the supervisors of the Defendants’ managers and supervisors in the performance assessment context.
(f) HR advice provided to the Defendants by HR Services.
(g) Benchmarking undertaken by the 1st Defendant as it had committed to the Plaintiff it would complete.
The Plaintiff was known to the Defendants to be a worker with a pre-existing psychological injury.
Particulars
(a) The Defendants had such knowledge from the findings of two pre-employment medical assessments;
(b) 1st Medibank pre-employment medical assessment that took place on 4 February 2013; and
(c) 2nd Qantas internal pre-employment medical assessment that took place on 4 April 2013.
The Plaintiff further alleges that the Defendants ought to have known of the said risks of harm to the Plaintiff by virtue of the following:
a.Monitoring and observation of the workplace including use of the management tool ‘management by walking around’;
b.Review of WHS laws and regulations, Codes of practice, latest WHS developments;
c.Training and instruction;
d.Meetings, tool boxes, conferences and seminars; and
e.Engagement with the WHS Committee.
The Plaintiff further alleges that the Defendants ought to have known of the foreseeable risks on injury by virtue of:
a.from expert industry knowledge;
b.from industry standards made available to the Defendants; and
c.its industry experience in respect to the manner in which a large Australian company protects its works from injury.
Breach of Duty of Care - Failure to take precautions
The breaches are alleged over two breach periods:
a.The period of time between when the Plaintiff first commenced his employment on 13 March 2013 until 30 May 2016 when he commenced extended sick leave, being 1,205 days (First Breach Period).
b.The period of time between when the Plaintiff first commenced extended sick leave on 30 May 2016 until 2 November 2017 when the 5th Defendant terminated his employment, being 521 days (Second Breach Period).
First Breach Period (paras 26 to 39)
Failure to Implement adequate policies for workplace performance
The Defendants did not circulate a suite of HR policies for its own workforce rather than relying upon the HR policies of a secondary company.
Particulars
(a) The 1st Defendant relied upon the Qantas Group’s HR policies which was a one-size fits all approach to HR polices and human resource management.
The Defendants did not prepare and circulate an HR policy to employees regarding pre-employment medical assessments which included informing employees of their rights and how the employer would use the information contained in the assessment.
The Defendants did not arrange a meeting with the Plaintiff to discuss the findings of his pre-employment medical assessments and communicated those findings of pre-employment medical assessments to relevant supervisors of the Plaintiff.
The Defendants did not ensure that a plan was implemented and communicated to manage the QGS/QAL business model, including training and instruction for employees and HR Services.
Particulars
(a) This includes ensuring that one set of key performance indicators applied to each role and that key performance indicators for the Ground Crew, Level-2 were communicated to the Plaintiff.
The Defendants did not ensure that reporting arrangements for employees were clear and direct.
Particulars
(a) Clarifying the employer of the Plaintiff and who had the statutory authority to give the Plaintiff directions, communications and otherwise make decisions and take actions in respect of his employment.
(b) Ensuring that the Plaintiff was supervised via one chain-of-command, not two.
The Defendants did not provide advice to the employees as to accessing the following in-house programs of the 5th Defendant:
a.Early intervention program;
b.Life Assist;
c.Mental Health Program;
d.My Life Hub;
e.Our minds matter;
f.Qcare Program;
g.Wellbeing Strategy; and
h.Work Life Hub Program
The Defendants failed to advise the Plaintiff of the above programs or put in place any of the programs to assist the Plaintiff.
The Defendants did not put in place adjustments to ensure that the Plaintiff was not consistently exposed to a significant power differential over a period of 12 months between himself and the 5th Defendant’s Canberra airport manager, Mr Stephenson.
Particulars
(a) The Defendants failed to put in place an on-site supervisor at the ground services workplace (Canberra Airport).
(b) The Defendants failed to ensure that an on-site HR manager (or at least an HR officer) was accessible at the Canberra airport workplace for employees such as the Plaintiff.
(c) The Defendants failed to ensure that a harassment officer was accessible at the Canberra airport for employees such as the Plaintiff.
(d) The Defendants filed to ensure that a consultative committee, which also served as a WHS Committee, was in place at the Canberra airport workplace for the Plaintiff to access.
