Adverse action in the workplace; the legal issues

What follows is a major extract from a recent decision of the Federal Court of Australia delivered after the trial of an action taken against the Commonwealth of Australia and Senator Jacki Lambie by two former staffers of her office alleging inter alia that they had been subjected to unlawful adverse action under the Fair Work Act. Their claims were dismissed by the trial judge.

The decision from which the extract is taken is an excellent example to practitioners and law students of the way in which the general protections of the Act work in a practical sense and involving the legal issue of what constitutes adverse action and the implications of it in workplaces, and for that matter in the legal system.

“4.3 Relevant legal principles

132    In order to make out their respective “general protections” cases, Mr and Mrs Messenger must each demonstrate that the Commonwealth (acting via the agency of Senator Lambie), subjected them to “adverse action” and did so because (or for reasons that included that) they had exercised a “workplace right” or “workplace rights”.

133    From the authorities pre-dating this matter, the following points of legal principle emerge.

4.3.1 Adverse action

134    In Wong v National Australia Bank & Anor [2021] FCA 671 (Snaden J; hereafter “Wong”), I made the following observations (at [60]):

In most general protections matters, the conduct to which an applicant employee (or former employee) was subjected and its qualification as “adverse action” are not in issue. Typically, that conduct and its character are apparent from the pleadings. Particularly is that so in cases involving the termination of a former employee’s employment, as this one does.

135    Presently, the respondents accept—as plainly they must—that Mr and Mrs Messenger were each subjected to adverse action when, on 3 May 2017, their employment was terminated.

136    That concession does not extend to the other two species of adverse action that the Messengers claim were taken against them: specifically, their having been issued with the First Show Cause Letters and the Second Show Cause Letter. In each case, Mr and Mrs Messenger both allege that those letters constituted a threat to terminate their employment; and, therefore, that each properly qualified as adverse action by reason of s 342(2)(a) of the FW Act.

137    For the purposes of s 342(2)(a) of the FW Act, a threat to take action that, if taken, would constitute adverse action under s 342(1) requires that there be some communication of an intention to act in that way: Community and Public Sector Union v Telstra (2000) 101 FCR 45, 48-49 [15] (Finkelstein J). To communicate only a possibility that such action might be taken, whether dependent upon the satisfaction of identified conditions or otherwise, is not to threaten it: Fair Work Ombudsman v Australian Workers Union (2017) 271 IR 139, 155 [55] (Bromberg J).

4.3.2 Complaints or inquiries related to employment

138    An employee possesses a workplace right for the purposes of pt 3-1 of the FW Act if (amongst other means) he or she is able to make a complaint or inquiry in relation to his or her employment: FW Act, s 341(1)(c)(ii).

139    In PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 (hereafter, “PIA”), 252-253 [134]-[139], I made the following relevant observations on those scores:

In order that the making of a complaint or inquiry might amount to the exercise of a workplace right of the sort to which s 341(1)(c)(ii) of the FW Act refers, it must pertain, as a matter of substance, to its maker’s employment. That being so, it is necessary to consider whether either or both of the [complaints that were made in that case] were of that nature: that is, were they complaints or inquiries that pertained to Mr King’s employment?

That requires analysis at two levels: first, did each of the [relevant complaints] qualify as a “complaint or inquiry”; and, second, did each arise “in relation to [Mr King’s] employment”?

The Macquarie Dictionary relevantly defines “complaint” and “inquiry” respectively as follows:

complaint

  1. an expression of grief, regret, pain, censure, resentment, or discontent; lament; fault-finding.
  2. a cause of grief, discontent, lamentation, etc.

inquiry

  1. the act of inquiring, or seeking information by questioning; interrogation.
  2. a question; query.

– phr 4. make inquiry (or inquiries), to request information: to make inquiries at the office.

A “complaint”, then, is a communication that states a grievance or that otherwise asserts the existence of a state of affairs that its maker alleges is unsatisfactory, undesirable or unacceptable: see, in that vein, Hill v Compass Ten Pty Ltd (2012) 205 FCR 94 (Cowdroy J). In Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346…this court had occasion to consider what might qualify as a “complaint” for the purposes of s 341(1)(c)(ii) of the FW Act. Dodds-Streeton J there observed (at 353-354 [29]) that:

…in the context of s 341(1)(c)(ii) of the [FW] Act:

(a)    a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;

(b)    the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;

(c)    the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose; [and]

(d)    the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii)…

I respectfully adopt her Honour’s reasoning. I note that the second of the four propositions to which her Honour adverted in the passage above was the subject of some consideration on appeal: see Shea v EnergyAustralia Services Pty Ltd (2014) 242 IR 159, 163 [12] (Rares, Flick and Jagot JJ). Whilst the full court did not appear to adopt Dodds-Streeton’s J implication of good faith, they did not reject it and the appeal was decided on other issues: see, on that score, The Environmental Group Ltd v Bowd [2019] FCA 951, [144] (Steward J)…

Whether a complaint or inquiry qualifies as a complaint or inquiry made “in relation to…employment” depends upon the subject matter that is sought to be agitated. It is not necessary that a complaint be directly related to its maker’s employment: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697, [64] (Katzmann J); Shea, [631] (Dodds-Streeton J). In Walsh v Greater Metropolitan Cemeteries Trust (No 2) (2014) 243 IR 468, 476 [42] (Bromberg J), this court determined that the connection between a complaint and employment would likely exist in circumstances “[w]here the subject matter of the complaint raises an issue with potential implications for the complainant’s employment”.

That reasoning has been followed (see, for example, Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19, [68]-[69] (Mortimer J)) although not universally without qualification (see, for example, The Environmental Group Ltd v Bowd [2019] FCA 951, [126] (Steward J)).

140    In The Environment Group Pty Ltd v Bowd (2019) 137 ACSR 352 (hereafter, “Bowd”), Steward J questioned whether the “potential implications” test might be appropriate for senior management employees, whose conduct as such might be thought always to have at least potential employment ramifications. His Honour observed (at 392 [126]):

…in the case of a CEO, the complaint must be one directed at or concerned with that person’s employment in a substantive way. In that respect, observing the required nexus may be direct or indirect, may not greatly assist. It must, as a matter of substance, be about that CEO’s employment.

4.3.3 What does it mean to be “able to” complain or inquire?

141    Insofar as is presently relevant, s 340(1) of the FW Act prohibits the taking of adverse action against a person because he or she has exercised a workplace right. Section 341(1) identifies the circumstances in which a person should be understood to possess such a right. For present purposes, it is only in circumstances where a person exercises a right that he or she possesses that the protection for which s 340(1)(a)(ii) provides is enlivened.

142    A person has—and, therefore, may exercise—a right to complain or inquire in relation to their employment, or in order to obtain compliance with a workplace law if that complaint or inquiry is one that they are “able to make”: FW Act, s 341(1)(c). In Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346, (hereafter, “Shea”; Dodds-Streeton J), this court made the following relevant observations (at 440 [625]):

…the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.

143    Her Honour’s observations have been endorsed at a full court level: PIA, 229 [12] (Rangiah and Charlesworth JJ), 257-258 [164] (Snaden J); Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 (hereafter, “Whelan”), 55-56 [28] (Greenwood, Logan and Derrington JJ).

