Ocampo v Australian Aged Care Quality and Safety Commission
[2025] FedCFamC2G 1038
•4 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ocampo v Australian Aged Care Quality and Safety Commission [2025] FedCFamC2G 1038
File number(s): SYG 425 of 2022 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 4 July 2025 Catchwords: INDUSTRIAL LAW – Practice and procedure – application for summary dismissal – whether applicant does not have reasonable prospects of success on any of the claims specified in an amended form 4 – no reasonable prospects of success – whether leave should be granted to file a statement of claim – leave refused because the proposed statement of claim either does not disclose reasonable causes of action or to the extent it does the applicant would not have reasonable prospects of succeeding on them. Legislation: Aged Care Act 1997 (Cth)
Aged Care Quality and Safety Commission Act 2018 (Cth) s 11
Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Act 2018 (Cth)
Australian Aged Care Quality Agency Act 2013 (Cth) ss 7, 8, 9, 11, 12
Australian Aged Care Quality Agency (Transitional Provisions) Bill 2013 (Cth)
Commonwealth Authorities and Companies Act 1997 (Cth)
Fair Work Act 2009 (Cth) ss 34, 50, 186, 187, 188, 190, 280, 323, 340(1), 341, 342, 345, 361, 370, 386, 544
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 12.01, 13.13
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules 2011 (Cth) r 16.02(2)(d)
Long Service Leave (Commonwealth Employees) Act 1976 (Cth) s 20(1)
Public Service Act 1999 (Cth) ss 10A, 25, 24(1), 72(1)
Public Service Regulations 1999 (Cth) r 3.2
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5, 36, 37, 38, 40, 54(2), 71
Work Health and Safety Act 2011 (NSW) s 28
Cases cited: Alam v National Australia Bank Limited [2021] FCAFC 178
Angelo Mitanis & Anor v Pioneer Concrete (Vic) Pty Ltd & Ors [1997] FCA 1040; (1997) ATPR 41-591
Australian Building and Construction Commissioner v Hall [2018] FCAFC 83
Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 6) [2013] FCA 1002
Australian Federation of Air Pilots v Regional Express Holdings Ltd [2021] FCAFC 226; 290 FCR 239
Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435
Banque Commerciale SA (En liq) v Akhil Holdings Ltd (1990) 169 CLR 279
Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; 189 FCR 356
Berry v CCL Secure Pty Ltd [2020] HCA 27
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Browning v Crumlin Valley Collieries Ltd [1926] 1 KB 522
Bruce v Oldhams Press Ltd [1936] 1 KB 697
Childs v Metropolitan Transport Trust [1981] FCA 200
Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329
Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Stanwell Corporation Ltd (No 2) [2014] FCA 593
Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Director of The Fair Work Building Industry Inspectorate v Construction, Forestry, Mining And Energy Union & Ors (No.2) [2016] FCCA 3322
Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162
Ermel v DuluxGroup (Australia) Pty Ltd (No 2) [2015] FCA 17
Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923
Hill v Compass Ten Pty Ltd [2012] FCA 761; (2012) 205 FCR 94
Johnson v A.T. Kearney Australia Pty Ltd [2024] FedCFamC2G 1388
Letang v Cooper [1965] 1 QB 232
Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 165 ALR 67
Monash Health v Singh [2023] FCAFC 166
Morton v Lamb (1797) 7 TR 125; 101 ER 890
Noonan v Victorian Railways Commissioner (1907) 4 CLR 1668 CJ)
On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Qantas Airways Limited v Transport Workers’ Union of Australia [2023] HCA 27
Sayabath v Willowdale Nominees Pty Ltd, Williams, Cooper, Notley [2023] FedCFamC2G 104
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
Toki v All Class Training Pty Ltd [2024] FedCFamC2G 566
W Emmens, Secretary, etc-Plaintiff in Error; E M Elderton, Defendant in Error [1853] EngR 884; (1852-53) 4 HLC 624; 10 ER 606
Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99; (2005) 144 FCR 347
Division: Fair Work Number of paragraphs: 179 Date of last submission/s: 20 January 2025 Date of hearing: 8 February 2024 Place: Sydney Solicitor for the Applicant: Mr E Attia, of Elias Attia Lawyers and Consultants, by video Counsel for the Respondent: Ms A Perigo Solicitor for the Respondent: Norton Rose Fullbright Australia ORDERS
SYG 425 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALFREDO OCAMPO
Applicant
AND: AUSTRALIAN AGED CARE QUALITY AND SAFETY COMMISSION
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
4 JULY 2025
THE COURT ORDERS THAT:
1.The application in a proceeding filed by the applicant on 18 December 2023 for leave to file a statement of claim is dismissed.
2.Pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the proceeding is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
Two interlocutory applications are before the Court. The first is an application the respondent (Commission)[1] filed on 15 December 2023 for an order pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Rules) 2021 (Cth) (GFL Rules) that the proceeding brought by the applicant, Mr Ocampo, for relief under the Fair Work Act 2009 (Cth) (FW Act) be dismissed. The second is an application Mr Ocampo filed on 18 December 2023 seeking leave to file a statement of claim in the form of the proposed statement of claim (PSC) Mr Ocampo annexed to his application for leave to file the PSC.
[1] I will use the word “Commission” to describe the respondent, which is the Commonwealth. For the events that occurred before 1 January 2019, being the date on which the Aged Care Quality and Safety Commission Act 2018 (Cth) came into effect, I will refer to the Commonwealth as the AACQA, being the Australian Aged Care Quality Agency.
APPROACH
Before I consider the applications, it will be necessary to do three things. The first is to describe the procedural history of the matter. One question that arose is whether I should consider material Mr Ocampo lodged with the Court after 8 February 2024 (Post Hearing Material) when I heard the parties’ respective interlocutory applications, and if so, on what basis. As I discuss later, at a directions hearing on 20 June 2025 I informed counsel for the Commission, and Mr Ocampo (who is not legally represented), that I proposed to consider the Post Hearing Material on the basis that, if it raised any issue potentially adverse to the Commission, I would notify the parties of the issue, and invite them to make submissions. As will appear from what follows, I am satisfied the Post Hearing Material does not raise any issue in relation to which I need to invite submissions from the parties.
The second thing it will be necessary to do is to refer to the hearing of the interlocutory applications, and in particular my exchanges with Mr Attia, the lawyer who appeared for Mr Ocampo, after counsel for the Commission concluded her submissions in support of the Commission’s application for summary dismissal. The exchange concerned Mr Attia’s not having made any submissions in support of the Amended Form 4, which currently stands as Mr Ocampo’s statement of the claims he makes against the Commission. The question that arises is whether, in those circumstances, I should treat Mr Ocampo as having abandoned his claims as stated in the Amended Form 4. For reasons I give later, Mr Ocampo has not abandoned his claims as set out in the Amended Form 4; and Mr Ocampo’s not having made submissions in opposition to the Commission’s application for summary dismissal does not by itself entitle the Commission to an order that the proceeding be summarily dismissed if I were to refuse Mr Ocampo leave to file the PSC.
The third thing it will be necessary to do is to set out the factual and statutory background out of which Mr Ocampo commenced this proceeding, including some of the allegations of fact Mr Ocampo makes in the Amended Form 4 which the Commission denies or otherwise does not admit. The setting out of this background, including some of the contested allegations of fact, is necessary to render comprehensible the PSC, and particularly the Amended Form 4, which Mr Ocampo drafted, apparently without any legal assistance.
I will then consider the Commission’s application for summary dismissal as follows:
(a)First, I will set out the relevant principles that govern the power under r 13.13 of the GFL Rules to summarily dismiss all or part of a proceeding.
(b)Second, I will identify the elements of a cause of action based on an alleged contravention of s 340(1) of the FW Act, being the principal provision on which Mr Ocampo relies. I will also refer to some principles relating to the pleading or other articulation of a claim based on an alleged contravention of s 340(1) of the FW Act.
(c)Third, I will identify each of the claims Mr Ocampo makes in the Amended Form 4, and, in the course of so doing, I will consider each claim to determine whether Mr Ocampo does not have reasonable prospects of succeeding on that claim.
Next, I will consider Mr Ocampo’s application for leave to file the PSC. A question may potentially arise if I conclude that I should grant leave to Mr Ocampo to file the PSC; and that is what becomes of the claims made in Amended Form 4 to the extent I am not satisfied those claims do not have reasonable prospects of success. At the hearing Mr Attia, who appeared for Mr Ocampo, proceeded on the basis that if Mr Ocampo were granted leave to file the PSC, the filing of the PSC would replace the claims Mr Ocampo makes in the Amended Form 4. The PSC, however, does not contain all of the claims Mr Ocampo makes in the Amended Form 4; and in the Post Hearing Material, Mr Ocampo (after Mr Attia ceased to represent him) indicated that he continues to rely on claims contained in the Amended Form 4 that are not contained in the PSC. In those circumstances, I do not propose to consider Mr Ocampo’s application for leave to file the PSC on the basis that, if I conclude leave should be granted, the filing of the PSC will replace such of the claims in the Amended Form 4 I am not satisfied do not have reasonable prospects of success.
Finally, I will consider the material contained in the document Mr Ocampo lodged with the Court on 20 January 2025 titled “Applicant’s Outline of Submissions (“Submissions”) stated at paragraph 1 in relation to the Interlocutory Hearing held on 8 February 2024”.
PROCEDURAL HISTORY
Mr Ocampo commenced this proceeding on 23 March 2022 by filing an application and a Form 4. The Commission filed a defence on 17 June 2022.
On 22 June 2022 I made directions for the filing of an amended Form 4, and a defence; and an order referring the matter to mediation. On 13 July 2022 Mr Ocampo filed an Amended Form 4 and, on 28 July 2022, the Commission filed a defence to the Amended Form 4. On 29 August 2022 I made an order pursuant to r 12.01 of the GFL Rules that Mr Ocampo be referred to a lawyer for legal assistance. By 12 September 2022 Mr Duc of counsel informed the Court that he had provided some pro bono assistance to Mr Ocampo. The matter proceeded to mediation, but the parties did not resolve their dispute.
On 23 June 2023 the Commission’s lawyer sent to my Associate’s inbox proposed consent orders which the Commission and counsel for Mr Ocampo requested I make in chambers. On that day I made orders in chambers that, by 15 August 2023, Mr Ocampo provide to the Commission a draft second amended Form 4, and that, by 29 August 2023, the Commission inform Mr Ocampo whether it consents to the filing of a Second Amended Form 4 in the form of the draft Mr Ocampo was to provide. I also made orders for the filing of a Second Amended Form 4, the request for and provision of particulars, and the filing of a defence; and I listed the matter for a further directions hearing on 14 November 2023.
