Saggers v Registrar, Administrative Appeals Tribunal
[2024] FedCFamC2G 298
•26 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saggers v Registrar, Administrative Appeals Tribunal [2024] FedCFamC2G 298
File number(s): BRG 258 of 2023 Judgment of: JUDGE VASTA Date of judgment: 26 March 2024 Catchwords: INDUSTRIAL LAW – where applicant had employment terminated during probation period – where applicant claimed that termination was due to the making of complaints – where there was no evidence of any complaints – where no workplace right was illustrated – application dismissed – costs. Legislation: Fair Work Act 2009 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 88 Date of last submission/s: 26 March 2024 Date of hearing: 25 and 26 March 2024 Place: Brisbane Counsel for the Applicant: The Applicant appearing on his own behalf Counsel for the Respondent: Mr Seck Solicitor for the Respondent: Bartier Perry ORDERS
BRG 258 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASON SAGGERS
Applicant
AND: REGISTRAR, ADMINISTRATIVE APPEALS TRIBUNAL ON BEHALF OF THE COMMONWEALTH
Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
26 MARCH 2024
THE COURT ORDERS THAT:
1.The application filed on 8 June 2023 be dismissed.
2.The Applicant pay the Respondent’s cost of the application fixed in the sum of $12,000 to be paid within 90 days.
IT IS NOTED THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
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
(Ex tempore)JUDGE VASTA
Jason Saggers, the Applicant, has been a migration agent since 2007. In September 2021, he saw an advertisement for a position as an associate at the Administrative Appeals Tribunal (“the AAT”). Such a role supports the members of the AAT. The Applicant ended up applying for the job.
The Applicant was interviewed by Delia Daniel on Microsoft Teams on December 2022. Towards the end of the interview, Ms Daniels told the Applicant, “You know, you can’t work as a migration agent if you were given the position?” The Applicant replied, “That’s fine. I’ve been a migration agent for 16 years and I want to use skills gained as an agent doing something else and it’s hard to find a position where my skills are transferrable. I’ve had enough of being a migration agent”.
The Applicant apparently said to Ms Daniel, “I still have some matters with the AAT that have been with the system for a long time, as you would know. It’s impossible to know when they would come up for hearing”. Ms Daniels apparently replied, “We have a huge backlog, which is why we are hiring more staff”.
A few weeks later the Applicant was informed that he was successful and, on 10 January 2023, the Applicant wrote to Mr Baker who was the head of the particular section. The Applicant, in that email, said:
Having the option of starting in four weeks would be perfecto! I have assessed my outstanding matters and can confirm I wish to start in four weeks-time. I can finish my career as a migration agent and look forward to starting a new chapter with the AAT. Thank you for the option and I will see you in a months – time.
The Applicant began work for the AAT on Monday, 13 February 2023. That week was taken up with training and induction. On the evidence before me, it seems that the Applicant was of the view that he could keep his registration as a migration agent and still work for the AAT as long as he did not take on any migration work during that time. However, if he had that impression, that must have well and truly evaporated once it was that that Applicant commenced his induction.
One of the training manuals undertaken by the Applicant was dealing with ethical considerations and conflicts of interest. For a person to be a registered migration agent but also be working for the AAT at the same time, was an obvious conflict of interest.
On 15 February 2023, that is on the Wednesday after the Applicant had started on the Monday, the team leader, Daisy Wong, sent an email to Mr Baker. That email read as follows:
This morning when I took Jason and [other employee] to level 14 and 15 introducing them to the team and show them around, Jason asked me some questions which are not relevant to his role as an Associate, for example, whether all the Tribunal Members have a law degree, the member who worked at the Tribunal for 40 years and appeared on the “60 Minutes” TV program for “robot debt”, how the Member manages his private practice…etc.
Please note he also asked me work-related questions, for example, how the Department files are received…etc.
I told you before Jason asked some interesting and unusual questions during the Induction meeting, too.
Due to my experience with Jason today and at the induction meeting, I did a google search and found that he works at “Cahill Lawyers”, see the screenshots attached. I am not sure whether he is still working with that firm or not.
Please note, I mentioned to Jason and [other employee] at the induction meeting and today that if they engage in any pay or unpaid work, they must declare the work to us to ensure there is no conflict of interest. I have not received any further enquiry from them.
Please let me know if any action is required, or do you want me to conduct further investigation using internet search before speaking to Jason.
Regards
Daisy Wong.
Attached to that were screenshots showing that the website for Cahill Lawyers spruiked that Mr Saggers was their immigration consultant. This caused Mr Baker to make some inquiries of the HR section. The HR section sent the following email back to Mr Baker, dated 16 February 2023. It read:
Please see our outside employment policy to manage this one. The policy also includes an application form that Jason would be required to complete if he is requesting for outside employment.
