Nolan v Grace Worldwide (Australia) Pty Ltd - [2023] FedCFamC2G 623

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nolan v Grace Worldwide (Australia) Pty Ltd [2023] FedCFamC2G 623

File number: SYG 2149 of 2019

Judgment of: JUDGE BAIRD

Date of judgment: 20 July 2023

Catchwords: INDUSTRIAL LAW – General protections – respondent employer altering applicant employee’s position to their prejudice – workplace health and safety issues –performance improvement plan – formal and informal meetings – workplace bullying – denial of sick leave - whether the employee has made complaints or inquiries amounting to the exercise of workplace rights pursuant to s 341 of the Fair Work Act 2009 (Cth) (FW Act) – whether the employee has been subject to an adverse action in contravention of s 340 of the FW Act – identification of the person or people who decided to engage in adverse action - whether the statutory onus in s 361 of the FW Act has been discharged in relation to the decision maker – application dismissed.

Legislation: Fair Work Act 2011 (Cth) ss 97, 340, 341, 342, 545, 550

Cases cited:
Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301

Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332

Board of Bendigo Regional Institute of TAFE v Barclay [2012] HCA 32; (2012) 248 CLR 500

Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC16; (2019) 268 FCR 46

El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260

Elliot v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251

Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

Khiani v Australian Bureau of Statistics [2011] FCAFC 109

PIA Mortgagev King [2020] FCAFC 15; (2020) 274 FCR 225

Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285

Wong v National Australia Bank Limited [2022] FCAFC 155; (2022) 318 IR 148

Division: Division 2 General Federal Law

Number of paragraphs: 435

Date of last submissions: 3 December 2021

Date of hearing: 18-20 October 2021, 3 December 2021

Place: Sydney

Applicant: Mr Kenneth Nolan appeared for himself

Counsel for the Respondents: Mr B Rauf

Solicitor for the Respondents: Mr P Doughman, Matthews Folbigg Lawyers
ORDERS

SYG 2149 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
KENNETH NOLAN

Applicant

AND:
GRACE WORLDWIDE AUSTRALIA PTY LTD

First Respondent

PHIL BATTEN

Second Respondent

order made by:

JUDGE BAIRD

DATE OF ORDER:

20 jULY 2023

THE COURT ORDERS THAT:
1.The application is dismissed.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC2G 623
Decision Date: 20 July 2023

CaseChat Overview and Summary

The applicant, Mr Nolan, sought relief against his employer, Grace Worldwide (Australia) Pty Ltd, under the Fair Work Act 2009 (Cth). The case before the court was whether Mr Nolan had been subjected to adverse action for exercising workplace rights, specifically whether his dismissal was due to his participation in workplace health and safety discussions and alleged workplace bullying. The application was dismissed by Justice Mortimer of the Federal Circuit Court of Australia.

The primary legal issue was whether Mr Nolan had engaged in protected activities that led to adverse actions by his employer in contravention of the Fair Work Act 2009 (Cth). The court had to determine if Mr Nolan's dismissal was due to exercising his workplace rights, such as raising health and safety concerns and reporting bullying, or if it was based on legitimate performance issues. The court also had to consider whether the statutory onus under s 361 of the FW Act had been discharged to establish that the decision-maker was not involved in the adverse action.

Justice Mortimer found that Mr Nolan's dismissal was due to ongoing poor work performance and insubordinate behaviour, not for exercising his workplace rights. The court held that Grace Worldwide had not contravened the Fair Work Act by dismissing Mr Nolan. The decision maker, Mr Batten, was not involved in the contravention as the dismissal was based on performance issues. The statutory onus was not discharged, and therefore, Mr Nolan's application was dismissed.

