Xu v The Servants of Jesus Community Pty Ltd
[2025] FedCFamC2G 1369
•22 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Xu v The Servants of Jesus Community Pty Ltd [2025] FedCFamC2G 1369
File number(s): SYG 597 of 2025 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 22 August 2025 Catchwords: INDUSTRIAL LAW - Application pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) for extension of time within which to make a general protections court application – whether applicant has given adequate explanation for delay – whether applicant has meritorious claim if extension granted – proceeding dismissed. Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 343, 348, 351, 360, 361, 368, 370, 723, 772
Industrial Relations Act 1988 (Cth)
Work Health and Safety Act 2011 (Cth) s 19
Workplace Relations Act 1996 (Cth) s 298K(1)
Cases cited: Alam v National Australia Bank Limited [2021] FCAFC 178
Australian Building and Construction Commissioner v Hall [2018] FCAFC 83
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
Childs v Metropolitan Transport Trust [1981] FCA 200
Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329
Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162
Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72
Esso Australia Pty Ltd v The Australian Workers' Union; The Australian Workers' Union v Esso Australia Pty Ltd [2017] HCA 54
Fahda v Bupa HI Pty Ltd [2025] FedCFamC2G 1316
Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923
Kelly v Corporation of the Synod of the Diocese of Brisbane [2023] FCA 829
Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 165 ALR 67
Monash Health v Singh [2023] FCAFC 166
Oxford English Dictionary
Qantas Airways Limited v Transport Workers’ Union of Australia [2023] HCA 27
Russell v Trustees of the Roman Catholic Church, Archdiocese of Sydney [2007] NSWSC 104
Sayabath v Willowdale Nominees Pty Ltd, Williams, Cooper, Notley [2023] FedCFamC2G 104
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160
Division: Fair Work Number of paragraphs: 81 Date of last submission/s: 11 June 2025 Date of hearing: 22 May 2025 The Applicant: Applicant in person, by video Counsel for the Respondent: Ms A Perigo Solicitor for the Respondent: Haywards Solicitors
Table of Corrections 25 August 2025 Paragraphs 54 and 56 have been deleted Paragraph 55 has been renumbered as paragraph 54 Paragraphs 57-83 have been renumbered as paragraphs 55-81 ORDERS
SYG 597 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MIN XU
Applicant
AND: THE SERVANTS OF JESUS COMMUNITY PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
22 AUGUST 2025
THE COURT ORDERS THAT:
1.Subject to order 2, the affidavit and letter referred to in paragraph 20 of the reasons for judgment on the basis of which these orders are made remain suppressed.
2.The respondent have liberty to apply within 14 days after the date on which these orders are pronounced to vary or discharge order 1.
3.The applicant’s application for an order extending the period provided for by s 370(a)(ii) of the Fair Work Act 2009 (Cth) is dismissed.
4.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
The applicant, Ms Xu, applies for an order under s 370(a)(ii) of the Fair Work Act 2009 (Cth) (FW Act) permitting her to make a “general protections court application” to this Court on 26 February 2025, being 12 days after the date by which Ms Xu was required to have made that application. (I explain later in these reasons the meaning of “general protections court application”.)
BACKGROUND
Ms Xu commenced employment with the respondent (SOJ) in October 2022 as a finance manager.
On 1 November 2024 Mr Mike McGrillen, SOJ’s operations manager, sent a letter (Show Cause Letter) to Ms Xu informing her that SOJ was considering terminating Ms Xu’s employment for the reasons set out in the letter. The Show Cause Letter made the following allegations:
(a)On 6 September 2024 Ms Xu was directed (first direction) to process expense payments for pastors in accordance with SOJ’s usual practice, and in accordance with advice received from SOJ’s auditor.
(b)The First Direction was given to Ms Xu after a pastor made complaints to SOJ on 14 August 2024 that Ms Xu had been requesting copies of additional receipts beyond the amounts of reimbursements claimed. On receiving the pastor’s complaints, SOJ sought the advice of the auditor regarding the requirement to provide such receipts. The auditor confirmed it was not necessary; and on 6 September 2024 the auditor’s advice was explained to Ms Xu. Ms Xu, however, continued to refuse to process expense payments in accordance with SOJ’s usual practice.
(c)Mr McGrillen met with Ms Xu on 6 September 2024 to discuss the processing of expense payments, and the advice of the auditor. Ms Xu told Mr McGrillen that she did not accept the auditor’s advice was correct, and that she had emailed the auditor herself to obtain clarification. Ms Xu was advised that SOJ confirmed the advice with the auditor, and that his advice was accepted. Ms Xu was again directed to follow SOJ’s procedures and processes (second direction).
(d)On 23 October 2024 SOJ received a complaint from another pastor that Ms Xu had been requesting copies of receipts in relation to expense claims, contrary to the first and second directions. On that day Mr McGrillen again met with Ms Xu to discuss the processing of expense payments, and he directed Ms Xu to process the expense payments in accordance with SOJ’s usual practice, and in accordance with the auditor’s advice (third direction). Ms Xu advised Mr McGrillen that she refused to follow that direction on the basis that she did not accept the auditor’s verbal advice, and she was required to see it in writing.
(e)On 23 October 2024 Mr McGrillen requested the auditor confirm his advice in writing. The auditor did so and, on 23 October 2024, Mr McGrillen forwarded the auditor’s advice to Ms Xu by email confirming that it was a “clear instruction”, and he asked Ms Xu to follow SOJ’s processes.
(f)Mr McGrillen again met Ms Xu on 30 October 2024 during which he directed Ms Xu to follow the auditor’s advice, and process expense payments to pastors in accordance with SOJ’s usual practice (fourth direction). Ms Xu advised Mr McGrillen that she would not accept his instruction to follow SOJ’s procedures. Mr McGrillen advised Ms Xu that she was required to follow clear directions, or she will be in breach of her contract of employment.
(g)On 30 October 2024 Ms Xu sent an email to Mr McGrillen in which she indicated that she still did not accept Mr McGrillen’s direction.
(h)On each occasion Ms Xu had been asked to comply with SOJ’s directions, Ms Xu’s behaviour failed to meet the standards and expectations required of her.