On 8 August 2023 Mr Attia, a lawyer, filed a notice of address for service noting that he was acting for Mr Ocampo. Mr Ocampo, however, did not comply with the orders I made on 23 June 2023. On 6 September 2023 I vacated the orders of 23 June 2023, and ordered that by 12 September 2023 Mr Ocampo provide the Commission with a draft proposed second amended Form 4 or a statement of claim, and consequential orders similar to those I made on 23 June 2023; and I listed the matter for a further directions hearing on 24 November 2023.
Mr Ocampo did not comply with the orders I made on 6 September 2023. In those circumstances, at the directions hearing on 24 November 2023, I ordered that by 15 December 2023 Mr Ocampo file an application in a proceeding for leave to file an amended statement of claim, and for the Commission to file an application in a proceeding for an order that the proceeding be dismissed in whole or in part; and I made both applications returnable for hearing before me at 10.15 am on 8 February 2024.
I heard the Commission’s and Mr Ocampo’s applications on 8 February 2024, after which I reserved judgment. Mr Ocampo, however, filed further material after 18 November 2024 when Mr Ocampo filed a notice of address for service, by which he indicated he was acting for himself. In particular, the following material was lodged or provided to the Court after 18 November 2024 (this being the “Post Hearing Material” I identified above):
(a)On 22 November 2024 Mr Ocampo filed a document titled “Submission for Orders in respect of the Admission and Settlement of the Underpayment of Long Service Entitlement” (22 November 2024 Ocampo Submission). At my direction, on 25 November 2024 my Associate sent an email informing the parties that, subject to any objection, I proposed to consider the 22 November 2024 Ocampo Submission, and noting that I would inform the Commission of any fresh issue I consider may arise from that document, and invite the Commission to make submissions on the issue I identify.
(b)On 28 November 2024 Mr Ocampo sent an email to my Associate’s inbox to which he attached what he says was his contract of employment. Mr Ocampo said he wished to submit the contract of employment because in an exchange during the hearing of 8 February 2024 Mr Attia said that Mr Ocampo did not have a copy of his contract of employment. At my direction, on 28 November 2024 my Associate informed the parties that, subject to any objection, and subject to my providing the Commission with an opportunity to identify any issues that may arise, I proposed to consider the material attached to Mr Ocampo’s email.
(c)On 6 December 2024 Mr Ocampo sent a further email to my Associate’s inbox, in which Mr Ocampo said he would like “the opportunity to lodge and file a Further Submission in respect of just 2 pleadings in Amended From 4, aside from the LSL underpayment”. On the same day, at my direction, my Associate sent an email to the parties stating that, subject to any objection, and subject to my providing the Commission with an opportunity to identify any issues that may arise, I will consider any further material Mr Ocampo may submit.
(d)On 19 December 2024 the Commission filed a document titled “Respondent’s Submissions on Applicant’s Additional Material” (19 December Commission Submission), together with an affidavit made on 19 December 2024 by Ms Kitchener, the Commission’s lawyer. In those submissions the Commission opposes my considering the additional material Mr Ocampo filed because Mr Ocampo would need leave to “reopen his case”, and Mr Ocampo does not satisfy the conditions for the granting of such leave.
(e)On 20 January 2025 Mr Ocampo lodged for filing the following documents:
(i)a document titled “Applicant’s Outline of Submissions (“Submissions”) stated at paragraph 1 in relation to the Interlocutory Hearing held on 8 February 2024” (20 January Ocampo Submissions);
(ii)an affidavit made by Mr Ocampo on 20 January 2025;
(iii)a 14 page bundle of document titled “AO-3 – List of Exhibits to Affidavit”;
(iv)a 23 page bundle of documents, which appears to constitute the balance of “AO-3 – List of Exhibits to Affidavit”;
(v)a document titled “Australian Aged Care Quality Agency Determination of terms and conditions of employment for non-SES employees”, being a determination made pursuant to s 24(1) of the Public Service Act 1999 (Cth) (PS Act); and
(vi)a document titled “Australian Aged Care Quality Agency Enterprise Agreement 2016-2019”.
(f)On 21 January 2025, I directed my Associate to send an email to the parties confirming that, subject to any objection, I had authorised the Registry to accept for filing the material Mr Ocampo lodged on 20 January 2025, and that, subject to my providing the Commission with an opportunity to identify any issues that may arise, I will consider the material the applicant has lodged for filing.
(g)On 5 February 2025 the Commission’s lawyer sent a letter to the Court in which it stated the Commission objected to my permitting Mr Ocampo to file the material he lodged for filing on 20 January 2025 because Mr Ocampo the principles requiring leave to reopen apply, and Mr Ocampo does not come within the principles that would justify leave being granted. The Commission further stated that the additional material Mr Ocampo lodged for filing on 20 January 2025 contains substantive evidence that cannot be dealt with on the papers; and, moreover, contains without prejudice and, therefore, privileged communications.
At 2.11 pm on 17 June 2025 I directed my Associate to send the following email to the parties:
I refer to the respondent’s solicitor’s letter dated 5 February 2025, in relation to which his Honour has directed that I bring the following matters to the attention of the parties:
Subject to any contrary submissions the parties may wish to make, his Honour proposes to consider the material Mr Ocampo lodged for filing after the hearing of 8 February 2025 (Post Hearing Material). His Honour proposes to do so because:
(a)his Honour considers that the principles governing leave to reopen a case apply to evidence that has closed at a trial; they do not apply to evidence at interlocutory hearings;
(b)his Honour considers that the documents the applicant has lodged are referred to in the pleadings and particulars. Those documents are:
(i)what appears to be the applicant’s contract of employment with Australian Aged Care Quality Agency (AACQA), commenting on 1 January 2014;
(ii)the s 24(1) Determination;
(iii)the Australian Aged Care Quality Agency Enterprise Agreement;
(iv)letter dated 4 October 2018 from AACQA to the applicant headed “Notification of Potentially Excess Status”;
(v)the document headed “Statement in respect of Worker’s Compensation claim lodged by Mr Alfredo Ocampo”;
(vi)a one page computer printout headed “Learning & Development Report” “For Period Between 1/01/2006 And 31/03/2016”;
(vii)letter dated 22 April 2016 from AACQA to the applicant headed “Outcome of Fitness for Duty Assessment”;
(viii)letter dated 12 July 2017 from the applicant to Ms Grace Sevilla;
(ix)a document headed “Expense Re-imbursement Form” dated 12 July 2017; and
(x)an email from Ms Sipos to the applicant sent on 11 March 2016; and
(c)his Honour proposes to give notice to the Commission and the applicant of any issue that may arise from any matter deposed to by the applicant that is potentially adverse to the Commission with a view to inviting submissions.
His Honour proposes to list the matter at 9.30 am on 20 June 2025, or at such other time as may be convenient to the parties and the Court, to hear submissions on whether his Honour may have regard to the Post Hearing Material on the basis suggested above. If the parties are content for his Honour to consider the Post Hearing Material on the above basis, they may notify chambers, and his Honour will vacate the directions hearing.
The parties may attend the directions hearing, if it proceeds, by telephone or in person.
The Commission’s lawyer, and Mr Ocampo, responded with emails which it is unnecessary to reproduce in which both parties indicated they were content for me to proceed as I had suggested; but there was some uncertainty about the identity of the documents to which I intended to refer. In those circumstances, I proceeded with the directions hearing on 20 June 2025. Counsel for the Commission identified passages from some of the Post Hearing Material the Commission objected I consider on the ground of without prejudice privilege, and on the ground they constitute communications that occurred in the course of the mediation. Mr Ocampo submitted the documents were not privileged; and I indicated that I would consider whether the communications are privileged. Counsel also noted there are some emails Mr Ocampo had sent to my Associate’s inbox, and counsel was unclear whether I intended to consider those emails.
At the directions hearing, I said the following:
And what I’m trying to regulate here is, having regard to the fact there was a hearing, you [Mr Ocampo] filed additional documents and what I can do with those. That’s the question. And as I said, I’m trying to deal with it in a pragmatic way, where I still decide what was argued on the applications, identify the material, the additional material. I will consider whether that material will make – is potentially favourable or not favourable to you [Mr Ocampo]. If it’s not potentially favourable to you [Mr Ocampo], and the other applications will be decided against you [Mr Ocampo], then that will be the end of the matter. If they’re potentially favourable to you [Mr Ocampo], then I will identify what the issues are and invite further submissions. And the idea will be that, to the extent they raise issues which are potentially a benefit to you [Mr Ocampo] or detriment to the respondent, they will be identified and submissions can be made more efficiently directed to the issue I identify. That’s the idea.
Counsel for the Commission requested that in any event I identify the documents I will consider. The Post Hearing Material I have considered for the purposes of these reasons is the material I identify in paragraph 13 of these reasons.
THE HEARING OF THE INTERLOCUTORY APPLICATIONS
At the hearing of the interlocutory applications Mr Attia, the lawyer representing Mr Ocampo, made submissions in support of Mr Ocampo’s application to file the PSC. Mr Attia also relied on written submissions, at paragraph 5 of which the following is stated:
It is proposed that if the Applicant’s Application is to succeed, then the Respondent’s Application will not be necessary to determine. This is because the Applicant, if successful, will no longer be relying on his previously filed Form 4 Claims. Conversely, if the Applicant’s Application fails, then the Court will need to hear the Respondent’s Application. The Applicant reserves the opportunity to file a further submission in response to the Respondent’s submissions.
Counsel for the Commission commenced by making submissions in opposition to Mr Ocampo’s application for leave to file the PSC. Counsel then addressed what she referred to as “the existing claim”, being the claims made in the Amended Form 4. The Commission also relied on written submissions.
After counsel for the Commission completed her submissions, I asked Mr Attia whether his position was that, if Mr Ocampo were to fail in his application for leave to file the PSC, Mr Ocampo intended to rely on the Amended Form 4. Mr Attia answered in the affirmative. I asked Mr Attia whether he supported the Amended Form 4, and he said “no”. A little later the following exchange occurred:[2]
HIS HONOUR: Now, what I’m asking – and you can get – you can get instructions about this because I don’t want you to feel that I’m pressuring you in any way – which is not my intention, but I’ve – what I think you need to do – or at least get instructions on, was – actually, it’s not a matter of instructions. You’re on the record. You have to decide, as an officer of this court, what claim you’re putting forward to the court because it just seems to me that if you don’t get leave to amend the statement of claim, I’m not going to have the benefit of any legal assistance because I’m going to be left with the position where I have to go through this document which really I can infer you do not really support because you’ve filed an amended statement of claim.
MR ATTIA: Yes, that is correct.
HIS HONOUR: So what I want is for you to get instructions perhaps, and have regard to your own sense of what your professional obligations are, and really inform the court whether you are pressing for form 4, in the event you don’t get leave to file the amended – the filed statement of claim.
MR ATTIA: I will seek those instructions, your Honour.
