Masti v Finohelp Support Pty Ltd
[2025] FedCFamC2G 134
•7 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Masti v Finohelp Support Pty Ltd [2025] FedCFamC2G 134
File number(s): SYG 520 of 2023 Judgment of: JUDGE CAMERON Date of judgment: 7 February 2025 Catchwords: PRACTICE AND PROCEDURE – Pleading – embarrassing pleading – failure to disclose reasonable cause of action – failure to plead component elements of cause of action
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – General protections – workplace rights – requirement to identify source of ability to complaint or inquire – requirement to identify nature and source of benefit, role or responsibility imposed by workplace law or instrument
Legislation: Fair Work Act 2009 (Cth) ss 323, 340, 341, 342, 351, 789FD
Work Health and Safety Act 2011 (NSW) s 19
Corporations Act 2001 (Cth) s 1317AA
Sex Discrimination Act 1984 (Cth) s 14
Work Health and Safety Regulations 2017 (NSW)
Federal Court Rules 2011 (Cth) r 16.21
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 1 item 14
Cases cited: Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279
Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905
Tameeka Group Pty Ltd v Landan Pty Ltd [2015] FCA 1218
Haire v WorkCo Australia Pty Ltd (No 2) [2024] FCA 1266
Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537
Construction, Forestry, Maritime, Mining and Energy Union v Quirk (2023) 300 FCR 170
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298
Hansen v Mt Martha Community Learning Centre Inc (2015) 254 IR 1
Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456
Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923
Division: Fair Work Number of paragraphs: 49 Date of hearing: 19 December 2023 Place: Sydney Counsel for the Applicant: Mr I Latham Solicitor for the Applicant: Connect Legal Counsel for the First and Second Respondents: Mr D Stewart Solicitor for the First and Second Respondents: BlackBay Lawyers Third Respondent: No appearance by or on behalf of the third respondent ORDERS
SYG 520 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MAYURA MASTI
Applicant
AND: FINOHELP SUPPORT PTY LTD (ABN: 13 646 185 462)
First Respondent
INTERNATIONAL CAPITAL MARKETS PTY LTD (ABN: 12 123 289 109)
Second Respondent
ANDREW LEON BUDZINSKI
Third Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
7 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Amended Statement of Claim be struck out.
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
JUDGE CAMERON
INTRODUCTION
On 28 March 2023 the applicant, Ms Masti, commenced this proceeding. On 30 June 2023 she filed an amended statement of claim (ASOC).
Ms Masti alleged that she had been employed as a human resources officer by the second respondent, International Capital Markets Pty Ltd (ICM), from 16 December 2019 until 15 December 2021 but her employment had been transferred to the first respondent, Finohelp Support Pty Ltd (Finohelp) on 15 September 2021, [sic] where she was employed until she was dismissed on 7 November 2022. The third respondent, Mr Budzinski, is alleged to have been a director of both ICM and Finohelp (together, the Corporate Respondents) and responsible for the overall management of their operations and business. Mr Budzinski has not been served and has not participated in the proceeding.
Ms Masti alleges that, in contravention of the Fair Work Act 2009 (Cth) (FW Act), adverse action, as defined by that Act, was taken against her by the Corporate Respondents because she had exercised various workplace rights during her employment.
APPLICATION IN A PROCEEDING
On 28 July 2023 the Corporate Respondents filed an application in a proceeding seeking the striking out of some or all of the ASOC. They sought the following orders:
1.Order that all, or such parts as determined by the Court, of the Amended Statement of Claim filed on 30 June 2023, be struck out pursuant to Rule 16.21(c), (d) and/or (e) of the Federal Court Rules 2011 (Cth).
2.Order the proceedings be dismissed.
3.In the alternative to Order 2, an order that the Applicant file and serve within 14 days any Application in a Proceeding seeking leave to file and serve a Further Amended Statement Claim in the form attached to such Application.
...
The proposal that the proceeding be dismissed was based on the presumption that the ASOC was so flawed that a claim could not be advanced. No other, more detailed, submission was advanced. Although I have concluded that the ASOC should be struck out, for the reasons that follow it should be apparent that a justiciable claim may yet be propounded, with the consequence that the proceeding would not be dismissed at this stage.