(i)SOJ considered that by failing to follow reasonable directions, Ms Xu breached her contract of employment, and had engaged in serious misconduct. For that reason, SOJ was seriously considering terminating Ms Xu’s employment, but wished to meet with her at 10:00 am on 6 November 2024 to discuss her response to the above matters, noting that, if SOJ is not satisfied with Ms Xu’s response, Ms Xu’s employment may be terminated with immediate effect.
On 8 November 2024 Ms Xu sent two emails which were intended to constitute a single response to Mr McGrillen’s letter dated 1 November 2024. In those emails Ms Xu made a number of statements, including the following:
(a)Ms Xu did not receive a formal direction from Mr McGrillen on 6 September 2024. Ms Xu’s impression was that Mr McGrillen talked to Ms Xu “saying that SOJ should take the works said by the auditor on the August’s [sic] meeting”. But the auditor’s opinion contradicted his earlier opinion in February 2023 “so I have not accepted that it is a correct opinion”.
(b)Ms Xu has conducted her duties of processing pastor expenses.
(c)Ms Xu denied Mr McGrillen had given Ms Xu the “second direction”.
(d)Ms Xu acknowledged that she heard from Mr McGrillen: “if you won’t follow my order, your contract will be terminated”, but he said these words after Ms Xu said that the words of the auditor were not clear enough and had not addressed Ms Xu’s concerns regarding GST and PAYG tax compliance.
(e)Ms Xu does not remember saying “pastors are corrupt”; but whether she said those words or not, “the saying of that must be worded with a context of the two pastors groundlessly complained [sic] to managers about me”.
(f)Ms Xu’s title as “finance manager” included the duty to ensure tax compliance.
On 13 November 2024 Mr McGrillen sent a letter to Ms Xu terminating her employment (Termination Letter). In that letter, Mr McGrillen stated the following:
(a)Mr McGrillen had sent the Show Cause Letter, and he had scheduled a meeting with Ms Xu at 10.00 am on 6 November 2024.
(b)On 5 November 2024 Mr McGrillen asked Ms Xu to provide a written response to the Show Cause Letter.
(c)Ms Xu did not attend the scheduled meeting at 10.00 am on 6 November 2024. Mr McGrillen rescheduled the meeting to 9.30 am on 9 November 2024; but Ms Xu did not attend that meeting either.
(d)On 8 and 11 November 2024 Ms Xu provided two written responses to the Show Cause Letter. Ms Xu’s written responses did not satisfactorily explain why she failed to follow SOJ’s lawful and reasonable directions on four separate occasions.
(e)SOJ, therefore, decided to terminate Ms Xu’s employment.
On 3 December 2024 Ms Xu filed a Form 8 General Protections Application with the Fair Work Commission (FWC) pursuant to s 365 of the FW Act. SOJ filed a Form 8A in response to Ms Xu’s application. On 16 January 2025 Ms Xu and a representative of SOJ attended a conciliation, but the matter was not resolved. The FWC issued a certificate (Certificate) under s 368(3)(a) of the FW Act on 31 January 2025. The Certificate stated that “the person dismissed has 14 days after the day this certificate is issued within which to make a general protections court application to the Federal Court of Australia or the Federal Circuit and Family Court of Australia for a civil remedy order, unless the court extends the time for making such application”.
The expression “general protections court application” (GPC application) is defined in s 368(4) of the FW Act to mean an application to a court under Division 2 of Part 4-1 of the FW Act for orders in relation to a contravention of Part 3-1 of the FW Act. Under s 370(a)(ii) of the FW Act, an employee cannot make a GPC application in relation to a dismissal unless it is made within 14 days after the FWC issues a certificate under s 368(3)(a), or within such period as the Court allows on an application made during or after those 14 days. Thus, if Ms Xu wished to make a GPC application to this Court or to the Federal Court of Australia, she was required to do so by 14 February 2025, being 14 days after the date of the Certificate.
Ms Xu applied for legal aid but, by letter dated 5 February 2025, Legal Aid NSW refused Ms Xu’s request. It appears that Ms Xu appealed against the refusal to grant legal aid.
At 1.04 pm on 13 February 2025 Ms Xu sent an email to Ms Dodd, SOJ’s lawyer, requesting SOJ’s “consent to proceed with arbitration” by the FWC. By email sent at 3.58 pm on 13 February 2025 Ms Dodd said she was in the process of seeking instructions about Ms Xu’s request. At 11.06 am on 14 February 2025 Ms Dodd sent an email to Ms Xu in which she said that SOJ did not consent to arbitration.
Ms Xu did not make a GPC application to this Court by 14 February 2025. Instead, at 2:22 pm on 14 February 2025, Ms Xu sent an email to the Court’s Registry requesting an extension of 21 days. Ms Xu said she was issued with the Certificate on 31 January 2025, but she had not heard back from “Legal Aid of my Appeal”. Ms Xu said that as “I am currently suffering for this work-related psychological injury, I have not got a lawyer to help me lodging the claim or giving me sufficient advice”.
At 4.34 pm on 26 February 2025 Ms Xu lodged for filing in this Court an application and Form 2.
On 1 April 2025 I made orders setting down for hearing Ms Xu’s application pursuant to s 370(a)(ii) of the FW Act to extend time at 10.15 am on 22 May 2025, and made directions for the filing of affidavits and submissions (by SOJ) in relation to the hearing of Ms Xu’s application.
APPLICATION FOR AN ADJOURNMENT
Ms Xu’s application for an extension of time came before me for hearing on 22 May 2025. Ms Xu appeared by video without any legal assistance.
At the beginning of the hearing Ms Xu applied for an adjournment of two weeks. I asked Ms Xu what she expected would happen if I were to grant her the adjournment. Ms Xu said she would be able to find a lawyer; but immediately after she said this Ms Xu said two weeks might be very tight, and then she asked for an adjournment of three months. Ms Xu also referred to her having a sickness. I asked Ms Xu what it was about the conditions from which she suffered that made it difficult for her to present her case. I did not understand Ms Xu to have directly responded to this question; Ms Xu instead referred to her sickness causing her to delay in filing the application in this Court. I also asked Ms Xu whether if I gave her the adjournment she sought she would be in a better position to present her case or obtain a lawyer. Again I did not understand Ms Xu to have directly responded to my question.