[2] T29.25
Mr Attia did not inform me that he had instructions to abandon the Amended Form 4. Mr Attia did, however, confirm that he did not intend to make any submissions in answer to the Commission’s application to summarily dismiss the proceeding which is predicated on the claims Mr Ocampo makes in the Amended Form 4. After Mr Attia so confirmed, I said that, given Mr Attia has not sought to support the Amended Form 4, I would dismiss it “on that basis”.[3]
[3] T33.15.
I do not consider that Mr Ocampo has applied for leave to file the PSC on the basis that if he fails, he abandons the claims he made in the Amended Form 4. Mr Attia, in his written submissions, made it clear that if Mr Ocampo’s application for leave to file the PSC fails, it will be necessary to determine the Commission’s application to dismiss the proceeding, which is predicated on the claims Mr Ocampo makes in the Amended Form 4. Further, contrary to what I said at the hearing, it would not be open to me to dismiss the proceeding if I do not grant Mr Ocampo leave to file the PSC, only because Mr Attia filed or made no submissions in support of the Amended Form 4. I could only dismiss all or part of the proceeding if I am satisfied that Mr Ocampo does not have reasonable prospects of succeeding on all or some of the claims for relief he advances in the Amended Form 4.
BACKGROUND
Mr Ocampo’s employment with ACSAA and AACQA
From around 2006 to 31 December 2013 Mr Ocampo was employed as a management accountant by Aged Care Standards and Accreditation Agency Ltd (ACSAA). The Commonwealth Government established ACSAA as the “accreditation body” for residential care services for the purposes of the Aged Care Act 1997 (Cth) (Aged Care Act);[4] and it was a “Commonwealth authority” within the meaning of the Commonwealth Authorities and Companies Act 1997 (Cth).
[4] Report, Senate Community Affairs References Committee, at [3.3].
On 1 January 2014 the functions, assets, and liabilities of ACSAA were taken over by the Commonwealth, and placed under the control and management of the chief executive officer of an agency known as Australia Aged Care Quality Agency (AACQA). This was effected by the combined operation of two Acts. The first is the Australian Aged Care Quality Agency Act 2013 (Cth) (Agency Act). Section 11 of that Act created the office of chief executive officer (CEO); and s 12 conferred on the office of the CEO the functions that had been previously performed by ACCSA. Section 7 of the Agency Act established AACQA which, under s 8, was to consist of the CEO and staff of AACQA. A note to s 8 states that the “Quality Agency does not have a legal identity separate from the Commonwealth”. Section 9 of the Agency Act provided that the function of AACQA was to assist the CEO in the performance of the CEO’s functions. Section 10 provided that AACQA has the privileges and immunities of the Crown.
The second Act by which the Commonwealth assumed the assets and liabilities of ACSAA is the Australian Aged Care Quality Agency (Transitional Provisions) Bill 2013 (Cth) (Transition Act). Item 2 of Schedule 1 to the Transition Act provided that the assets and liabilities of ACSAA ceased to be assets of ACSAA, and became assets and liabilities of the Commonwealth. The Transition Act also provided for the employees of ACSSA. Of relevance is item 15 of Schedule 1 to the Transition Act, which is headed “Accrued entitlements etc. of ACSAA Limited employees who become APS members”, and which, in part, provided as follows:
Persons to whom this item applies
(1)This item applies to a person if:
(a)immediately before the commencement day, the person was an employee of ACSAA Limited; and
(b)because of a determination under section 72 of the Public Service Act 1999, the person becomes an APS employee on the commencement day.
Preservation of accrued entitlements
(2)The person is taken to have accrued an entitlement to benefits, in connection with becoming an APS employee, that is equivalent to the entitlement that the person had as an employee of ACSAA Limited immediately before the commencement day.
Continuity of service
(3)The service of the person as an APS employee is taken, for all purposes, to be continuous with his or her service as an employee of ACSAA Limited.
Long service leave
(4)For the purposes of the Long Service Leave (Commonwealth Employees) Act 1976, the person’s service before the commencement day as an employee of ACSAA Limited is to be treated, at and after that time, as if it had been service by the person as an APS employee.
. . . .
The Agency Act also provided for AACQA’s staff. This included s 26, which provided as follows:
(1)The staff of the Quality Agency are to be persons engaged under the Public Service Act 1999.
(2)For the purposes of the Public Service Act 1999:
(a) the CEO and the staff of the Quality Agency together constitute a Statutory Agency; and
(b)the CEO is the Head of that Statutory Agency.
As at 1 January 2014, s 72(1) of the PS Act empowered the Public Service Commissioner (PS Commissioner) to do the things specified in that subsection, “if satisfied it was necessary or desirable in order to give effect to an administrative re-arrangement”. These included to “determine in writing that non-APS [that is, Australian Public Service] employees cease to be employed as non‑APS employees and become engaged as APS employees in a specified Agency”. Sometime before 1 January 2014 the PS Commissioner determined that Mr Ocampo cease to be employed as a non-APS employee, and instead become engaged as an APS employee in the AACQA. That is apparent from an undated letter I infer AACQA sent to Mr Ocampo sometime after 1 January 2014, where the following was stated:[5]
As you are aware, the Australian Aged Care Quality Agency (Quality Agency) was created through legislation, and came into operation on 1 January 2014. As such, you were transferred through a Machinery Government process under the Public Service Act 1999. Your employment with the Aged Care Standards Agency Ltd therefore ceased on 31 December 2013 and your employment with the Quality Agency commenced on 1 January 2014.
Your principal terms and conditions of employment are set out in the Section 24(1) determination which is on the Intranet, and these terms and conditions are aligned with those in accordance with Section 24 of the Public Service Act 1999 and related legislation.
[5] Exhibit AO-3.1.
Attached to that letter is a document titled “Assignment of Duties in the Australian Aged Care Quality Agency Instrument of Engagement as an Ongoing APS Employee, Classification, and Nomination of Position Number”. After some further writing there appears a table containing information in relation to Mr Ocampo’s employment, including his classification, salary, the division in which he works (finance), and commencement date (being 1 January 2014), and the following declaration signed by the CEO on 1 January 2014:
As a person to whom the powers of the Chief Executive Officer of the Australian Aged Care Quality Agency under the Public ServiceAct 1999 (the Act) and the Public Service Classification Rules2000 (the Rules) have been delegated, I:
(a)engage the above employee as an ongoing APS employee under section 22 of the Act, subject to the terms and conditions specified in the letter of engagement to the employee;
(b)allocate to the employee the above classification under rule 5 of the Rules;
(c)assign duties of the classification under section 25 of the Act; and
(d)nominate the employee to occupy the above position number under subsection 77(2) of the Act.
This instrument takes effect 1 January 2014
The “Section 24 determination” to which the letter refers is a determination made under s 24(1) of the PS Act, which provides that an “Agency Head may from time to time determine in writing the terms and conditions of employment applying to an APS employee or APS employees in the Agency”.
On 6 March 2017 the Fair Work Commission (FWC) was satisfied that each of s 186, s 187, s 188, and s 190 of the FW Act had been met in relation to an enterprise bargaining agreement known as the Australian Aged Care Quality Agency Enterprise Agreement (2016-2019 (AACQA EA); and the FWC, therefore, approved the AACQA EA which, pursuant to s 54 of the FW Act, would operate from 13 March 2017. Relevant to one aspect of Mr Ocampo’s claims is cl 54.4 of the AACQA EA, which relevantly provided:
54.Where the CEO determines that one or more employees are excess to requirements, the CEO may decide to either:
a) redeploy the employee to an available position of the same classification of the position they hold;
b) reduce the employee in classification and redeploy the employee to an available position below the classification of the position they hold;
c) terminate the employee's employment in accordance with the retrenchment/redundancy process set out in this Agreement.
54.3 An employee will be considered excess if:
a) they have been included in a class of employees and there are more employees in that class than is necessary for the efficient and economical working of the Quality Agency.
b) the service of the employee cannot be effectively used because of technological or other changes in the methods, or changes in the nature extent or organisation of the functions of the Quality Agency; or
c)the duties usually performed by the employee are to be performed by the employee at a different locality and the employee is not reasonably able to perform duties at that locality and the CEO has determined that these provisions will apply to the employee.
54.4 Where the CEO becomes aware that an employee is likely to become potentially excess, the CEO will advise the employee in writing, as soon as practicable, of the situation. The advice should include:
a)the reasons for the CEO considering that an employee is likely to become excess;
b) actions that might be taken to reduce the likelihood of the employee's becoming excess;
c) redeployment opportunities for the employee within the Agency or another APS agency;
d) the possibility of retrenchment with the payment of a redundancy benefit; and
e) that an employee may choose to be represented in any such discussions.
54.5 Where an employee is moved to a job below their substantive classification in accordance with this clause, they will maintain their previous salary for a period of 12 months; thereafter they will be paid in accordance with their new classification level.
Also relevant to another claim Mr Ocampo makes is reg 3.2 of the Public Service Regulations 1999 (Cth) (PS Regulations), which in part provides:
(1) This regulation applies if:
(a)an Agency Head believes that the state of health of an APS employee in the Agency:
(i)may be affecting the employee’s work performance; or
(ii)has caused, or may cause, the employee to have an extended absence from work; or
(iii)may be a danger to the employee; or
(iv)has caused, or may cause, the employee to be a danger to other employees or members of the public; or
(v)may be affecting the employee’s standard of conduct; or
(b)an APS employee is to be assigned new duties and the Agency Head believes the employee’s state of health may affect the employee’s ability to undertake the duties; or
(c)an APS employee is to travel overseas as part of the APS employee’s employment.
Note: Examples of absences that could be treated as extended absences are:
(a) an absence from work of at least 4 continuous weeks; and
(b)a combined total of absences from work, within a 13 week period, whether based on a single or separate illness or injury, of at least 4 weeks.
The examples are consistent with the former Public Service Regulations 1935.
(3)The Agency Head may, in writing, direct the APS employee to do either or both of the following within a specified period:
(a)undergo an examination by a nominated medical practitioner for an assessment of the employee’s fitness for duty;
(b)give the Agency Head a report of the examination.
(2A)The nominated medical practitioner may give the Agency Head a report of the examination.
Mr Ocampo’s duties and line of reporting as at July 2015
As at around July 2015, Mr Ocampo worked as a management accountant in the Finance Unit of AACQA. His duties included management reporting, preparing and providing financial and accreditation activity reporting, budgeting, completing agreed sections of the annual budget, and Department of Health and Ageing and Department finance reporting.[6] Mr Ocampo reported to Mr Rishi Mengi, who held the position of Assistant Director, Finance, in the Finance Unit. Mr Mengi, in turn, reported to Ms Seema Srivastava, who held the position of Deputy Chief Executive Officer and Executive Director, Corporate Services and Strategy.[7]
[6] “Statement in respect of Worker’s Compensation claim lodged by Mr Alfredo Ocampo”, being exhibit AO-3.5 to the affidavit of Alfredo Ocampo 20.01.2025.
