Noonan v XYZ Security Services Pty Ltd trading as Advent Security Services - [2023] FedCFamC2G 666

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Noonan v XYZ Security Services Pty Ltd trading as Advent Security Services [2023] FedCFamC2G 666

File number: MLG 3354 of 2018

Judgment of: HER HONOUR JUDGE C.E. KIRTON KC

Date of judgment: 27 July 2023

Catchwords:
INDUSTRIAL LAW – alleged contraventions of ss 340 and 352 of the Fair Work Act2009 (Cth) - adverse action - termination of employment - whether employee exercised workplace rights - whether complaints or inquiries made fall within with s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) – temporary leave of absence – reverse onus enlivened - reasons for termination decision – whether prohibited reasons substantive and operative reasons for dismissal - multiple reasons - employer failed to rebut presumption - one finding of adverse action – compensation ordered.

INDUSTRIAL LAW – CONTRACT LAW – reasonable term of notice – whether written employment agreement had implied term – employment agreement had express notice period and payment in lieu of notice – no breach of contract.

CONSUMER LAW – misleading and deceptive conduct – pre-employment negotiations – representations as to the future – whether representations made in trade or commerce – whether representations induced applicant into accepting offer of employment - no proof of reliance – claim dismissed.

Legislation:
Australian Competition and Consumer Act 2010 (Cth) Schedule 2, ss 4(1), 18 and 31

Fair Work Act 2009 (Cth) ss 97(a), 117, 236(1), 335, 340, 341, 342, 352, 360, 361, 386, 545(2)(b), 546 and 793

Occupational Health and Safety Act 2004 (Vic) s 21

Cases cited:
Australian Competition and Consumer Commission (ACCC) v Dukemaster Pty Ltd [2009] FCA 682

Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 30

Board of Bendigo Regional Institute of Technical & Further Education v Barclay & Anor [2012] HCA 32

CFMWU v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243

Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd (1986) 160 CLR 226

Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014

Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limit (No 2) [2017] FCA 1046

Construction, Forestry, Mining and Energy Union v Pilbara Iron Co (Services) Pty Ltd (No 3) [2012] FCA 697

Gloria Bowden v Ottrey Homes - Cobram and District Retirement Villages Inc (t/as Ottrey Lodge) [2013] FWCFB 431

Haley v Public Transport Corporation of Victoria [1998] VSC 143

Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120

Miller v Sunland Park Pty Ltd [2014] FCCA 89

Moss v Lowe Hunt & Partners Pty Ltd [2010] FCA 1181

Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307.

PIA Mortgage Service Pty Ltd v King [2020] FCAFC 15

Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567

Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd [2016] FCA 430

Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346

State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184

The Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 523

Westpac Banking Corporation v Wittenberg (2016) 330 ALR 476

Division: Division 2 General Federal Law

Number of paragraphs: 176

Date of last submissions: 24 March 2021

Date of hearing: 22, 23 and 24 March 2021

Place: Melbourne

Counsel for the Applicant: Mr Millar

Solicitor for the Applicant: McDonald Murholme Solicitors

Counsel for the Respondent: Ms Bingham

Solicitor for the Respondent: Davies Lawyers Pty Ltd
ORDERS

MLG 3354 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
JOSEPH NOONAN

Applicant

AND:
XYZ SECURITY SERVICES PTY LTD T/A ADVENT SECURITY SERVICES (ACN 007 399 493)

Respondent

order made by:

her honour JUDge c.e. kirton kc

DATE OF ORDER:

27 july 2023

THE COURT DECLARES THAT:
1.The Respondent contravened section 340 of the Fair Work Act 2009 (Cth) (Act) by taking adverse action against the Applicant for the prohibited reason of terminating the Applicant’s employment with the Respondent for exercising his workplace right to make a complaint or inquiry.

THE COURT ORDERS THAT:
2.The Respondent pay the Applicant compensation pursuant to s 392 of the Act in the sum of $93,500.
3.The payment of the compensation as ordered in Order 2 is to be paid into an account nominated by the Applicant’s Solicitors within 28 days from the date of these Orders.
4.The application for a declaration that the Respondent contravened s 352 of the Act be dismissed.
5.The application for breach of contract and the application for contravention of the Australian Consumer Law be dismissed.

THE COURT FURTHER ORDERS THAT
6.Within 28 days of the date of these Orders, the Applicant file and serve any submissions with respect to penalties, interest and the costs of this proceeding.
7.Within 28 days of the date of service of the Applicant’s submissions on penalties, interest and costs, the Respondent file and serve any submissions in response with respect to penalties, interest and the costs of this proceeding.
8.Any application for penalties, interest and costs be adjourned to a hearing on 24 October 2023.

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
HER HONOUR JUDGE C.E KIRTON KC
INTRODUCTION

By an application filed in this Court on 7 November 2018 (Application), the Applicant, Mr Joseph Noonan (Applicant), alleged that XYZ Security Services Pty Ltd (trading as Advent Security Services) (ACN: 007 399 493) (Respondent): contravened ss 340 and 352 in Pt 3.1 of the Fair Work Act 2009 (Cth) (FW Act) by taking adverse action against him because of, or for reasons which included, that he exercised one or more workplace rights.
The substance of the claim is that the Applicant alleged that he was dismissed from his employment with the Respondent because he made complaints in relation to his employment and/or took a temporary leave of absence.
The Applicant also alleged that the Respondent breached the Applicant’s employment agreement by failing to provide him with reasonable notice of the termination of his employment, and engaged in misleading and deceptive conduct by offering the Applicant employment pursuant to s 18 and/or s 31 of the Australian Consumer Law (ACL).
The Applicant sought compensation pursuant to s 545(2)(b) of the FW Act for economic and non-economic loss suffered by reason of his dismissal. He also sought a declaration that the Respondent contravened the FW Act and sought the imposition of pecuniary penalties pursuant to s 546(1) of the FW Act in respect of its contravention.
HEARING BEFORE THE COURT
This matter was heard before the Court on 22, 23 and 24 March 2021 (Final Hearing). Mr Miller of Counsel appeared for the Applicant and Ms Bingham of Counsel appeared for the Respondent. At the Final Hearing the Applicant was the only witness in his case. The Respondent relied on the evidence of four (4) witnesses. Each witness filed an affidavit prior to the Final Hearing and adopted their affidavit as evidence in chief.
ISSUES FOR DETERMINATION
The issues that are to be determined in this matter are as follows.
Fair Work Claim
Whether the Respondent:
(a)Contravened s 340 of the FW Act by dismissing the Applicant for exercising a workplace right pursuant to s 341(1)(c)(ii) of the FW Act to make a complaint; and/or
(b)Contravened s 352 of the FW Act by dismissing the Applicant by reason of the Applicant being temporarily absent from work because of illness or injury.
Breach of Contract Claim
Whether the Respondent breached the employment agreement between the Applicant and the Respondent by failing to comply with an implied term of reasonable notice for termination of the employment agreement of six (6) months.
Breach of the Australian Consumer Law Claim
Whether representations made by the Respondent to the Applicant during pre-employment negotiations were misleading and deceptive pursuant to s 18 of the ACL, thereby causing loss or damage to the Applicant
SYNOPSIS
I have determined the following:
(a)The Respondent contravened s 340 of the FW Act by dismissing the Applicant for exercising the workplace right pursuant to s 341(1)(c)(ii) of the FW Act to make a complaint;
(b)The Respondent did not breach the employment agreement between the Applicant and the Respondent and there was no implied term of reasonable notice of termination of the employment agreement;
(c)The Respondent did not engage in misleading and deceptive conduct pursuant to s 18 of the ACL, and the representations made to the Applicant during the pre-employment negotiations did not induce the Applicant into commencing employment with the Respondent; and
(d)The Applicant is entitled to compensation pursuant to 392 of the FW Act in the sum of $93,500 and a declaration in relation to one (1) finding of adverse action.
BACKGROUND
On 19 March 2021 the parties filed a Joint Chronology of Facts (Joint Chronology), which outlined the accepted and disputed facts and documents.
The Respondent is engaged in the business of providing security services and is comprised of three (3) divisions headed by a regional manager. The Respondent’s business is operated as follows:
(a)Manned services - South West Region, which provides services to clients in Victoria, Tasmania and Western Australia;
(b)Manned services - North East Region, which provides services to clients in New South Wales, Queensland and the Northern Territory;
(c)Manned services to New Zealand, served by both the South West Region and the North East Region; and
(d)A national electronics division, which provides electronic access control, alarms, CCTV and related technology (Electronics Division). The Electronics Division also prepares plans, maps and quotes for large warehouses and builds to present to clients on Greenfield sites.[1]
[1] Court Book (CB) 134; Affidavit of Peter Benney, sworn and filed 12 December 2019 (P Benney Affidavit), [2] and [3].
The following individuals and their roles at the Respondent are relevant to these proceedings:
(a)Mr Peter Benney (Mr P Benney), the sole director of the Respondent and the Chief Executive Officer and Managing Director of the Advent Security Group.[2] Mr P Benny was the Applicant’s manager during the Applicant’s period of employment;
(b)Mr Hilary Carswell (Mr Carswell), the General Manager of the Advent Security Group and was employed by the Respondent during the Applicant’s period of employment;[3]
(c)Mr Justin Dylan Benney (Mr J Benney), the son of Mr P Benney, and a director of the Advent Security Group and head of the Electronics Division, and was employed by the Respondent during the Applicant’s period of employment;[4] and
(d)Mr Michael Hill (Mr Hill), the Business Manager employed by the Respondent during the Applicant’s period of employment.[5]
[2] CB 134; P Benny Affidavit, [1].
[3] CB 215; Affidavit of Hilary Carswell, sworn and filed 12 December 2019 (Carswell Affidavit), [1].
[4] CB 205; Affidavit of Justin Dylan Benney, sworn and filed 12 December 2019 (J Benney Affidavit), [1] and [2]; Affidavit of the Applicant, filed 25 September 2019 (Applicant’s First Affidavit), [6].
[5] CB 212; Affidavit of Michael Hill, sworn and filed 12 December 2019 (Hill Affidavit), [1].
On 4 July 2016 the Applicant commenced permanent full time employment with Diamond Protection Pty Ltd (Diamond Protection) in the position of General Manager. The Applicant received a salary of $140,000 per annum plus superannuation and a $20,000 car allowance.[6]
[6] CB 64; Applicant’s First Affidavit, [4] and Annexure “JN-1”.
On 15 August 2017 the Applicant submitted an application with Executive Security Solutions (ESS) for the position of General Manager.[7] The Applicant had been looking for long term general manager roles of national scope which involved sales and management.[8]
[7] CB 64; Applicant’s First Affidavit, [5].
[8] Transcript P28:L38-P29:L11.
On 24 August 2017 the Applicant attended a meeting at the Respondent’s head office where he met with Mr P Benney to discuss an unrelated project.[9] The Applicant and Mr P Benney had known of each other previously, having both served (but never worked together) as members of Victoria Police.[10]
[9] Joint Chronology of Facts, filed 19 March 2021 (Joint Chronology), 2.
[10] CB 135; P Benney Affidavit, [5]; Transcript P26:L26-44.
During their discussions on 24 August 2017, the Applicant and Mr P Benney had a conversation where the Applicant expressed his desire to leave Diamond Protection. The Applicant advised Mr P Benney that he had applied for a position at ESS and was looking for a national sales position.[11] The Applicant asked Mr P Benney if the Respondent was looking to hire anyone.
[11] Joint Chronology, 2.
During the discussion Mr P Benney said to the Applicant words to the effect of “you should come work here”.[12] Mr P Benney told the Applicant that he was looking to cut back and let Mr J Benney run the Respondent.[13] The Applicant alleged that Mr P Benney said he was looking to cut back imminently, however Mr P Benney denied indicating that he wanted to wind back and retire in the next four (4) to five (5) years.[14]
[12] CB 65; Applicant’s First Affidavit, [6]; Transcript P105-106.
[13] Joint Chronology, 2.
[14] Joint Chronology, 2; Transcript P106:L36-40.
The Applicant and Mr P Benney discussed the capability of the Respondent in relation to servicing large scale jobs. The Applicant spoke about the potential work he could bring into the Respondent and said to Mr P Benney “with my background in the mining and resource sector there is a lot of opportunity for large security contracts” and asked “Could Advent fund and service jobs worth 10 to 15 million?”.[15] Mr P Benney told the Applicant “[the Respondent] ha[s] national contracts and we can fund big jobs like these. We have people all over the country, so we can do them” (Capacity Representation).[16] Mr P Benney also informed the Applicant that he wanted him to pursue large scaled security contracts in the mining and resource sector and build relationships with these companies so the Respondent could use them for future tenders (Willingness Representation) (together with the Capacity Representation, Representations.[17]
[15] CB 65; Applicant’s First Affidavit, [6]; Joint Chronology, 3.
[16] CB 66, Applicant’s First Affidavit, [6]; Joint Chronology 3;
[17] CB 66; Applicant’s First Affidavit, [6].
The Applicant advised Mr P Benney that the Respondent would not be successful in the mining and resource sector unless there was an office in Perth and Queensland with competent management.[18] In response Mr P Benney allegedly advised that the Respondent had both.[19] The Applicant told Mr P Benney he was competent and that he could assist with national expansion.[20]
[18] Transcript P29:L34-37.
[19] Transcript P29:L36-37.
[20] Transcript P34:L27-28.
On 28 August 2017, after discussing with either Mr Carswell or Mr J Benney, Mr P Benney offered the Applicant a job with the Respondent as National Sales Manager on a salary of $120,000 “all in” to be reviewed in 3 to 6 months.[21]
[21] Joint Chronology 3.
The Applicant negotiated his salary up to $147,000 plus superannuation and a car allowance to match what ESS were offering.[22] The Applicant also requested a different role title.[23]
[22] Joint Chronology 3.
[23] Joint Chronology 3.
On 29 August 2017 Mr Carswell emailed a draft employment contract to the Applicant (Employment Agreement).[24] In a responding email the Applicant accepted the terms of the Employment Agreement. The Applicant acknowledged that he had read the contract and did not identify any issues with the document, aside from wanting his title to be ‘Strategic Development Manager’ rather than ‘Operations Manager Electronics’.[25] The Applicant claimed that he expected another contract to be sent through at some stage but recognised the Employment Agreement had terms and a position description.[26]
[24] Joint Chronology 4.
[25] Joint Chronology 4.
[26] Transcript P41:L8-9.
The Applicant commenced his employment with the Respondent on 4 September 2017 under the terms of the Employment Agreement.[27]
[27] Joint Chronology 4, 7.
From the commencement of his employment and throughout his employment, the Applicant alleged that he witnessed and was subject to unprofessional conduct from Mr P Benney. The Applicant deposed that Mr P Benney often referred to the Applicant, other employees and clients as ‘cunts’.[28]
[28] Joint Chronology 5-6.
On 20 September 2017, during an interview with an employee, Mr P Benney allegedly called a female employee a ‘filthy cunt’ and threatened to ‘fuck her life up’.[29] In September 2017 Mr P Benney also allegedly made racist remarks about an employee of African descent, saying he would ‘take him to the cleaners if he ever complained’ and ‘fuck the black cunt’.[30]
[29] Joint Chronology 5-6.
[30] Joint Chronology 5.
On 2 November 2017, in the presence of the Applicant and his fiancée (of Indian heritage), Mr P Benney allegedly said that there were ‘only two things you come back with from India, a red dot on your head and a taxi licence’.[31]
[31] Joint Chronology 6.
On 27 November 2017, during a meeting with Victoria Police, Mr P Benney allegedly referred to throwing African youths to the ground with ‘a boot on their necks’.[32] After the meeting when the Applicant complained to Mr P Benney about his conduct, Mr P Benney allegedly responded by saying that he wanted to ‘grab one of these cunts at the protest and take him out the back at Diamond Valley Pork and fill the cunt in’.[33]
[32] CB 72; Applicant’s First Affidavit, [33]; Joint Chronology, 6.
[33] CB 73; Applicant’s First Affidavit, [34]; Joint Chronology, 6.
On 11 January 2018, the Applicant sent an email to Mr Carswell requesting an updated Employment Agreement to reflect his position title.[34]
[34] Joint Chronology 6.
On 12 January 2018, Mr Carswell sent the Applicant an amended Employment Agreement reflecting the position title ‘National Strategic Development Manager’. The amended Employment Agreement noted the Applicant’s home address and Schedules 1 and 2 were amended to fill in information missing from the 29 August 2017 version. The Employment Agreement was signed on behalf of the Respondent, but not witnessed or dated and was never signed by the Applicant.[35]
[35] Joint Chronology 6.
On 23 January 2018 the Applicant attended a meeting with Mr J Benney in his office where Mr J Benney advised the Applicant that an employee, Mr Rage, had allegedly misused a company vehicle.[36] Mr J Benney asked the Applicant to interview Mr Rage about the matter, however the Applicant did not have the opportunity to do so. At a later date in January 2018 Mr Carswell informed the Applicant that Mr Rage had been suspended and that Mr Rage had denied the allegation regarding the misuse of the company vehicle.[37] When it was later discovered that Mr Rage had not misused the company vehicle, the Applicant called Mr P Benney to inform him. Mr P Benney responded that it was not a problem and said “fuck the black cunt”.[38] Mr Rage never returned to work with the Respondent.
[36] CB 73; Applicant’s First Affidavit, [38].
[37] CB 74; Applicant’s First Affidavit, [39].
[38] CB 74; Applicant’s First Affidavit, [39].

