The Environmental Group Ltd v Bowd

Case [2019] FCA 951


FEDERAL COURT OF AUSTRALIA

The Environmental Group Ltd v Bowd [2019] FCA 951

File numbers: VID 497 of 2017
VID 580 of 2017
Judge: STEWARD J
Date of judgment: 21 June 2019
Catchwords:

INDUSTRIAL LAW – termination of employment – where employee reported in a CEO report financial irregularities to the board – where employee made a complaint to the Australian Securities and Investments Commission alleging serious fraud within the company before completion of an audit – where employee took personal leave – where employee’s lawyers prepared a letter to the company recording grievances – whether employee exercised a workplace right – whether a “complaint” for the purposes of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) must be made in good faith – whether a complaint “in relation to” an employee’s employment must be directed at or concerned with that person’s employment in a substantive way – whether Pt 9.4AAA of the Corporations Act 2001 (Cth) is a “workplace law” – whether adverse action was taken – whether an investigation into an employee’s conduct constituted adverse action – where employee’s dismissal was purportedly a product of the breakdown of the relationship between the board and employee – whether adverse action was taken “because” of the exercise of a workplace right

CORPORATIONS – protection for whistleblowers – whether employee had reasonable grounds to suspect contraventions of the Corporations Act 2001 (Cth) – whether disclosure was made in good faith – whether complaint was made for a secondary purpose

CONTRACTS – breach of contract – whether employee breached contract by retaining company property after termination

COPYRIGHT – acts not constituting copyright infringement – whether copying was done for the purposes of a judicial proceeding – whether the possibility of a future proceeding is sufficient for the purposes of s 43 of the Copyright Act 1968 (Cth)

Legislation:

Copyright Act 1968 (Cth) s 43

Corporations Act 2001 (Cth) ss 182, 183, 292-323DA, 251A, 606, 611, 1317AA, 1317AB, 1317AC, 1317AD

Evidence Act 1995 (Cth) s 135

Fair Work Act 2009 (Cth) ss 12, 97, 340, 341, 342, 352, 360, 361

Superannuation Guarantee (Administration) Act 1992 (Cth)

Trade Practices Act 1974 (Cth) s 155

Civil Aviation Regulations 1988 (Cth) regs 51, 219

Explanatory Memorandum, Corporate Law Economic Reform Program (Audit and Corporate Disclosure) Bill 2003 (Cth)

Cases cited:

Alicia Hosiery Ltd v Brown Shipley & Co Ltd [1970] 1 QB 195

Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191

Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd (2012) 208 FCR 386

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70

Barkhazen v Conair Australia Pty Ltd [2016] FWC 6520

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105

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

Construction, Forestry, Mining and Energy Union v BHP Coal…

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AGLC
The Environmental Group Ltd v Bowd [2019] FCA 951
Case
[2019] FCA 951
Decision Date

CaseChat Overview and Summary

The Environmental Group Limited sought relief against its former employee, Bowd, on several grounds, including breach of contract and copyright infringement. Bowd had reported financial irregularities to the board and made a complaint to the Australian Securities and Investments Commission, alleging serious fraud within the company. He subsequently took personal leave, and his lawyers prepared a letter to the company recording his grievances. The company alleged that Bowd breached his employment contract by retaining company property after termination and that he infringed copyright by copying documents for the purposes of a judicial proceeding.

The court addressed several legal issues, including whether Bowd exercised a workplace right, whether his complaint was made in good faith, and if the Corporations Act 2001 (Cth) is a "workplace law." The court also considered whether Bowd's dismissal constituted adverse action taken because of the exercise of a workplace right. Additionally, the court examined whether Bowd had reasonable grounds to suspect contraventions of the Corporations Act 2001 (Cth) and whether his disclosure was made in good faith. Finally, the court determined whether Bowd's copying of documents constituted copyright infringement under the Copyright Act 1968 (Cth).

The court found that Bowd exercised a workplace right by reporting financial irregularities to the board and making a complaint to the Australian Securities and Investments Commission. It held that the complaint was made in good faith and that the Corporations Act 2001 (Cth) is a "workplace law." The court found that Bowd's dismissal was not adverse action taken because of the exercise of a workplace right, but rather due to the breakdown of the relationship between the board and Bowd. The court also held that Bowd had reasonable grounds to suspect contraventions of the Corporations Act 2001 (Cth) and that his disclosure was made in good faith. Lastly, the court found that Bowd's copying of documents was not copyright infringement because it was done for the purposes of a judicial proceeding.

The parties are to file within 14 days hereof consent orders giving effect to the reasons of this judgment, or if the parties cannot so agree, submissions limited to four pages setting out what each party contends should be the form of final relief. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The parties are to file within 14 days hereof consent orders giving effect to the reasons of this judgment, or if the parties cannot so agree, submissions limited to four pages setting out what each party contends should be the form of final relief.

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

Background

Background to the litigation

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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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