The Defendants did not ensure that agents of the employer did not contact the Plaintiff while he was on a 4-day break and had communicated that he did not want further contact until he returned to work.
Particulars
(a) Mr Stephenson continued to contact the Plaintiff while he was on a 4-day break.
The Defendants did not ensure that adequate training and instruction was delivered:
a.On personal use of the IT working environment; and
b.To acting leading hands for belt duties.
The Defendants did not ensure an adequate HR policy in relation to performance assessment and the Plaintiff’s rights, was prepared, circulated, and implemented.
Particulars
(a) No performance plan was developed.
(b) At a meeting held on 11 February 2016, Mr Stephenson failed to put in place any action plan, PIP and/or training plan to address alleged performance concerns.
(c) No adequate system was in place to keep secure employee performance records.
(d) No training or instruction was provided to employees of the Defendants on records management, including proper storage of work and personal records.
(e) No reasonable notice was provided to the Plaintiff about a performance assessment meeting.
(f) No opportunity was given to the Plaintiff to bring a support person to each performance assessment meeting.
(g) The Plaintiff was victimised (by Mr Stephenson and Mr Katsiris) on two occasions when he brought a support person to a meeting.
(h) No supervisor with consistent observation of the Plaintiff in the workplace assessed the Plaintiff’s performance and conduct.
(i) The frequency of performance assessment processes was not communicated to the Plaintiff.
(j) Performance assessment processes were used to harass and retaliate against the Plaintiff.
(k) Positive feedback from supervisors was not communicated to the Plaintiff.
The Defendants did not ensure that any performance or conduct concerns with the Plaintiff were discussed with the Plaintiff.
Particulars
(a) This includes ensuring the procedure to obtain feedback for performance assessment was consistent and transparent.
The Defendants did not ensure that employees were not victimised for membership of WHS committees or raising safety complaints.
Particulars
(a) This includes the raising of bullying complaints by the Plaintiff.
The Defendants did not ensure that performance improvement plans (PIP):
a.Were not used to threaten or coerce the Plaintiff into resigning; and
b.When created and agreed to, were implemented.
Particulars
(a) The 1st Defendant failed, from 24 March 2016, for a period of nine-weeks, to implement the PIP that the Plaintiff had agreed to, which contributed to the Plaintiff commencing extended sick leave on 30 May 2016.
(b) Mr Stephenson twice sought for the Plaintiff to be dismissed (on 24 and 31 March 2016) when it was agreed the Plaintiff would be able to return to work with a PIP, which had the consequence of a stand down ban remaining.
Failure to implement adequate policies for workplace culture
The Defendants did not ensure there were adequate procedures in place in relation to respectful workplace conduct and that those procedures were implemented.
Particulars
(a) This includes:
(i)Providing adequate training and instruction to supervisors of the Defendants, or otherwise putting in place an adequate procedure to identify and respond to character attacks, or vexatious and frivolous allegations of co-workers.
(i)Adequately disciplining employees who verbally abused other employees during induction processes or during the course of employment generally.
(ii)Delivering adequate training and instruction to employees of the Defendants and supervision on expected standards of workplace conduct at the workplace and away from the workplace.
(iii)Delivering adequate training and instruction to employees and supervisors on appropriate workplace display of materials.
(iv)Disciplinary measures to prevent a dobbing and retaliation culture developing in the work place.
(v)Ensuring that mediation of disputes occurred without bias (including against the Plaintiff).
(vi)Removing offensive and humiliating material from the walls of workplace rooms.
41.Further, the Defendants did not ensure a safe system of work was in place, being one that was free from persistent, serious and detrimental misconduct, constituting violence, mobbing, bullying, harassment, discrimination, victimization and other misconduct.
Particulars
(a) The Defendants permitted and at times, encouraged, the Canberra airport Ground services workplace to normalize a toxic and hostile culture of violence, mobbing, bullying, harassment, discrimination, victimization, retaliation, ‘dobbing’ and other misconduct.
(b) The Defendants ‘permitted’ such culture in that:
(i)They failed to act in a firm and swift manner to put a stop to persistent, serious and detrimental misconduct by its employees against the Plaintiff.