[7] “Statement in respect of Worker’s Compensation claim lodged by Mr Alfredo Ocampo”, being exhibit AO-3.5 to the affidavit of Alfredo Ocampo 20.01.2025.
July 2015 - Mr Ocampo’s claims he suffered anxiety and other conditions
In his Amended Form 4 Mr Ocampo claims that from July 2015 he began to suffer anxiety because of deteriorating working relationships with his superiors. Mr Ocampo claims this occurred due to lack of support, and being unfairly blamed for systems failures with which Mr Ocampo had nothing to do.[8] The working relationship worsened until Mr Ocampo says he suffered a workplace injury, being an “adjustment disorder with mixed anxiety and depression”.
[8] Amended Form 4, [A.1].
Mr Ocampo’s claims he complained about delay in approval of request for leave
Mr Ocampo claims that in October 2015 he complained to Ms Srivastava regarding the unreasonably long delay in the approval of annual leave by his line managers.[9] According to a document headed “Statement in respect of Worker’s Compensation claim lodged by Mr Alfredo Ocampo”, and signed by Ms Srivastava (Srivastava Statement),[10] Mr Ocampo approached Ms Srivastava in late 2015 in the kitchen area and asked Ms Srivastava to respond to his request for annual leave which he said he had sent to her by email a few days earlier. Ms Srivastava apologised for not having responded, but told him that it would not be appropriate for her to respond to his request for leave because his line manager was available. Ms Srivastava asked Mr Ocampo to accompany her to see the chief executive officer, Mr Shaw (CEO).
[9] Amended Form 4, [A.3(1)].
[10] Exhibit AO-3.5 to the affidavit of Alfredo Ocampo 20.01.2025.
21 January 2016 - Mr Ocampo’s claims he complained about poor treatment
Mr Ocampo alleges that on 21 January 2016 Mr Ocampo made a second complaint to Ms Srivastava regarding harassment, bullying, and poor treatment Mr Ocampo claimed he suffered during his employment. Mr Ocampo says he complained “about the unreasonable annual performance review done in unreasonable manner”, and other matters. These were the rejection of Mr Ocampo’s request for training for Technology1 Budgeting and Reporting System (Tech1), and being unfairly blamed for errors in the system. Mr Ocampo requested he be transferred to other sections of the organization, such as the Technology Department of the Operations Services Section. Ms Srivastava said she would look into it.[11]
[11] Amended Form 4, [A.3(1)-(3)].
In the Srivastava Statement Ms Srivastava says that in January 2016 she commenced a process of having one-to-one meetings with staff in her branch. The purpose of these meetings (as she had previously explained to them in a whole of branch meeting) was for Ms Srivastava to find out about their work, any concerns they had, and any learning and development needs that they felt the AACQA’s could reasonably support them to undertake.
According to the Srivastava Statement, Ms Srivastava had her one-to-one meeting with Mr Ocampo on 21 January 2016. Mr Ocampo stated he was happy with his job, but wanted to have further training on a financial software known as Tech1. Mr Ocampo also said he had requested this training in the past but had been refused because of budgetary issues. Ms Srivastava asked whether Mr Ocampo had been provided with any other training. Mr Ocampo said that AACQA had paid for him to complete a Diploma in Business Management, which he indicated cost approximately $4,000. He stated he completed the course of study for the Diploma in 2014. Mr Ocampo further stated that he had enjoyed this training, even though it had taken him a while to complete it. Ms Srivastava suggested that perhaps the training for Tech1 had not been offered because AACQA had paid for the Diploma in Business Management, and felt that it was a reasonable investment to make for a period of time.
23 February 2016 – Mr Ocampo makes a claim for workers compensation
On 28 January 2016 Mr Ocampo “proceeded on paid sick leave”,[12] and sought treatment from his general practitioner, Dr Patu, and a consultant psychologist, Mr Allen. On 23 February 2016 Mr Ocampo lodged a claim for workers compensation with Comcare. The alleged injury in relation to which Mr Ocampo claimed workers compensation was an “adjustment disorder with mixed anxiety and depression”.
[12] Amended Form 4, [A.4]; Defence to Amended Form 4, [9(a)].
The SRC Act
Mr Ocampo claimed workers’ compensation pursuant to s 54(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), which means that Mr Ocampo’s claim was subject to the provisions of that Act. One set of provisions concerned “rehabilitation programs”, as provided for by Div 3 of Part 3 of the SRC Act. Subsection 36(1) provides that, where an employee suffers an injury resulting in an incapacity for work or an impairment, the “rehabilitation authority” may at any time, and “shall on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program”. The expression “rehabilitation authority” in relation to an employee is defined in s 4 of the SRC Act to mean, among other things an “entity or a Commonwealth authority”, where “Entity” is in turn defined to mean, among other things, an “Agency within the meaning of” the PS Act.
Subsection 36(3) of the SRC Act provides that the rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment, after which the rehabilitation authority may, pursuant to s 37(1) of the SRC Act, make a determination that the employee should undertake a rehabilitation program. Further, under s 40(1), where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment.
1 March 2016 – Ms Sipos sends letter directing Mr Ocampo to be assessed
On 26 February 2016 Ms Jessica Sipos, an employee of AACQA holding the position of HR Officer/Rehabilitation Case Manager, met with Mr Ocampo; and, on 1 March 2016, Ms Sipos sent to Mr Ocampo a letter confirming that she had organised a “health assessment” for Mr Ocampo with Dr Synnott on 29 March 2016.[13] In her letter Ms Sipos stated as follows:
[13] Affidavit of L Qiu 01.02.2024, annexure LQ2.
As you may be aware, the legislative basis for the management of your claim is the Safety, Rehabilitation and Compensation Act 1988 (referred to as the Act). Section 36 of the Act provides the framework for identifying your rehabilitation needs. Sub-section 36 (1) of the Act states that where an employee suffers an injury that results in incapacity for work or an impairment, the rehabilitation authority, Australian Aged Care Quality Agency (Quality Agency), may at any time, and upon written request of the employee, arrange for the assessment of the employee’s capacity of undertaking a rehabilitation program.
Ms Anne Ivanson is the Quality Agency’s delegated Rehabilitation Authority for your claim.
As your claim remains undetermined, I am also arranging this assessment for you under Regulation 3.2 of the Public
Service Regulations which states that an employee may be directed to attend a medical examination if an Agency Head believes that the state of health of an APS employee may be affecting the employee’s work performance; has caused, or may cause the employee to have an extended absence from work; may be a danger to the employee; has caused, or may cause the employee to be a danger to other employees or members of the public or may be affecting the employee’s standard of conduct.
This letter forms a formal direction to attend a medical assessment under Regulation 3.2 of the Public Service Regulations.
The purpose of the appointment is twofold. Dr Synnott will assess your capacity to commence a rehabilitation program for the condition you have lodged a compensation claim for, specifically, “Work related stress – Adjustment Disorder”, under subsection 36 (1) the Safety Rehabilitation and Compensation Act, 1988.
Dr Synnott will also assess your fitness to undertake your current duties in accordance with regulation 32 of the Public Service Regulations which requires that an employee attends and participates in the assessment. The attached Fact Sheet provides more detailed information about the health assessment and the purpose of the assessment.
At the completion of his assessment, Dr Synnott will provide me with two reports, one detailing your capability commence a rehabilitation program, and the other detailing their opinion of your fitness for duty in the Australian Aged Care Quality Agency. You and/or your treating doctor will be provided with a copy of both reports. The report on your capability to undertake a rehabilitation program will also be provided to Comcare.
. . .
If you do not agree with my decision to request the rehabilitation assessment, you may request Comcare to review the decision. The request for review should be made in writing, setting out your reasons for the request. The request for review should be made as soon as possible and ordinarily must be made within 30 days of when you were first made aware of this determination.
8 March 2016 – medical reports issues
On 8 March 2016 Dr Patu issued a certificate, and on 11 March 2016 Mr Allen provided a report. Neither Dr Patu’s certificate, nor Mr Allen’s report is in evidence; but, in the email Ms Sipos sent to Mr Ocampo on 11 March 2016 (which I reproduce later in these reasons), Dr Patu stated Mr Ocampo was fit for full time hours, but Mr Ocampo could not work with Mr Mengi. Further, the Commission admits that, in his report, Mr Allen said that it was his view that “being required to work with this manager is likely to exacerbate [Mr Ocampo’s] symptoms and that it is unlikely that his return to work would be sustainable in this case”. The reference to “this manager” is a reference to Mr Mengi, the manager to whom Mr Ocampo was then reporting.
11 March 2016 – Discussions concerning return to work
In response to Mr Ocampo’s lodging a workers’ compensation claim, sometime before 10 March 2016 Ms Claire Aspinall, AACQA’s “rehabilitation authority”, met Mr Ocampo twice to assist in Mr Ocampo’s return to work. On 8 March 2016 Ms Aspinall met with Mr Ocampo and Dr Patu.[14]
[14] See the email from Ms Sipos to which I refer in the next paragraph.
Ms Sipos spoke with Mr Ocampo on 10 March 2016; and she set out the conversation she had with Mr Ocampo in an email she sent to him at 2.40 pm on 11 March 2016. It would be convenient to reproduce most of Ms Sipos’s email (errors in original):[15]
[15] Exhibit AO-3.9 to the affidavit of Alfredo Ocampo 20.01.2025.
Thank you for speaking with me yesterday regarding your rehabilitation and return to work. Please see below a summary of our conversation 10 March 2016:
I advised I was calling as your Rehabilitation Case Manager from the Quality Agency and was happy that I was able to reach you. I explained I had tried to call you on a number of occasions without success and had also emailed you a number of times requesting that you make verbal contact with me to discuss your rehabilitation and documents I had attached and posted to your home address. You advised me that sometimes you don’t feel well that’s why you haven’t answered or gotten back to me. I acknowledged that you may feel unwell at times but do need you to communicate with me as your Case Manager. You need to be actively involved in the process and where possible I would prefer verbal contact with yourself so I can explain information and any questions or concerns you may have.
I confirmed with you that you had met with Ms Claire Aspinall to assist in your return to work on two occasions and confirmed that she had attended an appointment with yourself and your treating doctor, Dr Patu on Tuesday 08 March 2016. I confirmed that Claire's role is to work with yourself, your treating doctor and the workplace to assist in your rehabilitation and return to work and return to work
I advised I would first like to clarify with you that you had received the notification of the combined assessment, the fitness for duty and section 36 rehabilitation assessment. You confirmed you had received this in the post and that you were aware of the date and time - 29 March 2016 at 1:30pm. You advised me that you had contacted the Claims Manager Gavin Davidson to check if this was the same assessment that he had scheduled you to attend. Gavin confirmed with you that the assessment he had scheduled was an independent assessment from the appointment I had scheduled for you. I reiterated this was why I would prefer to discuss appointment notifications and any correspondence I am sending to you via phone as that enables me to clarify any questions, queries or concerns that you may have. You advised me that you would prefer to have emails. I advised you that I had no issues with following up in emails however I prefer to discuss matters on the telephone in the first instance.