144    In Cummins South Pacific Pty Ltd v Keenan (2020) 302 IR 400 (hereafter, “Cummins”), 413-419 [45]-[67] (Bromberg J in obiter, with whom Mortimer J agreed; Anastassiou J contra at 462-467 [281]-[291]) described the reasoning in PIA, Whelan and Shea as “plainly wrong” (or, perhaps more accurately, indicated that he would have described it thus had it been necessary in that case to do so). That indication notwithstanding, this court has since applied equivalent reasoning, both at trial and appellate levels: National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709, [186]-[187] (Thawley J); Salama v Sydney Trains [2021] FCA 251, [102] (Burley J); Wong, [76] (Snaden J); Alam v National Australia Bank [2021] FCAFC 178, [97] (White, O’Callaghan and Colvin JJ); Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75, [77]-[78] (McElwaine J, with whom Rangiah and Downes JJ, on this point, agreed); cf Sabapathy v Jetstar Airways [2021] FCAFC 25, [57] (Logan and Katzmann JJ, with whom Flick J agreed).

145    Support for the reasoning that attracted itself to Bromberg J in Cummins is also to be found. In Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) (No 4) [2021] FCA 1242, Katzmann J referred to that reasoning and observed, without needing to decide the point, that it was consistent with the judgment of the full court in Tattsbet Ltd v Morrow (2015) 233 FCR 46 (“Tattsbet”; Allsop CJ, Jessup and White JJ). Her Honour noted (at [623]) that Tattsbet had not been the subject of consideration in either Whelan or PIA.

146    In Tattsbet, the respondent claimed that she had been subjected to adverse action in contravention of ss 340(1)(a)(iii) and 340(1)(b) of the FW Act; specifically, that the appellant had terminated her engagement because she had proposed to initiate or participate in—or otherwise to prevent her from initiating or participating in—a process or proceeding under the Superannuation Guarantee (Administration) Act 1992 (Cth). It had been accepted in the proceeding below that “…in point of fact, the SGA Act did provide scope for a person in the position of the respondent to initiate a process or proceedings to have determined, one way or the other, whether she was entitled to superannuation”: Tattsbet, 73 [107] (Jessup J, with whom Allsop CJ and White J relevantly agreed). Jessup J held that, in order that she might be understood to have possessed a workplace right (that she had proposed to exercise or whose exercise the appellant had sought to prevent), it was sufficient that that scope existed. As his Honour put it (at 73 [107]):

The operation of s 341(1)(b) is not limited to proposals to initiate processes or proceedings which would lead to the upholding of the right or entitlement sought to be vindicated.

147    Thus, the question of whether the process or proceeding there in focus was a process or proceeding that the respondent was “able to” initiate or participate in did not arise. Perhaps for that reason, the court did not consider what Dodds-Streeton J had said the previous year in Shea. Regardless, I respectfully take the view that nothing can be made of the fact that Tattsbet was not referred to in Whelan or PIA (nor, indeed, in Cummins). I discern nothing relevantly inconsistent as between Tattsbett, Whelan and PIA, all of which remain binding upon me.

148    In SBP Employment Solutions Pty Ltd v Smith [2021] FCA 601, Rangiah J said the following (at [134]-[142]) in defence of the reasoning that has emerged from Shea (and in answer to the doubts as to its correctness that Bromberg J, with Mortimer’s J concurrence, expressed in Cummins):

Although Bromberg J did not directly explain how the phrase “is able to” in s 341(1)(c)(ii) of the FWA was to be interpreted, I understand his Honour to have construed the phrase as meaning “is capable of”. Under that construction, as long as an employee is able to make, in the sense of being capable of communicating, a complaint or inquiry in relation to his or her employment, the employee has a “workplace right”. It would follow that in any circumstance where an employee makes a complaint or inquiry in relation to his or her employment, the employee exercises a workplace right.

I accept that the true construction of s 341(1)(c)(ii) of the FWA is uncertain. At least three different views have been expressed, and each is fairly arguable. While I appreciate the force of Bromberg J’s carefully reasoned judgment, I adhere to the opinion expressed by Charlesworth J and myself in PIA Mortgage Services that the expression “is able to” in s 341(1)(c)(ii) of the FWA implies that an employee must have an entitlement or right to make a complaint in relation to his or her employment.

The word “able” and the phrase “is able to” are ambiguous. One meaning ascribed by the Macquarie Dictionary is, “to have the capability or capacity to”. That is the meaning that I understand Bromberg J to have adopted. However, that is not the only possible meaning. Another is, “is qualified to”. It is in that sense that the phrase was interpreted in Shea and PIA Mortgage Services. An employee “is able to” make a complaint or inquiry if he or she qualified to do so. The qualification that is required is an entitlement or right to make a complaint or inquiry.

Which meaning is to be ascribed must depend upon the context in which the words are used. An important aspect of context is, as Dodds-Streeton J pointed out in Shea at [625], that the phrase “is able to” suggests that that there are complaints which an employee is not able to make in relation to his or her employment. In that sense, “is able to” are words of limitation, and imply that there must be an entitlement or right to make a complaint. It is true, as Bromberg J observed in Cummins at [46], that people are ordinarily free to make an “inquiry” of others without some right or entitlement to do so, but the construction of the phrase as requiring an entitlement or right has work to do in respect of “complaints”.

This construction of “is able to” in s 341(1)(c)(ii) of the FWA is consistent with the way the same phrase is used in s 341(1)(b) and in s 341(1)(c)(i). Under s 341(1)(b), a person has a “workplace right” if, “the person…is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument”. It may be noted that this provision applies, not merely to an employee, but to “a person”. The provision seems most unlikely to be intended to apply to any person who is merely physically and mentally capable of initiating or participating in a relevant process or proceeding. The provision envisages that the person has a qualification – a right or entitlement – to initiate or participate in a relevant process or proceeding. In other words, the provision implies that the person must have the standing, or at least arguably have the standing, to do so. Section 341(1)(c)(i) of the FWA provides that person has a “workplace right” if, “the person…is able to make a complaint or inquiry…to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument”. That provision also envisages that the person has a right or entitlement to make a complaint to the relevant body. A construction of the same phrase in s 341(1)(c)(ii) as imposing no similar qualification would be discordant.

The construction preferred by the majority in Cummins would have the consequence that ss 340(1)(a) and 341(1)(c)(ii) of the FWA prohibit an employer from taking any adverse action against an employee because the employee has made or proposes to make any complaint in relation to his or her employment. The phrase “in relation to” is one of considerable width. The construction in Cummins is consistent with s 340 having the purpose of protection of employees. But, it must also be recognised that such protection is provided within limits. Section 340(1) prohibits adverse action taken because a person has, exercises or does not exercise, or proposes to exercise or not exercise, “workplace rights”; or to prevent a person from exercising such rights. Section 341 then limits the width of protection by defining what “workplace rights” are. The scope of the protection is also limited by the definition of “adverse action” in s 342. That there are inbuilt limits to the scope of the protection is unsurprising, given that the object of the FWA is, under s 3, “to provide a balanced framework for cooperative and productive workplace relations”.

