RPS AAP Consulting Pty Ltd v Lamb

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FEDERAL COURT OF AUSTRALIA

RPS AAP Consulting Pty Ltd v Lamb [2023] FCA 1310

Appeal from: Lamb v RPS AAP Consulting Pty Ltd [2022] FedCFamC2G 255
File number: NSD 335 of 2022
Judgment of: RAPER J
Date of judgment: 31 October 2023
Catchwords: INDUSTRIAL LAW – appeal from orders of the Federal Circuit and Family Court of Australia – general protections application – where the primary judge found that the employer’s reasons for taking adverse action included the fact that the employee had made a complaint – whether the primary judge erred in relying on the subjective views of the employee as to whether she had been the subject of adverse action – whether the reasons were inadequate and/or involved an erroneous factual finding regarding the issue of demotion and being forcibly removed – whether the primary judge erred in finding that the decision-makers’ real reasons for the impugned decision included a prohibited reason and failed to give adequate reasons – whether the primary judge erred by applying a test of reasonable apprehension of bias – whether the primary judge erred by creating and relying on a nexus between Ms Lamb’s complaint and RPS’s response to the proposed study commitments – appeal dismissed 
Legislation: Fair Work Act 2009 (Cth) ss 340(1), 342, 342(1) items 1(b) and 1(c), 361, 361(1), 386(1)(b)
Cases cited:

AK v Western Australia [2008] HCA 8; 232 CLR 438

Alam v National Australia Bank [2021] FCAFC 178; 288 FCR 301

Australian Licenced Aircraft Engineers Association v International Aviation Service AssistancePty Ltd [2011] FCA 333; 193 FCR 526

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500

Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39

Clark Boyce v Mouat [1994] 1 AC 428

Cook v CFP Management Pty Ltd [2006] QCA 215; 152 IR 358

Dearman v Dearman (1908) 7 CLR 549

DL v The Queen [2018] HCA 26; 266 CLR 1

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

Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; 6 VR 1

Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75

Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; 186 FCR 22

Lennon v South Australia [2010] SASC 272

Lopez v Gold Titan [2022] FCAFC 117

Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; 93 FCR 34

Mifsud v Campbell (1991) 21 NSWLR 725

Nocton v Lord Ashburton [1914] AC 932 at 945

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 3; 195 CLR 1

Police Federation of Australia v Nixon [2011] FCAFC 161; 198 FCR 267

Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; 248 FCR 18

Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63; 202…

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Details
Case
[2023] FCA 1310
Decision Date

CaseChat Overview and Summary

The appeal in RPS AAP Consulting Pty Ltd v Lamb involved the Fair Work Commission, specifically addressing a general protections application brought by the employee, Ms Lamb, against her former employer, RPS AAP Consulting Pty Ltd. The central issue was whether the employer's actions constituted adverse action as defined under section 342 of the Fair Work Act 2009, particularly in relation to a proposed demotion and forced resignation. The court needed to determine if the primary judge erred in relying on Ms Lamb's subjective views and if the employer's reasons for the adverse action were inadequate or involved erroneous factual findings. Additionally, the court examined whether the primary judge correctly applied the test for reasonable apprehension of bias and if there was a valid nexus between Ms Lamb's complaint and the employer's response.

The court held that the primary judge did not err in considering Ms Lamb's subjective views regarding the adverse action, as they were relevant to the assessment of the impact on her employment. The reasons provided by the employer were deemed adequate, and there was no erroneous factual finding regarding the issue of demotion and forced resignation. The court further clarified that the primary judge correctly applied the test for reasonable apprehension of bias and did not err in creating a nexus between Ms Lamb's complaint and the employer's actions. The court found that the employer's reasons for the adverse action did not include a prohibited reason, and the employer did not act in a manner that could reasonably be perceived as biased. Consequently, the appeal was dismissed, and the matter was remitted to the primary judge to address the remaining issues of penalty and compensation.