The APS Code of Conduct provides for all APS employees to ‘take reasonable steps to avoid any conflict of interest real or apparent and disclose details of any material personal interests of the employee in connection with the employee’s APS employment’.
I’d recommend having an initial discussion with Jason about his details on the firm’s website and seek some further information about the situation (if you haven’t already). Such as is Jason intending on continuing consulting in that capacity?
If so, Jason will need to submit an outside employment application form and the request will need to be assessed in accordance with the policy (before continuing with any of the outside employment duties). The assessment would include ensuring that the ‘proposed outside employment will not place, be perceived as or have the potential of placing the employee in a conflict of interest situation with official duties’.
From the below it seems that outside employment as a consultant at a migration firm (representing numerous corporate and individual clients at the AAT) would be perceived as or have the potential of a conflict of interest.
If Jason is not intending on continuing this employment, then it would be reasonable for you to suggest he removes his details from the firm’s website for him to ensure he is taking all reasonable steps in avoiding any conflict of interest (real or apparent).
Totally coincidentally, the Applicant on the same day received an email from the Administrative Appeals Tribunal. It was addressed to him at [email protected], imimasters.com.au being the domain name for Migration Masters, which would seem to be the firm within which the Applicant was plying his trade. The email noted that he was the agent for a client whom I will call TW. The email read:
Dear Mr Saggers, I’m writing in relation to an application for review by the migration and refugee division of the AAT. Please read the attached correspondence carefully, noting that he may require a response from you before a certain date. If you have any questions or are experiencing problems opening the documents, please contact us immediately. Please refer to the AAT website for information about temporary changes in place to respond to the impact of COVID-19 on services. Yours sincerely.
The letter itself read as follows:
Dear Mr Saggers –
headed Invitation to Comment on or Respond to Information. Ms TW. The letter read:
I’m writing on instruction from the member conducting the review in relation to the application for review made by Ms TW in respect of a decision to refuse to grant a protection visa. The enclosed documents are given to you as the authorised recipient of the Applicant. As the authorised recipient we are required to give you, instead of the Applicant, any document that we would otherwise have given to the Applicant.
In bold it read:
By providing you with these documents, we are taken to have given the documents to the Applicant. You should ensure that the Applicant is informed of this information as soon as possible. If you have any questions about this letter, please email.
And an email and a phone number was given. The letter itself addressed to Ms TW reads:
I am writing on instruction from the member conducting a review in relation to the application for review made by you in respect of a decision to refuse to grant a protection visa. In conducting the review, we are required by the Migration Act to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason or part of the reason for affirming the decision under review.
In bold it read:
Please note, however, that we have not made up our mind about the information.
The particulars of the information are that:
According to the records held by the Department of Home Affairs you are currently outside Australia and you do not hold a visa that enables you to return to Australia. Section 36, sub (2) of the Migration Act requires that an Applicant for a protection visa must be a non-citizen in Australia. This means that a protection visa can only be granted if the Applicant is in Australia. This information is relevant to the review, because if the information is true you cannot be granted a protection visa. You are invited to give comments on or respond to the above information in writing.
Then there are details and a time for that response to occur.
The fact that the Applicant, as an employee of the AAT, was receiving such correspondence was because he was still, as the correspondence noted, the agent on record for Ms TW.
The Applicant gave evidence about that matter in this Court. He conceded that he had not told Ms TW that he was taking up employment with the AAT, but he said there was a reason for that, and that was because Ms TW had flown away. His evidence was that Ms TW had said goodbye to him and had thanked him for his services. This was a clear indication that, as far as the Applicant was concerned, Ms TW had completed her arrangement with the Applicant and had, in effect, ended the client relationship.
The code of conduct of migration agents dictated that the Applicant had to ensure that this information was conveyed to the AAT immediately and that the person, Ms TW, herself would sign the appropriate AAT form, which would confirm that this would mean that the Applicant would no longer be on record as being the agent for that person. When asked why this wasn’t done, the Applicant candidly conceded that it was laziness on his part, and he conceded that he had breached the code of conduct for migration agents.
On 17 February 2023, which was the Friday of the Applicant’s first week at the AAT, the Applicant said that he was invited in to discuss with Mr Baker how the week had gone. There was some dispute as to how that conversation went. Suffice it to say that Mr Baker gives the following evidence as to what was said. Mr Baker says that he said:
Michael Baker: You are listed as having an active migration agent registration and you have an online profile as a migration consultant on a law firm’s website. This is a conflict of interest with your work at the AAT.
Jason Saggers: Yes, I know it’s a conflict and that these issues need to be addressed if I want to keep working here.
Michael Baker: Well, to address it, you need to make sure you no longer have an active agent registration and remove your online presence.