As the object of the FWA is to provide balance, it would be surprising if the scales were tipped in favour of employees to the extent that would occur under the construction of s 341(1)(c)(ii) of the FWA given by the majority in Cummins without that intention being made clear. If there is any such intention, it can only be gleaned through one possible interpretation of the ambiguous phrase “is able to”. Under that construction, just as there is no room for the implication of a requirement of an entitlement or right to complain or inquire, there would be no room for the implication of any other limitation. There could be no implication of the requirement by Dodds-Streeton J identified in Shea at [29] that a complaint must be in good faith and for a proper purpose. There could be no implication of any limitation where a complaint in relation to employment is made, not to the employer or some statutory body, but, for example, to the media or to the public via social media. Just as there are some vexatious litigants, there may be vexatious employees who repeatedly make genuinely believed, but objectively unjustified, complaints against fellow employees or an employer. Yet the protection for an employee who makes a complaint in relation to his or her employment would, under the interpretation in Cummins, be so broad that the employer could not threaten or take any disciplinary or legal action, amounting to adverse action, against such an employee, even to protect other employees or the employer’s business. Even though the same outcome might occur in some situations under the interpretation given in Shea and in PIA Mortgage Services, that interpretation may potentially provide some measure of protection for an employer against contravening a civil penalty provision. In my opinion, that measure of protection explains the legislative intention in requiring that an employee must have an entitlement or right in order for the employee to “be able to” make a complaint.

The thorough analysis of the legislative history undertaken by Bromberg J in Cummins is instructive, but I do not consider that it supports the construction of s 341(1)(c)(ii) of the FWA favoured by his Honour. That history shows that there has been a progressive widening of the circumstances in which employers are prohibited from taking adverse action against employees. However, the width of the protection afforded would be expanded to the extent that there is absolute protection against adverse action for an employee who makes a complaint in relation to his or her employment. The history does not support an inference that a broadening to such an extent was intended.

I accept that the Explanatory Memorandum for the Fair Work Bill provides support for the construction adopted by the majority in Cummins. It states that cl 341(1)(c)(ii), “specifically protects an employee who makes any inquiry or complaint in relation to his or her employment”. However, the section itself does not refer to “any” inquiry or complaint. The implication of limitation given by the expression, “is able to make a complaint or inquiry”, cannot be ignored. The Explanatory Memorandum cannot displace the countervailing considerations.

149    I respectfully agree with his Honour’s analysis. Section 341 does not invest employees with new rights. It merely characterises existing rights or entitlements as “workplace rights”, the possession or exercise of which is the subject of protections located elsewhere in pt 3-1 of the FW Act.

150    I am bound in any event by what successive full courts have now made clear: in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire.

4.3.4 Proof of a proscribed purpose

151    As it does in most adverse action matters, s 361—and the statutory presumption for which it provides—looms large in these matters. In Wong, [78]-[83], I made the following observations about that presumption, none of which is presently controversial (and all of which are ripe for application in these matters):

The reason or reasons actuating conduct that visits “adverse action” are matters of fact that must be proved. An applicant who alleges that he or she was subjected to adverse action for a reason or reasons that Pt 3-1 of the FW Act proscribes is afforded substantial assistance in that regard by s 361. As has been explained, that section creates a rebuttable presumption in an applicant’s favour. If a respondent is alleged to have engaged in conduct for a reason that Pt 3-1 of the FW Act proscribes (and, thereby, to have contravened that part), it is presumed to have acted for that reason unless or until it establishes otherwise.

In order to rebut the presumption to which s 361 of the FW Act gives effect, a respondent must typically lead evidence to show that the proscribed reason or circumstance that is alleged did not factor in any substantial or operative way as a reason for the conduct that the applicant seeks to impugn: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, 612 (Gibbs J), 619 (Mason J, with whom Stephen and Jacobs JJ agreed). It falls to the court to determine “the actual reason of the decision-maker, in his or her own mind”: CFMEU v Endeavour Coal (2015) 231 FCR 150, 161 [32] (Jessup J, with whom Perram J agreed at 169 [77], Bromberg J dissenting).

In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (hereafter, “Barclay”), the High Court had occasion to consider how an employer might rebut the presumption that s 361 of the FW Act creates. French CJ and Crennan J observed (at 517 [44]-[45]) (references omitted):

…The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”

This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer…

Where, by way of rebuttal of the presumption established by s 361 of the FW Act, a respondent leads evidence as to why it engaged in the conduct that an applicant seeks to impugn, the relevant inquiry starts and ends with whether, in fact, those reasons relevantly actuated that conduct. It is not necessary for a respondent to prove that the reasons that actuated its conduct were procedurally or substantively fair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109, [31] (Gray, Cowdroy and Reeves JJ).

Thus where, as here, a respondent employer cites, as its reasons for taking adverse action against an applicant, opinions that it formed about his or her conduct or capacity, the relevant inquiry is not whether those opinions were fairly or properly formed, or vindicated in fact. Rather and more simply, the relevant inquiry is whether the opinions were formed at all and, if they were, whether the respondent was moved to act as it did in consequence of them. A claim under Pt 3-1 of the FW Act “…is not a broad inquiry 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, [48] (Bromberg J).

In some circumstances, it might be possible to infer from evidence tending to show that a respondent’s opinions were formed wrongly or unfairly—that is to say, inconsistently with fact or in a way otherwise susceptible to some other legitimate criticism—that those opinions either were not, in fact, formed or did not relevantly actuate the respondent’s conduct (or both). Such circumstances might warrant the rejection of the respondent’s evidence as to why it did what it did and a finding that the respondent failed to rebut the presumption established by s 361 of the FW Act. But, regardless, the inquiry remains: did the respondent form the views that it said that it formed; and, if it did, was it actuated to conduct itself in the way that it did on account of them (and not on account of any proscribed reason)?

4.3.5 Attribution of purpose

152    Where a decision that visits adverse action upon a person is made on the part of a body corporate, questions arise as to how the reason or reasons for which it acted should be ascertained. By their nature, bodies corporate have no minds within which proscribed reasons might form. They can act only through the agency of their human officers.

153    In the present case Mr and Mrs Messenger allege that they were subjected to adverse action by the Commonwealth. They allege that it dismissed them from their employment and, before that, subjected them to the show cause processes detailed above; and that, in each case, it did so for reasons that pt 3-1 of the FW Act proscribes (whether amongst others or not).

154    All of the parties proceeded upon the assumption that it would be in the minds of those by whose conduct the Commonwealth acted—relevantly here, Senator Lambie—that the reason or reasons for the conduct of the Commonwealth should be found (as to which, see above, [120]-[122]).

4.3.6 Accessorial liability

155    Mr and Mrs Messenger contend that Senator Lambie was relevantly “involved in”—and is, thereby, taken also to have committed—the contraventions of ss 50, 323 and 340 that they allege as against the Commonwealth. In Wong, [99]-[101], I made the following observations relevant to that issue:

Section 550 of the FW Act establishes a form of accessorial liability whereby those who are “involved in” the conduct in which others engage in contravention of civil remedy provisions (including s 340(1) of the FW Act) are taken also to have committed those same contraventions. In this case, Ms Wong submits that Ms MacLeod was knowingly concerned in or party to NAB’s contraventions of s 340(1) of the FW Act.

In Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365, [176]-[179] White J summarised what must be shown in order to implicate a person as an accessory to another person’s statutory contravention:

Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. …

Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506–7 by Wilson, Deane and Dawson JJ …

The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]; Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503; at [324]–[325].