LEGISLATION
Fair Work Act
Section 340(1) of the FW Act provides that an employer must not take adverse action against an employee because, relevantly, the employee has a workplace right which they have exercised. The presently material portion of s.341 defines “workplace right” as follows:
341 Meaning of workplace right
Meaning of workplace right
(1) 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.
…
In the ASOC, the ability to complain under s.341(1)(c)(ii) is described as the First Workplace Right, the ability to inquire under s.341(1)(c)(ii) as the Second Workplace Right, the entitlements, roles or responsibilities under s.341(1)(a) as the Third Workplace Right and the ability to make a complaint or inquiry to a specified person under s.341(1)(c)(i) as the Fourth Workplace Right.
Section 342(1) of the FW Act relevantly states:
342 Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action
Item
Column 1
Adverse action is taken by ...
Column 2
if ...
1
an employer against an employee
the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
Federal Court Rules
The Federal Court Rules 2011 (Cth) provide relevantly:
Rule 16.21 Application to strike out pleadings
(1)A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d)is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
(2)A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph 1(a), (b), or (c) or is otherwise an abuse of the process of the Court.
That rule is applied in this Court by virtue of item 14 of sch.1 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EVIDENCE
The Corporate Respondents tendered copies of correspondence between their solicitors and Ms Masti’s concerning the adequacy of the ASOC. They also tendered a copy of Ms Masti’s contract of employment. It relevantly provided:
2. Duties
a) Ms Masti must carry out the duties in Schedule 1 and any of her duties reasonably required by ICM from time to time.
b) Ms Masti must perform her duties:
i,faithfully and diligently and in a professional and ethical manner;
ii.with due care and to the best of her knowledge and expertise; and
iii. in accordance with any lawful and reasonable direction given by the Directors and GM of ICM.
…
SCHEDULE 1 DUTIES AND REMUNERATION
1. Duties
As the HR Manager, Ms Masti will be a vital part in the Human Resources management as well as shaping workplace culture.
Ms Masti's duties and responsibilities includes [sic] but not limited to below:
• Coordinating recruitment process with hiring managers including advertising, filtering resumes, organizing interviews and performing reference checks.
• Coordinating employee performance and pay review program
• General HR administration including on-boarding (employment contracts, background check, employee information collection), employee exits and structure changes.
• Managing/recording employee attendance
• Be the initial point of contact for staff members, coordinators for HR enquiries and escalating as required.
• Sound interpretation of relevant legislation, policy and awards.
• Providing HR Policies, Employee handbook, Workplace health and Safety policy, and other Enterprise Agreements
• Maintaining worker's compensation policies,
• Coordinating and tracking staff training, and development as required.
• Assisting with overall administrative and operational functions of the Company, including travel/accommodation booking, weekly groceries, organizing Christmas party and other company event
• Ad hoc administrative duties
…
BACKGROUND
The Corporate Respondents’ solicitor, Ms Otavski, deposed that following correspondence from her firm asserting deficiencies in the pleading of the original statement of claim, it was replaced by the ASOC. In the respondents’ minds the ASOC is also deficient for being unintelligible, prolix, ambiguous and vague and for failing to identify the material factual allegations put against them. In their letter of 18 July 2023 to Ms Masti’s solicitors, the Corporate Respondents’ solicitors wrote:
We are of the view that the best course is for you to consent to have the ASoC struck out and to start with a 'fresh or clean slate'. Put another way, rather than attempting to cure the multitude of problems with your current pleading, we propose that you start again and prepare a fresh pleading that properly identifies any alleged claims.
They threatened a strike-out application in default of agreement.
No agreement was reached and the present application in a proceeding is the result.
AMENDED STATEMENT OF CLAIM
It was alleged in the ASOC that in the course of her employment Ms Masti performed the duties set out in para 1 of sch.1 to the employment contract quoted above (Duties term). It was also alleged that Ms Masti was required to observe cl.2(b) of the employment contract, which she described as the Good faith term.
Ms Masti alleged in the ASOC that in the period between 14 December 2020 and her dismissal on 7 November 2022, Mr Budzinski sent her emails in intemperate and impatient terms, largely concerning how certain staff members should be managed, that allegedly distressed her and of which some she believed, if acted upon, would have led to the contravention or possible contravention of the general protections provisions of the FW Act and perhaps of s.19 of the Work Health and Safety Act 2011 (NSW) (WHS Act). She alleged that she advised Mr Budzinski accordingly and sometimes, because of her concerns regarding the potential unlawfulness of the actions he proposed, she declined to act on his instructions. The ASOC purported to quote from Mr Budzinski’s emails to Ms Masti.