Jason Saggers: Ok, that’s fair enough. I will do that.
Michael Baker: You have to do so by 24 February 2023.
Whilst the Applicant did not accept all those words, he agreed that the gist of it was that those issues were raised. In any event, the content of the conversation doesn’t particularly matter. The evidence shows that there were several issues that the AAT had regarding the Applicant’s conflicts and that the Applicant knew that the AAT had issues with those matters.
These matters were: firstly, the Applicant’s LinkedIn page that identifies him as a migration agent; secondly, the email address that the Applicant used to still communicate with the AAT was from the domain imimasters.com.au, rather than from a private email, even if that be a Gmail or Hotmail account; thirdly, the website of Cahill Lawyers proudly trumpeted the fact that the Applicant was their immigration consultant; fourthly, that the Applicant was still a registered migration agent; and, fifthly, that the Applicant was the agent on record still for persons who had their matters currently before the AAT.
The Applicant says that he raised this latter aspect with either Ms Wong or with Mr Baker, because it was that he had received the email from the AAT the day before. He said that he told either of them that, “Yes, now that you mention that, I did get an AAT letter yesterday saying that I was still on record for Ms TW”.
In any event, the Applicant was given until 24 February 2023 to remove those conflicts of interest. On 24 February, Mr Baker sent an email to the Applicant saying:
Hi Jason,
Could you please provide me with an update on your active migration agent’s status with MARA and profile as a migration agent with Cahill Lawyers and any other commercial organisations.
Last week we spoke about the need to have you listed as de-active in order to avoid any perceived conflict of interest.
You appear to still be showing as active with both organisations.
Thanks.
The Applicant replied less than 20 minutes later saying:
Hi, Michael,
Certainly. I have instructed via email (not AAT) email to Cahill Lawyers to remove my profile from the website. I have also been in contact with Mara via email. They have advised that I cannot suspend my registration. However, I can de-register myself. (There is no refund of the registration). In order to do this I must inform all clients, who are still waiting for visas to be processed; otherwise I am in breach of the Migration Act. As you are aware visas such as protection, as well as Partner visas, can take a couple of years to process.
My registration will cease on 13th October. I have no plans to renew it and of course am not seeking new clients. I have been in contact by phone with the solicitor to get these clients transferred so that I can safely de-register.
This is a stressful predicament.
Later that day, Mr Baker had another conversation with the Applicant where he said:
You said that you only had one case, but we have discovered that you have two cases before the AAT. You will need to either discontinue your active migration status by close of business on Monday or resign from the AAT. You just cannot keep working here with such a significant perceived conflict of interest issue.
The Applicant said “Ok”.
The Applicant in his evidence described this as some form of attempt by Mr Baker to get him in a “gotcha moment”. Whether that was a correct characterisation of what happened or not matters very little. Mr Baker followed up this oral direction with one in writing at 2.38 pm on 24 February:
Hi Jason,
As discussed, Human Resources have advised that you will need to either discontinue your active migration agent’s status with MARA by COB on Monday 27 February 2023 or resign from the AAT.
Please take the remainder of today and all day Monday as leave, and contact me again on Monday with an update.
Regards.
The Applicant gave evidence that this forced him to make a “Sophie’s choice”. The Applicant explained that there were many people that he had worked with over the years who saw him as their agent, and it was a huge task to email and contact all of them to say that he could no longer act for them. Paradoxically, he also testified that he only had two matters still in the system, both of which were before the AAT and these were, technically, his only clients.
Mr Baker, Ms Wong, and the Applicant then met on 2 March 2023. The issues had still not been resolved. After the meeting, the Applicant was sent an email by Mr Baker to this effect. The email had a summary of the meeting conversation. The relevant parts were Mr Baker stating:
I then moved to discuss my particular concerns with Jason’s conflict of interest caused by having been a registered migration agent whilst at the AAT, by having ongoing involvement in active migration cases and by having an online presence as a migration consultant after he had begun his employment at the Tribunal. I noted that he had made recent efforts to resolve this conflict of interest be deregistering himself as a migration agent but the other issues remained outstanding.I advised him that Human Resources (HR) had decided the best path forward to support Jason in his efforts to further resolve the situation was for Jason to take paid leave for the remainder of today up to and including 6 March. The purpose of this leave was to provide Jason with the time and space free from distractions caused by his training, to fully resolve his conflict of interest issues and to complete and to return to me the Declaration of Interests form. I advised Jason that the form should be returned to me by COB 6 March.