(c) The Plaintiff made the following complaints:
(i)65 complaints in the period 13 March 2013 to 31 December 2015,
(ii)29 complaints in the period 1 January 2016 to 30 May 2016
(d) The Defendants failed to take reports and complaints made by the Plaintiff of misconduct towards him seriously.
(e) In an email dated 9 February 2016, Mr Stephenson referred to the bullying complaints as ‘your issues’ and did not take ownership and responsibility to stop the harassment of the Plaintiff in the workplace in a serious way.
(f) The Defendants failed to competently assess the reports and complaints made by the Plaintiff of misconduct towards him.
(g) The Defendants failed to promote, through training and instruction and regular updates and refreshers, an understanding of the harmful impacts upon an employee’s psychological health from persistent, serious and detrimental misconduct.
(i)The Defendants failed to identify, consider and implement options available to obviate, ameliorate or eliminate risks of psychological injury to the Plaintiff through an alternative system of work, such as the relocation of the Plaintiff from the Canberra airport ground services workplace for a temporary, short term or long term basis.
(ii)The Plaintiff made a complaint of harassment by Mr Stephenson. Mr Stephenson failed to organise for another QAL manager to investigate the Plaintiff’s harassment complaints made at the 11 February 2016 meeting.
Second Breach Period
The Defendants failed to take the following precautions during the Second Breach Period, including:
a.Failing to put in place the early intervention procedure from 30 May 2016 to assist the Plaintiff after his psychological breakdown on about 26 May 2016.
b.Failing to put in place other return to work procedures from May 2016.
c.Not providing the Plaintiff with all existing HR policies relevant to his absence from the workplace.
d.Failing to take adequate steps in managing the Plaintiff’s return to work including.
i.Providing on inadequate HR policy on return-to-work;
ii.Failing to prepare a HR policy on fitness-for-duty to provide to the Plaintiff;
iii.Not advising the Plaintiff of all of his rights, entitlements, allowances, benefits and privileges;
iv.Not advising the Plaintiff of all services, strategies, and programs available to him;
v.Not advising the Plaintiff that a ‘demarcation’ from a manager, when communicated to a rehabilitation provider, would prevent the Plaintiff’s return to work;
vi.Not advising the Plaintiff that performance concerns raised by the Defendants would prevent a return to work;
vii.Failing to engage a competent rehabilitation provider to facilitate the Plaintiff’s return to work or otherwise ensure that a return-to-work plan was put in place for the Plaintiff’s return to work;
viii.Failing to engage a competent sub-contractor to complete an independent medical examination and report on the Plaintiff in circumstances where the sub-contractor had previously been discredited and their competence questioned.
e.Failing to put in place a vocational assessment as required.
Particulars
(a) From May 2016, Ms Layt failed to arrange a vocational rehabilitation for the Plaintiff to assist the Plaintiff to return to work as required under the Workers Compensation Act 1951 (ACT).
(b) No other return-to-work coordinator arranged a vocational rehabilitation for the Plaintiff to assist him to return to the GC-2 role or an alternate role within Qantas Group.
f.Failing to respond to the Plaintiff’s request for a reasonable adjustment to enable him to return to the workplace as required.
Particulars
(a) The Defendants were required to consider a reasonable adjustment to the Plaintiff’s system of work to assist the Plaintiff to return to work to the GC-2 role or an alternate role.
(b) From 1 June 2016, Mr Ruyters proposed to the Defendants on many occasions for the Plaintiff to return to work on suitable, restricted or alternative duties at Canberra airport or to an alternative workplace on a temporary or permanent basis.
(c) Suitable restricted or alternative duties were never implemented by the Defendants at any workplace as a reasonable adjustment to assist the Plaintiff to return to work.
(d) On 25 November 2016, the Plaintiff proposed 4 reasonable adjustments (administration role, engineering role, Fairbairn airport operations role, transfer to role at another Australian port other than Canberra airport).
(e) Mr Brown failed to respond to the Plaintiff.
g.Failing to competently engage and supervise two agents in relation to the conducting of two external workplace investigations.
Particulars
(a) The engagement letters prepared by Mr Ferhan (on 1 November 2016 and 5 December 2016) did not ask for the information allegedly required.
h.Failing to support the Plaintiff during two external workplace investigations.