As indicated, these principles are not in doubt. The more difficult question arises from their application to the circumstances of this case and, in the identification of the essential facts about which an accessory must have actual knowledge.

Those observations were quoted with apparent approval in Fair Work Ombudsman v Hu (2019) 289 IR 240, 245-246 [15] (Flick and Reeves JJ).

The statutory presumption for which s 361 of the FW Act provides does not apply in relation to an allegation that a person has been “involved in” the contravention of a civil remedy provision contained within Pt 3-1 of the FW Act: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50, [59] (Greenwood, Flick and Rangiah JJ). Thus, in order to implicate her as an accessory to any contravention by NAB of s 340(1) of the FW Act, Ms Wong must establish that Ms MacLeod knew that at least one of the reasons for which NAB relevantly acted was that Ms Wong had made any or more of the complaints or inquiries upon which she relies.

156    None of those observations is controversial presently. For reasons that are likely already to be apparent, it is not necessary that I should expand upon them to any degree. As has been foreshadowed, I have concluded that the Commonwealth did not commit any of the statutory contraventions that are alleged against it. That being so, there is nothing in respect of which Senator Lambie might be thought to have been accessorily liable.

4.4 Were the Messengers subjected to adverse action?

157    The parties are not in dispute as to whether or not the three instances of conduct that are said to qualify as adverse action in fact occurred. It is accepted—and could hardly be doubted—that each of Mr and Mrs Messenger received the First Show Cause Letters (or, in each case, the one that was addressed to them), that each of them received the Second Show Cause Letter and that each of them was dismissed with effect from 3 May 2017.

158    As has been noted, the respondents accept—and, again, it could hardly be doubted—that the termination of Mr and Mrs Messengers’ employment amounted, in each case, to adverse action. They do not accept, however, that either of the show cause processes did (at least not in the way that was alleged).

159    That controversy turns upon whether or not the show cause processes to which the Messengers were subjected might properly qualify as a “threat” to terminate their employment. That is how, by their pleadings, they sought to constitute those processes as adverse action.

160    By the submissions advanced at the conclusion of the trial, Mr and Mrs Messenger sought also to invoke the third element in the definition of the relevant species of adverse action: specifically, the notion that their positions as employees had been altered to their prejudice (see above, [112]). The respondents submit that Mr and Mrs Messenger ought not now to be permitted to expand upon the case that they advanced prior to the trial; in other words, that they should be held to the case that they pleaded.

161    They should be. Had the respondents been made aware in advance of the case that the Messengers now seek to advance, it is conceivable (though perhaps not probable) that they might have led additional evidence or pursued additional avenues in cross-examination. Although, for reasons that will emerge, it doesn’t much matter, the Messengers cannot fairly expect to succeed upon a contention of which they did not, by their pleadings, give notice. They are not to be relieved of that elemental obligation merely because they are self-represented. It is to be recalled that their pleadings were drawn—and, later, amended—by counsel.

162    I return to the issue of present relevance: were the show cause letters that were sent to the Messengers on 27 March and 28 April 2017 properly understood as threats to terminate their employment?

163    The relevant text of the First Show Cause Letters (which was common to both) bears repeating. It spoke of:

…a breakdown in our working relationship to the extent that it is irretrievable. In the present circumstances, I am forming the view that I may have no real option other than to terminate your employment. Such a decision would not be taken lightly and before reaching a decision, I would like to give you the opportunity to put your views forward. If you wish to respond, please do so…

164    Those letters did not, in terms, threaten the Messengers with dismissal. Plainly enough, they made known the Senator’s view that circumstances had accumulated to a point that dismissal might eventuate, or perhaps even have been inevitable. They did, perhaps, threaten that the possibility of their dismissal was one that the Senator would consider in a way or ways that might take account of anything that they wished to put beforehand. But there was no threat to dismiss. As is made clear above: a communication that alludes only to the possibility, conditional or otherwise, that something might happen is not a communication by which that possibility is threatened: Fair Work Ombudsman v Australian Workers Union (2017) 271 IR 139, 155 [55] (Bromberg J).

165    It was not suggested—and it is, in any event, difficult to see how it might be—that the First Show Cause Letters amounted to threats otherwise than by their terms. There could be, for example, no cause for considering that those letters were inauthentic or otherwise some kind of administrative fig leaf designed to disguise a reality that, though unstated, was to be nonetheless well-understood. Both by appearance and circumstance, the First Show Cause Letters presented as nothing more than what they purported to be: an invitation to the Messengers to respond to the concerns that Senator Lambie had formed.

166    It follows that I do not consider that the First Show Cause Letters amounted to adverse action (as pleaded) for the purposes of pt 3-1 of the FW Act.

167    Similar observations arise in respect of the Second Show Cause Letter. As with its predecessor, it articulated some concerns that were said to be animating Senator Lambie, invited the Messengers to address those concerns (if they wished to), and indicated an intention on the part of the Senator to make a decision regarding their employment one way or the other (see above, [96]).

168    Again, nothing about that language or the circumstances that attended it could be said to communicate an intention, on the Senator’s part, to dismiss the Messengers. On the contrary, the letter’s purpose was clear on its face: it was to give Mr and Mrs Messenger an opportunity to explain, if they wished to, why the Senator’s concerns were unfounded or not otherwise of a kind that might warrant their dismissal.

169    Given the progression of matters to that point, it might be said that the Messengers’ fate was decided; or something of a foregone conclusion. But even assuming that that is so, the issue presently is whether that was a reality that the show cause letters communicated. They did not. Indeed, they did the opposite: they made clear that the Senator would consider what, if anything, Mr and Mrs Messenger chose to advance. Whether or not the Messengers believed that is beside the point. It is what the letter communicated. It was not a threat to dismiss them.

170    It follows that I do not consider that either of the First Show Cause Letters or the Second Show Cause Letter amounted to a threat to terminate the Messengers’ employment or, thereby, to adverse action.

171    It might be said in criticism of that conclusion—and my related inclination not to entertain the Messengers’ attempts to constitute the First Show Cause Letters and the Second Show Cause Letter as prejudicial alterations to their position as employees (see above, [161])—that the Messengers are denied a course that they might have prosecuted with a simple amendment to their pleadings, to which the respondents would very likely have had no answer. Had Mr and Mrs Messenger pleaded prejudicial alteration in those ways, it seems all but inevitable that the court would have concluded that those letters sufficed to visit adverse action upon them: see, for example, Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131, 156-157 [95] (Branson J); Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22, 51 [99]-[101] (Collier J); Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251, 263 [47]-[48] (Tracey J). Two observations are warranted. First, that reality is no answer to what is said above about why the Messengers should be held to the case that they pleaded (above, [161]). Second, for the reasons that follow (in sections 4.6.1 [307] and 4.6.2 [316]), the outcome of the two matters would remain unchanged in any event.

4.5 Did the Messengers exercise workplace rights?

172    As the background recited earlier makes apparent, the Messengers’ actions are predicated on their having exercised certain workplace rights. Those exercises are said to have assumed the form of a raft of complaints or inquiries that they allege that they made in relation to their employment. Those communications date back to Senator Lambie’s first term in office and extend through until the Second Show Cause Response Letter.

173    As will become apparent, the evidence that was led to establish that each of Mr and Mrs Messenger did, in fact, make the complaints or inquiries that are said to have amounted to their exercising of workplace rights was not always particularised to the highest standard. Some of the complaints or inquiries that are said to have been made were said to have been recurring matters, in respect of which the evidence lacked specificity.