On 23 April 2018 Mr P Benney and Mr Hill were in Mr J Benney’s office engaged in a discussion. Mr P Benney called the Applicant into the office and said to the Applicant, in the presence of Mr Hill, “what have you achieved today cunt”.[39] The Applicant replied “Who are you talking to. Obviously not me” and walked out of the office.[40]
[39] Joint Chronology 7.
[40] Joint Chronology 7.
The following day on 24 April 2018 at 7:10 am the Applicant sent an email to Mr P Benney which contained the following (Name Complaint):[41]
[41] CB 74; Applicant’s First Affidavit, [45] and Exhibit “JN-10”.
Good morning
Just a quick note to remind you that my name is Joe or Joseph or anything amusing at the time. It is not cunt and I would appreciate you not calling me that especially in front of people. I am up for a joke at any time but have respect for people even when joking. I would appreciate that same respect and being called my name when being introduced or in front of other people.
Kind regards
[as written]
On the same day after the Name Complaint was made, Mr P Benney telephoned the Applicant.[42] The Applicant alleged that during this telephone conversation the following communication occurred (Professionalism Complaint) (together with the Name Complaint, Conduct Complaints):[43]
46.Shortly after I received a telephone call from Mr Benney at 7:36 am in which he said “are you fucking serious about that email?” I confirmed that I was and told him that I had been in management for 30 years and deserved to be treated with respect. Mr Benney replied, “where did that come from?” I replied, “I am over it, I want to be working in a professional office.” Mr Benney did not sound impressed with my response stating “Oh is that right?”
[42] Joint Chronology 7.
[43] CB 75; Applicant’s First Affidavit, [46].
From 24 April 2018 the Applicant alleged that Mr P Benney ceased morning meetings with him and did not call nor speak with him.[44]
[44] Joint Chronology 8.
On 30 May 2018 the Applicant told Mr J Benney that Mr P Benney had not spoken to him since the Conduct Complaints had occurred.[45] The Applicant said to Mr J Benney words to the effect that Mr P Benney was ‘freezing him out’ (Communication Complaint). Mr J Benney told the Applicant that a lack of communication between Mr P Benney and the Applicant was not sustainable and told him to deal with Mr P Benney directly.[46]
[45] Joint Chronology 8.
[46] CB 75; Applicant’s First Affidavit, [48]; Joint Chronology 8.
In late August early September 2018 Mr P Benney conducted a review of work in progress and he sent an email to the Applicant requesting work in progress on guarding. On 3 September 2018, the Applicant sent an email to Mr P Benny (Review Email) that said:[47]
I don’t have anything going to drop in the next 30 to 90 days on guarding.
We have Downer EDI and hopefully Linfox on the electronics that will be in that timeframe.
[47] CB 142; P Benney Affidavit, [40] and Annexure “PB-5”; Joint Chronology 8.
On 3 September 2018 after receiving the Review Email, Mr P Benney directed Mr Carswell to generate a report on the Applicant’s work from “pipedrive” (Report).[48] Mr Carswell provided the Report to Mr P Benney that day. The Report stated that the Applicant had 29 deals started, two (2) deals won, and 13 deals lost. The Report also showed that the Applicant had only two (2) deals as the primary sales person and that the Applicant had not brought in any new contracts since 1 September 2017.[49]
[48] Joint Chronology 9.
[49] CB 143; P Benney Affidavit, [41] and Annexure “PB-6”.
Mr P Benny said that on 3 September 2018, after receiving the Report and the Review Email, he decided to terminate the employment of the Applicant.[50] On 3 September 2018 Mr P Benney directed Mr Carswell to prepare a letter of termination (Termination Letter).[51]
[50] Joint Chronology, 9.
[51] Joint Chronology, 9.
On 5 September 2018 the Applicant attended a trade show as a representative of the Respondent.[52]
[52] CB 143; P Benney Affidavit, [43].
On 6 and 7 September 2018 the Applicant was absent from work due to personal illness (Paid Personal Leave). The Applicant claimed that he notified Mr P Benney of the Paid Personal Leave but did not receive any response.[53] The Respondent alleged that Mr P Benney was not aware of the Applicant’s reason for the absence from work and the Applicant disputed this.[54]
[53] CB 76; Applicant’s First Affidavit, [50].
[54] Joint Chronology 10.
On 8 September 2018 the Applicant returned to work and provided a medical certificate to Ms Danielle Laffey the Administration and Finance Manager employed by the Respondent.[55]
[55] Joint Chronology 10.
On 10 September 2018 the Applicant was called into a meeting with Mr P Benney and Mr Carswell (Termination Meeting), where the following conversation occurred:[56]
Mr P. Benney: “things weren’t where they should be… you responded to my email about WIP you have nothing… Advent is obviously not what your clients are looking for”.
The Applicant: “I got Diamond across the line”.
Mr P. Benney: “I just don’t see it. I am terminating your employment effective immediately. You will be paid out of all your entitlements [Mr Carswell] will assist you in gathering your things”.
[56] Joint Chronology 10.
The Applicant alleged that during the Termination Meeting the following was also said:[57]
52.[…] Mr Benny then said, “I don’t think things are working out. You are better suited to mining and big jobs and I don’t have the money to do them”. I replied, “That has been what I have done for the last 7 years but I have changed tack to introduce other markets.” I asked, “Is it a redundancy?” Mr Benney said “no” and handed me a letter. I responded, “When do you want me to finish up?” Mr Benney replied, “today”. […]
[57] CB 76; Applicant’s First Affidavit, [52].
On the same day, Mr P Benney handed the Applicant the Termination Letter. The Termination Letter formally advised the Applicant of his termination as follows:[58]
[58] CB76; Applicant’s First Affidavit, [53] and “JN-12”.
Joe,
RE: TERMINATION OF EMPLOYMENT
Following a review of the position of National Strategic Development Manager it has unfortunately been decided that your role in this position is no longer required. The past 12 months has shown that we need to take a different direction in the area of business development. The sales figures are not a position that we believe they should be and therefore we are terminating our agreement in accordance with your employment contract.
This not a decision we have taken lightly but regrettably it is one we must take. […]
[…]
Thank you for your time with us at Advent, and we wish you will in your future endeavours.
The Applicant was paid the outstanding wages, two weeks’ pay in lieu of notice, car allowance and accrued but undertaken annual leave at total of $19,725.69 gross.[59]
[59] Joint Chronology, 10-11.
The Applicant claimed that he was unemployed for about three (3) months during which he applied for approximately 50 jobs.[60] The Applicant stated that his employment since being terminated has been affected by COVID-19 and consequent travel restrictions.[61] Since his dismissal from employment with the Respondent, the Applicant has held the following positions:[62]
(a)On 13 November 2018 as a Salesman at Robert RV World Craigieburn earning $500 per week plus access to a commission structure;
(b)On 20 November 2018 as a New Car Salesman with Booran Holden Cheltenham earning a $45,000 annual retainer annually plus access to a commission structure;
(c)On 4 March 2019 as a New and Used Car Salesman with Knox Mitsubishi earning a $45,000 retainer annually plus access to a commission structure; and
(d)On 6 May 2019 as Heavy Equipment Sales and Rental Territory Manager earning a $70,000 annual retainer plus access to a commission structure.
[60] Joint Chronology, 11.
[61] Transcript P92.
[62] CB 77; Applicant’s First Affidavit, [55].
Shortly after the Applicant was dismissed, Mr Paul Gerard was employed by the Respondent in the same role as the Applicant.[63] Mr P Benney could not remember the date Mr Gerard was employed and claimed that Mr Gerard enquired about a job with the Respondent after the Applicant was terminated.[64] The Applicant suggested that the Respondent began employment discussions with Mr Gerard prior to the Applicant being dismissed.[65]
[63] Transcript P150:L37-47.
[64] Transcript P151-152.
[65] Transcript P151.
PLEADINGS
The Applicant relied on the Statement of Claim annexed to the Form 2 (Statement of Claim) which was filed with the Application on 7 November 2018. The Respondent relied on the Defence, filed on 11 December 2018.
EVIDENCE
The Court has before it a Court Book numbering 259 paginated pages. The evidence before the Court included:
(a)The affidavit of the Applicant, filed on 25 September 2019 (Applicant’s First Affidavit);[66]
(b)The affidavit of Mr P Benney, sworn and filed on 12 December 2019 on behalf of the Respondent (P Benney Affidavit);[67]
(c)The affidavit of Justin Dylan Benney, sworn and filed on 12 December 2019 on behalf of the Respondent (J Benney Affidavit);[68]
(d)The affidavit of Michael Hill, affirmed and filed on 12 December 2019 on behalf of the Respondent (Hill Affidavit);[69]
(e)The affidavit of Hilary Carswell, sworn and filed on 12 December 2019 on behalf of the Respondent (Carswell Affidavit);[70] and
(f)The affidavit of the Applicant in reply, affirmed and filed on 27 February 2020 (Applicant’s Second Affidavit).[71]
[66] CB 62-131.
[67] CB 132-203;
[68] CB 204-210.
[69] CB 211-213.
[70] CB 214-250.
[71] CB 251-257.
On 19 March 2021 the parties submitted the Joint Chronology.
On 22 March 2021, the first day of the Final Hearing, the Court heard objections as to evidence at the commencement of the hearing. The Respondent had prepared a lengthy Schedule of Objections to the Applicant’s evidence[72] (Respondent’s Schedule of Objections) and the Applicant had prepared Objections to Respondent’s Evidence[73] (Applicant’s Schedule of Objections).
[72] Filed on 19 March 2021.
[73] Filed on 19 March 2021.
The Respondent objected to the following parts of the Applicant’s First Affidavit:
(a)Paragraph 5, specifically “…. who made contact with me after the application and when we had a discussion where he said I would be shortlisted for interview”;
(b)Paragraph 20, the entire paragraph; and
(c)Paragraph 42, the entire paragraph.
The Court agreed with the Respondent’s objections referred to in the preceding paragraph, as did the Applicant. Accordingly, the parts of the Applicant’s First Affidavit referred to in the preceding paragraph were struck out by consent.[74] The remaining objections raised in the Respondent’s Schedule of Objections were dismissed.
[74] Orders made by Her Honour Judge C.E. Kirton KC on 22 March 2021.
On 23 March 2021, the second day of the Final Hearing, the Court heard further objections as to evidence from the Applicant.[75] The Applicant objected to paragraph 22 of the J Benney Affidavit. The Applicant objected to the following parts of the P Benney Affidavit:
(a)Paragraph 4, specifically “[…] Now produced and shown to me and marked “PB-1" is a copy of a letter from Price Gibson dated 10 October 2018 concerning the 2017 finance facility.”; and
(b)Annexure PB-1, the entire document.
[75] Transcript P95-99.
The Court agreed with the Applicant’s objections referred to in the preceding paragraph. Accordingly, the parts of the J Benney Affidavit and P Benney Affidavit referred to in the preceding paragraph were struck out.[76] The balance of the objections raised in the Applicant’s Schedule of Objections were dismissed.
[76] Orders made by Her Honour Judge C.E. Kirton KC on 23 March 2021.
Exhibits tendered during the Final Hearing were marked as follows:
(a)Exhibit A1, Applicant’s First Affidavit;
(b)Exhibit A2, Applicant’s Second Affidavit;
(c)Exhibit A3, an extract of the Applicant’s Daybook, dated 24 April 2018;
(d)Exhibit A4, Mr P. Benney’s Telstra business phone account issued on 7 May 2018, pages 139, 140 and 147 to 156 of the Court Book;
(e)Exhibit A5, LinkedIn profile of Paul Gerard as at 23 March 2021;
(f)Exhibit R1, Email of 1 January 2018 from the Applicant to Mr J. Benney with the subject of leave request;
(g)Exhibit R2, the Applicant’s application for paid leave dated 12 June 2018;
(h)Exhibit R3, P Benney Affidavit;
(i)Exhibit R4, Mr P Benney’s Telstra business phone account issued on 7 May 2018, pages 147 and 149 of the Court Book;
(j)Exhibit R5, J Benney Affidavit;
(k)Exhibit R6, Carswell Affidavit; and
(l)Exhibit R7, Hill Affidavit.
The Court has also read and reviewed the transcript of the Final Hearing prior to finalising these Reasons for Judgment.
Evidence of the Applicant
The Applicant gave evidence in chief by way of the Applicant’s First Affidavit and the Applicant’s Second Affidavit and was cross-examined. In addition to deposing to the events described under the heading ‘Background’ herein, the Applicant deposed to the following.
The Applicant alleged that upon the Applicant’s successful negotiation of his salary package, Mr P Benney told him not to continue his job application with ESS and also said, “I fucking hate it when people get what they want”.[77]
[77] CB 66; Applicant’s First Affidavit, [9]; Transcript P43:L23-33.
The Applicant described the Respondent as “a bit of an ad hoc operation” and explained that he introduced weekly meetings for management where he took down notes.[78] The Applicant also made notes about areas of improvement for the Respondent and its employees.[79] The Applicant explained that his work notes did not detail the ‘unprofessional’ conduct of Mr P Benney as the Applicant did not deem it appropriate to include this in work records.[80]
[78] Transcript P60:L16-20; Applicant’s Exhibit 3.
[79] CB 71; Applicant’s First Affidavit, [27]-[29].
[80] Transcript P50:L16-17.
The Applicant deposed to Mr P Benney disliking employees taking personal leave. The Applicant deposed that during a meeting on his first day of employment on 4 September 2017 the Applicant raised the topic of paid personal leave, to which Mr P Benney replied, “we don’t have sick days here so fucking forget about that”.[81] The Applicant deposed that throughout his employment with the Respondent taking entitled leave was made difficult and required planning. The Applicant referenced his period of leave in February 2018 which was required for dental work, in support of his contention that the Respondent did not support employees taking paid leave.[82]
[81] CB 69; Applicant’s First Affidavit, [18].
[82] Exhibit R1 and R2.
The Applicant described the language used by Mr P Benney on 23 April 2018 as insulting and meant to be a “put down”.[83]
[83] Transcript P55:L4-26.
From the commencement of his employment the Applicant deposed that he would interact with Mr P Benney on a daily basis and that they would usually have a daily meeting (by phone or in person) or catch-up over coffee. The Applicant explained how Mr P. Benney changed his demeanour, conversation and interactions with the Applicant after the Name Complaint on 24 April 2018.[84] The Applicant described how Mr P Benney went from communicating with the Applicant on a daily basis to rarely speaking to the Applicant.[85] The Applicant explained that after the Name Complaint he was ‘frozen out’ by Mr P Benny.
[84] Transcript P59:L20-P60:L7.
[85] Transcript P60.
The Applicant denied that any issues with his performance had ever been raised by Mr P Benney or any other employees of the Respondent. The Applicant gave evidence that Mr P. Benney discussed with him why the business could not win work but stated that they did not discuss the Applicant’s lack of progress. The Applicant had arguably performed his role and made achievements during his employment.[86] The Applicant acknowledged that his contacts were better suited to a different sector than the Respondent’s desired clientele, but contended that he had secured many existing clients and saved many contracts that the Respondent would have lost. The Applicant explained the Review Email as follows:[87]
MS BINGHAM: I will suggest to you that that is not correct and that what happened is that Mr Peter Benney said to you, “You responded to my email regarding WIP and you said you have nothing”. That’s correct, isn’t it?
MR NOONAN: No. Again, that email, if you read it correctly says I have no – guarding contracts going to drop in the next 30 to 90 days. I had two electronics jobs that should be included in the figures. So you’re being selective on what you picked out of that email.
[86] CB 68; Applicant’s First Affidavit, [17]; CB 217; Carswell Affidavit, [11].
[87] Transcript P71:L11-16.
The Applicant denied that he was informed by Mr P Benney that his dismissal was performance related. At the Final Hearing the Applicant summarised the explanation given to him by Mr P Benney for his dismissal as follows: [88]
MS BINGHAM: And you were told then that your employment was going to be brought to an end. That’s correct, isn’t it?
MR NOONAN: Well, I wasn’t told it was performance-related. I was told that I’m suited to a different sector and it was not the way that the business were wanting to go. So performance wasn’t raised, that I hadn’t performed.
[88] Transcript P71:L6-9.
The Applicant explained that he had accepted his dismissal on the basis that his contacts and sector experience did not match the work sought by the Respondent. The Applicant stated that if he had known the dismissal was performance-related he would not have shaken Mr P Benney’s hand at the end of the meeting.[89]
[89] Transcript P71:L46-P72:L2.
Evidence of Mr P Benney
Mr P Benney gave evidence in chief by adopting the P Benney Affidavit and was cross-examined. In addition to deposing to the events described under heading ‘Background’ herein, Mr P Benney deposed to the following.
Mr P Benney disputed the Applicant’s account of events regarding his alleged workplace misconduct and inappropriate language. Mr P Benney claimed his swearing was used in a “jocular or mateship tone of voice and never as a term of abuse or in a threatening manner” and he denied all claims that he used robust language around clients or female staff.[90]
[90] CB 139; P Benney Affidavit, [23].
Mr P Benney claimed that he was surprised by the Applicant’s response to “what have you achieved today cunt?” on 23 April 2018, on the basis that he had used the same type of language with the Applicant since he commenced employment. Mr P Benney said that he assumed the Applicant was “in a bit of a bad mood”. [91]
[91] CB 142; P Benney Affidavit, [38].
Mr P Benney claimed that the phone call regarding the Name Complaint only expressed his surprise about the Applicant’s email and his disappointment that the Applicant felt that he was not working in a professional office.[92]
[92] Transcript P139:L28-35
Mr P Benney denied that he met with the Applicant daily prior to the Name Complaint but admitted to meeting with the Applicant often and regularly, and talking to him a couple times a week.[93] Mr P Benney described meeting with employees over coffee as his “usual practice”.[94] Mr P Benney also said that he had limited interaction with the Applicant before the Name Complaint and that his conduct after the Name Complaint reflected his decision to be more professional towards the Applicant as requested.[95]
[93] Transcript P112:L10-36; CB 138; P Benney Affidavit, [19].
[94] CB 138; P Benney Affidavit, [19].
[95] Transcript P139:L1-P140:L35.
Mr P Benney gave evidence that there was no issue with employees taking paid personal leave for genuine reasons and that employees did not communicate to him when they were sick or away.[96] Mr P Benney deposed that he was aware that the Applicant suffered from vertigo and had previously taken sick leave due to the condition.[97] Mr P Benney gave evidence that somebody would have told him that the Applicant was absent due to sickness on 6 and 7 September 2018.[98]
[96] Transcript P132:L17-P133:L5.
[97] CB 141; P Benney Affidavit, [35].
[98] Transcript P149:L1-8.

