Kuot v Maxlife Care Pty Ltd
[2025] FedCFamC2G 517
•11 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kuot v Maxlife Care Pty Ltd [2025] FedCFamC2G 517
File number(s): SYG 378 of 2025 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 11 April 2025 Catchwords: INDUSTRIAL LAW - Application pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) for extension of time within which to make a general protections court application based on dismissal from employment – whether applicant has given adequate explanation for delay – whether applicant has meritorious claim if extension granted – whether otherwise appropriate to grant extension – extension refused. Legislation: Fair Work Act 2009 (Cth) ss 12, 340, 341, 342, 351, 360, 361, 365, 368, 370, 385, 387
Industrial Relations Act 1988 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 30.05
Cases cited: Alam v National Australia Bank Limited [2021] FCAFC 178
Australian Building and Construction Commissioner v Hall [2018] FCAFC 83
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162
El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260
Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923
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: 51 Date of hearing: 2 April 2025 Place: Sydney The Applicant: Appeared in person, by video Solicitor for the Respondent: Bull Son & Schmidt ORDERS
SYG 378 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AYIIK AKOIK KUOT
Applicant
AND: MAXLIFE CARE PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
11 APRIL 2025
THE COURT ORDERS THAT:
1.The applicant’s application for an order extending the 14 day period provided for by s 370(a)(ii) of the Fair Work Act 2009 (Cth) is dismissed.
2.The proceeding be listed for a directions hearing at 9.30 am on 24 April 2025.
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 (MCPL) provides services to persons with disabilities. These include accommodation with associated 24 hours care.
On 1 December 2021 the applicant, Mr Kuot, commenced employment with MCPL as a disability support worker. In August 2024 MCPL promoted Mr Kuot to the position of team leader.
On 25 September 2024 the guardian of a person who was under MCPL’s care made a verbal complaint about an incident that occurred on 21 September 2024. MCPL followed a process by which it sought to acquaint itself with the relevant facts; and, by 1 October 2024, an employee of MCPL decided that MCPL should terminate Mr Kuot’s employment, which MCPL did on the same day.
On 21 October 2024 Mr Kuot applied to the Fair Work Commission (FWC) under s 365 of the Fair Work Act 2009 (Cth) (FW Act), which provides:
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
“This Part” is Part 3-1 of the FW Act, which is headed “General Protections”.
Subsection 368(1) of the FW Act provides that, if an application is made under s 365, the FWC “must deal with the dispute (other than by arbitration).” Paragraph (a) of s 368(3) provides, however, that if the FWC is satisfied that all reasonable steps to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, the FWC must issue a certificate to that effect. If the FWC issues a certificate, s 370 of the FW Act applies, which provides:
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii)the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
The expression “general protections court application” (GPC dismissal application) is defined in s 368(4) of the FW Act to mean an application to a court under Division 2 of Part 4-1 of the FW Act for orders in relation to a contravention of Part 3-1 of the FW Act.
On 14 January 2025 the FWC issued a certificate (Certificate) under s 368(3)(a) of the FW Act in relation to Mr Kuot’s application. That meant that if Mr Kuot intended to make a GPC dismissal application to this Court, he was required to do so 14 days after the date on which the FWC issued the Certificate, namely, by 28 January 2025. Mr Kuot, however, did not do so. Instead, Mr Kuot filed an application on 7 February 2025, together with a Form 4 in which he alleged that MCPL’s termination of his employment contravened s 340, s 342, s 351, and 387 of the FW Act. Mr Kuot also alleged that MCPL contravened these provisions by engaging in conduct other than by terminating his employment. [1]
[1] Mr Kuot was required to file a Form 2 in relation to his claims based on the termination of his employment: see r 30.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Given that is a matter of procedure, nothing turns on Mr Kuot not having filed a Form 2.
Mr Kuot now applies for an order under s 370(a)(ii) of the FW Act that he be allowed to make a GPC dismissal application on 7 February 2025, being 10 days after the date by which Mr Kuot was required to have made that application. MCPL opposes Mr Kuot’s application because Mr Kuot has not adequately explained his delay; and because the case based on dismissal Mr Kuot wishes to pursue lacks merit.
PRINCIPLES
The principles I should apply in determining whether to allow Mr Kuot until 7 February 2025 by which he can make a GPC dismissal application are those Marshall J stated in Brodie-Hanns v MTV Publishing Limited when considering a provision in the Industrial Relations Act 1988 (Cth) that is similar to s 370(a)(ii) of the FW Act. His Honour said:[2]
1.Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2.Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3.Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4.The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5.The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6.Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.