I asked Jason if he was agreeable to this arrangement and he said he was. He went on to state that he was being called into the office for a different type of discussion. He didn’t elaborate on what type of discussion this might be and I didn’t ask him. Jason went on to say that he appreciated being given the time to work on resolving his conflict of interest issues without interruption. He said that he had found it difficult to concentrate on his training whilst also trying to resolve these issues. He stated that he found the entire situation stressful and that now he had cancelled his registration, he would be unable to return to this type of work. He stated that his willingness to cancel his registration could be seen as an indication of his commitment to working at the Tribunal.
Later Mr Baker wrote:
I also stated that he could not return to work or training until his declaration form had been fully assessed and it was found that there was no existing conflict of interest. If a conflict of interest was identified in his declaration form, it could lead to a Code of Conduct investigation. Jason responded that whilst he understood the importance of Tribunal staff being free of any conflict of interest, he hadn’t appreciated how sensitive the issue was for the Tribunal and that he hoped that his cases would just go away on their own over time. He also stated that he had not expected the Tribunal to act as quickly as it had in identifying his active registration and his ongoing cases. He went on to say that in this respect, he had been naïve. He suggested that he might have to pay his clients to quickly agree for him to no longer act for them. He then queried which form he should complete his conflict of interest details in.
Mr Baker then wrote:
I then asked Daisy if she had any comments she would like to make. Daisy emphasised again why a conflict of interest was such an important issue for the Tribunal. Jason said he fully understood the point that Daisy was making. I thanked Jason for coming in to discuss this issue and the meeting ended.
On 7 March 2023, the Applicant sent a signed declaration of interest form. In that, the Applicant did not declare that he had any material personal interest for the purposes of the APS Code of Conduct. The Applicant then sent an email to Mr Baker regarding the client, WT. In that email he wrote:
The Applicant overseas has agreed to provide her signature on the AAT form.
Mr Baker then searched the internal CaseMate system of the AAT. He found that on the system it continued to list that the Applicant was the representative on two active cases before the AAT. Mr Baker also searched the website of Cahill Lawyers where the Applicant’s name and profile still appeared. Mr Baker also found that that Applicant’s LinkedIn profile still listed him as a senior migration agent with Australian Immigration Masters.
The Applicant met with Ms Wakeham and Mr Baker on 10 March 2023. Mr Baker and Ms Wakeham told the Applicant it was their intention to terminate his employment during probation. There were notes taken of that meeting. The notations were written by Ms Wakeham. The email noted the following dot points of the meeting on 10 March 2023, and this is written by Ms Wakeham to Mr Baker:
•You advised Jason the meeting was to clarify with him where we were up to with the COI situation.
•You spoke around each of the dot points detailed in the below email.
•Jason indicated he understood each point as we went along.
•At the end Jason had the opportunity to ask any questions or respond.
•Jason noted, that he had made steps for clients to go to an accredited specialist and that he had sent emails to the 2 cases currently with the AAT.
•Jason advised that he had asked Cahill Lawyers to remove his details; however, they need to have this action through a service provider and that he didn’t really use LinkedIn.
•Jason queried the situation escalating and I noted that this was due to the AAT receiving more information along the way (eg. Active cases and cases with the AAT) and that we felt that he had been given a number of opportunities to address the matter informally.
•Jason acknowledged that he should have declared further details earlier (eg, when completing the onboarding modules) but he had forgotten about some cases. Jason also acknowledged that he didn’t fill in the declaration of interest form as great as asked.
•We confirmed with Jason that he would be sent a confirmation letter with further detail as we discussed today relating to the intent to terminate during probation.
Later that day Mr Baker sent the Applicant a show cause letter. The letter relevantly stated:
The APS Code of Conduct requires that an APS employee take reasonable steps to avoid any conflict of interest, (real or apparent) and disclose details of any material of personal interest in connection with your employment. At the time you commenced employment with the AAT, you continued to be a registered migration agent and undertaking outside employment in that capacity.
Your professional activities and continuing online presence as a Migration Agent constitute an apparent conflict of interest with respect to your official duties and the role of the Tribunal in conducting independent merits review of decisions, including those relating to migration decisions.
Your outside employment and apparent conflict of interest have been discussed with you on 17 February, 24 February, 1 March and 2 March 2023, and you had the opportunity to address that apparent conflict. To date you have not provided the Tribunal with sufficient evidence to demonstrate that the apparent conflict of interest has been eliminated to enable you to perform the inherent role requirements of an APS4 Associate in the Migration and Refugee division. The AAT has identified that you continue to be the authorised representative on two migration cases, and your contact details continue to describe you as a Migration Consultant on the Cahill Lawyers website, ozmigrationagents.com and on LinkedIn including communicating via an imimasters email.
The letter said that the Applicant would be given a final opportunity to provide evidence that the conflict of interest had been adequately resolved. On 15 March 2023, the Applicant replied in these terms:
Dear delegate,
I’m appealing for my lively-hood, which unless a favourable decision to re-instate my tenure is made, I will be in no position to have.