174    The analysis that follows addresses each species of complaint or inquiry upon which the Messengers rely. In respect of each, four questions arise: first, was the communication made; second, was it in the nature of a complaint or inquiry; third, was it made in relation to Mr or Mrs Messenger’s employment; fourth, was it a complaint or inquiry that either or both of Mr and Mrs Messenger was or were relevantly “able to” make?

4.5.1 Some preliminary observations

175    Much of the evidence relevant to the analysis in this section was contested. It is prudent that I should make some observations at the outset about witness credibility; and, in particular, about the evidence of Mr and Mrs Messenger.

176    Mr and Mrs Messenger did not present as credible witnesses. Throughout the trial, they were consistently argumentative, and exhibited the clearest and most constant desire to exact upon the Senator as much reputational damage as they could by ventilating the many and various matters about which they claimed to have complained during their employment. Much of what they said—particularly about some of the communications that they claim to have made early on in the Relevant Period—had a distinct air of reinvention to it. Mr Messenger, in particular, appeared very carefully to curate his evidence such that he might more easily characterise the discussions that he recounted as complaints or inquiries related to his employment. Despite repeated warnings from the court—stated in escalating terms over the course of the trial—he exhibited an unrelenting tendency to air matters of scandal prejudicial to Senator Lambie, most apparently for the consumption of media representatives who observed and reported on the trial. His evidence appeared calculated and, at times, vengeful.

177    Mrs Messenger exhibited similar tendencies. She frequently overstated matters in the service of her case and regularly punctuated her evidence with gratuitous observations—usually slurs—self-evidently designed to humiliate or disgrace the Senator. Like Mr Messenger, she proceeded at times throughout both her evidence and her conduct of the trial more broadly as though the proceedings served as some form of judicial inquiry into the many and varied character shortcomings that she attributes to Senator Lambie. She, too, was warned against doing so; but, all too often, those warnings appeared not to dent her enthusiasm.

178    By contrast, all of the other witnesses—including those that appeared by subpoenas issued at the Messengers’ request—presented as honest and credible. Many (indeed, most) gave evidence that conflicted with that of Mr or Mrs Messenger. In all such cases (and I shall come to some specific examples momentarily), I prefer their evidence over that of Mr and Mrs Messenger.

179    With that acknowledged, a further observation warrants attention. To a very large degree, the evidential conflicts that developed over the course of the trial focused upon whether the various subjects about which Mr and Mrs Messenger claimed to have advanced complaints or inquiries were subjects about which such complaints or inquiries were properly advanced. In other words, they went to whether or not those complaints or inquiries were warranted, rather than the simpler (and far more relevant) matter of whether they were made.

180    It is unnecessary that I should make findings about whether or not Mr and Mrs Messenger had good cause to complain or inquire about the matters in respect of which they claim to have advanced complaints or inquiries. At the risk of repetition, an action under pt 3-1 of the FW Act is not an occasion for a court to embark upon some broad-ranging inquiry into matters that are said to have been the subject of relevant complaints or inquiries. Instead, the court’s focus is properly anchored to whether or not complaints or inquiries of the relevant kind were made (and, to the extent that they were, whether they actuated or partially actuated conduct amounting to adverse action). That is a matter upon which the evidential conflicts alluded to in the previous paragraph did not touch; and, save for a small number of references in the observations that follow, nothing more need be said about them.

4.5.2 Complaints about language

181    Mr and Mrs Messenger allege that, during Senator Lambie’s first term, they had occasion to complain to her about her use of foul or vulgar language at work. They offered many examples of the language about which they claim to have complained. It is not necessary to recite any.

182    Without intending criticism (particularly not given the historical nature of the alleged complaints), the Messengers’ evidence about the complaints that they made to the Senator about her use of bad language in the workplace was insufficiently particularised. Save to say that they alleged that they made them, it was very much unclear when, where or in what context that was said to have occurred, what the precise subject matter of each communication was, whether anybody else was present at the time of each, and so on.

183    Senator Lambie accepted that she—and others within her office, including Mr and Mrs Messenger—occasionally used bad language at work. Her evidence, though, was that neither Mr nor Mrs Messenger ever complained to her about it.

184    The evidence that each of Mr and Mrs Messenger gave was self-evidently exaggerated. Each of them claimed, for example, to have complained to the Senator about her language on a “daily” or perhaps “weekly” basis. That is difficult to accept, not least because the Senator was absent from her Burnie office (where at least Mrs Messenger was based) for approximately fifty per cent of her time. It also sat most uneasily with the evidence of the Messengers’ co-workers (or those who gave evidence), all of whom painted a very clear picture of an office environment in which a more or less unremarkable level of swearing or profanity was de rigueur. With one exception, none of them had had occasion to complain about the Senator’s language. The one who did did so directly to the Senator and her issue was addressed in a respectful and adult manner.

185    Senator Lambie’s language at work appears very much to be a device that the Messengers have resolved to repurpose in their public campaign against her. There seems little doubt that the Senator has employed language that some might regard as unbecoming of her high office. As they did on multiple fronts, the Messengers were very keen to impress upon the court (and, perhaps, upon representatives of the media that observed the trial) that perceived flaw in the Senator’s character. But whether the Senator partakes of bad language or not is not to the point; much less is it for the court to pass judgment on her if she does. At issue presently is whether the Messengers were moved to confront her about it when she employed them (as opposed to now, when their allegations might inflict upon her some measure of public embarrassment). On the state of the evidence just summarised, I do not accept that either of the Messengers spoke to the Senator during her first term about her language around the office. I accept Senator Lambie’s evidence that they did not.

186    But even if they did, it does not follow that those communications should qualify as complaints or inquiries of the kind described in s 341(1)(c)(ii) of the FW Act. Both of Mr and Mrs Messenger gave evidence that they were concerned about the impact of the Senator’s language on other staff and, potentially, upon her reputation in the community. Their evidence tended to suggest (albeit not with a level of clarity that might have been preferred) that they were concerned not with the impact of the Senator’s behaviour upon them or their employment; but with how her behaviour (as they painted it) potentially or actually impacted upon her staff and upon her standing in the community. In those senses (and on the assumption that my conclusion about their not having raised the issue at all is wrong), the Messengers’ communications appear to have assumed the character of guidance or counsel. They were advisory, not remonstrative.

187    That being the case, it is difficult to see how the communications—as vague and unparticularised as they remain—could qualify as complaints related to the Messengers’ employment. On the footing that they occurred at all, they strike as unremarkable instances of senior employees offering counsel to their employer for the avoidance of undesirable consequences.

188    More to the point, it remains unclear, to say the least, how any complaint that either or both of the Messengers raised with Senator Lambie about her language in the workplace should qualify as one that they were relevantly able to make. On that front, the Messengers alleged that those complaints were “underpinned by a legal right or entitlement to make them” under the FW Act, the MOPS Act, the PID Act, the Work Health and Safety Act 2011 (Cth) (hereafter, the “WHS Act”), and/or the Enterprise Agreement (or its predecessor). Compendiously though that submission was advanced, it falls at every hurdle. It was never explained how—and I do not consider that—any of the statutory instruments to which the Messengers point conferred upon them anything approximating the legal right or entitlement claimed. It is not possible to characterise the complaints that the Messengers claim to have made to the Senator about her language in the workplace as complaints the making of which any of those instruments could sensibly be said to have authorised. When (or if) the relevant communications were made, they were made not pursuant to some ability conferred to that end; but, rather, as a consequence of the Messengers’ belief that they had a valid issue that required ventilation with the Senator. That is not sufficient to invoke the protection that s 340(1) of the FW Act affords (see, above, 4.3.3 [141]-[149]).