[2] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, at pages 299-300
EXPLANATION FOR DELAY
In the first of the two affidavits he lodged for filing on 19 March 2025, Mr Kuot says that, due to his deteriorating mental health, his uncle arranged for Mr Kuot to visit his mother in Uganda. Mr Kuot departed Australia on 20 December 2024. While overseas Mr Kuot did not have access to electricity or the Internet; and on his return he immediately attempted to submit the application. Mr Kuot informed me during the hearing that he returned to Australia on 26 January 2025.
The evidence Mr Kuot provided at the hearing reveals that at 11.23 pm on 28 January 2025 Mr Kuot sent an email to the Court’s Registry attaching a completed Form 4 together with a number of documents, which included the Certificate. Further emails passed between Mr Kuot and the Registry until 3 February 2025. Mr Kuot also says that he was suffering and continues to suffer from emotional and financial distress; and he has made efforts to obtain legal assistance.
MCPL submitted Mr Kuot has not given an adequate explanation for his delay. MCPL submits that Mr Kuot was, or ought to have been aware, the FWC communicated with the parties by email, and Mr Kuot, therefore, ought to have made arrangements to ensure that he had access to email communications while overseas. MCPL also submitted that Mr Kuot has not provided evidence of the day he returned to Australia, and he has not accounted for the delay between 31 January 2025, when Mr Kuot received the last communication from the Registry, and 7 February 2025, when he filed his application with the Court.
On 8 April 2025, after the hearing, Mr Kuot sent an email to my Associate’s inbox attaching a supplementary statement (Supplementary Statement), and an air ticket which confirmed what Mr Kuot told me at the hearing, namely, that he returned to Sydney on 26 January 2025. MCPL informed my Associate by email that MCPL did not object to my considering the material Mr Kuot provided to my Associate’s inbox.
Although I accept Mr Kuot’s explanation for his delay, I am not satisfied it is an adequate explanation. Mr Kuot ought to have been aware that the FWC would communicate with him by email, and he should have made arrangements to ensure he had access to the Internet while overseas. Mr Kuot’s not providing an adequate explanation, however, would not weigh heavily if I were satisfied that the claim based on dismissal he proposed to make has merit.
APPARENT MERITS
Mr Kuot’s allegations
Mr Kuot articulates his claims in the Form 4 he filed, where he alleges or describes the following:
(a)the events that gave rise to the verbal complaint by the guardian;
(b)what occurred and was said at a Care Plan meeting held with the guardian and a NDIS coordinator;
(c)Mr Kuot’s being suspended on 25 September 2024 without written notice or explanation;
(d)on 27 September 2024 Mr Kuot attended a “fact-finding meeting” with two human resources representatives, and two other officers or employees of MCPL, where no evidence of misconduct was presented, and where Mr Kuot was denied the opportunity to have a support person present;
(e)after the meeting referred to in (d), a human resources representative pressured Mr Kuot via telephone to resign, claiming that it was in his best interests and allegedly, falsely asserting that Mr Kuot’s resignation would protect his NDIS clearance;
(f)the conversation or conversations referred to in (e) were followed by numerous text messages from an officer of MCPL asking Mr Kuot to resign;
(g)on 1 October 2024 Mr Kuot received a termination email without evidence or explanation of any policy breach; and
(h)Mr Kuot asked for the fact-finding minutes, and detailed reasons for termination, but MCPL did not provide these.
On the basis of these matters, the Form 4 states as follows:
2. Adverse Action:
· The adverse action taken against me includes:
o Suspension without written notice or explanation on September 25, 2024.
o Coercion to resign via phone calls from HR representatives as well as texts from Area Manager.
o Termination of employment on October 1, 2024, without valid reasons or evidence of misconduct.
3. Workplace Right (Section 340):
· I exercised the following workplace rights:
o Following [client’s] Care Plan, which identifies . . . as a staff responsibility.
o Reporting the incident and submitting progress notes and an incident report in accordance with workplace policies.
4. Provisions of the Fair Work Act Relevant to the Claim:
· Section 340: Maxlife Care took adverse action against me because I exercised a workplace right (following the Care Plan and ensuring the participant’s wellbeing).
· Section 342: The suspension and termination constitute adverse action[s]. My dismissal constitutes adverse action, as it was not based on a genuine breach of policy but rather on inconsistent and unfair treatment.
· Section 351: I was discriminated against compared to my colleague, [AD], who received only a warning for the same incident.
· Section 387: The termination was procedurally unfair, as I was denied a support person and not provided with a valid reason or opportunity to respond.