Around late August and early September Mr P Benney began conducting a review of the work in progress of employees at the Respondent.[99]
[99] Joint Chronology, 8.
Mr P Benney deposed that based on the Review Email and the Report he concluded that: the Applicant was a poor performer, the Respondent could not sustain keeping the Applicant employed, and therefore the Applicant’s employment should be terminated.[100]
[100] CB143; P Benny Affidavit, [41] and [42].
Mr P. Benney deposed that he gave the following explanation to the Applicant at the Termination Meeting:[101]
45.At approximately 10:00 am on 10 september 2018 I called [the Applicant] into my office by contacting him on the office phone intercom. Mr Carswell was present. I said to [the Applicant] things weren’t where we discussed they should be, you responded to my email regarding WIP and you said you have nothing I checked the report you have no WIP either. [The Respondent] was obviously not what your client base was looking for. [The Applicant] said to me I got Diamond across the line. I responded I don’t see it I am terminating your employment effective immediately. You will be paid out all your entitlements. [Mr Carswell] will assist you in gathering your things and collecting company property and passwords. I handed [the Applicant] the letter of termination. [The Applicant] and Mr Carswell left my office.
(As written)
[101] CB 143-144; P Benney Affidavit, [45].
Evidence of Mr J Benney
Mr J Benney gave evidence in chief by adopting the J Benney Affidavit and was cross-examined. Mr J Benney’s evidence may be relevantly summarised as follows:
(a)Mr J Benney was responsible for the Electronics Division, whilst Mr P Benney was responsible for employee management, or “manpower”, and recruitment. Mr J Benney’s management responsibilities for the Electronics Division were separate from the Applicant’s area of work and the Applicant did not assist Mr J Benney in running the company. Both Mr J Benney and the Applicant reported to Mr P Benney.
(b)The Applicant was introduced to Mr J Benney in August 2017. Mr J Benney cannot recall the substance of the conversation in August 2017 but stated that no discussions regarding business contracts or employment took place.
(c)Mr J Benney’s understanding was that the Applicant was employed as a salesman, whose primary responsibility was securing new contracts for the company using his contacts.
(d)Interactions with the Applicant at work primarily involved general discussions about strategy and clients. Mr J Benney discussed sales and sales opportunities, business development with the Applicant but not strategic direction. Mr J Benney did not know of any new clients or contracts the Applicant brought in for the business.
(e)Mr J Benney denied hearing Mr P Benney used the word “cunt” in an offensive manner and deposed to only hearing this word used by Mr P Benney in a “non-aggressive mateship way”. Mr J Benney denied having heard the Applicant being called a “cunt” by Mr P Benney. When cross-examined Mr J Benney refused to admit that the word “cunt” could be considered to be offensive and inappropriate. Mr J Benney was not aware that the Applicant objected to being called a “cunt”.
(f)Mr Rage left the business as he went overseas without notice.
(g)In a short conversation the Applicant raised the issue of Mr P Benney “freezing him out”, to which Mr J Benney suggested a conversation should be had between the Applicant and Mr P Benney. Mr J Benney denied getting further involved, as he believed it was not his responsibility to address the communication between the Applicant and Mr P Benney, as they both had extensive management experience.
(h)Mr J Benney was unaware of the details of the Applicant’s leave periods, apart from knowing that the Applicant had required some leave for dental work. Mr J Benney claimed that no other staff had raised issues in relation to Mr P Benney approving various forms of leave. Mr J Benney did not recall that the Applicant had taken two (2) days of sick leave prior to his termination.
(i)Mr J Benney was not involved in the termination of the Applicant’s employment with the Respondent and only became aware after the fact.
(j)Mr J Benney was not consulted regarding the appointment of Mr Gerard and recalled that the hire was soon after the Applicant’s termination of employment.
Evidence of Mr Carswell
Mr Carswell gave evidence in chief by adopting the Carswell Affidavit and was cross-examined. Mr Carswell’s evidence may be summarised as follows:
(a)Mr Carswell had been employed by the Respondent since 23 March 2011 and had been General Manager since 2006.
(b)Mr Carswell was not directly involved in the hiring of the Applicant and met him when he began his employment. Mr P Benney was responsible for recruitment and the Respondent did not have a formal recruiting process.
(c)Mr Carswell did not have a clear recollection of conversations with Mr P Benney regarding the hiring of the Applicant. However Mr Carswell recalled that Mr P Benney mentioned the Applicant’s ability to secure contracts worth 10-15 million dollars and said that Mr P Benney was enthusiastic about hiring the Applicant.
(d)Mr Carswell was directed by Mr P Benney to prepare a contract for the Applicant. The title “Operations Manager Electronics” was used out of convenience because neither Mr P Benney nor the Applicant replied to advise Mr Carswell of the proper title.
(e)The Applicant was primarily employed to secure new contracts, particularly in the mining and resource sector which were his areas of expertise. The Applicant’s contract was pro forma and contained various generic responsibilities. Employees were expected to fulfil the responsibilities outlined in their contract as well as assist others in the company where reasonably appropriate.
(f)Mr P Benney uses “robust” language but has a “heart of gold”. Mr Carswell could not recall instances where Mr P Benney used the word “cunt” in the workplace. Mr Carswell recalled two (2) instances where Mr P Benney assisted employees with personal challenges.
(g)Mr Carswell did not advise the Applicant that Mr Rage had been suspended. Mr Rage was investigated in relation to misuse of a company vehicle and was suspended upon his return from a holiday. After a formal investigation revealed no misuse had occurred, Mr Carswell apologised to Mr Rage for the Respondent’s mistake.
(h)Mr P Benney discussed the termination of the Applicant’s employment three (3) weeks prior to 10 September 2018. Termination was discussed on the basis that the Applicant failed to secure any contracts and the lack of progression for the Respondent. In accordance with Mr P Benney’s instructions Mr Carswell prepared the Termination Letter and payout of the Applicant’s accrued entitlements and notice. Mr Carswell’s understanding was that termination would be effective immediately. The Termination Letter was given to Mr P Benney prior to the meeting on 10 September 2018.
(i)No performance issues had been raised with Mr Carswell prior to his discussion with Mr P Benney three (3) weeks before the Applicant was terminated.
(j)Ms Carswell was present at the Termination Meeting. Mr P Benney explained to the Applicant that things weren’t going the way he expected as: the Applicant had no work in progress and no contracts coming in; and the Respondent was not the type of company that the Applicant’s contacts were looking for. Mr P Benney advised the Applicant that he would be terminated effective immediately and would be paid out his entitlements. As directed, Mr Carswell assisted the Applicant in gathering his belongings and returning company property.
(k)Mr Carswell had financial concerns such as cash flow, but the Respondent had the ability to service 10 to 15 million dollar contracts just prior to the Applicant being employed. The Respondent required assistance from the bank to service contracts of that size and to hire or reallocate staff.
(l)Mr P Benney had expressed concern that a bullying claim would arise. The possible bullying claim was not appropriate for Mr Carswell to resolve as it was an issue between his boss, the owner of the business and somebody that did not report to him.
(m)Mr Carswell was not involved in the re-hiring of Mr Gerard. Mr Gerard had previously resigned and taken up another position with a different security firm. Mr Gerard was re-employed with the company as National Sales Manager after the Applicant’s termination.
(n)Mr Carswell ceased employment with the Respondent on 20 December 2019.
Evidence of Mr Hill
At the Final Hearing Mr Hill adopted the Hill Affidavit as his evidence-in-chief and was cross-examined. Mr Hill’s evidence may be summarised as follows:
(a)Mr Hill had been employed by the Respondent as Business Manager since 1 February 2018. Mr Hill was new to the business but had a close longstanding friendship with the family of Mr P Benney and Mr J Benney. Mr Hill stated that with Mr J Benney the relationship was strictly business during business hours.
(b)Mr Hill was present on 23 April 2018 when Mr P Benney called the Applicant into Mr J Benney’s office. Mr Hill and Mr P Benney had been discussing the work for the day and Mr J Benney was not present. Mr Hill confirmed that Mr P Benney said to the Applicant “What have you achieved today cunt?” Mr Hill deposed that Mr P Benney said this “in a jovial manner ‘what blokes did’ manner”.[102]
(c)When cross-examined Mr Hill could not recall other specific times Mr P Benney had used the word “cunt” but deposed that he heard Mr P Benney use this word on other occasions in front of colleagues in a “jovial” manner when around “blokes”.[103]
(d)Mr Hill was not aware of the business deals the Applicant may have had in the pipeline.
(e)Mr P Benney did not mention any bullying claims to Mr Hill. Mr Hill was aware of the deterioration in the relationship between the Applicant and Mr P Benney but was not sure when or why the relationship had deteriorated.
(f)Mr Hill did not know prior to the Applicant’s dismissal that the Applicant’s employment was going to end.
(g)Mr Hill was not involved in the appointment of Mr Gerard and was not aware of Mr Gerard’s appointment until he commenced employment with the Respondent.
ADVERSE ACTION
[102] CB 212; Hill Affidavit, [3].
[103] CB 212; Hill Affidavit, [3].
Relevant legal principles
Item 1 of section 342 of the FW Act defines adverse action as follows:
342(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.