189    By way of summary, then:

(1)    the discussions that the Messengers allege that they had with the Senator about her language in the workplace were not, in fact, had;

(2)    even if they were, the evidence fails to establish that they were in the nature of complaints;

(3)    even if they were, they were not relevantly related to the Messengers’ employment; and

(4)    even if they were, they were not complaints that either of the Messengers was relevantly able to make.

190    It follows that the Messengers did not exercise a workplace right or workplace rights by reason of the discussions that they said that they had had with the Senator regarding her use of bad language at work.

4.5.3 Complaints about alcohol consumption

191    Mr and Mrs Messenger next allege that, during the period between 1 July 2014 and 2 July 2016, they discussed with the Senator her “…excessive alcohol consumption, including at work, travelling for work and meeting with stakeholders and [P]arliamentary colleagues”. By his pleading, Mr Messenger particularised 11 discrete occasions on which he claimed to have had discussions of that nature with the Senator.

192    By her evidence, Mrs Messenger claimed that she “…made regular complaints to [Senator Lambie] with regard to her alcohol consumption and the effect it would have on her reputation as well as the safety of staff.” Those discussions, however, were never particularised. Mr Messenger, although identifying the 11 occasions to which his pleading referred, was unable directly to recall any of them during the trial.

193    Ms Sargent’s evidence was that Mr Messenger had expressed to her a concern about Senator Lambie consuming alcohol. She told the court that he had instructed staff who travelled with the Senator that they should limit what she consumed.

194    Senator Lambie acknowledged that she and Mr Messenger had discussed her alcohol consumption at points throughout his employment. She denied, though, that any of those conversations rose to the status of a complaint. She gave the following frank evidence:

…because of my past with alcohol abuse…he [Mr Messenger] would just remind me that I’d had that problem in the past and [to] be very, very careful. And just to make sure that, you know, we wouldn’t want to have me out on the front page with a drink in my hand, or anything like that…

195    Senator Lambie also gave evidence about the extent to which those conversations—specific particulars of which were not explored—married with Mr Messenger’s role as her Chief of Staff:

Of course it was [part of his job]. Well, part of his job but I thought it was more, you know, to me it was friendly advice and I appreciated him reminding me of that. There was no problem then, I think, you know, he was just trying to do the right thing and make sure that I didn’t fall back into any of that. So – but certainly, I didn’t say, take that as a complaint. As a matter of fact, it was quite caring the way he did it, so it was not – he was more worrying, you know, just be careful and, you know, you don’t want to go back into that and be careful.

196    Although it is difficult, if not impossible on the evidence presented, to say with much particularity what was discussed or when or with what frequency, it appears uncontroversial—and I accept—that there were some discussions at least between Mr Messenger and Senator Lambie about her consumption of alcohol. Senator Lambie was very candid with the court. She made no attempt to disguise her past struggles. I accept that Mr Messenger, acting diligently and with concern for his employer, did counsel her about measures that she might take to ensure that she did not slip back into previous habits.

197    I do not, however, accept that anything that was said to Senator Lambie—by either of Mr or Mrs Messenger—was said by way of complaint. The Messengers’ attempts throughout the trial to embarrass the Senator about her past transgressions were gratuitous and transparent. They regularly referred to her as an “alcoholic”; and even went so far as to suggest that her consumption of alcohol posed risks to their health and safety, or that of the other staff in Senator Lambie’s office. Those suggestions—like many others that the Messengers advanced—were absurd, unjustified, wanton and callous. The evidence and submissions that they advanced about having complained to the Senator about her use of alcohol were nothing more than an obvious reinvention of otherwise unremarkable conversations, posed in this forum not merely to support an unsupportable legal claim but also to exact a measure of public humiliation for the Senator.

198    But even putting that all to one side, it is anything but clear how it might be said that the conversations that were had (or alleged) amounted to complaints that Mr and Mrs Messenger were relevantly able to make. Able according to what, it might be asked… It was suggested that they were authorised by one or more of the same instruments that were said to have authorised the complaints that they claimed to have raised about the Senator’s language at work. But, again, none of those instruments in fact authorised what occurred (or is alleged to have occurred); and certainly not in any way that was explained. Even assuming that both of Mr and Mrs Messenger had occasion to discuss with the Senator her consumption of alcohol; and even assuming that they each did so by way of complaint; and even assuming that those complaints related in some way to their employment, the discussions were not a product of any right or entitlement conferred, instrumentally or otherwise, upon Mr or Mrs Messenger. Rather, they were had as an incident of the Messengers’ belief that they were appropriate to be had. As with the alleged complaints about Senator Lambie’s language, that is not sufficient to invoke the protection that s 340(1) of the FW Act contemplates (see, above, 4.3.3 [141]-[149]).

199    Again, to conclude by way of summary:

(1)    although it is difficult, if not impossible, to say with any particularity, there were some discussions, at least as between Senator Lambie and Mr Messenger, concerning the Senator’s consumption of alcohol;

(2)    such discussions as there were or might have been were not in the nature of complaints—but, rather, were had for strategic or advisory purposes;

(3)    even if they were in the nature of complaints, those discussions were not relevantly related to the Messengers’ employment;

(4)    even if they were, they were not complaints that either of the Messengers was relevantly able to make.

200    It follows that the Messengers did not exercise a workplace right or workplace rights by reason of the discussions that they said that they had had with the Senator regarding her consumption of alcohol.

……………………………………………………………………..

4.5.17 Conclusion

302    Of the great many complaints or inquiries whose making Mr and Mrs Messenger sought to qualify as the exercise of workplace rights, only one in fact so qualified (see above, [249]). The remainder were, in some combination or another, either not made, not in the nature of complaints or inquiries, not sufficiently related to the Messengers’ employment (or that of either of them) or not of a kind that the Messengers were relevantly able to make.

4.6 Why was adverse action taken?

303    As has been made clear above (in section 4.4 [157]), the only instance of adverse action to which I accept that the Messengers were subjected was their dismissal. With the exception of the complaints that were aired during the discussion that took place in February 2015, following receipt of a terror-related death threat (see above, [249]), I do not consider that any of the communications upon which Mr and Mrs Messenger presently rely were made; nor, to the extent that they were (or might have been) made, that they amounted to the exercise of a workplace right or workplace rights.

304    Strictly speaking, then, the only question that remains to be resolved (at least in relation to the cases that were advanced under s 340(1) of the FW Act) is whether either of Mr or Mrs Messenger was dismissed because of what was said on 27 February 2015.

305    Nonetheless, the analysis that follows is broader in its scope. It assumes that the conclusions that I have stated above concerning the extent to which Mr and Mrs Messenger exercised (or, more accurately, did not exercise) workplace rights and were (or, more accurately, were not) subjected to adverse action are wrong. It goes further to identify whether, or to what extent, any of the three species of adverse action that the Messengers allege was actuated or partly actuated by any of the complaints or inquiries by the making of which they claim to have exercised workplace rights.