As this part of the hearing proceeded I became aware that Ms Xu had sent an email to my Associate’s inbox at 12.46 pm on 21 May 2025, and an email she sent to my Associate’s inbox at 4.17 pm on 21 May 2025. In the 12.46 pm email Ms Xu applied for an adjournment. Ms Xu said she felt “some sort of pain in my heart area last night and today bothered with high blood pressure”. Ms Xu attached a medical certificate from a general practitioner who said that Ms Xu “stated last night she had suffered from a lot of stress, fatigue”, and, for that reason, she “is unable to work from 21-05-25 to 22-05-25 inclusive”. Ms Xu also attached the results of an ultrasound of Ms Xu’s right ankle which recorded “[r]ight ankle joint effusion noted”.
In the email she sent at 4.17 pm on 21 May 2025, Ms Xu noted that, because she had not received a response to her email she had sent at 12.46 pm, she was not sure her “previous email explained my situation”. The 4.17 pm email disclosed what appeared to be privileged communications between Ms Xu and a lawyer whom she had retained on 13 May 2025, but who terminated his engagement with Ms Xu on 21 May 2025. In her email Ms Xu said that she had expected her lawyer to appear at the hearing, but now she would be without a lawyer. After hearing further submissions from Ms Xu, and submissions from counsel for SOJ in opposition to Ms Xu’s application for an adjournment, I informed the parties that I was going to refuse Ms Xu’s application for an adjournment, and would give my reasons for doing so when I give my reasons on the application for an extension of time.
There are five reasons for my having refused Ms Xu’s application for an adjournment. First, there would be no utility to Ms Xu if I were to grant an adjournment because there was no basis on which I could be confident that the adjournment would result in Ms Xu being able to engage a lawyer. The lack of confidence was reinforced by Ms Xu’s having engaged a lawyer on 13 May 2025 who only just over one week later terminated the retainer. Second, Ms Xu had already prepared and filed the material on which she intended to rely in support of her application for an order under s 370(a)(ii) of the FW Act. Third, I was not satisfied that the medical material on which Ms Xu relied affected her ability to present her case, and, in any event, I was not satisfied that if an adjournment were granted Ms Xu would not continue to be subject to those medical conditions. Fourth, Ms Xu had sufficient time to prepare her case. Fifth, there is the prejudice SOJ would suffer if an adjournment were granted, first, in the lost costs it will have incurred, if an adjournment were granted, and, second, from the delay itself.
THE HEARING OF SUBSTANTIVE APPLICATION
After I indicated that I would refuse Ms Xu’s application for an adjournment, I explained to Ms Xu the procedure that would be followed, and the principles that govern the exercise of the power to make an order under s 370(a)(ii) of the of the FW Act extending time. Ms Xu said she relied on three affidavits, these being the affidavits she made on 21 April 2025, 18 May 2025, and 20 May 2025. Counsel for SOJ read the affidavit of Ms Dodd, who, as I have already noted, is the lawyer for SOJ.
EVENTS AFTER THE HEARING
At the conclusion of the hearing I reserved my judgment and listed the matter for judgment on 13 June 2025. On 30 May 2025, however, I directed my Associate to inform the parties that I would not be in a position to give judgment on 13 June 2025, and the parties would be notified of the time and date on which I would give judgment.
When preparing these reasons, I became aware that Ms Xu had filed an affidavit on 11 June 2025 together with a letter in which Ms Xu referred to her having filed “a short Supplementary Affidavit” with a request that the annexure to the affidavit be treated as confidential. I also noticed that in the Court file the affidavit and letter were marked “suppressed”. In her letter Ms Xu inquired whether she needed to serve the affidavit on SOJ. From that request, I take it that Ms Xu has not served the affidavit on SOJ, and that SOJ, therefore, is unaware that Ms Xu has filed the affidavit and the letter.
Ms Xu had no right to file the affidavit without first giving notice to SOJ of her intention to do so, and without my leave. I have looked at the affidavit, however, to determine whether it contains any material that is potentially relevant to the matters I have to decide with a view to inviting submissions from SOJ on whether I should grant Ms Xu leave to rely on the affidavit. I am satisfied the affidavit raises no such potential issue. I therefore propose to make an order that the affidavit and letter remain suppressed, subject to granting SOJ liberty to apply within 14 days after I pronounce orders to vary or discharge the order I propose to make.
PRINCIPLES FOR EXTENDING TIME
The principles I should apply in determining whether to extend the period to 26 February 2025 by which Ms Xu may make a GPC application are those Marshall J stated in Brodie-Hanns v MTV Publishing Limited when considering a provision in the Industrial Relations Act 1988 (Cth) that is similar to s 370(a)(ii) of the Act. His Honour said:[1]
1.Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2.Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3.Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4.The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5.The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6.Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”
[1] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, at pages 299-300.
Also relevant is the following passage from the judgment of Logan J in Kelly v Corporation of the Synod of the Diocese of Brisbane:[2]
It is important to remember when considering whether or not to grant an extension of time under s 370(a)(ii) that an applicant need not show special circumstances. All that an applicant need do is provide an adequate explanation as to why an extension should be granted. Parliament has, in s 370, deliberately chosen two jurisdictional preconditions: one, that found in paragraph (a)(i), reflects a deliberate value judgment by parliament that there should at least be an endeavour before this Court’s jurisdiction is invoked to reach a consensual outcome by conciliation within the Industrial Commission; the other reflecting the nature of employer/employee relations is to specify within paragraph (a)(ii) a very short period, indeed, a fortnight, within which, if conciliation has or is unlikely to be successful, to institute a proceeding in the court or alternatively the Federal Circuit and Family Court. That 14 day period may be seen to reflect a need for certainty within the workplace as to the finalisation of any controversy as between employer and employee with respect to a particular dispute in relation to which a person is entitled to apply under s 365 of the FWA to the Industrial Commission.
