General protections and the “because ” issue

This extract from a recent Federal Court case decision sets out the legal principles which are sometimes involved in determining the “because” or the reason for the taking of adverse action.

“57    RPS identifies the impugned finding to be that Ms Lamb’s complaint was an operative and substantial factor in the minds of those who took the decision to take the alleged adverse action. This ground is founded on an incorrect premise. There was no need for the primary judge to be satisfied on the evidence that each of those who were said to be decision-makers or relevant persons who made up the corporate mind of RPS (with respect to one allegation of adverse action) was actuated by the prohibited reason. The reasoning of the Full Court in Wong v National Australia Bank Ltd [2022] FCAFC 155; 318 IR 148 supports this view. In that case Ms MacLeod had the authority to remove Ms Wong from her role and to terminate her employment: at [14]. Ms MacLeod was not aware of any of the many complaints or inquiries made by Ms Wong that predated the removal decision: at [15]. The Full Court (at [24]) cited with approval Roberts v General Motors-Holden’s Employees’ Canteen Society Inc (1975) 25 FLR 415; 172 CAR 1073, which acknowledged that not all the considerations operating on the mind of every member (of the committee or group involved in the decision) would necessarily be known by the others, with the Full Court in Wong ultimately concluding that (at [26]):

The authorities show that in asking whether an adverse action was taken by a corporate entity, the Court should remain alert to the possibility that the answer may reside in the mind of more than one natural person. The state of mind of the human actor who said or did the thing that bound the corporation to the action will of course be important, and in many cases determinative. However, the cases illustrate that a person who does the act or thing constituting the adverse action may act on information or advice the provision or content of which is actuated by a prohibited reason. The adoption of such information or advice may necessitate the conclusion that the corporation’s reasons for the adverse action include that prohibited reason. In such cases, it matters not that the person providing the information and advice does not formally possess the authority or power to effect the decision based on the information and advice. Whether the person performing the act constituting the adverse action is aware that he or she is acting on information or advice given for a prohibited reason may not be relevant in cases of that kind.

(Emphasis added.)”


RPS AAP Consulting Pty Ltd v Lamb [2023] FCA 1310 delivered 31 Oct 2023 per Raper J