306    For the reasons that follow, none of the conduct to which the Messengers were subjected (and which they seek to constitute as adverse action) was taken because, or for reasons that included that, either or both of them had made any of the complaints or inquiries upon which they rely.

4.6.1 The First Show Cause Letters

307    The decision to send the First Show Cause Letters was Senator Lambie’s. That was not controversial. In order to determine whether that decision was actuated, or partly actuated, by a reason or reasons proscribed by pt 3-1 of the FW Act, it is necessary to consider the explanation that Senator Lambie gave as to why she made it.

308    That explanation was straightforward. Senator Lambie’s oral evidence was that the First Show Cause Letters were sent “…because of what was in the show cause letters”. She elaborated:

The reason that those show cause letters went out there is what is written in those show cause letters, and from what those girls told me in December, and everybody opened up to what was going on in my office.

309    Under cross-examination, Senator Lambie did not deviate from that evidence. Further, she denied that her decision to issue the First Show Cause Letters was related in any way to any complaint or inquiry that either of the Messengers claimed to have made.

310    Senator Lambie’s explanation sits very comfortably alongside the events that transpired in the lead up to the sending of the First Show Cause Letters. In late November, when Mrs Messenger accompanied Senator Lambie to Canberra for the final sitting week of 2016, there was a confrontation as between them. Soon thereafter, in December of 2016, Senator Lambie was alerted to some matters of obvious concern during the road trip that she took with Ms Tyrell and Ms Balthazaar-Proctor (above, [47]). Those concerns were amplified by the discussions that she had with other staff members immediately after that road trip (see above, [48]). In February 2017, there was a further deterioration in the relationship between Mrs Messenger and Senator Lambie (see above, [51]). At around the same time, efforts were made to establish, with the assistance of Mr Witheford, a process by which best to resolve the concerns that Senator Lambie said had formed in her mind. Initially, that process was to include a mediation session; but that broke down (see above, [62]-[67]). Shortly thereafter, Mrs Messenger made an unexpected visit to the Senator’s office, whereupon she set about destroying (and/or discarding) a volume of documents. That course of events is consistent with a desire on Senator Lambie’s part to commence the process about which the Messengers now complain.

311    Mr and Mrs Messengers’ case concept, on the other hand, is inherently unrealistic. They maintain, for example, that Senator Lambie sent the First Show Cause Letters in part because of complaints that they had raised well prior—in some cases, years prior. Of course, some of the complaints (or alleged complaints) that are relied upon were, at the time of the First Show Cause Letters, relatively contemporary (see, for example, the complaints that were said to manifest in Mr Messenger’s emails of 6 and 7 December 2016, and 5, 8 and 9 March 2017). Others, though, were by then matters of ancient history (see, for example, the complaints that were said to have been made about the Senator’s radio interview in July 2014 (see above, section 4.5.6 [220]).

312    Further, it must be borne in mind that the so-called PID, although sent in the morning of Monday, 27 March 2017 (a matter of hours prior to the First Show Cause Letters) did not make its way into Senator Lambie’s possession until much later. Senator Lambie’s evidence—which I accept—was that she did not see that document until well after the Messengers were summarily dismissed from their employment. Despite their best efforts (particularly during the cross-examination of Senator Lambie and Ms Tyrell—the latter of whom told the court that she believed that she became aware of the PID whilst in Canberra, possibly as early as March 2017), there was no evidence that contradicted the Senator’s testimony on that score, nor from which the court might draw inferences sufficient to warrant its rejection.

313    There is, then, no obvious reason to reject—and, in my view, some quite powerful reasons to accept—Senator Lambie’s explanation as to why she decided to send the First Show Cause Letters. To the extent that any of them was in fact made, none of the complaints or inquiries that Mr and Mrs Messenger rely upon presently factored in any way in, or otherwise bore causally upon, Senator Lambie’s decision to send the First Show Cause Letters.

314    Even if those various complaints or inquiries involved, in each case, the exercise of a workplace right, and even if the Messengers’ receipt of the First Show Cause Letters amounted to adverse action, I do not accept that the latter was actuated, or partly actuated, by any of the former.

315    It follows that the Messengers were not, by reason of the First Show Cause Letters, subjected to adverse action in contravention of s 340(1) of the FW Act.

4.6.2 The Second Show Cause Letter

316    As with the First Show Cause Letters, the decision to send the Second Show Cause Letter was Senator Lambie’s. Again, that was not controversial. In order to determine whether that decision was actuated, or partly actuated, by a reason or reasons proscribed by pt 3-1 of the FW Act, it is necessary to consider the explanation that Senator Lambie gave as to why she made it.

317    Obviously enough, those reasons are informed (if not constituted entirely) by Senator Lambie’s reaction to the Messengers’ First Show Cause Response Letter. As to that, the Senator’s evidence focused upon the Messengers’ decision to copy their First Show Cause Response Letter to the office of the Prime Minister. She testified as follows:

I just thought how demeaning, and why would you send it to a Prime Minister? I found it absolutely disgusting. It was the – it was the last stage, I think, of just – I just could not – why would you send that to a Prime Minister? What was he hoping to get out of it? You know, I’ve got to have a good relationship with ministers and Prime Ministers, and I just – me knowing myself, for the former Prime Minister Turnbull, that he’s a little bit bigger than this stuff made me feel a little bit better. But other than that, why – why would you do that?

So I was quite upset, quite angry about it…

…to send this to demean me and put this sort of rubbish out there through [the Prime Minister’s] office when there was no need to, and when I know very well [Mr Messenger]’s a former parliamentarian and knows better than that, I just found that quite – the lowest point.

I just found it, like, very demeaning, very – just trying to shame me, belittle me, everything like that and there’s bugger all truth in it and I just found it – and the other thing was, he never actually responded to anything in the show cause. It was a letter to get out there and how he felt about me and that’s it.

[I]t was completely out of order doing that. It should never have gone to the Prime Minister’s Office to check the Prime – and I think that was – it wasn’t just – so it’s not just the Prime Minister that sees that. It goes through his staff first. This was just him meaning this is – this – to me, it’s, like, last straw mate. Sorry. I’m done.

318    Senator Lambie’s evidence about her reaction to the First Show Cause Response Letter was reflected in the evidence of Ms Tyrell and Ms Rikys, with whom she discussed its content. It is patently clear from the evidence of all three that Senator Lambie’s reason for sending the Second Show Cause Letter was that she felt belittled and demeaned by the First Show Cause Response Letter. One need only read it to understand why she might have formed that view.

319    Mr and Mrs Messenger’s central contention concerning the sending of the Second Show Cause Letter was that it was a “reprisal” for their having sent their so-called PID. That assertion does not accord with the facts. Senator Lambie’s evidence, which I accept, was that, although curious as to its content, she had not seen that so-called PID at the time that the Second Show Cause Letter was sent. There was no evidence to the contrary (see above, [312]). The sum total of Senator Lambie’s knowledge about the existence or content of that document appears to be the brief reference that was made to it in the First Show Cause Response Letter. I accept that the so-called PID did not factor in any way in, nor in any way bear upon, Senator Lambie’s decision to send the Second Show Cause Letter.