Paragraphs 71 to 73 of the ASOC alleged that Ms Masti:
(a)had been able during her employment to make a complaint in relation to her employment, i.e. she had had the First Workplace Right;
(b)had been able during her employment to make an inquiry in relation to her employment, i.e. she had had the Second Workplace Right;
(c)had during her employment been entitled to the benefit of, or had a role or responsibility under the FW Act, i.e. she had had the Third Workplace Right; and
(d)had been able to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law, i.e. she had had the Fourth Workplace Right.
Ms Masti alleged in paras. 16, 20, 34, 38, 44, 47 and 66 respectively of the ASOC that on the following dates she sent emails to Mr Budzinski responding to emails he had sent to her:
(a)14 December 2020 (14 December 2020 complaint and inquiry);
(b)11 January 2021 (11 January 2021 complaint and inquiry);
(c)early September 2021 (September 2021 complaint or inquiry);
(d)18 January 2022 (January 2022 complaint or inquiry);
(e)early February 2022 (10 February 2022 complaint and inquiry);
(f)early to mid-February 2022 (February 2022 complaint or inquiry); and
(g)26 October 2022 (26 October 2022 complaint).
In para. 80 of the ASOC Ms Masti alleged that by making the:
(a)14 December 2020 inquiry [sic];
(b)11 January 2021 inquiry [sic];
(c)September 2021 inquiry [sic];
(d)January 2022 inquiry [sic];
(e)10 February 2022 inquiry [sic]; and
(f)February 2022 inquiries [sic],
she had exercised the Second Workplace Right in the form of:
… an inquiry which was in relation to her employment.
She also alleged in para. 80 that those inquiries were “in relation to [her] employment” because they concerned the duties set out in the Duties term of her contract of employment and the obligations imposed on her by the contract’s so-called Good faith term.
In paras. 81, 82, 83, 84, 85, 86 and 87 respectively of the ASOC, Ms Masti alleged that by making the:
(a)14 December 2020 complaint [sic];
(b)11 January 2021 complaint [sic];
(c)September 2021 complaint [sic];
(d)January 2022 complaint [sic];
(e)10 February 2022 complaint [sic];
(f)February 2022 Complaint [sic]; and
(g)26 October 2022 Complaint [sic],
she had also exercised the First Workplace Right in the form of:
… a complaint in relation to her employment.
She also alleged that those complaints were an exercise of the First Workplace Right because they were “tethered to”, variously:
(a)her performance of the duties set out in the Duties term of her contract of employment;
(b)the employment contract and the Duties term;
(c)the employment contract and the so-called Good faith term;
(d)an unidentified modern award;
(e)a right to be a whistleblower under s.1317AA of the Corporations Act 2001 (Cth);
(f)s.323 of the FW Act, which provides for the method and frequency of wages payments;
(g)ss.334-378 of the FW Act, being the FW Act’s general protections provisions, in particular, s.351;
(h)ss.379-405 of the FW Act, being the FW Act’s unfair dismissal provisions; and
(i)s.19 of the WHS Act and unidentified provisions of the Work Health and Safety Regulations 2017 (NSW).
In paras. 25, 55, 58, 60, 62 and 64 respectively of the ASOC, Ms Masti alleged that on or about the following dates she had not complied with certain of Mr Budzinski’s emailed instructions:
(a)26 January 2021 (First Fair Work responsibility conduct);
(b)21 September 2022 (Second Fair Work responsibility conduct);
(c)another day in September 2022 (Third Fair Work responsibility conduct);
(d)13 October 2022 (Fourth Fair Work responsibility conduct);
(e)19 October 2022 (Fifth Fair Work responsibility conduct); and
(f)24 October 2022 (Sixth Fair Work responsibility conduct),
(together Fair Work Responsibility Conduct) because to have done so might have been unlawful under, variously, the FW Act, the WHS Act and the Sex Discrimination Act 1984 (Cth) (SD Act) or any of them.