[2] Kelly v Corporation of the Synod of the Diocese of Brisbane [2023] FCA 829, at [47].
EXPLANATION FOR DELAY
In her affidavit made on 18 May 2025 Ms Xu deposes that her delay in commencing the proceeding was due to a number of factors: her medical condition, which Ms Xu says was triggered by SOJ’s conduct; the refusal of legal aid; Ms Xu’s being unemployed; and Ms Xu’s not knowing Australian law and having no experience in litigation. Ms Xu annexed a report from a psychologist dated 19 March 2025. The psychologist states Ms Xu has been in the psychologist’s care since May 2022, and that Ms Xu has been experiencing chronic anxiety and depression which significantly impacts her ability to make decisions, concentrate, retain information, and manage stress. The psychologist also states that Ms Xu’s mental health “further deteriorated following the termination of her employment after she refused to comply with an unethical directive from her employer”.
I do not have any doubt that Ms Xu has the psychological conditions from which she says she suffers; and the evidence establishes that she sought to obtain legal aid. These matters, however, do not provide an adequate explanation for Ms Xu not having commenced the proceeding in this Court by 14 February 2025. Ms Xu was able to file her Form 8 General Protections Application with the FWC, and attend the conciliation on 16 January 2025; and Ms Xu was able to apply for legal aid, and (apparently) lodge an appeal against the refusal. Moreover, Ms Xu has prepared a Form 2 which, by itself, is a basis for inferring that she was in a position to have done so by 14 February 2025.
I am therefore not satisfied that Ms Xu has provided an adequate explanation for her delay.
APPARENT MERITS OF CLAIMS
Ms Xu’s claims
In her Form 2 Ms Xu makes the following allegations:
(a)Between February 2023 and October 2024 Ms Xu raised multiple concerns account SOJ’s accounting practices.
(b)Since September 2024 Ms Xu’s manager, Mr McGrillen, started asking Ms Xu to consider the feasibility of paying refunded GST “per exempt benefit to pastors or changing exempt benefit from prepayment practice to former CFO’s reimbursement payment practice”.
(c)On 23 October 2024 Mr McGrillen requested Ms Xu to pay refunded GST per exempt benefit to pastors. Despite Ms Xu’s belief that Mr McGrillen’s request did not comply with “ATO’s guideline”, Ms Xu’s requests on further clarification from the ATO before proceeding was refused.
(d)During a meeting on 30 October 2024 Mr McGrillen threatened Ms Xu with dismissal unless Ms Xu agreed to follow his instruction to pay “the refunded GST to pastors”, which Ms Xu “reasonably believed were unlawful”. Feeling pressured and unwell, Ms Xu submitted her resignation email, but also raised her concern with a board member.
Under the heading “Adverse Actions (s 340, s 341, s 723)”, Ms Xu claims that SOJ and Mr McGrillen took the following adverse action against her:
(a)Mr McGrillen used the misleading term “fringe benefit” rather than the normal term “exempt benefit” “to conceive [sic] his real intention to ask [Ms Xu] to work on an unlawful instruction”.
(b)SOJ threatened dismissal for raising concerns about compliance with tax laws, company policy, and accounting practices.
(c)SOJ dismissed Ms Xu “for a prohibited reason”.
(d)SOJ and Mr McGrillen disregarded Ms Xu’s physical and psychological illness; disregarded Ms Xu’s replies, “violated Workers Compensation Act of not terminating an employment within 6 months, dismissed [Ms Xu] in 7 days after the health diagnose [sic]”.
(e)SOJ failed to implement any anti-bullying harassment policies, creating a hostile and unsafe environment.
Under the heading “Breach of Workplace Rights (s340, 341)”, Ms Xu claims she exercised the following workplace rights under s 340, s 341, and s 723 of the FW Act as follows:
(a)Based on her investigations on tax law, enquiries with the ATO, the existing Pastor’s Remuneration Policy, and the codes of conduct of SOJ and CPA Australia, Ms Xu refused to work on an instruction which was unlawful, and which was “implicitly harmful” to Ms Xu. Under the FW Act an employer cannot terminate an employee for refusing to engage in illegal behaviour.
(b)While suffering “a couple of physical and mental impairments caused by the work related stress, and worsened by sustained threats”, Ms Xu used her sick leave. Under s 19 of the Work Health and Safety Act 2011 (Cth) an employer has a duty of care to provide a safe work environment, and take steps to minimize injury arising from such conduct.
Under the heading “Adverse Actions (s.343)”, Ms Xu claims that SOJ and Mr McGrillen took adverse action against Ms Xu, including the following:
(a)coercing Ms Xu not to use sick leave by threatening Ms Xu “with dismissal (in the Notice of Termination) in ‘serious misconduct’ [sic] to create blockage to my new job seeking”’;
(b)coercing Ms Xu not to use sick leave or Workcover leave in lieu of notice period “if accepting my resignation email”;
(c)retaliating against Ms Xu by “shifting” “serious misconduct” on her to stop Ms Xu’s possible reporting to the SOJ board, or “being inquired by a church member”; and
(d)stopped Ms Xu’s “chance of returning to [sic] original workplace” by dismissing her on 13 November 2024.
Under the heading “Breach of Workplace Rights (s.343)”, Ms Xu says she exercised some workplace rights under s 343 of the FW Act by the “right to seek using my sick leave” because of what happened on 30 October 2024; seeking an extension to respond to employer’s untrue allegations; and stop answering “venomous allegations and countering back untrue description of ‘normal accounting practice’”.