In Part H of the Form 4 Mr Kuot identifies the position he held as an employee of MCPL, his duties and responsibilities, and the work he performed. Under the heading “Adverse actions taken against me”, Mr Kuot alleges as follows:
1.Contravention of Section 340 – Maxlife Care took adverse action (termination) against me for performing a task required under my role while failing to apply the same standard to my colleague.
2.Contravention of Section 342 – My dismissal constitutes adverse action, as it was not based on a genuine breach of policy but rather on inconsistent and unfair treatment.
3.Contravention of Section 351(1) – The disciplinary action appears to have been influenced by favoritism due to my colleague’s pre-existing relationship with the participant’s mother and her history working with the participant at a previous provider. This unfair advantage contributed to my termination while she was retained.
4.Contravention of Section 361 – The employer must demonstrate that my termination was not influenced by prohibited reasons, including favoritism, bias, or external relationships.
Under the heading “Procedural Unfairness & Lack of Justification”, Mr Kuot alleges:
•Failure to Specify Policy Breach: The termination email did not identify which policy I allegedly breached, making it impossible for me to respond or defend myself adequately.
•Failure to Provide a Support Person: I was denied procedural fairness under Section 387(h), as I was not given a support person during the fact-finding meeting.
•Failure to Provide Fact-Finding Meeting Minutes: Despite my formal request, Maxlife Care has refused to provide the minutes or records from the meeting where my termination was decided.
Finally, under the heading “Emotional & Reputation Damage”, Mr Kuot alleges as follows:
The disability care sector relies on a clean professional record, and this wrongful termination has negatively impacted my ability to secure comparable employment. This has resulted in:
•Financial hardship due to prolonged unemployment.
•Emotional distress from the stress of defending my reputation.
•Reputational damage, as prospective employers may question why I was dismissed without a clear reason.
I respectfully request that Maxlife Care provide documentation justifying why my colleague, [AD], received only a formal warning while I was terminated for the same conduct.
It is apparent that Mr Kuot alleges that MCPL engaged in a number of adverse actions, namely, termination of his employment, suspension of his employment, discrimination between Mr Kuot and another employee, and “Coercion to resign”. Mr Kuot requires an order under s 370(a)(ii) of the FW Act, however, only to the extent he claims relief based on MCPL’s termination of his employment.
In the Supplementary Statement, Mr Kuot addressed a number of matters. First, Mr Kuot disputes a number of matters that MCPL’s lawyer, Mr Whowell, deposed to in affidavits he made, and submissions Mr Whowell made at the hearing. Second, Mr Kuot makes a submission about the internal correspondence Mr Nijhawan, MCPL’s general manager of operations, annexed to his affidavit. Third, Mr Kuot deposes to a number of matters that put in issue the matters on which the evidence appears to show MCPL relied on in deciding to terminate Mr Kuot’s employment, and which challenge the fairness and thoroughness of the investigation MCPL purported to carry out in relation to the guardian’s complaint. Mr Kuot concludes the Supplementary Statement by submitting that MCPL did not give him procedural fairness, and that MCPL decided to terminate his employment “due to organisational pressure rather than any misconduct on” his part.
Before I consider the apparent merits of Mr Kuot’s case, it will be necessary to identify the provisions on which Mr Kuot relies, and some principles.
Subsection 340(1) of the FW Act
Subsection 340(1) of the FW Act 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.
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.[3]
[3] 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].
Adverse action
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.
Has or has not exercised a workplace right
The second matter 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 provides:
A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee – in relation to his or her employment.
The expression “workplace law” is defined in s 12 of the FW Act to mean:
(a) this Act; or
(b) the Registered Organisations Act; or
(c) the Independent Contractors Act 2006; or
(d)any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).
Subsection 341(2) of the FW Act provides that each of the following is a “process or proceedings under a workplace law or workplace instrument”:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g)making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h)agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i)making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);
(ia)giving a notification, or receiving an offer or notice, under Division 4A of Part 2‑2 (which deals with casual employment);
(j)dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k)any other process or proceedings under a workplace law or workplace instrument.
Complaint or inquiry
In Alam v National Australia Bank Limited the Full Federal Court explained the notion of “complaint” for the purposes of s 341(1)(c) of the FW Act as follows:[4]
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.
[4] 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.[5]
[5] 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”.[6] I reviewed some of the authorities in El-Hajje v Rissalah College Limited.[7] I there concluded that what I identified as the most recent Full Federal Court authority[8] 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.
[6] 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]
[7] El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260, at [19]
[8] 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:[9]
The words “is able to” in s 341(1)(b) and (c), while not words of limitation,[10] necessarily indicate that circumstances have come into existence in which the person has a present capacity to exercise a relevant 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).