Ms Masti alleged in paras. 75, 76, 77, 78 and 79 of the ASOC that the Fair Work Responsibility Conduct was, on each occasion, an exercise by her of the Third Workplace Right. The particulars of para. 75 of the ASOC are an adequate example of facts relied on in support of those allegations:
Particulars
a. …
b. the Applicant understood that from time-to-time, Mr. Budzinski provided her directions which were contrary to law, including contrary to the Fair Work Act 2009 and she had a responsibility not to break the law and not to comply with the direction, especially in circumstances where to comply with the direction would have also had a peripheral effect on the employee’s affected, including causing them to feel bullied, harassed or intimidated and other mental health issues for which would have been contrary to the Work, Health & Safety Act 2011 (NSW);
c. the Applicant had a general responsibility not to breach any law and as an employee not to breach the Fair Work Act 2009 and the Work, Health & Safety Act 2011 (NSW) which are workplace laws;
d. in the alternative the Applicant had the capacity to be personally liable under section 550 of the Fair Work Act 2009 for any conduct she personally engaged in and therefore had a responsibility not to cause, instruct, induce, aid, permit or be party to any breach the Fair Work Act 2009;
e. in the alternative under section 793(1) and (2) of the Fair Work Act 2009 the Applicants conduct, taken as conduct undertaken within her authority will be taken as conduct taken by her employer (creating liability for her employer a cause of action for the employee) and she therefore had a responsibility under that section not breach the Fair Work Act 2009;
f.in the alternative under section 789FD of the Fair Work Act 2009, the Applicants [sic] as a worker had a responsibility not to engage in conduct that could or has the potential to bully or harass another worker in the form proscribed in that section.
g. In the alternative under section 45 of the Fair Work Act 2009 she had a responsibility to not breach a modern award, and therein had a responsibility under the Modern Award to consult with the employees in relation to major workplace change likely to have a significant effect on their employment including the possibility of termination of employment on the basis of a major workplace change in introducing a test to determine employment continuation.
h. In the alternative under s.28 of the Work Health and Safety Act 2011 (NSW) whereby whilst at work, the Applicant as a worker had the workplace responsibility to take reasonable care for her own health and safety, and take reasonable care that her acts or omissions do not adversely affect the health and safety of other persons.
i. In the alternative at all material times, the Applicant was the Human Resources Manager who was responsible under her employment contract, for ensuring that her conduct and behavior [sic], when making decisions about employees’ employment, including decisions about their remuneration, performance management, counselling, pay roll and termination of employment were decisions that were compliant with her obligations under the Fair Work Act 2009 and the Work, Health & Safety Act 2011 (NSW).
The particulars of paras. 75, 76, 77, 78 and 79 also incorporated, respectively, the particulars of paras. 25, 55, 58, 60 and 62 and 64 of the ASOC which set out the statutory provisions that Ms Masti was concerned might have been breached had she not undertaken the relevant Fair Work Responsibility Conduct.
The ASOC did not allege that that Ms Masti had exercised the Fourth Workplace Right.
Ms Masti alleged in paras. 17, 21, 31, 35, 39, 45, 48, 50 and 68 respectively of the ASOC that during her employment with the Corporate Respondents, adverse action had been taken against her on:
(a)14 December 2020 (14 December 2020 adverse action);
(b)11 January 2021 (11 January 2021 adverse action);
(c)1, 3 and 9 February 2021 (February 2021 adverse action);
(d)6 September 2021 (6 September 2021 adverse action);
(e)18 January 2022 (18 January 2022 adverse action);
(f)10 February 2022 (10 February 2022 adverse action);
(g)14 February 2022 (14 February 2022 adverse action);
(h)16 February 2022 (16 February 2022 adverse action); and
(i)7 November 2022 (Dismissal).
Paragraphs 88, 89, 90, 91, 92, 93, 94 and 95 of the ASOC alleged, respectively, that those events amounted to adverse action because, amongst other things, the conduct in question, other than the Dismissal, injured her in her employment or altered her position to her detriment or did both. What were said to have been the practical consequences of the 10 occasions of alleged adverse action other than the Dismissal were set out in paras. 18, 22, 32, 36, 40, 46, 49 and 51 of the ASOC respectively. Consequences for Ms Masti common to each of those 10 alleged occasions of adverse action were said to have included feeling hurt, humiliated and embarrassed, and suffering:
… detriment to her mental health and well being, including a feeling of anxiety and depression, having a sleepless night and feeling socially and professionally withdrawn.