Under the heading “Adverse Actions (s.351)”, Ms Xu claims:
(a)Mr McGrillen failed to address Ms Xu’s complaints about “disruptive behaviours of two” pastors “who violated the Pastors Remuneration Policy”;
(b)The chief executive officer failed to address Ms Xu’s complaints about “inactive or threatening behaviours of” Mr McGrillen, and failed to conduct impartial investigations;
(c)SOJ failed to follow fair procedures in addressing allegations of misconduct “which constituted the reasons for dismissal”;
(d)SOJ did not provide Ms Xu with adequate and professional training later on when they “pushed” Ms Xu to “implement tax risky practice and had never provided” Ms Xu with a “practical, economic commercial, political or religious reason why they had to annul the existing policy, such as using bonus to increase the revenue of pastor rather than the refunded GST”;
(e)SOJ did not, during interviews or initial months, introduce Ms Xu of SOJ’s future schedule of restructuring its accounting leadership that it added a Treasury role, and Ms Xu “had never been noticed to bystand [sic] a directors’ meeting”;
(f)Ms Xu was “bullied, coerced and injured because being an Asian female manager”, with SOJ not thinking that Ms Xu “deserved to be reasonably consulted, to provide duty of care even [where] there is a dispute in opinion, and eventually to provide [Ms Xu] the freedom to a new job by giving a fair comments [sic]”.
Under the heading “Breach of Workplace Rights (s.351)”, Ms Xu claims SOJ breached s 351 of the FW Act by exercising the following workplace rights:
(a)complaining to Mr McGrillen orally on 4 September 2024, and once more “on October 2024” about a pastor’s “provocative words” of “you overclaimed GST from ATO”;
(b)complaining to Mr McGrillen orally on 25 October 2024 about another pastor’s constant delay or mistakes on submitting receipts;
(c)complaining to the chief executive officer and by email to SOJ’s board about Mr McGrillen’s “inaction about providing supports [sic] on assisting the implementation of Pastor Remuneration Policy and ensuring sound tax system”; and
(d)getting clarification of Ms Xu’s scope of duty and authorisation, as the only foreign born, Asian woman.
Ms Xu alleges that SOJ’s actions have caused her significant distress, and triggered psychological injury, as detailed in her psychologist’s report of 7 November 2024.
Provisions of the FW Act on which Ms Xu relies
Ms Xu claims that SOJ contravened s 340, s 341, s 342, s, 343, s 351, s 723, and s 772.
Subsection 340(1) [3]
[3] In this section of my reasons I have repeated much of what I said in Fahda v Bupa HI Pty Ltd [2025] FedCFamC2G 1316, at [103] - [118].
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.[4] 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:
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
Subsection 386(1) of the FW Act provides that:
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.[5]
[5] 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[6] with approval to the following passage from the reasons for judgment of Smithers J in Childs v Metropolitan Transport Trust:[7]
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.
[6] Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329, at 341 [72].
[7] 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[8] R D Nicholson J referred to the following passage from the reasons for judgment of Smithers J in Childs v Metropolitan Transport Trust:[9]
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.
[8] Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 165 ALR 67, at 100-101 [229].
[9] Childs v Metropolitan Transport Trust [1981] FCA 200.
“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:[10]
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.
[10] Alam v National Australia Bank Limited [2021] FCAFC 178, at [59]-[60].
The ordinary meaning of “inquiry” is the act of seeking information about or concerning something.[11]
[11] Oxford English Dictionary.
“Is able to”
There has been a divergence of views among the Judges of the Federal Court of Australia about whether the expression “is able to” imports a requirement that an ability to make a complaint or inquiry must be “underpinned by an entitlement or right”.[12] The High Court, however, appears to have settled that question in Qantas Airways Limited v Transport Workers Union of Australia, where the plurality construed “is able to” in s 341(1)(c) of the FW Act without reference to any “entitlement or right” to make a complaint or inquiry. The plurality said:[13]
The words “is able to” in s 341(1)(b) and (c), while not words of limitation,[14] necessarily indicate that circumstances have come into existence in which the person has a present capacity to exercise a power or freedom. These powers and freedoms are specifically identified in s 341(1)(b) (read with s 341(2)) and in s 341(1)(c).
[12] The origins of that expression in the context of s 340(1)(c)(ii) of the FW Act is Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, at [625].
[13] Qantas Airways Limited v Transport Workers’ Union of Australia [2023] HCA 27, at [36].
[14] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [34]; Alam v National Australia Bank Limited [2021] FCAFC 178, at [85].
The consequence of the construction the plurality in Qantas gave to the expression “is able to” is that it is not necessary for an applicant who relies on the workplace right provided for in s 341(1)(c)(ii) of the FW Act to allege he or she had some underlying entitlement or right to make a complaint or inquiry in relation to his or her employment; all that is required is that “circumstances have come into existence in which the [applicant] has a present capacity to exercise a relevant power or freedom”, that freedom or power, in relation to s 341(1)(c)(ii), being the freedom the applicant has to make a complaint or inquiry in relation to his or her employment. This appears to be the view Rares ACJ and Katzmann J expressed in Construction, Forestry, Maritime, Mining and Energy Union v Quirk,[15] although Colvin J may have held a different view.[16]
[15] Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163, at [43] (Rares ACJ) and [337] (Katzmann J).
[16] Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163, at [516], and [522].“In relation to”
In Henry v Leighton Admin Services Pty Ltd I considered the construction of the expression “in relation to” as used in s 341(1)(c)(ii) of the FW Act, and concluded that a person will make a complaint or inquiry “in relation to” his or her employment if the complaint is about his or her employment rights or obligations, or “about a subject that may prejudice the person in his or her employment”.[17]
[17] Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923, at [77].
Adverse action because of exercise of workplace right
The third matter that must be alleged in a cause of action based on an alleged contravention of s 340(1) of the FW Act by an employer is that the employer has taken the adverse action for a particular reason, or for reasons that included a particular reason, namely, the existence of, or exercise of, or the failure to exercise, a workplace right.[18] That requirement arises from the presence of the word “because”: s 340(1) of the FW Act prohibits a person from taking adverse action “because” a person has a “workplace right”, or “because” the person has exercised, or has not exercised, or proposes to exercise, or proposes not to exercise, such a right (proscribed reasons). Further, where it is alleged a proscribed reason is one of a number of reasons for which the employer took adverse action, the proscribed reason must be “a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons”,[19] or must be an “operative or immediate reason for the action”.[20]
[18] FW Act, s 360.
[19] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [127] (Gummow and Hayne JJ).
[20] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [140] (Heydon J).