[9] Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27, at [36]
[10] 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:[11]
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.
[11] 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.[12]
[12] 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,[13] although Colvin J may have held a different view.[14]
[13] Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163, at [43] (Rares ACJ) and [337] (Katzmann J)
[14] Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163, at [516].
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”.[15]
[15] Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923, at [77]
Adverse action because of exercise of a 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.[16] 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”,[17] or must be an “operative or immediate reason for the action”.[18]
[16] FW Act, s 360
[17] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [127] (Gummow and Hayne JJ)
[18] 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”;[19] 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””.[20]
[19] Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, at [14]
[20] 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.
Determination
Mr Kuot’s claim based on his being dismissed in contravention of s 340(1) of the FW Act relies on his having exercised a workplace right which Mr Kuot alleges consists of Mr Kuot having performed his duties as an employee, and having complied with MCPL’s policies, in relation to the event that led to the guardian raising a complaint. These acts, however, are not reasonably capable of being characterised as the exercise of a workplace right as defined in s 341(1) of the FW Act. That is, the acts on which Mr Kuot relies as constituting the exercise of workplace rights are not reasonably capable of being characterised as Mr Kuot’s:
(a)seeking the benefit of, or exercising a responsibility under, a workplace law, workplace instrument, or order made by an industrial body;
(b)initiating, or participating in, a process or proceedings under a workplace law or workplace instrument; or
(c)making a complaint or inquiry in relation to his employment.
For these reasons, Mr Kuot would not have reasonable prospects of succeeding on his claim that MCPL took adverse action against him by dismissing him from his employment because he exercised a workplace right in contravention of s 340(1) of the FW Act.
Mr Kuot also would not have reasonable prospects of succeeding on his claim that MCPL took adverse action by dismissing him from his employment in contravention of s 351(1) of the FW Act; and that is because Mr Kuot does not allege MCPL dismissed him from his employment because he has one of the relevant attributes identified in s 351(1) of the FW Act. That is, Mr Kuot does not allege MCPL dismissed him from his employment because of his “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”.
It is the case that Mr Kuot alleges that in dismissing him MCPL discriminated between Mr Kuot and another employee who was allegedly involved in the events that gave rise to the guardian’s complaint by MCPL dismissing Mr Kuot but not dismissing the other employee. Mr Kuot, however, relies on this allegation of discrimination as constituting adverse action for the purposes of his case based on MCPL’s having contravened s 340(1) of the FW Act.
Reliance on s 387 of the FW Act
Mr Kuot also relies on s 387 of the FW Act. That section identifies matters the FWC must take into account when determining whether a person’s dismissal was “harsh, unjust or unreasonable” for the purpose of the FWC determining whether a person has been “unfairly dismissed” within the meaning of s 385 of the FW Act. The Federal Circuit and Family Court of Australia (Division 2), however, does not have jurisdiction to determine whether a person has been unfairly dismissed. That means that whether MCPL treated Mr Kuot fairly is not a question that is relevant to determining whether Mr Kuot’s claims based on contraventions of s 340(1) or s 351(1) of the FW Act have any merit.
OTHER MATTERS
The other matters Marshall J identified in Brodie-Hanns are neutral to the exercise of the discretion whether to make an order under s 370(a)(ii) of the FW Act.
DETERMINATION AND DISPOSITION
I am not satisfied that I should extend the 14 day period provided for by s 370(a)(ii) of the FW Act in which Mr Kuot may make a GPC dismissal application; and that is because, if an order were made, Mr Kuot would not have reasonable prospects of establishing that MCPL terminated Mr Kuot’s employment because he exercised any workplace right or because he possessed any of the attributes specified by s 351(1) of the FW Act. I therefore propose to order that Mr Kuot’s application for an extension of time be dismissed.
My dismissing Mr Kuot’s application to extend the 14 day period for making a GPC dismissal application does not necessarily mean that I must dismiss the proceeding; and that is because, as I have already noted, Mr Kuot alleges that MCPL took adverse action by means other than by dismissing him from his employment. Given I have found, however, that Mr Kuot has not alleged facts that could reasonably be characterised as his having exercised a workplace right within the meaning of s 341 of the FW Act, it necessarily follows that Mr Kuot would not have reasonable prospects of succeeding on his claims that MCPL contravened s 340(1) of the FW Act based on its having taken adverse action other than by dismissing Mr Kuot from his employment.
I will therefore list the matter for a directions hearing at 9.30 am on 24 April 2025, by which time Mr Kuot may consider whether he wishes to continue with the claims that are not based on MCPL having dismissed him from his employment.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 11 April 2025
At [522] 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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