Particulars
(a) The Plaintiff was directed to attend 3 fitness-for-duty examinations. The third direction required the Plaintiff to travel to Sydney while ill with a medical condition diagnosed just 3 days earlier.
(b) The direction required the Plaintiff to spend time at the Canberra airport working environment, the same location where the Plaintiff was subjected to mobbing, bullying and harassment.
i.Failing to provide adequate support, advice or contact from return-to-work coordinators as required, including:
i.Failing to provide return to work coordinators that were experienced, trained and had familiarity with Canberra airport Ground services operations;
ii.The Plaintiff was required to deal with 9 different co-ordinators, some of which were not locally based;
iii.No return-to-work coordinator attended any of the medical case conferences held with the Plaintiff and Dr Kushada up until 1 November 2016.
iv.Ms Denne only disclosed background materials to the Plaintiff after two written requests were made and only after the examination by Dr Walker had been held.
v.Ms Denne provided voluminous, irrelevant and prejudicial documents to Dr Walker for the third fitness for duty assessment.
vi.Ms Denne ignored Dr Gertler’s recommended reasonable adjustment.
vii.Ms Denne and Ms Becroft failed to consider other support that may have been available to the Plaintiff, such as graduated return-to-work, provision of suitable duties, retraining, and redeployment.
j.Failing to meet with the Plaintiff:
i.through the conduct of the Plaintiff’s supervisor, to attend medical conferences and fitness-for-duty examinations as required;
ii.through the conduct of the Plaintiff’s manager (Mr Ferhan), to meet with the Plaintiff after three months as required;
iii.through locking the Plaintiff out of the staff car park when he was on his way to Sydney for the fitness-for-duty examination;
iv.to discuss Dr Walker’s report (despite Ms Denne’s 7 April 2017 letter stating that would occur);
k.Delay in provision of the psychiatrist’s fitness-for-duty report at all, or in its entirety.
Particulars
(a) The overall wait-time for the Plaintiff to view Dr Walkers report was 4 months.
l.Failing to deal competently with the workplace grievance lodged by the Plaintiff.
Particulars
(a) On 22 September 2017, the Plaintiff raised a grievance with Ms Amanda Chan and Mr Ferhan as to Ms Denne’s conduct.
(b) On 27 September, Mr Hardy sent a ‘show cause’ letter to the Plaintiff, stating that the 1st Defendant was considering terminating the Plaintiff based on Dr Walker’s report.
(c) On 3 October 2017, Ms Chan sent an email to the Plaintiff advising that Ms Denne had acted reasonably.
m.Failing to competently manage the Plaintiff’s termination.
Particulars
(a) The Plaintiff was intimidated to resign.
(b) The notice of termination was sent by Mr Hardy on 2 November 2017, effective immediately.
(c) Mr Hardy was not in possession of all medical reports and relied only on the report of Dr Walker, who had met the Plaintiff on one occasion for 75 minutes only.
(d) On 9 November 2017, the Plaintiff sent a letter of appeal to Ms Moloney.
(e) On 17 November 2017, Ms Moloney sent an email refusing the Plaintiff’s appeal, stating that Mr Hardy’s decision to terminate the Plaintiff given that the Plaintiff could not complete the inherent requirements of a role was the correct, fair and proper one.
(f) The Plaintiff’s appeal of the termination of his employment was determined by Ms Molony without statutory authority over the Plaintiff.
The burden of taking precautions to avoid the risk of harm was not unreasonable.
Particulars
(a) The First Defendant had large HR and Industrial Relations departments who possessed the skills, experience and training to complete the suite of HR policies on behalf of the First Defendant.
(b) The Fifth Defendant had the financial and other resources to outsource the tasks.
(c) A fitness for duty policy was prepared on 26 October 2017 (4 weeks after the Plaintiff had been provided with a show cause letter).
(d) The reasonable adjustment (the buddy system approach) proposed by Dr Gertler to assist the Plaintiff to return to work in May 2017 was virtually nil.
Causation
The absence of the measures or taking of the precautions specified above meant that the Plaintiff was not put in a system of work that was safe, in the sense of being free from persistent serious and detrimental misconduct.
Particulars
(a) The misconduct constituted violence, mobbing, bullying, harassment, discrimination and victimization towards the Plaintiff by employees of the Defendants, including supervisors of the Plaintiff.