Ms Masti also alleged in paras. 88, 89, 90, 91, 92, 93, 94 and 95 of the ASOC respectively that a substantial or operative reason for the taking of the supposed adverse action on:
(a1)14 December 2020;
(b1)11 January 2021;
(c1)1, 3 and 9 February 2021;
(d1)6 September 2021;
(e1)18 January 2022;
(f1)10 February 2022;
(g1)14 February 2022;
(h1)16 February 2022; and
(i1)7 November 2022,
had been because, respectively, she had made the:
(a2)14 December 2020 complaint/inquiry [sic];
(b2)14 December 2020 complaint/inquiry [sic] and the 11 January 2021 complaint/inquiry [sic];
(c2)14 December 2020 complaint/inquiry [sic] and the 11 January 2021 complaint/inquiry [sic];
(d2)14 December 2020 complaint/inquiry [sic], the 11 January 2021 complaint/inquiry [sic]; and the September 2021 complaint/inquiry [sic];
(e2)14 December 2020 complaint/inquiry [sic], the 11 January 2021 complaint/inquiry [sic]; the September 2021 complaint/inquiry [sic] and the January 2022 complaint/inquiry [sic];
(f2)14 December 2020 complaint/inquiry [sic], the 11 January 2021 complaint/inquiry [sic]; the September 2021 complaint/inquiry [sic], the January 2022 complaint and inquiry [sic]; and the 10 February 2022 complaint and inquiry [sic];
(g2)14 December 2020 complaint/inquiry [sic], the 11 January 2021 complaint/inquiry [sic]; the September 2021 complaint/inquiry [sic], the January 2022 complaint and inquiry [sic]; the 10 February 2022 complaint and inquiry [sic]; and the February 2022 inquiry [sic];
(h2)14 December 2020 complaint/inquiry [sic], the 11 January 2021 complaint/inquiry [sic]; the September 2021 complaint/inquiry [sic], the January 2022 complaint and inquiry [sic]; and the 10 February 2022 complaint and inquiry [sic];
(i2)14 December 2020 complaint/inquiry [sic], the 11 January 2021 complaint/inquiry [sic]; the September 2021 complaint/inquiry [sic], the January 2022 complaint and inquiry [sic]; the 10 February 2022 complaint and inquiry [sic]; and the 26 October 2022 complaint,
and because she had engaged in:
(c3)the First Fair Work responsibility conduct;
(d3) the First Fair Work responsibility conduct;
(e3)the First Fair Work responsibility conduct;
(f3)the First Fair Work responsibility conduct;
(g3)the First Fair Work responsibility conduct;
(h3)the First Fair Work responsibility conduct; and
(i3)the Fair Work Responsibility Conduct,
as particularised in annexure B to the ASOC.
CONSIDERATION
Introduction
Relevantly, a pleading, or part of it, may be struck out under r.16.21 of the Federal Court Rules if it is embarrassing or fails to disclose a reasonable cause of action. It was said by Mason CJ and Gaudron J in Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 that:
The function of pleadings is to state with sufficient clarity the case that must be met … In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. (reference omitted)
An embarrassing pleading does not satisfy those requirements. A pleading will be embarrassing if it does not enable the respondent to know, with sufficient clarity, the case which it is required to meet: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]. In Tameeka Group Pty Ltd v Landan Pty Ltd [2015] FCA 1218 at [34], speaking of the Federal Court Rules applicable in this case, Markovic J said:
The concept of embarrassment in r 16.21(1)(d) can include a pleading that is susceptible to various meanings, contains inconsistent allegations, contains alternatives which are confusingly intermixed, contains irrelevant allegations which will tend to increase expense, is unintelligible or vague see: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]; Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263 at 269, [18].
A pleading may be struck out for failure to disclose a reasonable cause of action, but only in clear cases and it is a power to be used sparingly: Haire v WorkCo Australia Pty Ltd (No 2) [2024] FCA 1266 at [25] per Horan J. In that case, his Honour also cited Emmett, Bennett and McKerracher JJ’s statement of relevant principles in Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537 at [6]-[7]:
… In an application to strike out a pleading, all of the facts alleged in the relevant pleading are to be accepted as true, and it is to be taken for granted that, on all other points, the pleading is unassailable. Provided that a pleading fulfils its basic function of identifying the issues, disclosing an arguable cause of action and apprising the other party of the case that it has to meet at trial, the pleading should be allowed to stand and the proceeding should be allowed to go to trial. Further, a court of first instance should be careful not to risk stifling the development of the law by summarily dismissing a claim where there is a reasonable possibility that, as the law develops, a cause of action may be held to lie. The power to dismiss summarily is to be used only in cases that are unarguable and for which there is no reasonable prospect of success.