Background:
On the 13th of February 2023, I commenced training with the AAT as an Associate. One month before this I was advised that I had been given the honour of working at the AAT. On 17th of February I was advised of my online presence and that my Migration licence was still active. Until that date, at no stage was I notified before I commenced employment that my Migration licence, which I have held since 2007 had to be terminated to commence employment with the AAT. Had notice of this been given I would have obliged.
I was not aware that you were able to de-register yourself. I made inquiries with MARA and after some investigation it was not possible to suspend a Migration licence but it was possible to deregister your Migration licence. On the 24th of February I was contacted by Mick Baker wanting an update on my social media presence as well as asking for an account of how many matters I had ongoing with the AAT.
I expressed my surprise that I was still on an employer’s website and indicated I would do what I could to remove myself. I also divulged via AAT email that I had an ex-client who was coincidentally due to go to the AAT who was seeking a protection visa, but who had left the country. I told Mike that I believed the ex-client would complete a withdrawal forms. To this date, no such undertaking has come from the ex-client. I was advised by Mike that there was another client of mine in the AAT’s system. I had already notified this client both verbally and via email that I was not acting for her.
I was given an ultimatum by HR and Mike Baker to deregister myself as Migration agent by the close of business on Monday 24th of February 2023 or resign from the AAT. On 24th of February I informed Mike my de-registration as a Migration Agent was complete. In hindsight, I should’ve resigned on the spot. See annexure A
I first became a registered migration agent in 2007. My Migration licence was due to expire on 13th of October 2023. I no longer have any clients, nor do I have a licence to practice, nor do I have the money needed to re-register.
A serious allegation has been made by Mike Baker that outside employment in a Migration Capacity whilst working at the AAT. As I do not have a Migration licensee and held one for nine and a half days working for the AAT assumed that he is stating that I either worked legally as a Migration Agent but illegally for the AAT; or I worked illegally as a Migration Agent but legally for the AAT. Either way these aspersion’s are unfounded and in the case under the Migration Act 1958 involve serious penalties, a fact completely lost when put to Mike Baker.
Conclusion
My social media presence has been removed. No easy feat since it was something outside my control. My Migration license has been de-registered; a costly exercise. My Client’s have been removed to other Agents as per the Migration Agents Code of Conduct. I had an ex-client begging me for assistance on 14th of February 2023 in the CBD in the pouring rain begging for assistance.
The sacrifice I have made to pursue the service as an associate are or too real. My mental health is at an all-time low, as witnessed by a psychiatrist.
My Baker has recommendation to the delegate that I be expelled from the Administrative Appeals Tribunal for alleged wrong doing and some vague notion that I had been given ample opportunity to fix a problem that has been fixed.
On the contrary, every date Mr Baker has been responded to in good faith.
Yours sincerely
Jason Saggers
When that was sent, Mr Baker replied:
Dear Jason,
Thank you for your email with attached submission.
I note the submission refers to Annexure A.
I am unable to locate a copy of Annexure A.
Grateful if you could please forward Annexure A by email.
Kind regards
Mike.
The Applicant sent the email saying:
Dear Mike,
If you don’t like my email, I can send it via unsecure Hotmail. I will see you in Court. Notice there is no mara number.
With regard to the fact that annexure A did not appear, the Applicant wrote in another email:
Yes Mike not toay please give entire governanve of this matter today as my solicitors will hold you entirely reasonable regardless of AAT procedures Please acknowledge email has arrived and seen to before you leave cod now.
He then sent another email:
Im not dancing with you Mike I want amd indication you have informed the delegate.
He then wrote:
I understand you are not legally trained. Can you not open the annere file ot the submission
He then wrote:
It will follow rest assured thank you Mike.
Then a penultimate email that said:
Ok comes annere a.
And then a final email:
Hi, Mike,
You got it more to come!
The matter was then looked at by Shari Beaumont. Ms Beaumont was a senior executive service employee who had the power to decide as to whether employees would be terminated. At paragraph 34 to 36 of her affidavit she wrote the following. She noted that Ms Wakeham had sent her an email with a lot of information and had also included a draft letter for her to look at. Paragraph 34:
In relation to Mr Saggers, I read Ms Wakeham’s email and the attached documents. In doing so I noted:
a.Mr Saggers’ actions to deregister his registration as a migration agent and the removal of his contact details as a migration consultant from his previous employer’s website;
b.Mr Saggers was still the authorised representative on two cases before the AAT, and he had not provided sufficient information regarding steps taken to remove himself from those cases;
c.The advice that Mr Saggers remained on ozmigrationagents.com, on LinkedIn under Australian Immigration Masters, and continued to be communicating with the AAT via email: [email protected] as a Principal Migration Agent;
d.Following the issue of the show cause letter, I understand that Mr Saggers sent a number of emails to Mr Baker which I consider to be inappropriate in tone for an APS employee. The substance of those emails were extracted in Ms Wakeham’s email to me;
e.Mr Saggers’ response in relation to the notice of termination of employment dated 15 March 2023 did not satisfy me that he understood his obligations under the Code and had taken reasonable steps to avoid a conflict of interest or had disclosed any details of any material personal interests in connection with his employment with the AAT.