There is no dispute that the Applicant was an employee of the Respondent under s 335 of the FW Act and it is not disputed that the dismissal of the Applicant from his employment was “adverse action” for the purposes of s 342(1) of the FW Act.
Section 793 of the FW Act deals with liability of bodies corporate. It relevantly provides that any conduct engaged in on behalf of a body corporate by an officer employee or agent of the body within the scope of his or her actual or apparent authority is taken, for the purposes of the FW Act, to have been engaged in also by the body corporate. Subsections (2) and (3) relevantly deal with how the state of mind of a body corporate is established. There is no dispute regarding Mr P Benney’s authority as decision-maker and the liability of the Respondent.
Section 340 of the FW Act precludes “adverse action” being taken against another because, amongst other things, that person has exercised, or purported to exercise, a workplace right. Section 340 relevantly provides that:
Section 340 Protection
340(1) 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.
Note:   This subsection is a civil remedy provision (see Part 4‑1).
Section 341(1) of the FW Act defines the circumstances in which a person has a workplace right as follows:
Section 341 Meaning of Workplace Right
341(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.
Sections 360 and 361 of the FW Act facilitate proof by an applicant of a claim of adverse action. Section 360 recognises that some adverse action might be taken for a variety of reasons, including reasons unrelated to the reasons that Part 3-1 of the FW Act proscribes. In order to be actionable under Part 3-1 of the FW Act, it is sufficient that relevant adverse action is taken for reasons that include such proscribed reasons.
Section 361 creates a rebuttable presumption concerning the proof, in any given case, of the reasons for which adverse action was taken. If, in an action alleging conduct was engaged in in contravention of Part 3 1 of the FW Act, it is alleged that a person took or is taking action for a particular reason or with a particular intent, and taking that action for that reason or with that intent would constitute a contravention of that Part 3-1 of the Act, it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
The purpose of the rebuttable presumption is to cast onto respondents the onus of proving that which is peculiarly within their knowledge. The reverse onus can be discharged if the Respondent gives evidence that the prohibited reason was not a substantive reason for the adverse action and the Court accepts that evidence. The leading authorities of: Board of Bendigo Regional Institute of Technical & Further Education v Barclay & Anor [2012] HCA 32; State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; and Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limit (No 2) [2017] FCA 1046 provide the following relevant principles:
(a)The central question is one of fact and can be articulated as why was the adverse action taken?
(b)The focus of the enquiry is the actual reason or reasons which motivated the decision-maker and whether the alleged prohibited reason was a substantial and operative reason for taking the adverse action.
(c)The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker.
(d)The inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is a factual or temporal connection, however this may necessitate some consideration.
(e)The test does not involve any objective element as the Court must make a finding of fact as to the true reasons of the decision-maker.
(f)Direct testimony by the decision-maker greatly assists the enquiry but the evidence of the decision-maker may be determined to be unreliable. The evidence of the decision-maker may be accepted as reliable and discharge the burden imposed on the employer by s 361 of the FW Act.
(g)Where there are multiples reasons for adverse action, the prohibited reason must a substantial and operative factor.
(h)It is not necessary for the decision-maker to establish that the reason for the adverse action was entirely dissociated from the relevant protected workplace right.
(i)The Court must have regard to all the relevant facts and circumstances and inferences available.
Division 5 of Pt 3-1 of the FW Act contains ‘Other protections’, and includes within it s 352 which provides that:
Section 352 Temporary Absence – Illness or Injury
352An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Note: This section is a civil remedy provision (see Part 4-1)
Applicant’s cause of action
The Applicant pleaded in [19] to [25] of the Statement of Claim that adverse action has been taken as follows:
(a)The Applicant made the Name Complaint, Professionalism Complaint and the Communication Complaint (collectively, Complaints), which amounted to the exercise of the Applicant’s workplace right to make a complaint or inquiry in relation his employment; and/or
(b)The Applicant’s Paid Personal Leave amounted to an exercise of the Applicant’s right to take paid personal leave; and
(c)On the basis of the exercise of the workplace right in (a) and/or (b), the Respondent dismissed the Applicant in contravention of the FW Act.
If the Applicant establishes the following matters then the reverse onus in s 361 of the FW Act is enlivened:
(a)Adverse action was taken;
(b)The Applicant had a workplace right; and
(c)The Applicant in fact exercised that workplace right.
Did the Applicant exercise workplace rights?
The ability to make a complaint is a workplace right under s 340 of the FW Act. The Respondent did not dispute that the Complaints were made but disputed their characterisation as ‘complaints’ under the FW Act. ‘Complaint’ is not defined in the FW Act. The following principles apply in relation to a complaint or inquiry:
(a)The complaint or inquiry must be directed to the employer: Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307;
(b)The relationship between the specific complaint or inquiry and the employee’s employment may be indirect as well as direct: Construction, Forestry, Mining and Energy Union v Pilbara Iron Co (Services) Pty Ltd (No 3) [2012] FCA 697; and
(c)The ability to make a complaint can be sourced from legislative provisions that are not workplace laws, contractual terms and the general law.
The Applicant contended that the Complaints were complaints under s 341(1)(c)(ii) of the FW Act as they were “an expression of genuine grievances that he made in good faith and for a proper purpose”.[104] The Name Complaint and the Professionalism Complaint expressed the Applicant’s request that Mr P Benney refrain from using a specific profane term being “cunt”, in the workplace as a name for the Applicant, in conversation with the Applicant and in the presence of the Applicant. The Communication Complaint expressed the Applicant’s concern about Mr P Benney’s behaviour and a request that this behaviour be addressed.
[104] Applicant’s Outline of Submissions, filed 1 March 2021 (Applicant’s Outline of Submissions), [20].
The Applicant cited Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 which described complaints at [626]:
[626][…] It is necessary only that relevant communication, whatever its precise form, would be reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice and consider the complaint.