A statement of claim must allege a cause of action with sufficient particularity and not simply make allegations in general terms. The adequacy of a statement of claim is to be assessed by reference to whether the cause of action is pleaded at a level of particularity that is sufficient to define the issues and inform the other party of the case that it has to meet, in the context of the particular allegations. A respondent or defendant is entitled to know the factual foundation for the case that is being alleged, so that the respondent or defendant can prepare to meet that case at trial. In order to disclose a reasonable cause of action, a statement of claim must contain an allegation of all of the relevant facts necessary to support any allegation made in it. A pleading that simply pleads a conclusion is embarrassing and should not be permitted to stand.
The Corporate Respondents submitted that the ASOC was both embarrassing and failed to disclose a reasonable cause of action. Their arguments against the ASOC included assertions that:
(a)it was confusing;
(b)it did not plead the component elements of a cause of action based on unlawful adverse action;
(c)it did not allege that adverse action had been taken against Ms Masti for reasons associated with any purported entitlement she might have had to a workplace right protected by the FW Act; and
(d)what it alleged had been Ms Masti’s workplace rights were not workplace rights and could not support her allegations of unlawful adverse action.
These submissions were particularised in a schedule of criticisms. That schedule particularised other criticisms which were conceded by Ms Masti in her 27 September 2023 letter to the Corporate Respondents’ solicitors, and so are not addressed in the following discussion.
Embarrassing pleading
The Corporate Respondents’ arguments on embarrassment are encapsulated by the following submission referred to earlier:
… the ASOC is unintelligible, prolix, ambiguous and/or so vague on its face and that it failed to identify the material factual allegations put against the First and Second Respondent that are said to mean they have contravened the Act. Importantly, they have not been given notice of the real substance of the claim(s) they must meet.
The summary of the ASOC set out earlier in these reasons reveals that it does not suffer from all the pleading deficiencies of which the Corporate Respondents complain. It pleads what it contends were workplace rights enjoyed by Ms Masti at relevant times, makes allegations as to which conduct amounted to the exercise of the various workplace rights, identifies what it says were occasions of adverse action and why they amounted to adverse action, and alleges that the taking of adverse action was motivated by Ms Masti’s alleged exercise of the purported workplace rights. Even so, looking at the pleading as a whole, its structure makes it unnecessarily difficult to understand what Ms Masti alleges are the elements of her various causes of action. It has taken considerable time and effort to tease from the pleading what it seeks to say, and I may not have succeeded in that endeavour given the challenges of co-ordinating the interlocking and cumulative operation of the document’s various sections.
On the question of prolixity I suspect that the structure of the ASOC makes it appear so. If each cause of action and its component elements were addressed discretely rather than spread across the pleading as presently, the ASOC might reveal itself to be simply lengthy rather than prolix.
However, I accept the Corporate Respondents’ submissions concerning poor pleading in paras. 1 and 14 of the ASOC, although those were quite trivial matters that could have been addressed quickly and simply in a defence and would not, individually or cumulatively, have warranted the striking out of the pleading or parts of it. I also observe that, unhelpfully, the pleading defines terms such as “14 December 2020 complaint and inquiry” but then speaks of the “14 December 2020 complaint”, of the “14 December 2020 inquiry” and in annexure B to the ASOC of the “14 December 2020 complaint / inquiry”. Also as previously observed, it identifies a Fourth Workplace Right but does not allege any related contravention and it does not effectively identify any particular award as the Modern Award to which it refers at various places.
More significant were the criticisms of the allegations in paras. 81 to 87 of the ASOC. There it was alleged that certain complaints made by Ms Masti had been complaints “in relation to her employment” on the basis that they were “tethered” to particular workplace instruments; to certain Acts and regulations; to an award, presumably the Clerks Private Sector Award 2020 (Clerks Award) (the ASOC does not make this clear); to alleged terms and conditions of her employment; or to her performance in the course of her employment of certain duties particularised elsewhere in the ASOC. “Tethered” has no agreed meaning of any relevance to those allegations. Its use hinders understanding of what Ms Masti means to say in those paragraphs.