35. Mr Saggers had not demonstrated to me that he had the capacity to comply with the Code for the reasons outlined in the above paragraph, including that he had active cases in the Migration Refugee Division (MRD) of the AAT where he was employed as an associate to provide direct support to members deciding cases under review in that division of the AAT. He had not demonstrated that he had taken appropriate steps to manage real or apparent conflicts of interest. He had not declared any interest when asked and apparent conflicts arose in his continuing online present and use of his email address. A reasonable person could interpret that a conflict arose in maintaining and promoting an online presence and identity as a migration agent, while employed as an associate to support the independent merits review of MRD decisions at the AAT.
36. For those reasons, I determined that Mr Saggers’ employment should be terminated. I drafted amendments to the termination letter and sent a signed copy of the letter to Ms Wakeham with instructions to issue to Mr Saggers. I made these amendments because I understood it was my decision and therefore I wanted to ensure the language of the letter was appropriate and communicated my reasons directly and succinctly. The termination letter fulsomely outlines my reasons for the decision to terminate Mr Saggers’ employment.
The termination letter is in the material and follows the description given by Ms Beaumont in her affidavit.
It is trite to say that applications for general protections are very narrow. General protection matters are distinct from unfair dismissal matters or other issues in the workplace that are adequately dealt with at the Fair Work Commission level. General protection is a civil remedy section and for that reason there is a great deal of detail as to what matters, and what matters only, enliven the jurisdiction.
The first aspect to bring to mind is whether a person has a workplace right. Pursuant to s 341(1) of the Fair Work Act 2009 (Cth) (“the FW Act”):
Meaning of workplace right
(1)A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
If a person does have a workplace right and exercises that workplace right, then an employer is prohibited from taking any adverse action against that employee simply because that employee exercised the workplace right. If it is that an employee can show that they have a workplace right, that they have exercised that workplace right and that there is a sufficient nexus between the exercising of that workplace right and the action taken against them, then s 361 of the FW Act reverses the onus and decrees that it is then for the employer to prove to the Court on the balance of probabilities that the adverse action was not taken for a prohibited reason.
The Applicant filed a statement of claim in this matter to properly plead that the Applicant came within the jurisdiction of the general protections’ legislation. The Applicant needed to particularise what was his workplace right and identify how it was that he exercised that right. In his statement of claim, he said the following. I read from part of paragraph 2:
2. The reason for the termination of the Applicant was, in whole or in part, because he protested at the inconsistent positions adopted with respect to his case. The Applicant complained about the changing of the goal posts regarding his business, Australian Immigration Masters.
3.This inconsistency of the respondent arose generally from, upon being told his status as a Registered Migration Agent before being offered the job, the Respondent expressed positivity and asserted that his experience and status would assist the role at the Respondent. The Applicant was never advised in the interview process that he had to de-register himself as a Migration Agent.
…
8. About one week after commencing, he was, though, told that he had to cancel his registration after all, as a condition of continuing employment. While complaining that this would render it impossible for him to take up employment if he ever left the employment of the Respondent, he did that. He pointed out that this requirement was inconsistent with what he had been told when he was being offered the job. In doing so, he was complaining of a breach of s 31 of the Australian Consumer Law…
9. He was then terminated on the grounds he was then falsely accused of continuing to work as a Migration Agent, which he had not done. He complained about this false claim that he had not disclosed things that he had disclosed. He was accused of having a conflict of interest, without it being said how that conflict arose. Because of the conduct of the employer throughout the employment, the relationship was one where the Applicant was constantly manoeuvred by the inconsistent behaviour of the employer into having to complain about his treatment.
There is simply no evidence that the Applicant made any of those complaints that he speaks about in the statement of claim. I have looked through the affidavits of the Applicant, as well as all the email correspondence between the Applicant and members of the AAT hierarchy. The Applicant did not, at any time, say to anyone, within the AAT, that what he was asked to do, when told to resolve the conflict of interests, was inconsistent with what he had been told during his interview with Ms Daniels.
I have already spoken about what it is that the Applicant says that he was told by Ms Daniels. It is clear that Ms Daniels told him that he would not be able to do any more migration work. He accepts this, but there is nowhere that he has said anything to anyone that, in being asked by HR to relinquish his status as a migration agent, that this was contrary to what he had been told at his interview. The Applicant has not, during this trial, particularised who it was to whom he made the complaint and when that complaint was made. Accordingly, there is no evidence that the Applicant made a complaint as was particularised.