The Applicant further submitted that the ability for an employee to make complaints is interpreted widely, as the majority in PIA Mortgage Service Pty Ltd v King [2020] FCAFC 15 stated, at [27], that: “Nothing we have said is intended to foreclose argument as to other circumstances that may give rise to an ability to make a complaint”.
The Respondent acknowledged that ‘in relation to employment’ has been interpreted broadly but challenged the characterisation of the Complaints on the basis that a complaint or inquiry must be founded on a source of entitlement, whether instrumental or otherwise and must be made in relation to the employee’s employment. The Respondent submitted that the Complaints did not identify a source of entitlement or relate to employment, as they merely amounted to a request to not to be called a word and a comment about behaviour. The Respondent also submitted that complaints which are “false, baseless and contrived” are unlikely to fall within the protection of s 341(1) of the FW Act.
The Applicant’s submissions advanced and described three (3) separate complaints made by the Applicant. It is appropriate to characterise and consider the Complaints as one (1) exercise of the right to make a complaint. The Name Complaint was made in writing directly to Mr P Benney who held the most senior position at the Respondent, was the Applicant’s manager and was the decision-maker regarding the Applicant’s dismissal. The Name Complaint formally and clearly articulated the Applicant’s genuine grievances regarding the language and conduct of Mr P Benney in the workplace and requested that Mr P Benney alter his behaviour when interacting with the Applicant at work. The Professionalism Complaint is a continuation of the Name Complaint and the Communication Complaint is an extension of the Name Complaint. The Name Complaint is the effective complaint on the facts and the critical event in which the Applicant claims to have exercised a workplace right under ss 340 and 341 of the FW Act. In order to be characterised as a complaint under the FW Act the Name Complaint must have been in relation to employment and founded on a source of entitlement: Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 [28] and [33]; Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301 [74] and [97].
The Respondent’s submission that the Name Complaint was not in relation to the employee’s employment cannot be accepted as the substance of the Name Complaint concerns the Applicant’s employment by the Respondent. The Applicant worked alongside Mr P Benney and engaged with him frequently. The Applicant felt that the language and behaviour used by Mr P Benney when in the workplace was belittling and not appropriate to a “professional setting”. The communication of the experience and interactions of an employee in the workplace with a manager and colleague, and request concerning the use of language in the workplace clearly fall within the scope of employment.
The Name Complaint does not need to precisely and explicitly identify a source of entitlement in a workplace law or instrument. It is enough that the Applicant’s complaint be founded in an employee right, whether instrumental or otherwise. The Applicant referred to s 21 of the Occupational Health and Safety Act 2004 (Vic) (OHS Act) as a source of entitlement.[105] The substance of the Name Complaint is the use of profane language by Mr P Benney and in particular the word “cunt”, and how that language made the Applicant feel in the workplace. The Applicant was entitled to a safe workplace under the OHS Act and a workplace free from bullying under FW Act. Therefore, the complaint has a legal underpinning and satisfies the requirements of a ‘complaint’ under s 341 of the FW Act.
[105] Applicant’s Outline of Submissions, [19].
The Respondent’s submission that the Name Complaint was baseless therefore cannot be accepted. The Name Complaint was based on the actual language and conduct of Mr P Benney and reflected the Applicant’s genuine feelings about the use of certain language and conduct in a professional work environment. The Applicant acknowledged that swearing was used by himself and others in the workplace but distinguished that he felt uncomfortable by the use of swearing when interacting with clients and prospective clients, in business related internal meetings and as the name for someone in the workplace.[106] The Applicant understood that certain words were and can be used in a jovial, joking or friendly manner rather than offensively. However the Applicant explained how Mr P Benney’s use of swearing towards him felt like a put down and inappropriate in front of other staff and customers.[107]
[106] Transcript P53.
[107] Transcript P55-59.
I am satisfied that the Name Complaint should be properly characterised as a complaint under ss 340 and 341 of the FW Act and therefore the Applicant exercised his workplace rights.
The Applicant also advanced that the Paid Personal Leave was an exercise of his workplace right under section 97(a) of the FW Act which provides that employees have a right to take paid personal leave when unfit to attend work due to personal illness. The Applicant was on leave from 6 September 2018 to 7 September 2018 and provided a valid medical certificate deeming him unfit for work. The Respondent did not dispute that the Paid Personal Leave was an exercise of a workplace right and acknowledged that for the purposes of s 352 of the FW Act, immediately prior to his dismissal, the Applicant was temporarily absent from work.
Was there adverse action taken against the Applicant?
There is no dispute between the parties that the Respondent dismissed the Applicant from employment as defined by s 386 of the FW Act on 10 September 2018 (Dismissal). The Dismissal of the Applicant constituted adverse action within the meaning of s 342(1) of the FW Act.
What were the active reason or reasons for the dismissing the Applicant?
The evidence before the Court is that Mr P Benney was the sole decision-maker in relation to the Dismissal. Mr P Benney gave evidence to the Court in relation to his reasons for dismissing the Applicant. The Termination Letter provides a brief explanation of the reasons for the Dismissal and the Applicant recounted the reasons provided to him by Mr P Benney.
The reasons of people who may have influenced the final decision should also be taken into account: Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014. On the evidence before the Court, no other people influenced Mr P. Benney’s decision. None of the Respondent’s witnesses, apart from Mr P Benney and Mr Carswell, knew about the termination of the Applicant’s employment until after the fact. Mr P Benney’s evidence was that he decided to terminate the Applicant before he requested Mr Carswell to draft the Termination Letter. Mr Carswell also prepared the Report which Mr P Benney deposed that he based his decision to dismiss the Applicant on. There is no evidence that Mr Carswell provided an opinion on the Applicant’s employment with the Respondent to Mr P Benney. I accept the evidence that Mr P. Benney was the sole decision-maker in relation to the Dismissal of the Applicant and was not influenced by the reasons of others.
For the purposes of the Application, the reasons of Mr P Benney are important to determine whether any prohibited reasons under the FW Act were substantial and operative reasons for the Applicant’s Dismissal. If the reasons for the Dismissal do not include a prohibited reason, the Applicant cannot succeed in his application.
The Respondent submitted that Mr P Benney terminated the Applicant’s employment for reasons that did not include the exercise of his workplace rights or his temporary absence from work. The Respondent submitted that simply because the Dismissal occurred after the Complaints and the Applicant’s Paid Personal Leave on 6 and 7 September 2018, did not mean that they constituted substantive and operative reasons for the Dismissal. The Respondent claimed that the sole reason for the Dismissal was the Applicant’s poor performance (Respondent’s Reason).
The Applicant disputed Mr P. Benney’s evidence as to the Respondent’s Reason and alleged that Mr P. Benney decided to terminate his employment because of and for reasons including the Name Complaint and the Paid Personal Leave (together, Prohibited Reasons). The Applicant contended that the Respondent’s Reason was baseless and was contrived to conceal Mr P Benney’s actual reason for his decision. The Applicant submitted that even if the Court accepts the Respondent’s evidence as to the Respondent’s Reason, the Prohibited Reasons were additional substantive and operative reasons for the Dismissal.
The focus of my inquiry is the reason or reasons of Mr P Benney and whether the Prohibited Reasons were the substantial and operative reasons for his decision to terminate the Applicant’s employment. It is not necessary for the Respondent to establish that the Prohibited Reasons were entirely disassociated from the Applicant’s exercise of his workplace rights: The Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 [62].
I first address the reason given by the Respondent for the Dismissal.
Poor performance
The Respondent claimed that the decision to dismiss the Applicant was made on the basis of the Applicant’s underperformance and in particular his failure to secure any new security contracts in the 12 months he was employed. Mr P Benney as the decision-maker gave evidence to that effect.[108]
[108] CB142-143; P Benney Affidavit [40]-[42].
The Respondent claimed that the decision to terminate the Applicant had been resolved in the mind of the decision maker separate to the Complaints and before the Paid Personal Leave. Mr P Benney explained his reasons for determining that the Applicant was performing poorly and therefore deciding to terminate the Applicant as follows:
(a)Around late August and early September 2018 Mr P Benney began a review of the Applicant’s work in progress which revealed the Applicant’s poor performance.
(b)The Review Email raised concerns regarding work performance as the Applicant had no guarding work that would have come in within the next three (3) months.
(c)Through the Report Mr P Benney “discovered” that since the Applicant began his employment he had not brought any new contracts to the Respondent and had recorded only two deals as the primary salesperson with the business’ established clients.
(d)It was “obvious” that the Applicant’s client base was not what the Respondent was looking for.
(e)Retaining the Applicant was not sustainable for the Respondent’s business.
The Applicant submitted that the Respondent’s Reason had no evidentiary basis, was not communicated to him and was not an actual operative reason for his dismissal. The Applicant relied on the following to support his submission that underperformance was not the operative reason for his dismissal:
(a)The Applicant accepted Mr P Benney’s comment that he was more suited to mining and resources work.[109]
(b)The Applicant was a “loyal and dedicated” employee and Mr P Benney simply decided to get rid of him.
(c)The Applicant’s achievements, as described in the Applicant’s First Affidavit at [17] and the Carswell Affidavit at [11].
(d)Mr P Benney had made prejudicial comments about personal leave and the “undeniable temporal proximity” between the Paid Personal Leave and the Applicant’s dismissal.
(e)While he brought in only two (2) new deals to the business, most of his job at the time was keeping work and he successfully kept contracts that the Respondent would have lost if he had not got involved.[110]
[109] Transcript P71:L45-46.
[110] Transcript P69-70.
It is clear that the Applicant feels that he was unfairly treated in relation to his dismissal and he disputed that the alleged reason given by the Respondent amounted to a genuine reason for his dismissal. The Applicant brought attention to the lack of forewarning and lack of opportunity to comment. The Court considers these matter to the extent they give rise to the inference that Mr P Benney’s real reasons for dismissing the Applicant did not include the Respondent’s Reason and did include the Prohibited Reasons. In considering whether Mr P Benney’s actual reasons for dismissing the Applicant from his employment included the Prohibited Reasons, it is not necessary to decide whether Mr P Benney’s reasons for terminating the Applicant were based on the correct facts or consider the extent to which the dismissal was unfair.
On the Respondent’s evidence, Mr P Benney began an investigation into the Applicant’s work performance around eleven (11) months after the Applicant began employment with the Respondent and less than one month, if not one week, before he dismissed the Applicant.[111] Mr P Benney’s concern that the Applicant was not fulfilling the responsibilities required by his role was raised by the Review Email and then confirmed by the Report on 3 September 2018.[112] Mr Carswell gave evidence that he had a discussion with Mr P Benney’s regarding how the data in the Report indicated that work was not there nor expected to come in, and on that basis Mr P Benney instructed Mr Carswell to prepare a termination letter. Mr P Benney described the Applicant’s only responsibility was securing security contracts, particularly in the mining and resource sector, and denied the various other responsibilities listed in the Applicant’s First Affidavit. [113] Mr P Benney denied the work achievements listed by the Applicant at paragraph 17(a) of the Applicant’s First Affidavit. Mr P Benney also denied that the Applicant worked 120 hours per fortnight and stated that the “progress statistics” did not reflect 120 hours of fortnightly work. [114] Mr P Benney did not consult or discuss the Applicant’ work performance with any other employees or the Applicant himself, and there is no evidence before the Court as to whether other employees regarded the Applicant as a poor performer. The lack of discussion about the Applicant’s work and performance with any other employees is notable, as on the Respondent’s own evidence Mr P Benney had stepped back from working alongside and communicating with the Applicant since the Name Complaint was made. The Termination Letter references the Applicant’s sales figures and the mismatch between the Applicant’s contacts and the work the Respondent could undertake, implying that the Applicant could not fulfil the responsibilities of his role.
[111] CB 143; P Benney Affidavit, [42].
[112] CB 138; P Benney Affidavit, [18].
[113] CB 138; P Benney Affidavit, [17].
[114] CB 138; P Benney Affidavit, [16].
The Court notes that the Respondent’s timeline regarding the review of the Applicant’s work and decision-making was inconsistent. Mr P Benney deposed to having decided to terminate the Applicant weeks before 10 September 2018, however Mr P Benney only received the Review Email from the Applicant and the Report on 3 September 2018. Mr P Benney then also gave evidence that he had decided to terminate the Applicant on 3 September 2018. Further Mr Carswell deposed that he was directed to provide a draft the Termination Letter to Mr P Benney and that he did so three weeks prior to 10 September 2018. However, further evidence from Mr Carswell indicated that he had been directed to draft the Termination Letter on 3 September 2018.
Regardless of the timeline and fairness of Mr P Benney’s assessment, Mr P Benney’s determination that the Applicant was a poor performer was based on actual evidence, be it limited in nature. Therefore, I accept that the poor performance of the Applicant was an operative reason for his dismissal.
Name complaint
The Applicant contended that the Name Complaint was a substantial and operative reason for his dismissal. The Applicant claimed that Mr P Benney decided to remove the Applicant from employment by the Respondent because he did not like the Name Complaint and because the Applicant did not withdraw the Complaints. The Applicant based his contention on the fact that that prior to the Conduct Complaints there were no issues between himself and Mr P Benney, or between himself and other employees, and that Mr P Benney’s dissatisfaction with the Applicant began after the Conduct Complaints. The Applicant submitted that Mr P Benney’s phone call to the Applicant about the Name Complaint and his withdrawn behaviour towards the Applicant after the Name Complaint showed he was annoyed by it.
The Respondent contended that the Dismissal was not for reasons that included the Conduct Complaints, as Mr P Benney appropriately responded to the Applicant’s requests and a significant period of time occurred between the Conduct Complaints and the Dismissal. The Respondent submitted that Mr P Benney took no issue with the Name Complaint as he complied with the Applicant’s requests and treated the Applicant in a professional manner. The Respondent further submitted that there was disconnect between the Conduct Complaints and the Dismissal by ‘reason of effluxion of time’ alone.
As determined above, the Respondent has established that poor performance was a reason for the Applicant’s dismissal. This finding however does not automatically mean that the Name Complaint was not also a reason for Mr P Benney’s decision to dismiss the Applicant. Pursuant to ss 360 and 361 of the FW Act, the Name Complaint is presumed to be one of the multiple operative or immediate reasons for the Applicant’s dismissal, unless the Respondent can provide evidence rebutting that presumption. The Respondent does not have to establish that the adverse action was taken for reasons entirely dissociated with the Name Complaint: CFMWU v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243 [14].
The lack of temporal connection between the Name Complaint and the Applicant’s dismissal presents a hurdle for the Applicant. On the evidence, there was a period of five (5) months between the Name Complaint and the Dismissal. The events are not proximate but the period of time is not of such a length that the Name Complaint cannot be linked to Mr P Benney’s decision to dismiss the Applicant. The elapsed period of time between the events does not in itself prevent the Name Complaint from being a reason for the Dismissal. Conversely, the fact that the Applicant was dismissed after the Name Complaint does not mean the Name Complaint was an operative reason in the mind of Mr P Benney. It remains open to the Court to find that the Name Complaint would have been in the mind of Mr P Benney when he decided to dismiss the Applicant.
The evidence before the Court is that prior to the Name Complaint Mr P Benney and the Applicant worked together cooperatively and without conflict. The Applicant gave evidence that he met up or communicated with Mr P Benney daily for seven months. The Applicant ran management meetings and provided feedback to Mr P Benney about other employees and areas of the Respondent that could be improved. Whilst the Applicant took note of incidents that made him uncomfortable, there is no evidence that before the Name Complaint that the Applicant communicated in writing to Mr P Benney his discomfort with Mr P Benney’s language or conduct in the workplace.
The Respondent has not pointed to any evidence that prior to the Name Complaint the Applicant and Mr P Benney had difficulties in their relationship and did not interact frequently. Mr P Benney agreed that the Applicant would provide recommendations to him and discuss matters with him either in person or on the phone at least a couple times a week.[115] The phone call records supported that the two (2) frequently communicated.[116] Mr P Benney deposed that he met up with employees frequently over coffee but denied specially meeting with the Applicant daily. In the context of all the evidence prior to the Name Complaint, Mr P Benney and the Respondent worked closely and had a functional, amicable working relationship.
[115] Transcript P112.
[116] Applicant’s Exhibit 5