I clarified that you had attended an appointment with your treating practitioner Dr Patu and Ms Aspinall on Tuesday 08 March and that Ms Aspinall had provided me with an updated medical certificate dated 08 March 2016 for 14 March – 31 March 2016. The medical certificate authorised by Dr Patu stated that you were fit for full time hours and duties however you could not work with your previous manager Rishi.
I advised you that whilst I would like to see you return to work as soon as you are fit to do so, at this stage this request could not be accommodated. Should you return to the finance team you would need to work with Rishi in an ongoing capacity with relation to daily work tasks/duties as well as the other staff within the team. I explained that the finance team was extremely small and that you would need to work with your team and Rishi in an ongoing capacity. I confirmed that at this stage a change in reporting was not negotiable and I felt that we needed to explore some other options to ensure a positive and productive working environment and relationship moving forward and to look at how we could improve this in the long term.
You advised that you felt that this would trigger your illness and you couldn’t return to work under Rishi. You asked if someone had broken their back would I return them to the same job. I confirmed I would, with suitable duties and appropriate equipment. I advised that I did not want to enter into discussions regarding a hypothetical situation and that I was contacting to discuss your rehabilitation. I suggested at this stage that I felt mediation could be an appropriate option to assist in the long term. You advised you would discuss this with your GP and that you were still attending sessions, and your rehabilitation should be focused on reporting to another area. You stated that if you came back to work that things may not change and you would need to return to your doctor and you felt this would be a trigger for you to go backwards. You stated that it made you feel jittery to talk about this.
You asked me if the Agency is committed to rehabilitating their staff, I confirmed that the Agency is committed to supporting and working with our staff and treaters, however I felt that in the long term that reporting to another manager would not assist nor be beneficial as you would be required to work with Rishi as a member of the finance team and it could not at this stage be accommodated. I again reiterated why I was suggesting a possible option to facilitate a mediation sessions with an independent professional in order to address some concerns that you may have in order to work towards a positive, productive and efficient working relationship. You raised that you would need to speak to your GP about this and I confirmed that you should take some time to digest this information and encouraged you to discuss this with your doctor. I advised I felt that mediation could be a positive factor in your rehabilitation and return to work.
I confirmed that if you were unfit to return to work on Monday 14 March 2016 that you would remain unfit for work until such a time as the combined fitness for duty and S36 rehabilitation assessment had been completed with Dr Synnott on 29 March 2016, and a report sent to the Agency detailing your capacity to return to your previous role.
I confirmed that I had been provided with a medical certificate dated 08 March 2016 for the period 14/3-31/3/2016 from Ms. Aspinall that stated that you were fit for your regular work and duties however with one restriction, that you do not work/report to Rishi Mengi. I clarified that at this stage this would not be negotiable. I confirmed your current medical certificate would expire on 11 March 2016 and if you would not be returning on Monday I would seek new medical evidence from you. You advised me that you would need to go to your doctor and speak to him. I again encouraged you to do so and to take some time to think about possible mediation. I asked that you contact me to let me know what your thoughts were after you saw your doctor. You advised me that you would send me an email.
In regards to your timesheet and your leave, if you will not be returning to work I will again need to rescind your annual leave in lieu of your sick leave as the next pay period will pay you up to and including 25 March 2016. There are 15 days of annual leave available for you to use.
Can you please let me know as soon as possible how you would like me to code your timesheet and if you will be returning to work on Monday or at some stage next week.
Please don’t hesitate to contact me if you wish to discuss anything further or if you have any queries or concerns.
11 March 2016 – rehabilitation program
On 11 March 2016 Mr Ocampo was placed on a rehabilitation program.[16] According to Mr Ocampo, the rehabilitation program was initiated by Ms Clair Aspinall, and it was signed by Mr Ocampo’s immediate manager, Mr Mengi, and approved by Ms Anne Ivanson, who held the position of Director Human Resources.[17] On 31 March 2016 Mr Ocampo wrote to Comcare’s Policy and Engagement Group Review Team. Mr Ocampo says that by so doing he complained about the “SRC40 Rehabilitation Program” and AACQA’s disregarding medical advice from Mr Ocampo’s medical team.[18]
[16] Amended Form 4, [A.6]; Defence to Amended Form 4, [14].
[17] Amended Form 4, [A.6(2)].
[18] Amended Form 4, [1(v)]; Defence to Amended Form 4, [19(a)].
29 March 2016 - Rehabilitation assessment and denial of workers’ compensation claim
On 29 March 2016 Mr Ocampo was examined by Dr Synnott, a consultant psychiatrist, for the purpose of determining Mr Ocampo’s capacity to undertake the inherent requirements of his role as management accountant with AACQA. Sometime before 22 April 2016, Dr Synnott prepared and provided to Ms Sipos a report. On 22 April 2016, however, Comcare did not accept Mr Ocampo’s workers’ compensation claim.
22 April 2016 – AACQA proposes Mr Ocampo is permanently unfit
After she received Dr Synnott’s report, and after Ms Sipos became aware Comcare determined not to accept Mr Ocampo’s workers’ compensation claim, Ms Sipos sent a letter to Mr Ocampo dated 22 April 2016 (22 April 2016 letter). It would be convenient to reproduce most of that letter:
Dr Synnott has made the following recommendations as summarised below:
•“In my opinion, there is no psychiatric contraindication or incapacity to Mr Ocampo working on a fulltime basis and usual duties - but with an alternative employer; the sooner the better. Mr Ocampo stated that he does not wish to return to work with his current employer - and, in my opinion, any attempt to do so will see a deterioration in his psychological state and inevitably he would go off work.”
•“In my opinion, there is no psychiatric contraindication or incapacity to Mr Ocampo returning to work on a full-time basis and usual duties - as of now, the sooner the better; however, this would be with an alternative employer, the only restriction would be that he is not to return to work with his current employer.”
•“From a psychiatric perspective, he is able to comply with the APS Values and code of conduct. However, this would be with an alternative employer – not with his current employer.”
As a result of Dr Synnott’s recommendations, I would like to propose the following course of action:
- That you are permanently unfit for your pre-injury hours and duties working 38 hours per week as a Management Accountant with the Finance Team, Corporate Services and Strategy, from a psychological perspective and will remain on personal leave without pay. This is in line with Dr Synnott’s recommendation that there is no psychiatric contraindication or incapacity to returning to full-time hours and usual duties however this would be with an alternative employer
- That the Quality Agency would like to offer to engage the services of Injury Treatment for the purpose of vocational rehabilitation
- That the Quality Agency will support you in securing employment outside of the Quality Agency, in line with Dr Synnott’s recommendations and the Quality Agency's policy for employment outside of the Quality Agency (a copy is attached for your information).
Please note: The onus to find external employment lies with you. The Quality Agency will support your request to explore external employment opportunities; however it is not the responsibility of the Quality Agency to source employment opportunities for you.
I would like to arrange a time with you, once you have had access to the complete report, to discuss the recommendations, and the proposed course of action. Can you please contact me on . . . once you have had access to the report to arrange a meeting time.
I would also like to provide you with the opportunity to provide any additional medical information to be taken into consideration before the above mentioned actions are finalised. If you wish to provide this information, please do so by 06 May 2016.
If you do not wish to arrange a time to discuss the recommendations, or you do not want to provide any additional information, please treat this letter as final and that the proposed actions will come into effect. A further letter will not be sent.
If you do not agree with the recommendations, or the actions that are proposed as a result of the recommendations made by Dr Synnott, you have the right to request a review of this decision under Section 33 of the Public Service Act 1999. Please note, that if you do request a review of this decision, the decision that results from the review will be final and is not reviewable.
Please note that at the date of this letter being sent, your claim for Workers Compensation has been denied. Therefore we will be proceeding with the recommendations from the Fitness for Duty assessment report.
Mr Ocampo does not allege, and there is no evidence that suggests that Mr Ocampo arranged to discuss a meeting with Ms Sipos about the matters stated in the 22 April 2016 letter, or that he provided further information to Ms Sipos, or that Mr Ocampo applied for a review of the decisions Ms Sipos has made as recorded in the 22 April 2016 letter.
10 June 2016 – proposal that Mr Ocampo remain on permanent leave without pay
According to the Commission’s defence to the Amended Form 4, on 10 June 2016 Ms Sipos sent a letter to Dr Patu in which it was proposed that Mr Ocampo would remain on permanent leave without pay.[19]
[19] Defence to Amended Form 4, [20(a)].
Continuation with workers’ compensation claim
According to the Commission’s defence to the Amended Form 4, on 18 July 2016 Comcare again declined Mr Ocampo’s claim for compensation; and Mr Ocampo applied to the Administrative Appeals Tribunal (AAT) for a review of Comcare’s decision. Before the AAT, Comcare accepted and conceded that Mr Ocampo suffered an injury, namely, “adjustment disorder with mixed anxiety and depressions and development of the injury was contributed to, to a significant degree, by his employment with” AACQA; but Comcare contended that the claimed injury arose as a result of reasonable administrative action taken in a reasonable manner under the exclusionary provision of s 5A(1) of the SRC Act.[20] Mr Ocampo withdrew his application for review on 11 or 18 July 2018.[21]
[20] Amended Form 4, [A.5(2)(a)(ii)]; Defence to Amended Form 4, [11(a)-(b)].
[21] Amended Form 4, [A.5(2)(a)(v)]; Defence to Amended Form 4, [11(i)].
12 July 2017 – Mr Ocampo lodges expense reimbursement claim
On 12 July 2017 Mr Ocampo lodged a work life balance allowance.[22] The claim was for the reimbursement of $200 Mr Ocampo spent purchasing a set of track suit, pants, and hoodie.
[22] Exhibit AO-3.8 to the affidavit of Alfredo Ocampo 20.01.2025.
31 July 2018 – Mr Ocampo is referred for medical assessment
On 3 July 2018 Mr Ocampo wrote to the CEO informing him that Mr Ocampo proposed to return to work on 3 September 2018.[23] By letter dated 31 July 2018 Mr Grady, who occupied the position within AACQA of General Manager of Corporate Services, directed Mr Ocampo attend an independent medical assessment with Dr Chow on 20 August 2018.[24] The letter included the following:
Background
I note that you last attended work at the Australian Aged Care Quality Agency (Quality Agency) on or around 27 January 2016.
On 29 March 2016 you attended a fitness for duty assessment with Dr Inglis Synnott, psychiatrist. In his report dated 31 March 2016, Dr Synnott indicated that you were suffering from a medical condition. He considered that, as a result of that condition, you were unfit to return -to work at the Quality Agency, and that a return to work with the Quality Agency was unlikely to be successful.