During this trial, the Applicant seemed to have changed tack. He made submissions that his complaint about the inconsistency was not about the difference between what he claims he was told by Ms Daniels, as opposed to the direction given to him by Mr Baker, who was purportedly acting on the advice of the HR section.
He now claims that the inconsistency was that he complained that the AAT treated other employees, particularly who were admitted as solicitors, differently to how it was that he was being treated. Notwithstanding that this was not pleaded, the Respondents seem to have taken no issue with this particular change; however, again, there is no evidence that the Applicant made any such complaint to anyone.
This is not contained in any of the Applicant’s affidavits. It is not contained in the email correspondence that flowed quite voluminously during this time. The only matter that the Applicant hangs his hat on is that he asked a question of Ms Wakeham about their meeting on 10 March 2023, where he said that he put to her that, during the meeting he had said to her, and to Mr Baker, some words to the effect that the solicitors seemed to be working to different rules than he has to.
Ms Wakeham did not agree with this, but she did not disagree and said that she may have a vague recollection that something along those lines may have been said. I cannot count that as evidence of a positive assertion to the proposition that was put in cross-examination. It does not seem that the same question was asked of Mr Baker, either, but even on that question, that question was not evidence of a complaint that he was being treated differently to others, but, as I say, even if one could extrapolate that as being some form of evidence of a complaint, it was not one which was pleaded in the statement of claim.
The Applicant says now, as well, that he made a complaint that he was made to give up his right to be a migration agent, which would prevent him from being employed in that position if he were to ever leave the AAT. Again, this was not the subject of pleadings, and whilst it is that the Applicant raised such an issue at some stage, it was not in the form of a complaint that this was something that he should not have to do.
Given there is no evidence that a pleaded complaint was actually ever made, the general protections claim falls at the first hurdle; therefore, the general protections claim will be dismissed.
I should add that even if a complaint of the nature specified in the statement of claim had been made, it is questionable as to whether such a complaint would amount to a workplace right. The terms of the Applicant’s employment were that he must comply with the APS Code of Conduct. The complaint, that he particularises, is not a complaint that seeks to cavil with the fact of the code of conduct being somehow breached by the Applicant remaining as a migration agent. The Applicant, himself, in his evidence conceded that he knew it was a conflict of interest to still be on the record for two Applicants before the AAT.
This means that this complaint, if it had been made, may very well be a complaint that does not relate to a subject matter of which the contract of employment makes provision. In that respect, I note Alam v National Australia Bank Ltd [2021] FCAFC 178.
But even if this were a workplace right, and even if it had been exercised, I am of the view that the respondents had discharged the onus thrust upon it by s 361 of the FW Act for the reasons that Ms Beaumont gave for terminating the employment.
I now turn to the breach of contract aspect. The Applicant claimed that there was also a breach of the employment contract. In the statement of claim the Applicant wrote:
The respondent breached its obligations under the applicant’s employment contract by terminating the applicant without just cause, proper notice, or any opportunity to remedy the alleged deficiencies.
For there to be a breach of contract, there must be a specific term of the contract that was breached. In this case, the Applicant’s employment was governed by the Public Service Act 1999 (Cth) and the salient aspects of the Applicant’s employment were covered in the notice of non-ongoing engagement.
That notice, which is found at CB 587 and 588, speaks of the fact that the Applicant was on probation. It read:
Your employment is subject to a probation period of up to six months from the date of commencement.
The section headed Termination reads:
Unless it is terminated sooner, your employment will terminate by operation of law at the close of business on the last day of the specified term or on completion of the specified task. Your employment may be terminated under the Public Service Act for the expiry of the specified term or the completion of the specified task. If the AAT initiates termination before the expiry of the specified term, you will be given four weeks’ notice except for termination due to under performance or misconduct. A termination payment will be made where this is required by the Fair Work Act.
The contract does not have any specific term that says that termination cannot be without just cause, that termination cannot be without proper notice or that termination cannot be without any opportunity to remedy the alleged deficiencies.
The Applicant has not suggested what term of the contract was breached. He simply relies on the general conduct towards him as being unfair; however, the fact was that he was in his probation period, and this means that he can be dismissed for any reason that is not unlawful during that period.
It is for the Applicant to prove the breach of contract. He has not addressed this at all in any of his submissions. His pleadings do not speak of what term of the contract was breached and there is no evidence that the Applicants breached the term of contract, nor was it suggested to any of the witnesses that a term of the contract had been breached. The Applicant in his affidavits did not talk of what term of the contract had been breached.
This means that the breach of contract claim also fails.