The Name Complaint resulted in a marked change in the relationship between the Applicant and Mr P Benney. The Applicant’s evidence described Mr P Benney significantly changing his behaviour and “freezing” the Applicant out. Mr P Benney distanced himself from the Applicant and no longer communicated with or met with the Applicant.
Importantly the Respondent did not deny, or present evidence to the contrary, that Mr P Benney’s behaviour changed. Mr P Benney acknowledged that his behaviour was altered but his evidence attempted to make clear that he changed how he interacted with the Applicant in response to the Name Complaint. The Respondent attempted to convey that there was not a deterioration in the relationship but rather a newfound respect by Mr P Benney for the Applicant’s boundaries at work. I do not accept this evidence in the context of all the evidence before the Court.
Based on the evidence before the Court I am not persuaded to accept the Respondent’s submission that Mr P Benney did not treat the Applicant differently to other employees after the Name Complaint.[117] Whilst giving evidence that he refused to be a mediator between Mr P Benney and the Applicant, Mr J Benney confirmed that the two had stopped communicating and that their relationship had deteriorated after the Name Complaint. Mr Hill corroborated that the relationship had deteriorated, and he gave evidence that he did not know why the relationship had “soured” leading up to the Applicant’s dismissal. Further, whilst on some instances Mr P Benney attested to changing his behaviour out of respect for the Applicant, Mr P Benney deposed that his behaviour had not changed as he did not interact with the Applicant daily prior to the Name Complaint. Throughout these proceedings Mr P Benney has been unable to recall the specifics of conversations and alleged incidents, and has provided conflicting evidence about what occurred. Mr P Benny did not impress as a witness under cross-examination.
[117] Respondent’s Outline of Submissions, filed 10 March 2021, [30].
The totality of the evidence before the Court creates an overall picture that the Name Complaint was a critical temporal event in the relationship between the Applicant and Mr P Benney. Regardless of the reasons provided for the change in behaviour, the Respondent did not and could not provide evidence that Mr P Benney’s relationship with the Applicant did not markedly change after the Name Complaint. Before the Name Complaint the Applicant and Mr P Benney had an amicable work relationship. After the Name Complaint Mr P Benney ‘froze’ the Applicant out of a working relationship. The evidence points towards the relationship deteriorating from after the Name Complaint until Mr P Benney’s dismissal of the Applicant.
Throughout these proceedings the Respondent has sought to minimise the Name Complaint and attempted to excuse and justify the language and conduct of Mr P Benney. I accept that robust language can be used without the intention to cause offense and its meaning depends on the context in which it is used. The Respondent’s witnesses all acknowledged that Mr P Benney had a propensity to swear in everyday conversations, but all denied that Mr P Benney was aggressive and intended to cause insult. However in this proceeding Mr P Benney has been dismissive of the grievances of the Applicant and has been unapologetic for his use of language and his behaviour towards the Applicant.
The evidence of Mr P Benny’s shift in behaviour, the significance of the Name Complaint in the Applicant and Mr P Benney’s relationship and the lack of evidence rebutting the presumption created by s 361 does not support the Respondent’s contention that the Name Complaint was not an active reason for, or mere subconscious influence on, Mr P Benney’s decision. Even though Mr P Benney has given evidence that he acted solely for the Respondent’s Reason, I am not satisfied that the Respondent has proved on the balance of probabilities that Mr P Benney did not decide to terminate the Applicant for reasons which included the Name Complaint.
Paid personal leave
Additionally or alternatively, the Applicant claimed that the Paid Personal Leave was a reason for his dismissal. The Applicant relied on alleged prejudicial comments about personal leave made by Mr P Benney and the temporal proximity of the Paid Personal Leave to his dismissal.
The Respondent claimed that the Paid Personal Leave played no part in the decision to terminate the Applicant’s employment. The Respondent submitted that an employer must have been aware that an absence was because of injury or illness in order for an employee to have been dismissed in contravention of s 352 of the FW Act. The Respondent claimed that Mr P Benney was unaware of the reason for the Applicant’s absence during the Paid Personal Leave at the time of the Dismissal. The Respondent also submitted that Mr P Benney had decided to terminate the Applicant before the Paid Personal Leave.
Mr P Benney was aware to some extent that the Applicant had taken the Paid Personal Leave due to illness. The Respondent’s contention that the temporary absence did not form part of the reason for the Dismissal on the basis that the decision maker had no knowledge of the exercise of the Applicant’s workplace rights cannot be accepted.
The Applicant had taken annual leave and paid personal leave on some occasions prior to the Paid Personal Leave, such as the week of 16 February 2018[118] and in December 2017.[119] The Applicant admitted that no objections were raised with him taking the Personal Paid Leave.[120] The Applicant expressed the difficulty he experienced in planning and taking leave. Mr P Benney may have been dissatisfied with the inconvenience of employees taking leave, however, there is no evidence of complaints or reprimands in relation to the prior periods of leave taken by the Applicant. The Paid Personal Leave was unplanned and there is no evidence that Mr P Benney took specific issue with the Applicant unexpectedly taking this particular period of sick leave.
[118] Transcript P86.
[119] Transcript P90.
[120] Transcript P70.
Further, I accept the Respondent’s evidence that Mr P Benney had decided to dismiss the Applicant prior to the Paid Personal Leave taken on 6 and 7 September 2018. The Respondent has established that on the balance of probabilities the Applicant was not dismissed for reasons including the Applicant’s temporary absence from work on 6 and 7 September 2018.
Conclusion FW Act Claim
Adverse action was taken against the Applicant by reason of the Dismissal by the Respondent. The Applicant established that he had exercised workplace rights. The Respondent established that on the balance of probabilities the Applicant’s temporary absence on 6 and 7 September 2018 was not a substantive and operative reason for the Applicant’s Dismissal.
The Respondent has established on the balance of probabilities that the underperformance of the Applicant was a reason for his dismissal, but it cannot be said to be the only operative and substantial reason for his dismissal.
The Respondent has not discharged the onus to prove on the balance of probabilities that a substantial and operative reason for Mr P Benny deciding to terminate the Applicant was not the Name Complaint.
The Name Complaint as well as the Applicant’s poor performance (whether well-founded or not) formed the substantial and operative reasons for Mr P Benney’s decision to terminate the Applicant. The Respondent (through Mr P Benney) took adverse action against the Applicant for a prohibited reason in contravention of s 340 of the FW Act.
BREACH OF CONTRACT
Relevant legal principles
The common law may imply terms based on the actual or presumed intentions of the parties. The conditions necessary for a term to be implied into a contract were set out in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at [9] as follows:
(a)The term must be reasonable and equitable;
(b)The term must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;
(c)The term must be so obvious that ‘it goes without saying’;
(d)The term must be capable of clear expression; and
(e)The term must not contradict any express term of the contract.
The common law implies standard terms into certain categories of contracts on the basis that they are a normal incident of that type of contract. The implication of standard terms is subject to any express term or clear intention in the contract not to include the term. The Court in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd (1986) 160 CLR 226 at [8] explained that any presumed intention of the parties or implied term “must yield to their actual intention as embodied in the express terms of the contract”.
Can a term of reasonable notice be implied?
The Applicant in [26] to [28] of the Statement of Claim claimed that the Respondent breached the Employment Agreement by failing to provide reasonable notice for his dismissal. A period of six (6) moths is claimed as reasonable notice. The Applicant contended that a term of reasonable notice is implied by law into the Employment Agreement which required that parties could only terminate the employment relationship by providing ‘reasonable notice’. Citing Haley v Public Transport Corporation of Victoria [1998] VSC 143, the Applicant submitted that reasonable notice is determined by an employee’s age, seniority and remuneration, and the employee’s prospects of finding other suitable employment.
The Applicant submitted that reasonable notice in this circumstance would be six (6) months and therefore the Applicant is entitled to receive six month’s pay in the sum of $83,500, in lieu of notice of the intention to terminate. The Applicant justified this amount based on the Applicant’s seniority, his managerial responsibilities and the expectations communicated before employment. The Applicant likened his case to Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567 where a general manager who was employed for 19 months was awarded 12 months’ pay as reasonable notice and Miller v Sunland Park Pty Ltd [2014] FCCA 89 where a general manager who was employed for 13 months and dismissed for allegedly misusing a company credit card was awarded six months’ remuneration in lieu of reasonable notice.
The Respondent denied breaching the Employment Agreement and disputed the existence of an implied term of reasonable notice. The Respondent submitted that it is unnecessary to imply a reasonable notice term in this circumstance as s 117 of the FW Act applied to the Applicant’s employment: Westpac Banking Corporation v Wittenberg (2016) 330 ALR 476, at [216] to [238]. The Respondent further submitted that if a reasonable notice term is implied into the Employment Agreement then reasonable notice in these circumstances would have been two (2) weeks, as was paid. The Respondent explained that the fact the Applicant had worked more than 12 months was taken into account to determine the two (2) weeks’ pay in lieu of notice.
The Applicant worked and was paid in accordance with the Employment Agreement, which both parties agreed was offered and then accepted on 28 August 2017. The Employment Agreement was amended on 12 January 2018 in response to the Applicant’s request on 11 January 2018. No clauses were amended except the position title and the Applicant did not seek to vary any other terms.
Clause 17 of the Employment Agreement outlined the terms for termination. Clause 17 provides that the Employment Agreement can be terminated by either party by giving notice and that the Employer can pay in lieu of notice of termination. Item 10 of Schedule 1 of the Employment Agreement provided that the notice period for a full-time employee was two (2) weeks for a period of service of one (1) to three (3) years, unless otherwise mutually agreed or over the age of 45 with over two (2) years’ service. The Applicant worked for the Respondent for just over 12 months (371 days) and was paid two (2) weeks’ pay in lieu of notice of the termination of employment pursuant to clauses 17.1 and 17.2 of the Employment Agreement. The Employment Agreement contained an express term for reasonable notice of termination and expressly outlined the period of notice, pay in lieu of notice and the termination process in line with the FW Act. The implied term advanced by the Applicant would contradict the express terms of the Employment Agreement. Therefore, no term of reasonable notice and no reasonable notice pay can be implied.
BREACH OF THE AUSTRALIAN CONSUMER LAW
Relevant legal principles
Section 18(1) of the ACL provides that “[a] person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.” Section 18 applies to all “persons” whether individuals or corporations. To fall within s 18 the person’s deceptive or misleading conduct must have been done in “commerce or trade”.
Section 18 is not found in Part 3-2 of the ACL which is concerned with “Consumer transactions”. It is found in Part 2-1 which is concerned with “misleading and deceptive conduct”, and in particular is a part of Chapter 2 of the ACL which sets out “general protections”.
The key principles in the consideration of misleading and deceptive conduct under s 18 of the ACL, previously s 52 of the Trade Practices Act 1974 (Cth), were set out by Justice Gordon in ACCC v Dukemaster Pty Ltd [2009] FCA 682, at [10], as follows:
1. A contravention of s 52(1) of the TPA is established by “conduct” which is misleading or deceptive or likely to mislead or deceive: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 87. The “conduct”, in the circumstances, must lead, or be capable of leading, a person into error (Hannaford (trading as Torrens Valley Orchards) v Australian Farmlink Pty Ltd [2008] FCA 1591 at [252] citing Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177 at 200; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 at 198) and the error or misconception must result from “conduct” of the corporation and not from other circumstances for which the corporation is not responsible: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 91. “Conduct” is likely to mislead or deceive if there is a “real or not remote chance or possibility regardless of whether it is less or more than fifty per cent”: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 87.
2. Section 52(1) is concerned with the effect or likely effect of “conduct” upon the minds of that person or those persons in relation to whom the question of whether the “conduct” is or is likely to be misleading or deceptive falls to be tested. The test is objective and the Court must determine the question for itself: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 87. Section 52 is not designed for the benefit of persons who fail, in the circumstances of the case, to take reasonable care of their own interests: Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd [1987] FCA 332; (1987) 78 ALR 193 at 241. Moreover, it would be wrong to select particular words or acts which although misleading in isolation do not have that character when viewed in context: Elders Trustee [1987] FCA 332; 78 ALR 193 at 241 citing Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 at 199.
3.   “Conduct” can, of course, include making a statement which is misleading or deceptive or likely to mislead or deceive: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 88.
4.   By making a statement of past or present fact, a corporation’s state of mind is irrelevant unless the statement involved the state of the corporation’s mind: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 88. Contravention of s 52(1) does not depend upon the corporation’s intention or its belief concerning the accuracy of the statement of fact but upon whether the statement conveys a meaning which is false. A false meaning will be conveyed if what is stated concerning the past or present fact is inaccurate but also if, although literally true, the statement conveys a meaning which is false.
5. Precisely the same principles control the operation of s 52(1) to statements involving the state of mind of the maker when the statement was made (e.g. promises, predictions and opinions). A statement which involves the state of mind of the maker ordinarily conveys the meaning (expressly or impliedly) that the maker of the statement had a particular state of mind when the statement was made and, commonly, that there was a basis for that state of mind: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 88.
6.   A statement of opinion will not be misleading or deceptive or likely to mislead or deceive merely because it turns out to be incorrect, misinforms or is likely to do so: Elders Trustee [1987] FCA 332; 78 ALR 193, 242 and Bateman v Slatyer (1987) 71 ALR 553, 559. An incorrect opinion does not of itself establish that the opinion was not held by the person who expressed it or that it lacked any or any adequate foundation: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 88. An expression of an opinion which is identifiable as an expression of opinion conveys no more than that the opinion is held and perhaps that there is a basis for the opinion. If that is so, an expression of opinion however erroneous misrepresents nothing: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 88.
Were representations made?
The Applicant alleged in [29] to [34] of the Statement of Claim that the Respondent made the Representations during pre-employment negotiations that, for the purposes of s 18 of the ACL, the Representations were misleading and deceptive. The Respondent denied that there was a contravention of the ACL and disputed the characterisation of the Representations.
The Applicant relied upon the Capacity Representation and the Willingness Representation, in resigning from his employment with Diamond Protection. The Applicant submitted that the Representations were made as to future matters for the purposes of section 4(1) of the ACL.
The Respondent admitted that the Representations had been made by Mr P Benney and agreed that the Representations concerned future matters. There was no dispute that Mr P Benney was the sole director of the Respondent and had the authority to make the Representations.
Were the representations made in trade or commerce?
The term “in trade or commerce” as it appears in s 18 is not defined in the ACL. The Applicant submitted that the term’s ambit is wide enough to encompass pre-employment negotiations. The Applicant submitted that it is a well-established principle that representations made in the recruitment of an employee constitute representations made in trade or commerce, citing Moss v Lowe Hunt & Partners Pty Ltd [2010] FCA 1181 at [84]. Therefore, the Applicant submitted that the Representations were made in trade or commerce for the purpose of s 18 of the ACL.
The Respondent outlined that the Representations were not made in trade or commerce as the Representations were not made in relation to the Applicant’s offer of employment. The Respondent emphasised that at the time the Representations were made no employment was on offer. The Respondent submitted that the statements were made and no offer was made immediately after the Representations. Therefore, the Representations were not a part of the contract negotiations.
I accept the Applicant’s submissions that the Representations should be properly characterised as being made in trade or commerce. It is well established that representations made in discussions with prospective employees can constitute representations made in trade or commerce: Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd (Trustee) [2016] FCA 430 (Rakic). An offer of employment does not have to already exist in order for representations about an employer to a prospective employee to be characterised as in trade or commerce. It is enough that the Representations were made during pre-employment discussions and negotiations. The Representations would have been in the mind of the Applicant as the prospective employee when an offer of employment was subsequently made by the Respondent. Mr P Benney made the Representations in his capacity as an authorised representative of the Respondent, and this was understood by both the Applicant and Mr P Benney at the time.
Did the Representations induce the Applicant?