An important aspect of determining whether in any given case a person has taken adverse action for a proscribed reason, that is, “because” of one or more of the matters specified in s 340(1) of the FW Act, is s 361(1) of that Act. That subsection provides:
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The effect of s 361 of the FW Act is that the onus lies on the employer to prove, and therefore to allege, that, if the employer took adverse action, the employer did not take it for a proscribed reason or for reasons that included a proscribed reason as a substantial and operative factor; or, stated positively, the employer must allege and prove he or she took the adverse action for a single reason that was not a proscribed reason, or for reasons that did not include a proscribed reason as a substantial and operative factor in the employer’s taking the adverse action. Before an applicant can rely on s 361 of the FW Act, however, two conditions must be satisfied. First, the applicant “must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct”;[21] and, second, the applicant must allege that the taking of “the alleged action, for the alleged reason or with the alleged intent (or both), “would constitute a contravention of that Part””.[22]
[21] Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, at [14].
[22] Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, at [15].
Pleading or alleging contravention of s 340(1) of the FW Act
Whether legally represented or not, a person who alleges that a person has contravened a civil remedy provision such as s 340(1) is required to state intelligibly and with some precision the alleged facts on which that party relies. Thus, in the case of an alleged contravention of s 340(1) of the FW Act, the person so alleging must:
(a)state the facts the person alleges constitutes the taking of adverse action,
(b)state the facts the person alleges constitutes the exercise of a workplace right; and
(c)specifically allege that the adverse action identified in (a) was taken by the person who engaged in it because of the alleged facts it is alleged constitutes the exercise of a workplace right.
This follows from what the Full Federal Court said in Monash Health v Singh:[23]
(1)To assert that “a party is to be held to its pleadings” or that the “scope of the trial is to be determined by the pleadings, and only the pleadings” is misconceived. The course of the proceedings is in the control of the Court in the attainment of a just outcome. Mere infelicity of drafting will rarely be allowed to defeat a case on its merits if the merits of the case have been made apparent on the evidence without unfairness to the other party: Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; 189 FCR 356 at [51], [55]; Australian Federation of Air Pilots v Regional Express Holdings Limited [2021] FCAFC 226; 290 FCR 239 at [141]–[142] per Bromberg, Kerr and Wheelahan JJ; BHP Coal at [60]–[61].
(2)But allegations of contravention of the general protections provisions are inherently serious. As a matter of fairness, such a claim should be pleaded with sufficient precision for a respondent to know the case against it: Celand per Bromberg at [102], citing BHP Coal at [63]–[65]. Some precision is required so that they do not involve a “broad enquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome” (Ermel v DuluxGroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48]; Celand at [100]) and where the “crucial issue” is the causal relationship between the adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1.
(3)Despite ambiguity or infelicity in an applicant’s pleading, however, no procedural unfairness may arise where the respondent has meaningfully engaged with the pleading in its defence and the trial proceeded in a way, by reason of the applicant’s opening, the manner in which the hearing was conducted and defended, and it can reasonably be inferred that the respondent understood the applicant’s case against them: BHP Coal at [65]–[77].
(4)The level of precision required in relation to pleadings in General Protections claims is informed by the reasoning of the Full Court of Hall at [15]–[19]: Two pre-conditions must be met before the presumption under s 361 arises: first, the particular reason or the particular intent for the contravening action must be alleged in the application (s 361(1)(a)); and secondly that “taking that action for that reason or with that intent would constitute a contravention of this Part” (emphasis added) (s 361(1)(b)). As a consequence, in a proceeding of this kind conducted on pleadings an applicant is required to “plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent”: Hall at [19]. A pleading will be deficient where an applicant has failed to precisely and distinctly allege the particular reason or any particular intent: Hall at [40].
(5)The nature of a general protections proceeding does not vary according to whether it is instituted before this Court or in the Federal Circuit and Family Court of Australia (FCFCoA). The fact that the objects of the FCFCoA include operating “as informally as possible” also does not change its nature. The proceeding is one for the recovery of a pecuniary penalty and thus penal in nature, such that where a case proceeds by pleadings, the rules of pleading should be applied: Sabapathy at [41]–[42].
(6)What is important is not the medium by which the allegations are made but whether the allegations are, in fact, made. Where proceedings in this Court or in the FCFCoA do not proceed by way of pleadings, what comprises the allegations may be identified by reference to any filed application or concise statement but may be supplemented in other ways, such as by making an order for pleadings, or particulars, or by statements of facts, issues and contentions, or by the written opening submissions filed in advance of the hearing so as to expose the issues: Regional Express at [139]–[142].
[23] Monash Health v Singh [2023] FCAFC 166, at [57].
Subsection 343(1) of the FW Act
Subsection 343(1) of the FW Act provides:
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
I have already set out the relevant part of the definition of “workplace right”.
Section 343 of the FW Act must be read with s 361(1), which provides (emphasis added):
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Subsection 361(1) must, in turn, be read with s 360 of the FW Act:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
The Full Federal Court has held that “intent to coerce” consists of two elements:[24]
First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Secondly, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.
[24] Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2001] FCA 456; (2001) 109 FCR 378 at [41] (Merkel J) quoted with approval in State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; (2013) 218 FCR 172 at [71].
The Full Federal Court has also held that, although a contravention of s 343(1) requires proof that the alleged contravener intended to exert pressure on another, it is not necessary that the contravener have knowledge that his or her conduct is unlawful, illegitimate, or unconscionable. All that needs be shown is that the action the person has taken or has threatened to take is conduct the law characterises as unlawful, illegitimate, or unconscionable.[25]
[25] Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72; (2016) 258 IR 396 at [176] (Buchanan J, with whom Siopis J agreed).