This detrimental treatment of the Plaintiff by the Defendants’ officers and agents adversely impacted upon the Plaintiff’s psychological state of mind, causing his injuries and exacerbations (set out below).
The accumulative and synergistic manner in which the breaches occurred over an extended period of time without adequate precautions including support and contact from the Defendants significantly increased the degree of the risk of harm to the Plaintiff.
The lack of an adequate or competent termination of employment procedure further contributed to the deterioration of the Plaintiff’s psychological health.
Had the Defendants taken the precautions referred to above in the First or Second Breach Period, than it is more probable than not that the following better outcomes would have been delivered to the Plaintiff:
a.The Plaintiff would have received the benefit of being advised of his rights;
b.The Plaintiff would have received adequate contact, support and advice from the Defendants from early September 2015;
c.The Plaintiff would have received the benefits from employee programs and services of the Defendants from early September 2015;
d.The Plaintiff would have received the benefits from intervention measures put in place by the Defendants, including:
i.Occupational screening;
ii.Vocational assessment;
iii.Suitability of workplace discussions with supervisors; and
iv.Possible relocation / transfer / rotation from the Ground services workplace from early September 2013;
e.The Plaintiff would have received expert psychological treatment from early September 2015;
f.The Plaintiff would not have been subjected to the continuing conduct.
Had the said outcomes been delivered, the Plaintiff would have avoided the psychological injuries, exacerbations and disabilities referred to below, including the need to take extended sick leave.
Alternatively, any such injuries, exacerbations and disabilities suffered by the Plaintiff would have been significantly less.
Loss and Damage
The Plaintiff suffered the following injuries:
a.Adjustment Disorder with mixed anxiety and depressed mood;
b.Adjustment disorder;
c.Anxiety;
d.Depression;
e.Narcissism;
f.Obsessionality;
g.Paranoia;
h.Personality disorder;
i.Post-Traumatic Stress Disorder.
The Plaintiff suffered the following disabilities:
a.Depression (feelings of despair and hopelessness, suicide ideation);
b.Anxiety (psychological distress, avoidance of workplace, co-workers, local amenities and shops);
c.Nervous Shock;
d.Psychological reactivity triggered by events such as seeing a person in green personal protection equipment;
e.Loss of amenity (loss of enjoyment in life and interest in recreational activities, loss of friendships, loss of interest and pleasure in a partner and sex);
f.Difficulty concentrating and in performing work duties during the Employment Period;
g.Inability to return to work (loss of career prospects)
h.Difficulty in sleeping
i.Difficulty in socialising
The Plaintiff claims:
a.Damages
Particulars
(a) General Damages (including damages for nervous shock and loss of expectation of life) of $525,000.
(b) Loss of Earnings (including work entitlements) $380,000 (including workers’ compensation and Centrelink payments).
(c) Loss of future (economic) opportunity $60,000.
(d) Loss of Superannuation $60,000.
(e) Out of Pocket expenses $50,000.
(f) Medical Expenses $40,000.
(g) Domestic Assistance $50,000.
(h) Aggravated Damages in the sum of $150,000.
(i) Exemplary Damages in the sum of $220,000.
(j) Costs.
(k) Interest.
Claim for breach of Statutory Duty
Work Health and Safety Act 2011 (Cth)
The Defendants’ conduct as pleaded above was a breach of the following duties of the Work Health and Safety Act 2011 (Cth) (the WHS Act):
a.Section 19 – The Defendants failed to take reasonable steps to ensure the following:
i.The health and safety of the Plaintiff as a worker engaged (s 19(1)(a));
ii.The provision and maintenance of a work environment without risks to the health and safety of the Plaintiff (s 19(3)(a))
iii.The provision and maintenance of safe plant and structures (s 19(3)(b));
iv.The provision and maintenance of safe systems of work (s 19(3)(c));
v.The provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking including ensuring access to those facilities (s 19(1)(e));
vi.The provision of information, training, instruction and supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking (s 19(1)(f); and
vii.That the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking (s 19(1)(g)).