You recently wrote to the Quality Agency CEO, Mr Nick Ryan, indicating that you intended to return to the workplace in your substantive position as Management Accountant at the Financial Services Branch on 3 September 2018. You stated that you would like a rehabilitation program to assist your return to work, and that your treating doctors had recommended that you report to Mr Kevin Smith, the new Director of Financial Services.
Direction to attend a medical assessment
Based on the information set out above, f am satisfied that your state of health has caused you to have an extended absence from work. I am therefore exercising the power delegated to me under regulation 3.2 of the Public Service Regulations 1999 to direct you to attend a medical examination.
[23] Amended Form 4, [A.5(3)(a)]; Defence to Amended Form 4, [12(a)].
[24] Amended Form 4, [A.5(3)(b)]; Defence to Amended Form 4, [12(b)]. A copy of the letter is annexure LQ1 to the affidavit of L Qiu made on 1 February 2024.
4 October 2018 – Offer of redundancy
On 11 September 2018, Ms Stavropoulos, who then held the position within AACQA of Acting HR Senior Advisor and Case Management, called Mr Ocampo to enquire if he would be interested in a redundancy offer.[25]
[25] Amended Form 4, [A.5(3)(d)(i)]; Defence to Amended Form 4, [12(g)].
On 4 October 2018 the CEO sent to Mr Ocampo the following letter (4 October 2018 letter) (errors in original):[26]
[26] Exhibit AO-3.4 to the affidavit of Alfredo Ocampo 20.01.2025 (bold and underlining in original).
I write to you in relation to ongoing changes of reform across the Australian Aged Care Quality Agency.
In accordance with the Australian Aged Care Quality Agency’s Enterprise Agreement 2016-2019 (EA) Section 54 - Redeployment, reduction (clause 54.2) you are potentially excess.
You have the opportunity to discuss with Charles Grady, General Manager Corporate Services, measures that could be taken to reduce the likelihood of you being excess to requirements and/or any other issues you have in relation to this matter. You may choose to be represented in any such discussions as per clause 54.4 of the EA.
There are two options for you to consider:
Option 1: Voluntary redundancy
Under section 29 Termination of employment of the Public Service Act 1999 you are entitled to a redundancy payment as you have been potentially declared excess.
Attached is a calculation of your redundancy benefit. Please note that your annual leave and long service leave entitlement has been calculated up until Friday 12 October 2018. This calculation will be adjusted if you take leave prior to your departure date or the date you are expected to leave the agency changes. If you accept this offer of voluntary redundancy you will leave the agency on Friday 12 October 2018. As per your discussion and agreement with Ms Sofia Stavropoulos, please advise Charles Grady, General Manager, Corporate Services by return email . . . no later than Friday 5 October 2018 should you wish to accept this offer of voluntary redundancy.
OR
Option 2 - Redeployment
The APS Redeployment Policy requires agencies to ask excess employees to consider being included on the APS-wide redeployment register. All APS agencies with job vacancies must consider employees on the register prior to placing an external advertisement before applications for the vacancy close. If you would like to be included on the register please advise Charles by return email no later than Friday 5 October 2018. Should you choose this option you will be retained for a period of five months from the date of this letter until Friday 5 March 2019.
During the retention period, redeployment or other employment options within the Agency or across the APS can be pursued. If you are not redeployed during the retention period your employment:
1. may be terminated, with your agreement, before the end of the of the retention period if I am satisfied there is insufficient productive work for you during the remainder of the retention period and there are no reasonable redeployment prospects in the APS.
2. will be terminated at the end of the retention period on Friday 5 March 2019.
Please note that your redundancy payment will be reduced by the utilised retention period when you leave the Agency. At this time a new calculation will be provided to you.
You may apply to the Fair Work Commission if you believe that your potentially excess employment status is unfair or is in breach of the Fair Work Act 2009. You may also seek a review of the Merit Protection Commissioner who conducts independent reviews of employment related matters.
Should you require support during this time I encourage you to take up the assistance offered by the Employee Assistance Program. AccessEAP may be contacted on … to arrange a free and confidential counselling service.
Should you wish to discuss further please contact Charles Grady, General Manager, Corporate Services on …
12 October 2018 – Mr Ocampo’s employment ends
On 12 October 2018 the CEO sent to Mr Ocampo what Mr Ocampo describes as a “Notice of Termination of Employment of the Applicant, on the grounds that the Applicant is in excess of requirements of” the AACQA.[27]
[27] Amended Form 4, [A.5(3)(d)(iii)]; Defence to Amended Form 4, [12(h)].
1 January 2019 – Commission created
On 1 January 2019 there came into effect the Aged Care Quality and Safety Commission Act 2018 (Cth) (Commission Act). Subsection 11 establishes the Commission which, under s 12, is to consist of the Commissioner, and staff of the Commission. Also on 1 January 2019, there came into effect the Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Act 2018 (Cth). Item 1 of Schedule 1 to that Act repealed the Agency Act, and item 2 repealed the Transition Act.
APPLICATION FOR SUMMARY DISMISSAL
Summary dismissal – power and principles
Rule 13.13 of the GFL Rules relevantly provides that this Court may order that a proceeding be dismissed if the Court is satisfied that “the party prosecuting the proceedings . . . has no reasonable prospect of successfully prosecuting the proceeding”. Rule 13.13 is in substantially similar terms as s 31A of the Federal Court of Australia Act 1976 (Cth); and the principles governing the exercise of the power conferred by s 31A were stated by Perry J in Przybylowski v Australian Human Rights Commission(No 2):[28]
[28] Przybylowski v Australian Human Rights Commission(No 2) [2018] FCA 473, at [7].
The principles governing the application of s 31A are well established and can be summarised as follows:
(1)The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).
(2)With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:
… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
(3)Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).
(4)An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).
(5) Consistently with this, Reeves J in Cassimatis explained at [46] that:
…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
(6)To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.
Elements of a cause of action based on contravention of s 340(1) of the FW Act
The material facts an applicant must allege and prove on a cause of action based on an alleged contravention of s 340(1) of the FW Act is determined by the text contained of s 340(1), as construed by the authorities. Subsection 340(1) relevantly provides:
A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Adverse action
Three matters must be alleged in a cause of action based on a person’s having allegedly contravened s 340(1) of the FW Act.[29] First, the person must have taken “adverse action against another person”. That expression is defined in a table contained in s 342(1) of the FW Act, which relevantly provides as follows:
[29] In this section of my reasons I have repeated much of what I said in Toki v All Class Training Pty Ltd [2024] FedCFamC2G 566, at [74]-[91].
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.
Dismisses the employee
The FW Act does not define the expression “dismisses the employee” that appears in the table contained in s 342(1) of the FW Act. The word “dismissed”, however, appears in s 12 of the FW Act, after which appear the words “see section 386”. Section 386 is contained in Part 3-2 of the FW Act, which deals with unfair dismissal. Subsection 386(1) provides:
A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
I have considered elsewhere the construction of s 386(1) of the FW Act.[30]
[30] Sayabath v Willowdale Nominees Pty Ltd, Williams, Cooper, Notley [2023] FedCFamC2G 104, at [45]-[61].
Injures the employee
The expression “injure[s] an employee in his or her employment”, as used in s 298K(1) of the Workplace Relations Act 1996 (Cth), was considered by Spender J in Commonwealth Bank of Australia v Finance Sector Union of Australia. His Honour referred[31] with approval to the following passage from the reasons for judgment of Smithers J in Childs v Metropolitan Transport Trust:[32]
I cannot help thinking that “injury” refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank.
[31] Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329, at 341 [72].
[32] Childs v Metropolitan Transport Trust [1981] FCA 200.
Alters position of employee
The expression “alters the position of the employee to the employee’s prejudice” has been considered in a number of cases. In Maritime Union of Australia & Ors v Geraldton Port Authority & Ors[33] R D Nicholson J referred to the following passage from the reasons for judgment of Smithers J in Childs v Metropolitan Transport Trust:[34]
It is possible to read the word “position” in a narrow way merely as referable to the immediate incidents of day-to-day employment. But I do not see any reason why it should be so circumscribed in meaning. It seems to me that the word “position” should be read rather to refer to a man’s employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment. Fear of alteration of any of those terms or of the entitlements thereunder would be as potent a factor inhibiting an employee from operating the Act as fear of dismissal, or loss of pay or something in the nature of an immediate injury. I think therefore that cancellation or repudiation of a term of employment which has been agreed upon, cancellation or repudiation by an employer which the employee is in no position, legal or otherwise, to resist or oppose, although he may get some legal rights in relation to it, by withdrawal of a promise of secure employment in a position for an agreed term is an alteration in the employee’s position within the meaning of s 5 [of the 1904 Act], and I think it takes place on the day of cancellation or repudiation of the promise that was made. From then on his position is substantially altered. The term is gone.
[33] Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 165 ALR 67, at 100-101 [229].
[34] Childs v Metropolitan Transport Trust [1981] FCA 200.
Relevant to some of Mr Ocampo’s claims is s 342(3), which provides that “adverse action” does not include “action that is authorised by or under” the FW Act “or any other law of the Commonwealth”.
“Has or has not exercised workplace right”
The second matter that must be alleged is that the employee against whom the employer has taken adverse action has, or has exercised, or has not exercised, a “workplace right”. That expression is defined in s 341(1) of the FW Act, which relevantly provides:
A person has a workplace right if the person:
. . . .
(c)is able to make a complaint or inquiry:
(i) . . . .
(ii) if the person is an employee – in relation to his or her employment.
Complaint or inquiry.
The Full Federal Court recently explained the notion of “complaint” for the purposes of s 341(1)(c) of the FW Act as follows:[35]
In the context of s 341(1)(c), the term “complaint” connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy at [579]‑[581]; Cummins South Pacific at [13] per Dodds‑Streeton J. Her Honour continued, at [626]‑[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.
The distinction between a complaint and a mere request for assistance had been made in earlier authorities: Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99, (2005) 144 FCR 347 at [36]‑[37]; and Hill v Compass Ten Pty Ltd [2012] FCA 761, (2012) 205 FCR 94 at [48]. It is possible that some requests for assistance may be able to be characterised as “inquiries” for the purposes of s 341(1)(c) (for example, an inquiry as to whether the recipient is able to provide the requested assistance) but it was not suggested that a characterisation of that kind was appropriate in relation to any of the appellant’s alleged requests or inquiries.
[35] Alam v National Australia Bank Limited [2021] FCAFC 178, at [59]-[60].
The “same general category of agreements” to which Dixon J referred is the contract for sale of goods where, subject to any contrary express term, the price for goods under such contract is not payable, even if the seller is ready and willing to deliver goods, until they are accepted by the buyer; and that is because “it is for the goods that the price is to be paid and until they are accepted there is no indebtedness”.[107]
[107] Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435, at page 464.