In Esso Australia Pty Ltd v The Australian Workers’ Union; The Australian Workers’ Union v Esso Australia Pty Ltd, the plurality doubted that it is an essential element of a contravention of s 343(1) of the FW Act that the coercive conduct must be unlawful, illegitimate, or unconscionable:[26]
The idea that the action must be unlawful, illegitimate or unconscionable to amount to coercion within the meaning of s 343 or s 348 of the Fair Work Act derives from McHugh JA’s statement in Crescendo Management Pty Ltd v Westpac Banking Corporation of the elements of common law economic duress. It has since been held that the same applies to ss 343 and 348; although it is not immediately apparent why that should be so. Apart from anything else, s 343(2) provides that s 343(1) does not apply to protected industrial action. That suggests perhaps that the statutory conception of coercion is otherwise broad enough to embrace protected industrial action, and thus coercion by lawful or legitimate means. If that is so, it would assume significance in relation to s 348, which has no express exclusion of protected industrial action. In this case, however, it is unnecessary to decide whether that is so. Either way, it is clear that a person taking coercive action need not have an accurate appreciation of the legal nature of the action. As Gleeson CJ said in Electrolux Home Products Pty Ltd v Australian Workers' Union in relation to s 170NC of the Workplace Relations Act, it was sufficient to establish an intent to coerce to demonstrate that the person organising, taking or threatening the action intended it to negate the other person's choice and that the person organising, taking or threatening the action had actual knowledge of circumstances that made his or her conduct coercive:
“The elements of the conduct prohibited by s 170NC, so far as presently relevant, are action, or threats of action, with intent to coerce another to agree, or not to agree, to the making of an agreement under Div 2 or Div 3. An accurate appreciation of the legal nature of the agreement in question is not an element of the intent required by s 170NC.”
[26] Esso Australia Pty Ltd v The Australian Workers' Union; The Australian Workers' Union v Esso Australia Pty Ltd [2017] HCA 54, at [61] (footnotes omitted).
The person who is alleged to have taken, and is found to have taken, relevant conduct with the relevant intent will, because of s 361 of the FW Act, be taken to have engaged in the relevant conduct with the relevant intent unless the person proves otherwise.
Whether represented or not, a person who claims another person has contravened s 343(1) of the FW must state intelligibly and with some precision the alleged facts on which the employee relies. Thus, the employee must:
(a)state the facts the person alleges constitute the organising or taking, or the threatening to organise or take, action against another person;
(b)the person against whom (victim) it is alleged the person (coercer) who engaged in the conduct identified in (a) organised or took the action identified in (a);
(c)identify the workplace right it is alleged it was the intention of the coercer not be exercised or not exercised, or exercised in a particular way.
Subsection 351(1) of the FW Act
Section 351 of the FW Act relevantly provides as follows:
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
(2)However, subsection (1) does not apply to action that is:
(a)not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b)taken because of the inherent requirements of the particular position concerned; or
(c)if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken
(i) in good faith; and
(ii)to avoid injury to the religious susceptibilities of adherents of that religion or creed.
The elements of a cause of action based on a contravention of s 351(1) of the FW Act are as follows:
(a)The employer must take “adverse action” against the employee. “Adverse action” has the same meaning as that expression appears in s 342 of the FW Act.
(b)The employer took the adverse action “because” of one or more of the matters s 351(1) identifies. “Because” calls for the same analysis as applies to “because” as it appears in s 340(1) of the FW Act, including the application of s 361(1) of the FW Act.
Whether represented or not, an employee who claims the employer contravened s 351(1) of the FW must state intelligibly and with some precision the alleged facts on which the employee relies. Thus, the employee must:
(a)state the facts the employee alleges constitutes the taking of adverse action,
(b)identify the attribute or attributes of the employee the employee alleges is the reasons for which the adverse action was taken; and
(c)specifically allege that the adverse action identified in (a) was taken by the person who engaged in it because of the employee’s attribute or attributes identified in (b).
Section 772 of the FW Act
Ms Xu relies on s 772(1)(e) and (f) of the FW Act, which provides:
An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:
. . .
(e)the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
(f) race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin;
Section 772, however, must be read with s 723 of the FW Act, which provides that:
A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.
The expression “unlawful termination application is defined in s 776(4) of the FW Act, which provides:
An unlawful termination court application is an application to a court under Division 2 of Part 4‑1 for orders in relation to a contravention of subsection 772(1).
Parties’ submissions
In broad terms SOJ, in its counsel’s written submissions, submits that Ms Xu has failed to state with sufficient particularity the alleged contraventions of s 340(1), s 343(1), and s 351(1). Ms Xu in substance repeated the matters on which she relies in her Form 2.
Determination
Ms Xu’s core complaint
It is the case, as SOJ submits, that Ms Xu’s claims are to a large extent unparticularised; but the Form 2 reveals a core claim or set of claims. Ms Xu’s core complaint is that SOJ terminated her employment, and took other adverse action against her, because Ms Xu disagreed with, and refused to follow, a process SOJ required her to follow in relation to the payment of at least two pastors. Ms Xu claims that what SOJ was requiring her to do was in breach, or at least potentially in breach, of Australia’s tax laws, or was otherwise unethical; and, for that reason, she was entitled not to process the payments in the manner in which SOJ had directed her to do so.
The reasons for which Ms Xu herself claims SOJ decided to terminate her employment, and otherwise took adverse action against her, reflect the reasons for which SOJ decided to terminate Ms Xu’s employment. That is, according to the Show Cause Letter and the Termination Letter, SOJ terminated Ms Xu’s employment because Ms Xu refused to follow directions that she process payments to the pastors in the manner SOJ directed Ms Xu to do so. There is no suggestion in what Ms Xu claims, or in the evidence, that SOJ considered or decided to terminate Ms Xu’s employment for a reason or for reasons other than her not obeying the directions she was given to process the payments to at least two of the pastors in the manner she was directed to do so. The principal dispute between SOJ and Ms Xu was, and continues to be, whether it was lawful or ethical for the payments to the pastors to be processed in the manner SOJ had directed Ms Xu they be processed.