b.Section 27 – The Defendants failed to take reasonable steps to ensure the following was completed:
i.To acquire and keep up to date knowledge of work health and safety matters (s 27(5)(a);
ii.To gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations to acquire and keep up to date knowledge of work health and safety matters (s 27(5)(b));
iii.To ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimize risks to health and safety from work carried out as part of the conduct of the business or undertaking to acquire and keep up to date knowledge of work health and safety matters (s 27(5)(c));
iv.To ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information to acquire and keep up to date knowledge of work health and safety matters (s 27(5)(d));
To ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act (s 27(5)(e));
To verify the provision and use of the resources and processes referred to in paragraphs (c) to (e) as contained in the WHS Act (s 27(5)(f)).
c.Section 28 – The Defendants failed to take reasonable steps to ensure compliance with the following:
i.A duty to take reasonable care to ensure that their acts or omissions do not adversely affect the health and safety of other persons (s 28(b));
ii.A duty to comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with the WHS Act (s 28(c));
iii.A duty to cooperate with any reasonable policy or procedure of the person conducting the business or undertaking relating to the health or safety at the workplace that has been notified to workers (s 28(d)).
d.Section 29 – The Defendants failed to take reasonable steps to ensure compliance with the following:
i.A duty to take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons (s 29(b));
ii.A duty to comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with the WHS Act (s 29(c)).
e.Section 46 – The Defendants failed to take reasonable steps to ensure the following:
i.If more than one person has a duty in relation to the same matter under the WHS Act, each person with the duty must, so far as is reasonably practicable, consult, cooperate and co-ordinate activities with all other persons who have a duty in relation to the same matter (s 46).
f.Section 47 – The Defendants failed to take reasonable steps to ensure the following:
i.The person conducting the business or undertaking must, so far as is reasonably practicable, consult, in accordance with this division and the regulation, with workers who carry out work for the business, or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety (s 47(1));
ii.If the person conducting the business of undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures (s 47(2));
iii.The agreed procedures must not be inconsistent with s 48 of the WHS Act (s 47(3)).
g.Section 48 – the Defendants failed to take reasonable steps so as to ensure the following:
i.That relevant information about the matter is shared with workers (s 48(1)(a);
ii.That the workers were given a reasonable opportunity to express their views and to raise work health or safety issues (s 48(1)(b)(i));
iii.That the workers were given a reasonable opportunity to contribute to the decision-making process relating to the matter (s 48(1)(b)(ii));
iv.That the views of workers were taken into account by the person conducting the business or undertaking (s 48(1)(c)); and
v.That the workers consulted were advised of the outcome of the consultation in a timely manner (s 48(1)(d)).
Work Health and Safety Regulations 2011 (Cth)
The conduct pleaded was further in breach of the following statutory duties by the Defendants specified in the Work Health and Safety Regulations 2011 (Cth):
a.Reg 20 (Removal of health and safety representatives) - The Defendants failed to ensure that the Plaintiff was removed from the 5th Defendant’s Canberra airport Work Health and Safety Committee only in the manner as prescribed.
Particulars
(a) The Plaintiff could only have been removed from the WHS Committee if the WHS members signed a written declaration that the Plaintiff should not longer represent the work group (reg 20(1)); and
(b) The Plaintiff should have been informed of his removal (reg 20(2)(a)(i)).
b.Reg 21(1) (Training for health and safety representatives) - The Defendants failed to ensure that the WHS Committee was provided with training as prescribed despite many commitments made by the 5th Defendant’s Canberra Airport manager.
c.Reg 22 (Agreed procedure – minimum requirements) - The Defendants failed to put in place the agreed procedure for issue resolution at the workplace in matters involving the Plaintiff, including the failure by the Defendants to ensure the following:
i.The procedure complies with the sub regulation (2) (reg 22(3)(a);
ii.The procedure is set out in writing (reg 22(3)(b)); and
iii.The procedure is communicated to all workers to whom the agreed procedure applies (reg 22(3)(c)).
d.Reg 34 (Duty to identify hazards) - The Defendants failed to identify reasonably foreseeable hazards that could give rise to the risks to health and safety to the Plaintiff.
