Adverse action and the general protections

In this passage from a recent Federal Court general protections’ case decision, the basic structure of the cause of action known as adverse action for exercising a workplace right is explained by the learned trial judge.


3.1  Summary

  1. Ms Wong’s adverse action case is conceptually simple.  She maintains that, over the course of 2016 and early 2017, she raised with NAB (through the agency of various of its managers) an array of concerns, grievances and inquiries related to various aspects of her work (and, in particular to problems associated with the MAP and the NPP, and with the competence of various staff assigned to perform work connected with those projects).  She alleges that NAB’s decision to remove her from her role and to send the 21 March 2017 Announcement was, in each case, actuated or partly actuated by reason of her having raised some or all of those concerns, grievances and inquiries.
  2. Additionally, Ms Wong maintains that she raised a series of further concerns, grievances and inquiries after being removed from her role as “Manager[,] Internet Banking”.  She alleges that NAB’s decision to terminate her employment was actuated or partly actuated by reason of her having raised some or all of those concerns, grievances or inquiries, and/or by reason of her having raised some or all of the grievances and inquiries that pre-dated her removal.
  3. Ms Wong credits Ms MacLeod and Mr Arnott with having decided (on behalf of NAB) to remove her from her role, to send the 21 March 2017 Announcement and to terminate her employment. Each of those decisions visited upon her, she says, consequences sufficient to constitute “adverse action” within the meaning attributed to that phrase by s 342 of the FW Act. Those decisions having been actuated (so Ms Wong submits) by reason of her having raised her concerns, grievances or inquiries, the resultant adverse action was, she contends, imposed upon her in contravention of s 340(1) of the FW Act. Ms Wong contends that Ms MacLeod was relevantly “involved in” NAB’s contraventions of that section (such that she is deemed to have committed them herself).

3.2  The legislative framework

  1. Part 3‑1 of the FW Act is entitled “general protections”. Amongst other things, it provides for a suite of protections designed to safeguard the exercise of “workplace rights”. One of those protections is provided for by s 340(1) of the FW Act, which provides (and, at all relevant times, provided) as follows:

340  Protection

(1)      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.

Note:    This subsection is a civil remedy provision (see Part 4-1).

  1. Section 342(1) of the FW Act defines “adverse action”. Relevantly, an employer subjects an employee to adverse action if the employer:

(1)          dismisses the employee;

(2)          injures the employee in his or her employment;

(3)          alters the position of the employee to the employee’s prejudice; or

(4)          discriminates between the employee and other employees of the employer,

(FW Act, s 342(1), item 1).

  1. Section 341(1) of the FW Act identifies the circumstances in which a person might be understood to possess a “workplace right”. It relevantly provides (and provided) as follows:

341  Meaning of workplace right

(1)      A person has a workplace right if the person:

(c)       is able to make a complaint or inquiry:

(ii)         if the person is an employee—in relation to his or her employment.

  1. Section 360 of the FW Act recognises that some adverse action might be taken for a variety of reasons, including some unrelated to reasons that Pt 3‑1 of the FW Act proscribes. In order to be actionable under Pt 3‑1 of the FW Act, it is sufficient that relevant adverse action is taken for reasons that include such proscribed reasons.
  2. Section 361 of the FW Act creates a rebuttable presumption concerning the proof, in any given case, of the reasons for which adverse action was taken. If, in an action alleging that conduct was engaged in in contravention of Pt 3‑1 of the FW Act, a person is accused of having done something for a particular reason and the doing of that thing for that reason would constitute a contravention of that part, it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
  3. Section 539(1) of the FW Act is entitled “applications for orders in relation to contraventions of civil remedy provisions”. Amongst other things, it identifies the provisions of the FW Act that qualify as “civil remedy provision[s]”. Section 340(1) is amongst them. Section 539(2) of the FW Act confers jurisdiction upon this court to hear applications for relief relating to contraventions of that section. The court has the power to grant relief in the nature of declarations, compensation and penalties (amongst other things).
  4. The court’s jurisdiction to entertain an action alleging a contravention of Pt 3‑1 of the FW Act that relates to the termination of an employee’s employment is constrained by subdiv A of div 8 of that part. The court’s jurisdiction to hear the present application, however, is not a matter of any controversy.
  5. Section 550 of the FW Act concerns accessorial liability. It establishes that a person is taken to have contravened a civil remedy provision if he or she is “involved in” another person’s contravention. A person is “involved in” another’s contravention of a civil remedy provision if (amongst other possibilities) he or she “…has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to…” the other person’s contravention.
  6. Section 793 of the FW Act is entitled “liability of bodies corporate”. It relevantly provides (and provided) as follows:

Conduct of a body corporate

(1)      Any conduct engaged in on behalf of a body corporate:

(a)          by an officer, employee or agent (an official ) of the body within the scope of his or her actual or apparent authority; or

(b)          by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2)          If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a)          that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b)        that the person had that state of mind.

Meaning of state of mind

(3)      The state of mind of a person includes:

(a)       the knowledge, intention, opinion, belief or purpose of the person; and

(b)       the person’s reasons for the intention, opinion, belief or purpose.”

Wong v National Australia Bank Limited [2021] FCA 671 (22 June 2021) (Snaden J)