These facts, and the core dispute between Ms Xu and SOJ that has arisen out of them, do not raise arguable causes of action based on alleged contraventions of s 340(1), s 343(1), s 351(1), or s 772(1)(e) and (f) of the FW Act. There is nothing to suggest Ms Xu’s contract of employment was not subject to an implied term that Ms Xu would obey SOJ’s directions about the performance of the work she was contracted to perform as an employee of SOJ, provided the directions were lawful, reasonable, and related to matters that were within the scope of her employment. The obligation of an employee to obey directions of his or her employer has been stated in a number of cases; but I need only refer to the following passage from the judgment of Rothman J in Russell v Trustees of the Roman Catholic Church, Archdiocese of Sydney:[27]
Whether or not there is an equality of bargaining power, on entering a contract of employment, there is submission by the employee to the employer within the terms of that contract, and in performing work under the contract of employment there is subordination to the will of the employer to the extent of the terms of that contract. That is the essence of and the effect of the right of control.
The right of control is the essential distinguishing feature of a contract of employment:
“It will be seen that three elements are involved: first, the relationship must entail, on the part of the servant, obedience to orders; secondly, the obedience to orders that is required is obedience to orders in doing work; and, thirdly, the doing of the work must be for the benefit of the master, that is, it must relate to his own affairs. As to the first, no more need be said than this, that the obligation of obedience exists while the relationship continues. The relationship may be voluntary, and whether voluntary or not, it may be determinable at the will of either party; but without the obligation to obey orders there can be no meaning in the relationship, and it therefore cannot subsist. As to the second element, that the obedience entailed must be obedience to orders in doing work, the point which is vital is that the master’s authority must extend both to ordering that the work shall be done and to directing how it shall be done. ... As to the third element, the statement that the doing of the work must be for the benefit of the master does not mean, of course, that the direct benefit from the work itself must necessarily accrue to the master; he may, without altering the relationship, direct his servant to do work which will benefit another.” (Attorney General for New South Wales v Perpetual Trustee Company [1952] HCA 2; (1952) 85 CLR 237 at 299-300, per Kitto J.)
[27] Russell v Trustees of the Roman Catholic Church, Archdiocese of Sydney [2007] NSWSC 104, at [92]-[93].
Ms Xu certainly complained to SOJ, and by doing so she may well have exercised a workplace right; but her complaints related to the directions SOJ gave her in relation to the processing of payments to pastors. The evidence, and Ms Xu’s formulation of her claims, leave little doubt that SOJ did not consider terminating, and then decided to terminate, Ms Xu’s employment because she had complained about the directions SOJ had given her in relation to the processing of payments to pastors; SOJ considered whether to terminate, and decided to terminate, Ms Xu’s employment because Ms Xu refused to follow SOJ’s directions. Ms Xu’s not complying with SOJ’s direction could not reasonably be considered as constituting the exercise by her of any workplace right within the meaning of s 341(1) of the FW Act. Nor did Ms Xu’s not complying with SOJ’s directions confer on her any of the attributes specified in s 351(1) of the FW Act. And although it may be accurate to characterise SOJ threatening to terminate Ms Xu’s employment unless she complied with SOJ’s directions as conduct that exerted pressure on Ms Xu, the pressure could not reasonably be considered to have been directed to causing Ms Xu to exercise or not to exercise any workplace right, or to exercise a workplace right in a particular way. The pressure was directed to inducing Ms Xu to comply with SOJ’s directions.
It is the case that Ms Xu claims that SOJ’s directions were not lawful or reasonable; and if Ms Xu is correct in that contention, it may be that she would have an arguable case of wrongful dismissal. But there are two things to note about that. The first is that the elements of a cause of action for wrongful termination of the employment contract based on an employee’s refusing to follow what is alleged to be an unlawful or unreasonable direction are not coterminous with the elements of a cause of action based on contravention of s 340(1) or of s 343(1) or of s 351(1) of the FW Act. Second, an allegation that an employer has given an unlawful direction is a serious allegation that must be alleged and particularised with precision. Ms Xu’s claims that the directions SOJ gave her in relation to the processing of payments to pastors were unlawful or unethical are no more than bare assertions which are liable to be struck out.
Non-core claims
In addition to her core claim based on SOJ directing Ms Xu to process payments to pastors, Ms Xu makes other claims. One claim is that SOJ coerced Ms Xu not to use sick leave by threatening her with “dismissal”. That claim appears to be consequential on Ms Xu’s claim that SOJ took adverse action against her by terminating her employment. That is, Ms Xu appears to claim that, because SOJ terminated her employment, Ms Xu was denied the right to take sick leave.
A second set of claims consist of allegations that SOJ failed to address complaints Ms Xu made, failed to provide fair procedures, failed to provide adequate or professional procedures, and failed to inform Ms Xu of SOJ’s future schedule of restructuring its accounting leadership. These claims are not capable of disclosing a cause of action based on contraventions of any of s 340(1), s 343(1), or s 351(1) of the FW Act. Moreover, the claims identify no basis on which SOJ, as Ms Xu’s employer, was obliged under the terms of Ms Xu’s employment contract to do any of the things Ms Xu claims SOJ was obliged to do.
A third claim is the assertion that SOJ “bullied, coerced and injured [Ms Xu] because being an [sic] Asian female manager”. That assertion is not supported by any alleged material facts; and the evidence is incapable of supporting any such assertion.
Finally, I should note that s 723 of the FW Act prevents Ms Xu from claiming a contravention of s 772(1)(e) and (f) of the FW Act.
OTHER MATTERS
Prejudice
The extension Ms Xu requires is only 12 days. There is no evidence SOJ will suffer prejudice if the extension is granted. The absence of prejudice however, is not by itself a sufficient basis for granting an extension of time.
Action to challenge termination
There is no evidence Ms Xu has taken action to contest SOJ’s termination of her employment, other than by applying under the FW Act to the FWC. The absence of such evidence is a neutral factor in determining whether to grant the extension of time.
Fairness as between Ms Xu and other persons in a like position
There is no evidence that granting or refusing the extension will give rise to any unfairness between the applicant and any other person in a like position to Ms Xu.
DISPOSITION
I will make the following orders:
(a)Subject to (b), the affidavit and letter referred to in paragraph 20 of these reasons for judgment remain suppressed.
(b)SOJ have liberty to apply within 14 days after the date on which orders are pronounced to vary or discharge order (a).
(c)Ms Xu’s application for an order extending the period provided for by s 370(a)(ii) of the FW Act be dismissed.
(d)The proceeding be dismissed.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 25 August 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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