e.Reg 35 (Managing risks to health and safety) - The Defendants failed to undertake the following:
i.Eliminate the risks to health and safety of the Plaintiff so far as was reasonably practicable (s 35(a)); and
ii.If it was not reasonably practicable to eliminate the risks to health and safety of the Plaintiff, then the Defendants were required to minimise those risks so far as is reasonably practicable (s 35(b)).
f.Reg 36 (Hierarchy of control measures) - The Defendants failed to implement risk control measures in accordance with s 36(2) of the WHS Regulations, further failing to put in place one or more of the following:
i.Substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk (s 36(3)(a)); and
ii.Isolating the hazard from any person exposed to it (s 36(3)(b)).
g.Reg 37 (Maintenance and control measures) - The Defendants failed to ensure that the control measure was maintained so that it remained effective including by ensuring that the control measure was as follows:
i.Fit for purpose (reg 37(a));
ii.Suitable for the nature and duration of the work (reg 37(b)); and
iii.Installed, set up and used correctly (reg 37(c)).
h.Reg 38 (Review of control measures) - The Defendants failed to review, and as necessary revise, control measures implemented under the WHS Regulations so as to maintain, so far as was reasonably practicable, a work environment that was without risks to the health or safety to the Plaintiff. Including reviewing and as necessary revising a control measure in the following circumstances (reg 38(1):
i.The control measure does not control the risk it was implemented to control so far as is reasonably practicable (reg 38(2)(a));
ii.Before a change at the workplace that is likely to give rise to a new or different risk to health or safety that the measure may not effectively control (reg 38(2)(b));
iii.A new relevant hazard or risk is identified (reg 38(2)(c));
iv.Including a change at the workplace which may include:
1.A change to the workplace itself or any aspect of the work environment (reg 38(3)(a)); and
2.A change to a system of work, a process or a procedure (reg 38(3)(b)).
i.Reg 39 (Provision of information, training and instruction) - The Defendants failed to provide information, training and instruction to the Plaintiff and to the Defendants’ employees that was suitable and adequate having regard to:
i.The nature of the work carried out by the worker (reg 39(2)(a));
ii.The nature of the risks associated with the work at the time the information, training or instruction is provided (reg 39(2)(b));
iii.The control measures implemented (reg 39(2)(c)).
j.Reg 40 (Duty in relation to general workplace facilities) - The Defendants failed to ensure so far as was reasonably practicable, the following:
i. Adequate ventilation at the Canberra airport baggage room to enable workers to carry out work without risk to health and safety (reg 40(e)); and
ii. Workers who were carrying out work in extremes of heat or cold were able to carry out work without risk to health and safety (reg 40(f)).
k.Reg 48 (Remote or isolated work) - The Defendants failed to ensure that they managed the risks to the health and safety of the Plaintiff associated with:
i. Reg 48(1) given that he was sitting alone at home without support in the period between 1 July 2016 and 2 November 2017; and
ii. Reg 48(2) given that the failure to ensure provision of a safe system of work included effective communication with the Plaintiff while he was sitting at home.
Workers Compensation Act 1951 (ACT)
The conduct pleaded was a breach of the following statutory duties by the Defendants specified in the Workers Compensation Act 1951 (Australian Capital Territory) ('the WC Act):
a.Section 91(1) (Employer's obligations for injury management programs) - The Defendants failed to ensure that they complied with the reasonable obligations imposed on the employer by the employer's insurer under the insurer's injury management program.
b.Section 92(2) (Register of injuries) - The Defendants failed to ensure that a register of injuries be kept at the workplace in a place that was readily accessible to workers at the workplace.
c.Section 99 (Vocational rehabilitation) - The Defendants failed to ensure that a vocational rehabilitation was provided or arranged for the Plaintiff under the personal injury plan.
d.Section 100(2) (Employer's personal injury plan obligations) - The Defendants failed to ensure that they complied with the reasonable obligations imposed on the employer under the personal injury plan.