The Federal Circuit and Family Court of Australia dismissed the appeal and remitted the matter to the primary judge to deal with the remaining matters relating to penalty and compensation. The decision underscores the importance of the subjective experience of the employee in adverse action claims and the need for employers to provide clear and adequate reasons for their actions, free from prohibited biases. The court's ruling ensures that the primary judge's assessment of the case was thorough and that the employer's actions were properly scrutinized under the relevant legal framework.

Orders

Orders of the court

1. The appeal be dismissed.

2. The matter be remitted to the primary judge to deal with the remaining matters relating to penalty and compensation.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The appeal is dismissed for the following reasons.Background RPS is a consulting firm that assists government in relation to infrastructure and other projects. On 6 November 2017, Ms Lamb commenced full-time employment with RPS in the role of Practice Leader – Project Development, in Sydney: at J[1]. In early 2019, RPS acquired the assets of another consulting firm, Corview Group Pty Ltd, which led to an integration process that involved the transfer of senior staff from Corview to RPS (including a Mr Sherman, who worked out of RPS’s Brisbane office and Mr Stamatoudis): at J[2]–[3]. On 1 August 2019, Ms Lamb was promoted to the position of National Lead – Strategy and Transformation. She reported to Mr Stamatoudis. In or around mid-August 2019, Ms Lamb entered into “a consensual, intimate relationship” with Mr Sherman. It was Ms Lamb’s contention that, against her wishes, Mr Sherman disclosed their relationship to Mr Stamatoudis: at J[5]. Ms Lamb claimed that Mr Stamatoudis then made repeated unwelcome inquiries as to the state of her relationship with Mr Sherman. Mr Stamatoudis admitted the conduct but sought to justify it on the basis of a purported concern regarding potential conflicts of interest: at J[6]. Ms Lamb claimed that she had sought to end her relationship with Mr Sherman from late-December 2019 onwards. The primary judge concluded that Mr Sherman “did not accept this” and continued to pursue Ms Lamb during early 2020: at J[7]. On 17 January 2020, Mr Stamatoudis met with Ms Lamb as part of her annual performance review, and also discussed with Ms Lamb issues relating to her relationship with Mr Sherman: at J[8]. Ms Lamb’s performance was rated as a three out of four. Mr Stamatoudis was of the view that there were no performance concerns at this meeting as to her ability to undertake her role. Ms Lamb then flew to the United Kingdom to undertake a course of study at Oxford. While in the United Kingdom, on 22 January 2020, Ms Lamb made a complaint via email to Mr Stamatoudis about his unwelcome intrusion into her personal affairs during, inter alia, the meeting on 17 January 2020: at J[9]. Immediately upon her return, on 6 February 2020, Ms Lamb met with Mr Stamatoudis and Ms Christensen. Performance concerns were raised with her and Mr Stamatoudis told her that he believed she should “step down” from her National role. On 7 February 2020, Mr Stamatoudis advised Ms Lamb via telephone that she was to be removed from her position. Ms Lamb claimed that this forced her to resign from RPS: at J[10]. Ms Lamb also claimed that her notice period was cut short as a result of unfounded claims that she was attempting to “poach” clients from RPS: at J[11]. The case before the primary judge At trial, Ms Lamb pleaded the adverse action with respect to the attempted demotion as follows:18. On 7 February 2020, Ms [sic] Stamatoudis notified the Applicant that:(a)The Respondent had elected to demote the Applicant; and (b) The Applicant would receive a letter from HR confirming the change in her position title and salary.(c)The Applicant would not be allowed to meet with Ms Sullivan to further discuss her Executive MBA.(the Proposed Demotion)ParticularsTelephone call between Mr Stamatoudis and the Applicant on 7 February 2020.19.The Respondent’s attempt to demote the Applicant is conduct that injured the Applicant in her employment and is adverse action for the for [sic] purpose of section 342 of the FW Act.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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