Thus, a contract of employment is one where the employer’s and employee’s obligations to perform their respective obligations are each dependent on the other performing his or her obligations. In the words of Greer J in Browning v Crumlin Valley Collieries Ltd, the “consideration for work is wages, and the consideration for wages is work”.[108] The consequence of an employer’s obligation to pay wages being dependent on the employees’ performing work is that an employee who claims damages for lost wages on the grounds of an employer’s breach of contract must, in the words of Lord Kenyon in Morton v Lamb “aver that he performed or was ready to perform everything on his own part”.[109] Although Moton concerned a contract for sale of goods, the same principle applies to contracts of employment. Thus, in Noonan v Victorian Railways Commissioner, in a passage I have already party quoted, Griffiths CJ said:[110]
Now, it is an implied condition of all contracts that a party demanding performance of the contract shall be ready and willing to perform it on his own part. Readiness and willingness includes ability, and this applies as well to a contract of service as to any other contract: Harmer v. Cornelius . . . . When, therefore, a servant is no longer ready and willing to discharge his duties, or becomes permanently incapable of performing them, he relieves his master of any further obligation under the contract. He, in effect, discharges himself.
[108] Browning v Crumlin Valley Collieries Ltd [1926] 1 KB 522, at page 528.
[109] Morton v Lamb (1797) 7 TR 125; 101 ER 890, at page 892 (Lord Kenyon). This was stated in relation to a contract for sale of goods.
[110] Noonan v Victorian Railways Commissioner (1907) 4 CLR 1668, at page 1680.
As I apparent from this passage, readiness and willingness to perform includes an ability to perform, a point Isaacs J confirmed by reference to authority:[111]
That readiness and willingness include ability is so trite as scarcely to require reference to authority. But among express recognitions of the rule, in addition to those already quoted, is De Medina v. Norman, where Lord Abinger C.B. says: - “If the defendant had traversed the averment of the plaintiff's readiness and willingness to perform it (the contract), he would have put in issue his ability to perform it; for the words ready and willing imply not only the disposition, but the capacity to do the act.” In Griffith v. Selby, Alderson B. observes: - “Readiness and willingness include ability.” The whole position applicable to this case was tersely put by O’Brien J. in Grove v. Johnston. A servant had become insane, and O’Brien J. said: “The real principle I would take to be that mental health, like physical health, is but a form of the ability to perform, which the law makes an understood condition of the contract, and that the nature and effect of that disability must vary according to the thing performed.” This short statement embodies the principles and reconciles the decisions of all the cases cited.
[111] Noonan v Victorian Railways Commissioner (1907) 4 CLR 1668, at pages 1685-1686 (reference omitted).
Thus, to plead a reasonable cause of action for the recovery of wages, it is necessary to plead the contract of employment, the work the employee was required to perform or stand ready and willing to perform under the contract of employment, and the employee’s having performed or having stood ready and willing (which includes being able) to perform, the work he or she contracted to perform.
Claims under the FW Act
Parties’ submissions in relation to FW Act
In his written submissions, Mr Ocampo submits the PSC properly pleads and discloses distinct causes of action, supported by particulars.[112] Mr Ocampo does not, however, identify the causes of action on which he relies, or the material facts he must allege in relation to each cause of action, or whether the PSC alleges each of the material facts.
[112] [Applicant’s] Submission, [35].
At the hearing Mr Attia, who appeared for Mr Ocampo, pointed to those parts of the PSC which alleged the adverse action (these being the First Adverse Action and the Second Adverse Action), and identified various complaints alleged in the PSC. Mr Attia appeared to submit, however, that AACQA also took adverse action against Mr Ocampo by not informing him when Mr Mengi had left the AACQA’s employment. That is how I interpret the following passage from Mr Attia’s oral submissions:[113]
Thereafter, when he made attempts to return to the workplace, those efforts were blocked. The respondent knew that the applicant’s complaint was really with working with Mr Mengi, and if there was a suitable position available to him, where Mr Mengi was not his direct supervisor, then there would have been a suitable pathway for him to return to work. Unfortunately, those efforts were blocked, and even when Mr Mengi had resigned from the workplace, no one had communicated to him that the barrier to him returning to work had been removed.
[113] T13.35.
In its written submissions, the Commission submits as follows:
(a)In a case, such as the one Mr Ocampo advances, involving allegations of contraventions that may result in the ordering of civil penalties, an applicant is required to state its case clearly and precisely; and a court’s discretions must be exercised bearing in mind the seriousness of the allegations, and the gravity of the consequences, and nature of the proceeding.[114]
(b)The PSC does not allege that AACQA took the First Adverse Action for a prohibited reason. Thus even if the conduct the PSC alleges constitutes the First Adverse Action did arguably constitute the taking of adverse action within the meaning of s 342(1) of the FW Act, the PSC discloses no reasonable cause of action based on the First Adverse Action.[115]
(c)As for the Second Adverse Action the PSC does not identify the workplace right it is alleged Mr Ocampo had or had exercised that constituted the reasons for offering and facilitating a redundancy; and the PSC does not identify within what category of adverse actin specified in s 342 of the FW Act the Second Adverse Action falls.
Determination
[114] Respondent’s Outline of Submissions in Response to Applicant’s Application to Amend, [18], relying on Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 6) [2013] FCA 1002 at [7].
[115] Respondent’s Outline of Submissions in Response to Applicant’s Application to Amend, [22].
Claim based on the First Adverse Action
There are two difficulties with the claim based on the First Adverse Action. First, the PSC does not allege facts by reference to which it is possible to identify whether AACQA’s acts the PSC alleges constituted the First Adverse Action (namely, AACQA’s sending the 22 April 2016 letter) constituted adverse action within the meaning of s 342(1) of the FW Act. And it is difficult to see how AACQA’s sending the letter could constitute adverse action.
The PSC does not allege that by sending the 22 April 2016 letter AACQA terminated Mr Ocampo’s employment; it does not allege Mr Ocampo was ready, willing, and able, to perform his obligations under his contract of employment at the time he received AACQA’s letter dated 22 April 2016, with the consequence that AACQA’s stating in its letter that Mr Ocampo was permanently unfit and will remain on personal leave without pay prevented Mr Ocampo from performing his obligations under his contract of employment; and the PSC does not allege AACQA was obliged to find Mr Ocampo an alternative position, or that AACQA hampered Mr Ocampo’s ability to find an alternative position. In those circumstances, AACQA’s sending the 22 April 2016 letter is incapable of constituting adverse action within the meaning of s 342(1) of the FW Act.
The second difficulty with the claim based on the First Adverse Action is that, as the Commission submits, the PSC does not allege AACQA sent the 22 April 2016 letter because Mr Ocampo exercised any workplace right. This omission, however, is not only a matter of pleading. There is nothing in the facts alleged in the PSC that could conceivably link the alleged workplace rights or the alleged exercise of the workplace rights the PSC identifies with AACQA’s sending of the 22 April 2016 letter. Moreover, as I have already found, there is no material that suggests that Mr Ocampo would have any reasonable prospects of leading the Court to doubt that Ms Sipos believed and acted on the reasons she set out in the 22 April 2016 for suggesting to Mr Ocampo that he was permanently unfit for his pre-injury hours and duties working 38 hours per week as a management accountant with the Finance Team, Corporate Services and Strategy, from a psychological perspective; and for also suggesting that Mr Ocampo should remain on personal leave without pay. That would be a factor against exercising the discretion to permit Mr Ocampo to file the PSC to the extent it relies on the First Adverse Action, because it would be futile to permit the amendment.
For these reasons, the PSC does not disclose a reasonable cause of action under s 340(1) of the FW Act based on the First Adverse Action; and, to the extent it does, as a matter of discretion, I would not grant Mr Ocampo leave to file the PSC to the extent it relies on the First Adverse Action because Mr Ocampo would not have reasonable prospects of succeeding on it.
Claim based on Second Adverse Action
There are two difficulties with that part of the PSC that relies on the Second Adverse Action (the CEO’s sending the 4 October 2018 letter). First, to the extent the Second Alleged Adverse Action is said to consist of the termination of Mr Ocampo’s employment, Mr Ocampo is unable to claim relief on the basis of the termination because, as I have already noted, Mr Ocampo has not complied with s 370 of the FW Act.
Second, although the onus would rest with the Commission to affirmatively plead that AACQA sent the 4 October 2018 letter for a reason that was not a prohibited reason, or for reasons that did not include a prohibited reason as a substantial factor, I am satisfied that Mr Ocampo would not have reasonable prospects of preventing the Commission from persuading the Court that AACQA offered redundancy to Mr Ocampo for the reasons stated in that letter, rather for any prohibited reason. The basis of my satisfaction is that the PSC does not allege facts that link the acts the PSC alleges constitute Mr Ocampo’s having or having exercised workplace rights, and AACQA’s sending the 4 October 2018 letter, such as could reasonably lead the Court to doubt that the reasons for which AACQA offered redundancy to Mr Ocampo are those stated in the 4 October 2018 letter.
For these reasons, I am satisfied the PSC does not disclose a reasonable cause of action under the FW Act based on the Second Adverse Action; and, to the extent it does, as a matter of discretion, leave should not be granted to Mr Ocampo to file the PSC to the extent it relies on the First Adverse Action.
Claim based on failure to inform Mr Ocampo of Mr Mengi’s resignation
The allegation made in the PSC that AACQA took adverse action against Mr Ocampo by not informing Mr Ocampo that Mr Mengi had resigned assumes AACQA was under an obligation to inform Mr Ocampo that Mr Mengi resigned from AACQA. The PSC, however, does not allege AACQA was under any such obligation; and it does not allege any facts from which it could reasonably be argued that AACQA came under any duty.
Further, and in any event, the terms of the 22 April 2016 letter are against implying that AACQA would notify Mr Ocampo of Mr Mengi’s resignation. The letter proposed that Mr Ocampo would be treated as “permanently unfit for [his] pre-injury hours and duties working 38 hours per week as a Management Accountant with the Finance Team, Corporate Services and Strategy, from a psychological perspective and will remain on personal leave without pay”; AACQA “would like to offer the services of Injury Treatment” for the purpose of vocation rehabilitation”, and that AACQA would support Mr Ocampo “in securing employment outside” AACQA. The 22 April 2016 letter unmistakably contemplated that Mr Ocampo was not fit to continue to work with AACQA, and would seek employment elsewhere.
Finally, even if AACQA’s not informing Mr Ocampo that Mr Mengi had resigned constituted adverse action, the PSC does not allege that AACQA failed to do so because Mr Ocampo had, or exercised workplace rights; and there is no basis on which it could be concluded that Mr Ocampo would have any reasonable prospects of identifying any evidence that could support such allegation.