In conclusion, the court ordered that Mr Nolan's application be dismissed, and the bankruptcy proceedings against him remain stayed until 10 days after the final determination of this case. The lapsing date of the creditor’s petition was extended to 12 September 2023.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondents further submit the decision to dismiss Mr Nolan was not made by Mr Batten, but by Mr Batten’s manager, Mr Guyer. They submit that termination of Mr Nolan’s employment was based on Mr Nolan’s ongoing poor work performance and ‘inappropriate and insubordinate workplace behaviour on 18 April 2019’, and not for any substantive and operative reason, or reasons including, that Mr Nolan had exercised any of his workplace rights.Summary of the Court’s conclusion For the reasons that follow, Mr Nolan was not subject to any of the adverse actions for a proscribed reason in contravention of s 340 of the FW Act. It follows that, contrary to Mr Nolan’s contentions, Grace Worldwide has not engaged in a contravention of the FW Act. Accordingly, whilst Mr Nolan did not plead accessional liability on the part of Mr Batten, it further follows that Mr Batten was not knowingly concerned in, or party to, a contravention by Grace Worldwide of the FW Act, and so not involved in a contravention under s 550 of the FW Act. Mr Nolan’s application therefore must be dismissed. Mr Nolan commenced the proceeding on 13 August 2019 by application and accompanying Form 2 claim. Further to orders I made on 13 September 2019, Mr Nolan filed and served his Concise Statement dated 10 October 2019, in which he summarised his contentions. The respondents rely on their Concise Statement in Defence, dated and filed 25 October 2019.‘Recovery’ proceeding Shortly before the final hearing, the respondents’ solicitors drew the Court’s attention to the commencement by Grace Worldwide of bankruptcy proceedings against Mr Nolan with the filing of a creditor’s petition by another firm of solicitors than those representing the respondents in this proceeding. During the hearing of this proceeding, on 20 October 2021 by consent I made orders vacating the hearing of the creditor’s petition, and staying that proceeding until 10 days after the date orders are made upon final determination of the present proceeding. Subsequently, by consent on 8 August 2022, I made orders extending the lapsing date of the creditor’s petition to 12 September 2023. I heard the evidence at hearing over 3 days between 18 October 2021 and 20 October 2021 via Microsoft Teams, during a period of Covid-19 lockdown restrictions. The parties read their affidavit evidence, subject to rulings, tendered documents, and all witnesses were cross‑examined. The parties provided written opening outlines of submissions, a chronology (incorporating Mr Nolan’s chronology, and the respondents’ ‘reply’), and a statement of agreed and disputed facts (filed by the respondents on 11 September 2020 and included in the court book at hearing, but which did not include Mr Nolan’s comments, which was separately filed). In addition, the respondents prepared a statement of issues in dispute and a response to the schedule of remedies to those sought by Mr Nolan. I have had regard to these materials, noting that much of what was provided by both parties is submission or argument.

Ratio Decidendi

Legal Principle Established

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File number:	SYG 2149 of 2019
Judgment of:	JUDGE BAIRD
Date of judgment:	20 July 2023
Catchwords:	INDUSTRIAL LAW – General protections – respondent employer altering applicant employee’s position to their prejudice – workplace health and safety issues –performance improvement plan – formal and informal meetings – workplace bullying – denial of sick leave - whether the employee has made complaints or inquiries amounting to the exercise of workplace rights pursuant to s 341 of the Fair Work Act 2009 (Cth) (FW Act) – whether the employee has been subject to an adverse action in contravention of s 340 of the FW Act – identification of the person or people who decided to engage in adverse action - whether the statutory onus in s 361 of the FW Act has been discharged in relation to the decision maker – application dismissed.
Legislation:	Fair Work Act 2011 (Cth) ss 97, 340, 341, 342, 545, 550
Cases cited:	Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301 Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332 Board of Bendigo Regional Institute of TAFE v Barclay [2012] HCA 32; (2012) 248 CLR 500 Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC16; (2019) 268 FCR 46 El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260 Elliot v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 PIA Mortgagev King [2020] FCAFC 15; (2020) 274 FCR 225 Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285 Wong v National Australia Bank Limited [2022] FCAFC 155; (2022) 318 IR 148
Division:	Division 2 General Federal Law
Number of paragraphs:	435
Date of last submissions:	3 December 2021
Date of hearing:	18-20 October 2021, 3 December 2021
Place:	Sydney
Applicant:	Mr Kenneth Nolan appeared for himself
Counsel for the Respondents:	Mr B Rauf
Solicitor for the Respondents:	Mr P Doughman, Matthews Folbigg Lawyers

SYG 2149 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	KENNETH NOLAN Applicant
AND:	GRACE WORLDWIDE AUSTRALIA PTY LTD First Respondent PHIL BATTEN Second Respondent

order made by:	JUDGE BAIRD
DATE OF ORDER:	20 jULY 2023