e.Section 103(D) (Return-to-work coordinators - Functions) - The Defendants failed to ensure that the return to work coordinators who were appointed by the Defendants to assist on the return to work plan completed the following functions:
i.to assist injured workers to remain at work, or return to work as soon as practicable following an injury (s 103(D)(a));
ii.if the return-to-work coordinator's employer is not a self insurer-to assist the employer's insurer to prepare and implement the return to work plan or personal injury plan for an injured worker (s 103(D)(b));
iii.to identify suitable duties for injured workers (s 103(D)(c));
iv.to liaise with people involved in the provision of medical treatment or rehabilitation services to an injured worker in relation to the worker's return to work (s 103(D)(d));
v.to monitor an injured worker's progress towards the worker's return to work (s 103(D)(e));
vi.as far as practicable, to take steps to prevent an aggravation, acceleration or recurrence of an injured worker's injury when the worker returns to work (s 103(D)(f)); and
vii.to promote injury management strategies (s 103(D)(g)).
f.Section 103E (Employer's obligations) - The Defendants failed to ensure that it completed the following undertakings:
i.provide the facilities and assistance that are reasonably necessary to enable a return-to-work coordinator to exercise the coordinator's functions (s 103(E)(l)(a));
ii.not appoint a person as a return-to-work coordinator unless the person has completed training determined by the ACT Minister for Industrial Relations as prerequisite training for a return-to-work coordinator for this Act (s103(E)(l)(b)(i));
iii.not appoint a person as a return-to-work coordinator unless the person has experience of the kind determined by the Minister as prerequisite experience for a return-to-work coordinator for this Act (s 103(E)(l)(b)(ii));
iv.comply with the Minister's guidelines about an employer's responsibilities in relation to return-to-work coordinators (s103(E)(l)(c)).
g.Section 105 (Employer must provide suitable work for full-time, part- time and casual workers) - The Defendants failed to ensure the following;
i.the employer must provide employment to the worker that is so far as reasonably practical, the same as, or equivalent to, the employment in which the worker was employed at the time of the injury (s105(2)(a)); and
ii.otherwise suitable employment for the worker (s 105(2)(b)).
h.Section 109(1) (Workplace rehabilitation) - Defendants failed to establish and maintain a return-to-work program that complied with subsection (3).
i. Section 109(2) (Workplace rehabilitation') - The Defendants failed to display or notify a return-to-work program that complies with subsection (3) at each place of work of the workers to whom the program relates or may relate.
j.Section 109(3) ('Workplace rehabilitation') - The Defendants failed to ensure that the Plaintiff's return-to-work program included the following undertakings required of the Defendants;
i.to provide HR policies and procedures for the rehabilitation (including, if necessary, vocational rehabilitation) of injured workers of the employer (s 109(3)(a));
ii.to be consistent with the injury management program of the employer's insurer (s 109(3)(b));
iii.to be developed in consultation with the Plaintiff (s 109(3)(d)(i)); and
iv.to be developed in consultation with an approved rehabilitation provider (s109(3)(d)(iii)).
k.Section 142(1) (Vocational rehabilitation) - The Defendants failed to provide the Plaintiff with vocational rehabilitation. The Defendants coordinated a vocational rehabilitation some months after the Plaintiff had his employment terminated causing distress.
l.103D (Functions) -That the Defendants failed to ensure that the Plaintiff's 9 return-to-work coordinators undertook the following functions:
i.A return-to-work coordinator has the following functions:
1.to assist injured workers to remain at work, or return to work as soon as practicable following an injury;
2.if the return-to-work coordinator's employer is not a self insurer-to assist the employer's insurer to prepare and implement the return to work plan or personal injury plan for an injured worker;
3.to identify suitable duties for injured workers;
4.to liaise with people involved in the provision of medical treatment or rehabilitation services to an injured worker in relation to the worker's return to work;
5.to monitor an injured worker's progress towards the worker's return to work;
6.as far as practicable, to take steps to prevent an aggravation, acceleration or recurrence of an injured worker's injury when the worker returns to work;
7.to promote injury management strategies.
m.Section 103E (Employer's obligations)
(1) An employer must-
(a)…
(b)not appoint a person as a return-to-work coordinator unless the person-
i.has completed training determined by the Minister as prerequisite training for a return-to-work coordinator for this Act; or
ii.has experience of the kind determined by the Minister as prerequisite experience for a return-to-work coordinator for this Act; and
(c)comply with the Minister's guidelines about an employer's responsibilities in relation to return-to-work coordinators; and
(d)notify the Minister in writing about the contact details for each of the employer's return-to-work coordinators not later than 30 days after the day the coordinator is appointed.
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