Further, the ASOC does not identify with any clarity what relevant power or freedom Ms Masti was purportedly exercising when she made her complaints and inquiries. The particulars in ASOC paras.80-87 of the various instruments to which the complaints and inquiries were related or otherwise “tethered” were unspecific and unenlightening, the reference to the Corporations Act being particularly obscure given the FW Act’s definition of “workplace law”. Those powers and freedoms are probably matters for specific pleading as matters necessary to demonstrate before it would be found that at the relevant times Ms Masti had a workplace right of the sort identified in s.341(1)(c)(ii) of the FW Act: vide Construction, Forestry, Maritime, Mining and Energy Union v Quirk (2023) 300 FCR 170 at 184-185 [43] per Rares J.
Significantly, Ms Masti cited no authority supportive of the proposition that her alleged complaints and inquiries engaged s.341 of the FW Act or amounted to the exercise of any of the workplace rights prescribed there. She did make reference to what Katzmann J said in CFMMEU v Quirk at 247-248 [339] but when that paragraph is read in its entirety it tends to support, by analogy, the Corporate Respondents’ objection to the adverse action claims based on the First and Second Workplace Rights
Difficulties also arise in relation to the allegations based on the Fair Work Responsibility Conduct. Paragraph 72 of the ASOC alleges that Ms Masti was
… entitled to the benefit or had a role or responsibility under the Fair Work Act 2009 within the meaning of s.341(1)(a) of the FW Act.
That pleading paraphrases s.341(1)(a) inaccurately, which is not helpful when seeking to identify and assert the existence of a statutory right. Secondly, there is little precision in the description of the rights, roles and responsibilities propounded by Ms Masti. It is true that s.341(1)(a) has not been the subject of much discussion in the cases and that what there has been is not particularly relevant to this matter: cf. Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at 332-332 [175] – [180]. However, in Hansen v Mt Martha Community Learning Centre Inc (2015) 254 IR 1 at 39-40 [138] – [139] Jessup J did hold that the reference in s.341(1)(a) to a role or responsibility under a workplace instrument was a reference to a role or responsibility given by the instrument. That statement would appear to apply equally to a role or responsibility given by a workplace law, although the paragraph awaits appellate consideration. It is not apparent that in the drawing of the ASOC regard was had to Jessop J’s reasons.
Presently, Ms Masti’s allegations that she had certain workplace rights are put vaguely and without a precision sufficient to identify the particular factual matters she relies on to support her claim to have had those rights.
Any adverse action not for a prohibited reason and no relevant workplace rights
Generally
The Corporate Respondents’ principal complaints, however, concerned Ms Masti’s substantive allegations of contravention made in paras. 15 to 109 of the ASOC, noting that para.70 has been deleted, and in the two annexures to the ASOC.
As previously noted, Ms Masti alleges that she had workplace rights falling into two categories:
(a)the ability to make a complaint or inquiry in relation to her employment, being the First Workplace Right and the Second Workplace Right, and
(b)the entitlements, roles or responsibilities she alleges she had under s.341(1)(a) of the FW Act, being the Third Workplace Right.
For their part, in addition to their related complaints about the ASOC’s vagueness as to how Ms Masti was supposedly entitled to the workplace rights she claimed, the Corporate Respondents submitted that the pleading failed:
... at even the most basal level to identify a workplace right of the Applicant
and disclosed no reasonable cause of action. This was said to be because what Ms Masti had characterised as her workplace rights, which had their basis in her worries about the steps Mr Budzinski wanted her to take against other employees, had in reality been issues involving those other employees’ workplace rights, not her rights. It was submitted that what Ms Masti pleaded as workplace rights had not been her workplace rights at all.
Complaints and inquiries
Specifically in relation to the claimed First Workplace Right and Second Workplace Right, the Corporate Respondents submitted that any workplace rights prescribed by s.341(1)(c)(ii) of the FW Act that were enjoyed by Ms Masti were related, and limited, to her own employment contract and its associated rights and obligations and did not extend to her day-to-day performance of her duties. The Corporate Respondents argued that to the extent that Ms Masti alleged that they had taken unlawful adverse action against her during her employment and prior to her dismissal, Mr Budzinski’s emails to her about the management of staff had not been:
directed at her employment in the requisite sense under the Act
but had been directions concerning what she was to do as human resources manager. They argued that the emails concerned actions that Mr Budzinski wanted taken in relation to various members of staff and that even if those employees might have had a resulting FW Act claim, that fact did not provide Ms Masti with one. In short, the submission was that Ms Masti’s ability to query or dispute directions given to her concerning the work she was required to perform was not a right protected by the FW Act and so did not ground an adverse action claim.