The Applicant alleged that he relied on the Representations in accepting the offer of employment from the Respondent. The Applicant claimed that had the Representations not been made, he would not have decided to undertake employment with the Respondent and would not have incurred loss as a consequence. The Applicant submitted that he would have remained in the employment with Diamond Protection and pursued his job application with ESS. In support of his claim, the Applicant cited Rakic, at [18], which found that if a material representation is made which is calculated to induce a person to enter into a contract, and that person in fact enters into the contract, there arises a fair inference that the person was induced to do so by the representation.
The Respondent claimed that a reasonable person in the Applicant’s position would not have relied on the Representations. The Respondent claimed that the Applicant had solicited and sought work with the Respondent and that the Representations only related to potential work. The Respondent submitted that the Applicant was an experienced manager in security and understood the nature of the Respondent’s sector of work. Therefore a reasonable person with his experience would not have relied on puffery engaged in by both parties in pre-employment, negotiation type discussions. The Respondent further submitted that there was no evidence except personal assertions that the Applicant relied on the Representations and claimed that it was the ability of the Respondent to meet the term of the offer from ESS that induced the Applicant.
The Applicant has not established that he undertook employment with the Respondent because of the Representations made by Mr P Benney. I accept that the potential work and willingness of the Respondent was a material consideration for the Applicant in deciding whether to undertake employment with the Respondent. The Applicant expressed to Mr P Benney what type of work and role he was seeking and Mr P Benney provided relevant representations about the Respondent in response. Mr P Benney admitted to asking the Applicant to join the Respondent but denied telling the Applicant to withdraw his application from ESS.
The Applicant was experienced in senior positions in the security industry and a reasonable person in his position would have an informed understanding of businesses like that conducted by the Respondent, and would not make a decision on the Representations alone. The Representations were made in a pre-employment discussion regarding the Respondent where both parties engaged in a level of puffery and where no offer of employment was given. Mr P Benney expressed his opinions about the capabilities and characteristics of the Respondent, while the Applicant expressed his opinion about his abilities and contacts. The Representations would have made the Respondent a viable option for the Applicant as he was looking for a long term role managing large national contracts but I am not persuaded that the Representations induced the Applicant to enter into employment with the Respondent.
Importantly, the Applicant did not accept the original offer by the Respondent. The Applicant negotiated his salary package with the Respondent. On the basis of the negotiated Employment Agreement that matched the salary package offered by ESS the Applicant accepted the offer of employment. The negotiated contract was material to inducing the Applicant into Employment with the Respondent. I recognised that negotiating a contract can simply be good business and not an indication of a prospective employee’s inducement into employment. However, upon the evidence before me, I am not satisfied that if the Representations had not been made that the Applicant would not have accepted the Respondent’s offer of employment.
The Applicant’s claim for misleading and deceptive conduct cannot be sustained. I therefore do not have to consider whether the Representations were misleading or deceptive, or if the Respondent had reasonable grounds for making the Representations in relation to future matters.
RELIEF
The Applicant sought a declaration and compensation for the economic and non-economic loss suffered by reason of the adverse action taken against him. The Respondent argued that the Applicant is not entitled to any relief. The Respondent made no submissions as to the payment of relief if any of the Applicant’s grounds were made out.
Section 392 of the FW Act outlines orders for compensation and the relevant criteria for determining the appropriate amount of compensation. The formula for calculating the appropriate amount of compensation can be summarised as follows (Gloria Bowden v Ottrey Homes - Cobram and District Retirement Villages Inc (t/as Ottrey Lodge) [2013] FWCFB 431):
(a)Estimate the remuneration the employee would have received if they had not been dismissed, having consideration to the anticipated period of employment.
(b)Deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment. The failure to mitigate loss may lead to a reduction in the amount of compensation awarded.
(c)Deduct an amount for contingencies. This is a calculation of future economic loss.
(d)Consider the impact of taxation.
(e)Assess the figure against the compensation cap.
Economic Loss
The Applicant sought loss of income at the rate of $167,000 per annum from the date of his dismissal. An assessment should give full weight to the available evidence regarding the value of the opportunity lost and the proper discount to be extracted: Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120. The full value of the likely income stream which the Applicant would have obtained had he not been dismissed from employment with the Respondent should firstly be calculated and then any discounts applied.
The Applicant was in permanent full-time employment with the Respondent and paid a base salary of $147,000 per annum plus superannuation. The Applicant also received a car allowance and company supplied mobile phone and laptop computer.
The Applicant submitted that he had intended to remain at the Respondent for at least two (2) years. Given the Applicant’s relatively short employment and the evidence of his work performance I cannot infer that the Applicant would have enjoyed long term employment with the Respondent. I find it likely that the Applicant would have stayed an employee at the Respondent for a further twelve (12) months at the most. I determine that the Applicant’s loss of income stream for the 12 months of employment is $167,000 pursuant to [25] of the Statement of Claim.
The Applicant claimed that the termination impacted his ability to obtain future work, particularly because his termination was well known in the industry and was a source of embarrassment. I consider that there is substance to this claim. The Applicant claimed he was forced to accept employment in other sectors of work, such as car sales.
The Applicant attempted to mitigate his loss and applied for approximately 50 jobs after his termination. The Applicant was unemployed for 64 days. The Applicant commenced employment in various positions at a lower base salary and at the time of the Final Hearing was employed as a Heavy Equipment Sales and Rental Territory Manager earning a base salary of $70,000 per annum with access to a commission structure.
I have determined that the Applicant is entitled to $83,500 for lost income. This amount represent six (6) months’ salary at the rate of $167,000 per annum and takes into account the amounts that the Applicant earnt after he left the employment of the Respondent, attempting to mitigate his loss.
Interest should be paid on this amount of $83,500 and orders will be made for further submissions in this regard.
Non-economic loss
The Applicant sought $20,000 in pain and suffering damages. The Applicant claimed that he was disappointed, angry and disenchanted by the Respondent’s termination of his employment. The Applicant’s evidence that the dismissal had a significant impact on his wellbeing was not supported by any medical evidence. However the Applicant’s disappointment, anger and humiliation was evident from his evidence given at the Final Hearing.
In the absence of medical evidence I am disinclined to find the amount sought as appropriate. I am satisfied the dismissal would have had an adverse impact on the Applicant’s mental wellbeing and has resulted in some limitation on his ability to re-enter the same job market, but it did not prevent the Applicant from actively pursuing and securing another position, albeit in positions at a lower base salary. I consider an amount of $10,000, which equates to an appropriate compensation for non-economic loss.
Declaration
I propose to make the declaration that the Respondent has breached s 340 of the FW Act by dismissing the Applicant from his employment on 10 September 2018. The Respondent has committed one contravention of the FW Act.
Penalties
The Applicant sought the imposition of pecuniary penalties for contraventions of the FW Act.
These Reasons for Judgment are a liability judgment concerning the Applicant’s dismissal from employment with the Respondent and therefore no order for penalties will be made. In accordance with the usual practice of this Court, the parties will be heard on the issue.
CONCLUSION
As discussed in these Reasons for Judgment, I find that the Respondent dismissed the Applicant for reasons which included the exercise of his workplace right to make a complaint pursuant to s 341(1)(c)(ii) of the FW Act. The Respondent therefore committed one contravention of the FW Act. All other causes of action in the Application are dismissed.
The Applicant is entitled to compensation pursuant to s 392(1) of the FW Act for economic and non-economic loss in the total sum of $93,500 and interest thereon and a declaration and a right to seek penalties in respect of the single contravention of the FW Act.
Orders will be made for the filing and service of submissions with respect to interest, penalties and the costs of this proceeding.