For these reasons, I am satisfied the PSC does not disclose a reasonable cause of action under the FW Act based on his allegation AACQA failed to notify Mr Ocampo of Mr Mengi’s resignation; and, to the extent it does, as a matter of discretion I would not grant Mr Ocampo leave to file the PSC to the extent it relied on such allegations.
Claim for wages
The PSC does not disclose a reasonable cause of action for the recovery of wages, because it does not allege Mr Ocampo was ready and willing (which includes able) to perform the work he was obliged to perform or be ready and willing to perform under his contract of employment. Quite apart from the PSC not so alleging, Mr Ocampo would not have reasonable prospects of succeeding on his claim for wages.
The 22 April 2016 letter records Mr Ocampo having stated to Dr Synnott that “he did not wish to return to work with his current employer”; and the letter further records Dr Synnott’s opinion that any attempt to return to work “with his current employer”, that is, AACQA, “will see a deterioration in his psychological state and inevitably he would go off work”. On the basis of these matters, it is beyond argument that Mr Ocampo was “no longer ready and willing to discharge his duties”, or had become “permanently incapable of performing them”, with the consequence that Mr Ocampo “relieved [AACQA] of any further obligation under the contract”, including the payment of wages”. Mr Ocampo, “in effect, discharge[d] himself”.[116]
[116] Noonan v Victorian Railways Commissioner (1907) 4 CLR 1668, at page 1680.
It is the case that, by having manifested to AACQA an inability to perform his work under the contract of employment, Mr Ocampo repudiated his contract of employment; and that his repudiation gave rise to an election in the hands of AACQA to accept the repudiation and terminate the contract of employment, or to affirm the contract of employment. And it is also the case that it remained open to Mr Ocampo to retract his repudiation, before AACQA accepted it by terminating Mr Ocampo’s contract of employment. On the facts alleged in the PSC, however, no communications passed between Mr Ocampo and AACQA until 3 July 2018 when Mr Ocampo wrote to the CEO stating that he wished to return to his substantive position on 3 September 2018. Mr Ocampo’s request, however, was conditional; in his letter to Mr Ocampo dated 31 July 2018, Mr Grady noted that Mr Ocampo indicated that he intended to return to the workplace, and that he would like a rehabilitation program to assist his return to work; and that Mr Ocampo’s treating doctors had recommended Mr Ocampo report to the new director of finance, Mr Smith. That was followed by AACQA directing Mr Ocampo to undergo a medical assessment, and, finally, by the 4 October 2018 letter AACQA informing Mr Ocampo of the possibility of his position becoming “potentially in excess”, and of his right to redundancy payments. On these facts, no right to claim wages accrued to Mr Ocampo, because Mr Ocampo did not communicate to AACQA an unconditional willingness to commence work according to the terms of his contract of employment.
Conclusion on application for leave to file PSC
I do not propose to grant Mr Ocampo leave to file a statement of claim in the form of the PSC because it does not plead reasonable causes of action or, to the extent it may do, Mr Ocampo would not have reasonable prospects of succeeding on them.
20 JANUARY OCAMPO SUBMISSIONS
By the 20 January Ocampo Submissions, Mr Ocampo seeks to “lodge, file and submit” three documents.
Ocampo Schedule 1 Document
The first is titled “Outline of Submissions in Response to Respondent’s Outline of Submissions in Support of Interlocutory Application” (Ocampo Schedule 1 Document). In that document Mr Ocampo confirms he continues to rely on the claims he makes in the Amended Form 4. Mr Ocampo also seeks to explain further the workplace rights on which he relies; and he confirms that he seeks pecuniarily penalties in relation to AACQA’s failure to pay Mr Ocampo his long service leave entitlements.
Mr Ocampo also provides submissions in response to the Commission’s written submissions in support of its application for summary dismissal.
Alleged Contravention 1
Most of the submissions in the Ocampo Schedule 1 Document are directed to Mr Ocampo’s claim based on an alleged contravention of s 345(1) of the FW Act. Mr Ocampo seeks leave to “replead the Adverse Action – Misrepresentation” in accordance with paragraphs 20-22 of the Ocampo Schedule 1 Document. In paragraph 20 of that document Mr Ocampo reproduces passage from the Srivastava Statement I reproduced in paragraph 76 of these reasons, and in paragraphs 21(a)-(i) of the Ocampo Schedule 1 Document Mr Ocampo identifies what he claims are “matters and facts in respect of the pleaded adverse action of misrepresentations”.
It is unnecessary to set out those paragraphs. It is clear that none of the “matters and facts” overcome the difficulty I have already identified with Mr Ocampo’s claims based on an alleged contravention of s 345(1) of the FW Act (being Alleged Contravention 1), namely, that the statements Ms Srivastava made are incapable of being construed as a representation about a workplace right of any other person, or about the exercise, or the effect of the exercise, of a workplace by another person.
Alleged Contravention 13
Mr Ocampo says that “the issue of the voluntary redundancy is pleaded as the “Second Adverse Action” in the Statement of Claim; and Mr Ocampo refers the reader to paragraphs 7 and 8 of what I describe below as the “Ocampo Schedule 2 Document”.[117] I will consider that material when I consider that document.
[117] Ocampo Schedule 1 Document, [25].
Alleged Contravention 8
Mr Ocampo seek leave to incorporate paragraphs 27-30 of the Ocampo Schedule 1 Document to the Amended Form 4 of the PSA.[118] In those paragraphs Mr Ocampo reproduces cl 21.1 of the AACQA EA in which he emphasises “attire”; and in which Mr Ocampo submits that in 2015 and 2016 he had made similar claims that had been accepted. Even if cl 21.1 of the AACQA EA permitted the reimbursement of expenses for attire that is not connected with healthy lifestyle initiatives, the matters on which Mr Ocampo relies does not overcome the difficulty identified with this part of his claims, namely, that cl 21.1 did not impose an obligation on ACCQC to reimburse any employee up to $200.
[118] Ocampo Schedule 1 Document, [31].
Ocampo Schedule 2 Document
The second document to the 20 January Ocampo Submissions seeks “lodge, file and submit” is titled “Further Outline of Submission in Support of the Applicant’s Application for grant of leave to file Statement of Claim” (Ocampo Schedule 2 Document). In that document Mr Ocampo deals with a number of subjects.
Employment contract
First, Mr Ocampo identifies his contract of employment and the instruments that have applied to his employment with ACSAA and AACQA.[119] That is in line with the matters alleged in the PSC.
[119] Ocampo Schedule 2 Document, [2].
Adverse Action “Unpaid Leave and Breach of Contract”
Mr Ocampo submits that his employment contract with AACQA did not entitle AACQA to direct Mr Ocampo to take leave without pay.[120] It is correct that his employment contract did not contain an express term that permitted AACQA to direct Mr Ocampo to take permanent leave without pay; but for reasons I have given, it is beyond argument that, having manifested an inability to return to work, AACQA was released of its obligation to perform its part of the employment contract.
[120] Ocampo Schedule 2 Document, [3]-[6].
It also appears that Mr Ocampo alleges that AACQA breached s 40 of the SRC Act by failing to take all reasonable steps to provide Mr Ocampo with suitable employment while undergoing or after having undergone a rehabilitation program. Mr Ocampo also sets out what purport to be extracts from the reports of Dr Barrett and Dr Synott.[121] Mr Ocampo submits that Dr Synnott misunderstood him: Dr Synnott reported back to AAQCA that Mr Ocampo under no circumstances wanted to return to AACQA when in fact Mr Ocampo’s position always was that he could report to another manager.[122] Mr Ocampo submits, and it appears, complains, that AACQA “adopted” Dr Synott’s report “as a true statement of Mr Ocampo’s unwillingness to ever work for AACQA again”.[123] These allegations, if permitted to be added to a further amended Form 4, or in a statement of claim, would have no reasonable prospects of stating or establishing a claim for relief under the FW Act.
(a)First, Mr Ocampo does not allege, and there is nothing in the material before me that could support any such allegation, that AACQA did not believe in the truth of the statements and opinions Dr Synott made in his report; or that AACQA was unreasonable in believing and acting on Dr Synott’s statements and opinions.
(b)Second, according to Mr Ocampo’s apparent reproduction of Dr Barrett’s report, Dr Barrett himself answered “Yes” to the question: “Is Mr Ocampo currently medically unfit to engage in any kind of work”; and, moreover, expressed the following opinion:
In my opinion, Mr Ocampo will not successfully return to work under the previous managers. Irrespective of the outcome of any investigations, Mr Ocampo stated that he would not return to work under these managers and therefore any attempts at doing so are likely to be unsuccessful based on his mindset.
(c)Third, Mr Ocampo goes no further than asserting that among the reasonable steps that were available to AACQA to provide employment for Mr Ocampo, given his condition, was for him to work where he would not be required to report to Mr Mengi. Mr Ocampo, however, has not alleged any facts or matters on the basis of which this could reasonably be argued. Moreover, according to the reproduced passage from Dr Barrett’s report, Mr Ocampo said he could not “not return to work under these managers”. That suggests Mr Ocampo stated to Dr Bartlett that Mr Mengi was not the only manager with whom Mr Ocampo could not work.
[121] Ocampo Schedule 2 Document, [6].
[122] Ocampo Schedule 2 Document, [6(g)].
[123] Ocampo Schedule 2 Document, [6(k)].
Not only does this part of the Ocampo Schedule 2 document discloses no reasonable prospects of stating or establishing a claim for relief under the FW Act; it reinforces the finding I have already made that, by the time Ms Sipos sent the 22 April 2016 letter, Mr Ocampo undoubtedly manifested an unwillingness and inability to perform his obligations under his contract of employment.
Alleged Contravention 14
Mr Ocampo refers to paragraphs 10-13 of Mr Attia’s submissions in reply filed on 7 February 2025. I have considered those submissions in paragraphs 126 and 127 above.
Ocampo Schedule 3 Document
The third document to the 20 January Ocampo Submissions seeks to “lodge, file and submit” is titled “Applicant’s Response to Respondent’s Submissions on Applicant’s Additional Material” (Ocampo Schedule 3 Document). In this document Mr Ocampo makes submission in support of his application that I consider the material that is exhibited to Mr Ocampo’s affidavit of 20 January 2025. Given I have decided that I will consider the material and, moreover, I have considered it, it is unnecessary to address the submissions Mr Ocampo makes in the Ocampo Schedule 3 Document.
DISPOSITION
I will order that Mr Ocampo’s application for leave to file a PSC be dismissed, and, pursuant to r 13.13 of the GFL Rules, that the proceeding be dismissed.
I certify that the preceding one hundred and seventy-nine (179) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 4 July 2025
At [523], however, Colvin J noted that in Qantas “Steward J at [116] referred to Shea and Whelan with approval as being correct in requiring the ability to make a complaint as expressed in s 341(c) to be ‘underpinned by some entitlement or right to do so’. However, this appears to be a minority view”. See also Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162, at [217] (Raper J, quoting the plurality in Qantas).
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