The order of the Court is that the application filed by the Applicant on 8 June 2023 is dismissed.
At the conclusion of my ex-tempore decision, the counsel for the AAT made an application for costs.
As I noted during the discussion that followed, there were two distinct claims. One was the general protections claim and the second was the breach of contract claim. The breach of contract claim was able to come to this Court through its accrued jurisdiction in that the matters upon which such a claim for breach of contract arose were matters within the facts and circumstances of an action about which this Court did have jurisdiction. The accrued jurisdiction is, therefore, one that applies here, and it led the Court to be able to hear the breach of contract case.
I did say to the Applicant that, because he had launched a breach of contract case, the costs aspect of that is quite different to the costs aspect of the general protections regime. I have been corrected on that by counsel for the AAT, who has acted in the best traditions of the independent bar and put his obligation to the Court before that of any obligation he has to his client. He has reminded me that there are other authorities that tend to show that, if an action is brought before the Court in its accrued jurisdiction, then the rules as to costs that apply to the primary cause of action will then apply to the accrued jurisdiction action. This means that I should be looking at the same provisions as to both claims.
The notion of costs are governed by s 570 of the FW Act. That is headed Costs Only if Proceedings Instituted Vexatiously, et cetera. The apposite piece of legislation reads in this way: that a party may be ordered to pay costs only if the Court is satisfied that the party instituted the proceedings without reasonable cause. That has been taken to mean that the party instituted the proceedings where it was that there was no reasonable prospect of success.
In this case, what has been said by the Respondent is consistent with the findings that I have made; that is, that the pleaded complaint may very well not have been a workplace right for the reasons that I spoke of during the course of the ex-tempore judgment. I did not have to decide that point, because I found that there was no evidence of the complaint in the first place, which meant that the first hurdle had not been cleared.
The institution of the proceedings with its statement of claim, even though that statement of claim followed a little bit later, must have adumbrated that there would be evidence that would back this up; however, one would have thought that the evidence would have been well and truly present in the correspondence that went backwards and forwards between the hierarchy of the AAT and the Applicant himself. As I said during the course of the ex-tempore judgment, there just simply was no such evidence.
To launch a proceeding identifying a workplace right and then giving no evidence of the exercise of that workplace right, or even identifying that workplace right in the evidence that was then filed to prove the claim, can only be described as an action without reasonable cause.
This was a matter that was, therefore, always doomed to fail.
The Applicant, it would seem, recognised that himself yesterday, but still wished to proceed. The purpose of s 570 is to protect workers who do have a genuine grievance against their employer, but would ordinarily baulk at the fact that, if they failed in the action, they would be responsible for costs from entering into the litigation stream.
It is for those public policy reasons that s 570 was enacted, but even that has its limits. As Mr Seck submitted, the AAT should never have had to defend this action. The AAT has expended public moneys defending something which it should never have had to do in the first place.
Mr Seck, whilst not being able to give a precise sum, has said that the AAT has expended over $50,000 of its money in a period where the AAT is trying to get through a huge backlog, especially in the migration and refugee division. Having to spend upwards of $50,000 defending what are unmeritorious claims, is something that the Court needs to take very great heed of.
The other aspect of this was that the Applicant is no babe in the woods. The Applicant is a gentleman of 54 or 55 years of age who has been around the block, who knows what he was doing and was adamant that he knew what he was doing when he first appeared in my Court. When it was that I told him about the pitfalls of persons representing themselves in general protections matters, and I explained many lawyers simply do not understand the subtleties of this jurisdiction, the Applicant remained undeterred. Whether it was false bravado, or whether it was a true arrogance, or whether it was a delusional belief that his claim had some merit, nevertheless, despite all the warnings, the Applicant said that he wanted to, as it were, box on.
That decision will now, unfortunately, cost him money. He says that it will cost him his livelihood, because he simply does not have the money and he pursued this because he was given some odd advice by a person who purports to be a Fair Work specialist that he would not have to face any costs consequences in taking such action.
It, therefore, seems to me that I should make an order for costs.
The question then is what quantum. If it were that I sent the matter off to be taxed in the usual way, there will be more costs. It would also mean there would be a delay in the finalisation of this matter. This matter has gone on for far too long and it needs to be brought to an end today.
I am of the view that the Court should make a costs order in a fixed sum. Whilst the AAT has said that their costs are greatly over $50,000, they would be content for an order for $30,000. Taking into account what they have asked, but also having to temper that greatly because of the impecuniosity of the Applicant, which I do accept, I am of the view that the costs to the AAT should be fixed at a sum much lower than the $30,000.
It is, after all, a discretionary matter for me in all of the circumstances. I order that the Applicant pay the costs of the Respondent fixed in the sum of $12,000.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 18 April 2024
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