The issue raised by the Corporate Respondents’ particular submission is: what are the defining characteristics of a complaint or inquiry “in relation to [one’s] employment” that distinguish it from other sorts of workplace complaints and inquiries? Presumably, given the context in which it appears, s.341(1)(c)(ii) of the FW Act is concerned with things of an industrial relations nature and is likely to be concerned with the terms and conditions of employment, including implied and legislated ones, and not with an employee’s duties except to the extent that such duties affect the employee’s ability to enjoy those terms and conditions of employment: cf.Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456 at [42], [43]; Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923 at [77]. However, the point is far from settled and I am not persuaded that is not reasonably arguable that Ms Masti’s complaints and inquiries did fall within the workplace rights described in s.341(1)(c).
However, regardless of whether it could amount to a failure to plead an essential element of a reasonable cause of action, earlier in these reasons I have found that the failure to identify with clarity the source or sources of the alleged ability to complain or inquire is a significant pleading deficiency. It should be addressed.
Benefit, role or responsibility
The Corporate Respondents submitted in relation to the Third Workplace Right, which was said to support the Fair Work Responsibility Conduct, that what Ms Masti seemed:
… to want to do is run some type of vicarious adverse action and/or perhaps vicarious trauma case because she was adjacent to or was directed to (in her mind) breach the Act.
In its present form the ASOC does not allege that Ms Masti was entitled to the benefit of a workplace law or instrument or that any order made by an industrial body applied to this matter. Consequently, this aspect of the case is limited to whether Ms Masti had a role or responsibility under a workplace law or instrument
Ms Masti’s allegations concerning her roles and responsibilities under workplace laws and instruments are found in paras. 25, 55, 58, 60, 62, 63.75, 76, 77, 78 and 79 of the ASOC. In summary, Ms Masti says that her roles and responsibilities were to:
(a)not break the law, including the FW Act and s.19 of the WHS Act, or encourage others to do so; and
(b)not contravene a modern award, presumably the Clerks Award.
She also referred to her wish:
(c)not to become liable as an accessory to any contravention by the Corporate Respondents of the FW Act or of s.14(2)(c) of the SD Act;
(d)not to cause the Corporate Respondents to be vicariously liable under the FW Act for any contraventions of that Act which she might commit; and
(e)not to commit bullying of the sort referred to in s.789FD of the FW Act.
Those matters do not appear, without more explanation, to amount to roles or responsibilities imposed on Ms Masti by workplace laws or instruments. In particular, the statutory obligations were ones imposed on the Corporate Respondents as employers, not on her as one of their employees. The ASOC did not identify why the matters cited caused to devolve on Ms Masti a particular right, role or responsibility that she did not already have under the law in common with all other subjects.
Ms Masti’s roles and responsibilities were ostensibly set out in her contract of employment but reliance has been placed on no particular provision of that workplace instrument in the context of the Third Workplace Right. In addresses Ms Masti’s counsel did say:
We are directly in a situation where a person is saying, “I am responsible for involvement in making sure that the Act is not breached,” and in broad, “I have been victimised for raising that issue.”
but no clause of the contract was cited.
The pleading of the exercise of the Third Workplace Right appears misconceived in its present iteration. It fails to identify what roles or responsibilities were imposed on Ms Masti and by what workplace law or instrument. Pointing to duties common to everyone or imposed on someone else is unlikely to make out the allegation. Again, whether or not they could amount to a failure to plead an essential element of a reasonable cause of action, the failures to identify the nature and source of Ms Masti’s alleged roles and responsibilities are a significant pleading deficiency that should be addressed.
CONCLUSION
The shortcomings in the ASOC that I have identified are such that that pleading must be struck out. Having now twice pleaded her case unsuccessfully, Ms Masti she should not automatically be entitled to try again. If she wishes to file a further statement of claim she must first obtain leave or consent.
The amended statement of claim will be struck out.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 7 February 2025
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