I certify that the preceding one hundred and seventy-six (176) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC.
Associate:
Dated: 27 July 2023

File number:	MLG 3354 of 2018
Judgment of:	HER HONOUR JUDGE C.E. KIRTON KC
Date of judgment:	27 July 2023
Catchwords:	INDUSTRIAL LAW – alleged contraventions of ss 340 and 352 of the Fair Work Act2009 (Cth) - adverse action - termination of employment - whether employee exercised workplace rights - whether complaints or inquiries made fall within with s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) – temporary leave of absence – reverse onus enlivened - reasons for termination decision – whether prohibited reasons substantive and operative reasons for dismissal - multiple reasons - employer failed to rebut presumption - one finding of adverse action – compensation ordered. INDUSTRIAL LAW – CONTRACT LAW – reasonable term of notice – whether written employment agreement had implied term – employment agreement had express notice period and payment in lieu of notice – no breach of contract. CONSUMER LAW – misleading and deceptive conduct – pre-employment negotiations – representations as to the future – whether representations made in trade or commerce – whether representations induced applicant into accepting offer of employment - no proof of reliance – claim dismissed.
Legislation:	Australian Competition and Consumer Act 2010 (Cth) Schedule 2, ss 4(1), 18 and 31 Fair Work Act 2009 (Cth) ss 97(a), 117, 236(1), 335, 340, 341, 342, 352, 360, 361, 386, 545(2)(b), 546 and 793 Occupational Health and Safety Act 2004 (Vic) s 21
Cases cited:	Australian Competition and Consumer Commission (ACCC) v Dukemaster Pty Ltd [2009] FCA 682 Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 30 Board of Bendigo Regional Institute of Technical & Further Education v Barclay & Anor [2012] HCA 32 CFMWU v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243 Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd (1986) 160 CLR 226 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014 Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limit (No 2) [2017] FCA 1046 Construction, Forestry, Mining and Energy Union v Pilbara Iron Co (Services) Pty Ltd (No 3) [2012] FCA 697 Gloria Bowden v Ottrey Homes - Cobram and District Retirement Villages Inc (t/as Ottrey Lodge) [2013] FWCFB 431 Haley v Public Transport Corporation of Victoria [1998] VSC 143 Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 Miller v Sunland Park Pty Ltd [2014] FCCA 89 Moss v Lowe Hunt & Partners Pty Ltd [2010] FCA 1181 Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307. PIA Mortgage Service Pty Ltd v King [2020] FCAFC 15 Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567 Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd [2016] FCA 430 Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 The Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 523 Westpac Banking Corporation v Wittenberg (2016) 330 ALR 476
Division:	Division 2 General Federal Law
Number of paragraphs:	176
Date of last submissions:	24 March 2021
Date of hearing:	22, 23 and 24 March 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Millar
Solicitor for the Applicant:	McDonald Murholme Solicitors
Counsel for the Respondent:	Ms Bingham
Solicitor for the Respondent:	Davies Lawyers Pty Ltd

MLG 3354 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	JOSEPH NOONAN Applicant
AND:	XYZ SECURITY SERVICES PTY LTD T/A ADVENT SECURITY SERVICES (ACN 007 399 493) Respondent

order made by:	her honour JUDge c.e. kirton kc
DATE OF ORDER:	27 july 2023

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.