320    Likewise, in light of my conclusions about the reasons that animated (and, just as importantly, did not animate) the sending of the First Show Cause Letters, it is self-evidently illogical to suggest that the Second Show Cause Letter was actuated in any way by any of the other alleged complaints upon which the Messengers relied (including those dating all the way back to 2014). Senator Lambie’s evidence was that it wasn’t and I accept that.

321    The Second Show Cause Letter was not sent because, or for reasons that included that, Mr and Mrs Messenger had made any of the complaints or inquiries that they allege were made over the course of their employment.

4.6.3 The Dismissals

322    Like the other instances of alleged adverse action, the decision to terminate the employment of each of Mr and Mrs Messenger was Senator Lambie’s. Again, that was not controversial.

323    As with her decisions to send the First Show Cause Letters and the Second Show Cause Letter, Senator Lambie’s evidence as to why she decided to terminate the Messengers’ employment was straightforward. She told the court about her reaction to the First Show Cause Response Letter and the Second Show Cause Response Letter: she was, to say the least, unimpressed that the Messengers had seen fit to air the unmistakably ridiculing and demeaning insults that were littered throughout that correspondence (in particular, the First Show Cause Response Letter) to the office of the Prime Minister. One need only read the correspondence to understand why or how she might have formed that state of mind.

324    In particular, Senator Lambie told the court that, upon receiving those letters, she felt that there was no prospect that she and the Messengers might ever be able to work together again. Her evidence was as follows:

I suspect that after doing all that, honestly, that they must have known – how was it ever – how was it going to ever function having them back in my office after all of that, Mr Harrington?

…there was nothing else left – I couldn’t do anything more. It was over. It was completely and utterly over. The relationship was completely broken down. There was no trust, and everything – while going through the Prime Minister’s office and everything else, there was nothing left, Mr Harrington. There was only one thing left, and that was to dismiss them.

325    Asked, point blank, why it was that she decided to proceed with the Messengers’ dismissals, Senator Lambie replied:

…because there was no turning around and going back from this…

326    Senator Lambie’s evidence aligned with that of Ms Rikys, with whom she spoke upon receiving the Second Show Cause Response Letter. Ms Rikys’s evidence was that, during their conversation, it became clear to Ms Rikys that Senator Lambie was angry about that correspondence. Her (Ms Rikys’s) evidence was that:

…Senator Lambie was angry. Again, she couldn’t believe the content. It wasn’t a response to the show cause. It was just reiterating the Messengers’ intent to keep the Prime Minister’s office fully informed and further demonstrated a breakdown in the employer/employee relationship.

She wanted to terminate the Messengers[’ employment].

327    Senator Lambie denied that her decision to proceed with the Messengers’ dismissals was actuated, or partly actuated, by their having made any of the complaints or inquiries that they said that they had made throughout the course of their employment. She was not cross-examined on that denial; nor, indeed, at all as to her reasons for deciding to proceed with the dismissals.

328    Again, Senator Lambie’s explanation for why it was that she decided to dismiss each of Mr and Mrs Messenger was inherently credible and sat in quite obvious harmony with the events that had led up to it (as to which, see above, [310]). Given the communications that were exchanged (and shared) after 27 March 2017, it could hardly come as a surprise that Senator Lambie formed the view that the Messengers’ ongoing employment was untenable. Indeed, Mr and Mrs Messenger themselves both agreed that their respective relationships with the Senator had broken down at least to a point of no confidence.

329    Conversely, the notion that Senator Lambie might have been motivated to act as she did, even partly, on the strength of complaints or inquiries that were advanced (or allegedly advanced), in some cases, many months or even years prior is inherently unconvincing. Again, the Messengers’ chief contention was that Senator Lambie had been moved to act against them because of their so-called PID; but, again, the evidence was very clear that that document had entered neither the Senator’s possession nor her consciousness. As with the other instances of alleged adverse action, there is every reason to accept—and I do accept—Senator Lambie’s evidence as to why she decided to dismiss each of Mr and Mrs Messenger from their employment. It is clear that none of the complaints or inquiries upon which Mr and Mrs Messenger rely factored in any way in, or otherwise bore causally upon, Senator Lambie’s decision.

330    Even assuming, contrary to what I have concluded above, that all of those communications transpired and that they all involved an exercise of a workplace right, I do not accept that Senator Lambie’s decision to dismiss either of Mr or Mrs Messenger was actuated, or partly actuated, by any of them. Rather, they were dismissed because Senator Lambie did not consider that they had adequately addressed the concerns that she had invited them to address and, more significantly, because they had insisted upon sending correspondence that was spitefully critical of her to the office of the Prime Minister.

331    It follows that neither of the Messengers was, by the termination of their employment, subjected to adverse action in contravention of s 340(1) of the FW Act.

4.7 Conclusions

332    Insofar as concerns Senator Lambie’s decisions to send to the Messengers the First Show Cause Letters and the Second Show Cause Letter—and to subject them to the process that those letters, in each case, envisaged—the following conclusions may be stated, namely:

(1)    neither of those decisions (or the action taken in consequence of each) sufficed to qualify as adverse action as the Messengers alleged (see above, section 4.4 [157]);

(2)    even if either had, neither was actuated, in any way, by any complaint or inquiry that either or both of the Messengers had made in relation to their employment (see above, sections 4.6.1 [307] and 4.6.2 [316]);

(3)    even if either was so actuated (or partly actuated), such complaints or inquiries were (with one exception—see above, [249]) either not made or, to the extent that they were (or might have been) made, were in any event (and in each case) not complaints or inquiries the making of which involved (or would or might have involved) the exercise of a workplace right (see above, section 4.5 [172]); and

(4)    the action to which the Messengers were subjected in consequence of each decision was not, in any case, adverse action taken against them (or either of them) in contravention of s 340(1) of the FW Act.

333    Insofar as concerns Senator Lambie’s decision to summarily dismiss each of Mr and Mrs Messenger on Wednesday, 3 May 2017 (and the action that was then taken to effect those dismissals), the following conclusions may be stated, namely:

(1)    that decision, or that action, amounted (in each case) to adverse action (see above, section 4.4 [157]);

(2)    it was not, however (and in either case), actuated, in any way, by any complaint or inquiry that either or both of the Messengers had made in relation to their employment (see above, section 4.6.3 [322]);

(3)    even if it were so actuated (or partly actuated), such complaints or inquiries were (with one exception—see above, [249]) either not made or, to the extent that they were (or might have been) made, were in any event (and in each case) not complaints or inquiries the making of which involved (or would or might have involved) the exercise of a workplace right for (see above, section 4.5 [172]); and

(4)    the action to which the Messengers were subjected in consequence of each decision was not, in either case, adverse action taken against them in contravention of s 340(1) of the FW Act.

334    None of the contraventions of s 340(1) of the FW Act that the Messengers alleged as against the Commonwealth is established. That being so, there are none in which Senator Lambie might be thought to have been involved for the purposes of s 550 of the FW Act. There was no wrongdoing of the kind alleged to which she could have been an accessory. It necessarily follows that none of the contraventions of s 340(1) of the FW Act that the Messengers alleged as against Senator Lambie is established.

335    For those reasons, the adverse action aspects of each of the Messengers’ matters must be dismissed…………………………………….”

 

Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 per Snaden J delivered 10 Jun 2022