General protections claim explained by court

 

This rather lengthy extract from a recent Federal Court decision is an excellent summary of the legal principles and issues often at the heart of general protections cases.

 

“D.    GENERAL PROTECTIONS CLAIMS

D.1.    Statutory provisions and legal principles

D.1.1.    Workplace rights statutory provisions

82    Section 340(1) of the FW Act provides:

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).

83    Section 341(1)(c)(ii) of the FW Act provides:

341    Meaning of workplace right

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.

D.1.2.    Meaning of workplace right

84    In the context of s 341(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”, and (b) the “grievance, finding of fault, or accusation must be genuinely held or considered valid by the complainant”: Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [29] (Dodds-Streeton J); Serpanos v Commonwealth of Australia [2022] FCA 1226 at [84] (Snaden J); PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225; [2020] FCAFC 15 at [137] (Snaden J), [26] (Rangiah and Charlesworth JJ); Alam v National Australia Bank Ltd (2021) 288 FCR 301; [2021] FCAFC 178 at [59] (White, O’Callaghan and Colvin JJ). Further, the term “complaint” has been said to connote “an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved”: Alam at [59]; Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421; [2020] FCAFC 204 at [13] (Bromberg J).

85    A person has, and therefore may exercise, a right to complain or inquire in relation to their employment if that complaint or inquiry is one that they are “able to make” under s 341(1)(c) of the FW Act. In Shea, Dodds-Streeton J considered the meaning of “able to make” in s 341(c) at [625]:

[T]he 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.

86    In Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677, Snaden J said the following in relation to the statutory meaning of being “able to make” in s 341(1)(c) at [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.

87    A complaint is “in relation to … employment” if the subject matter about which a complaint is made concerns an aspect of employment: Serpanos at [89]. There must be a relationship between the subject matter of the complaint and the complainant’s employment: Alam at [74]; Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534 at [33]-[34] (Collier J). A complaint can be directly or indirectly related to its maker’s employment: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [64] (Katzmann J); Shea at [631]. A connection between a complaint and employment will likely exist in circumstances “where the subject matter of the complaint raises an issue with potential implications for the complainant’s employment”: Walsh v Greater Metropolitan Cemeteries Trust (No 2) (2014) 243 IR 468; [2014] FCA 456 at [42] (Bromberg J).

88    For the purposes of s 341(c)(ii), the “potential implications” test is not without qualification. In cases involving senior management employees, the “potential implications” test may be of little utility as their conduct will likely always have potential employment ramifications: The Environment Group Ltd v Bowd [2019] FCA 951 at [126] (Steward J); Serpanos at [86]. In Bowd, Steward J said at [126]:

[I]n 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.

D.1.3.    Adverse action statutory provisions

89    Section 342(1) of the FW Act sets out in tabular form the circumstances in which a person is taken to have engaged in adverse action against another person. Item 1 in s 342(1) provides that adverse action is taken by an employer against an employee if the employer (a) dismisses the employee, (b) injures the employee in his or her employment, (c) alters the position of the employee to the employee’s prejudice, or (d) discriminates between the employee and other employees of the employer.

90    It is sufficient that a proscribed reason is one of multiple reasons for adverse action taken against a person: s 360 of the FW Act.

91    Section 361(1) of the FW Act reverses the normal onus in civil proceedings, and 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.

92    Subsection (1) does not apply in relation to orders for an interim injunction.

93    Although the applicant benefits from the reverse onus provision in s 361(1) of the FW Act, they must still factually establish that they had exercised a workplace right. In Yu v Act Education Directorate [2022] FCAFC 110, the Full Court of this Court found at [38] (Thomas, SC Derrington and Halley JJ):

What remained in dispute was whether … had established that she had exercised, or proposed to exercise, a workplace right. If that were established, it was then for the Directorate to establish that whatever adverse action it took was not because of the exercise, or proposed exercise, of a workplace right …

94    It has been said that it will be extremely difficult to displace the statutory presumption in s 361(1) of the FW Act if no direct testimony is given by the decision maker acting on behalf of the employer: Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32] (Tracy and Buchanan JJ). Direct testimony from the decision maker, however, is not a necessary pre-condition for the discharge of the statutory presumption. It is possible that the alleged reason as to why adverse action was taken may be negated on the applicant’s own evidence: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298; [2015] FCAFC 25 at [192] (Logan, Bromberg and Katzmann JJ); Cummins South Pacific at [84] (Bromberg J).

D.1.4.    Meaning of adverse action

95    The meaning of “injures” in s 342(1) includes causing an “injury of any compensable kind” and “is concerned with an actual adverse effect, usually by the loss or alteration of a legal right, in the position of an employee, in [their] capacity as an employee”: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 at [4] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ); CPSU, The Community and Public Sector Union v Telstra Corporation Limited [2000] FCA 844 at [20] (Finkelstein J); Crossing v Anglicare NSW South, NSW West & ACT [2021] FCA 1112 at [12] (Abraham J); Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650 at [34] (Perry J).

96    Altering the position of the employee to the employee’s prejudice is a broad additional category of adverse action which covers not only legal injury but “any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”: Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225 at [362] (Jagot J); Premier Motor Service at [33]; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 at [15] (Tracey J) .

97    Prejudicial alteration of an employee’s position may occur even though the employee suffers no loss or infringement of a legal right: Qantas Airways Limited v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63 at [31] (Gray, North and Besanko JJ). It will occur if the prejudicial alteration of an employee’s position is real and substantial rather than merely possible and hypothetical. The employee, individually speaking, must be in a worse situation after the relevant conduct than before it and the deterioration must have been caused by the employer’s conduct: Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 at [86] (Gordon J).

D.1.5.    Assessing whether certain conduct amounts to adverse action for a prohibited reason

98    In Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046, Wigney J summarised the relevant principles for determining whether conduct amounts to adverse action in the context of s 340 and cognate provisions in the FW Act:

[297]     First, the question is one of fact: Barclay at [41], [45], [101]; BHP at [7].

[298]    Second, the question is why the adverse action was taken: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision-maker: Barclay at [101], [127], [140], [146]; BHP Coal at [7], [19], [85]. More particularly, the question is whether the alleged prohibited reason was a “substantial and operative” reason for taking the adverse action: Barclay at [56]-[59], [104], [127]; or an operative or immediate reason: Barclay at [140].

[299]     Third, the test does not involve any objective element: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision-maker: Barclay at [107], [121], [129]; BHP Coal at [9]. To speak of objectively obtained reasons risks the substitution by the court of its view, rather than making the finding of fact as to the true reasons of the decision maker: Barclay at [121], BHP Coal at [9].

[300]    Fourth, the inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected workplace rights and the adverse action: BHP Coal at [18]-[20]. Any such connection, however, may necessitate some consideration as to the true motivation or reasons of the decision-maker: BHP Coal at [22].

[301]    Fifth, the question must be answered having regard to all of the relevant facts and circumstances and the inferences available from them: Barclay at [25], [127]; BHP Coal at [7].

[302]    Sixth, direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the burden imposed by s 361: Barclay at [45], [71]; BHP Coal at [38]. However, declarations that the action was taken for an innocent reason may not discharge the onus if contrary references are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127].

[303]    Seventh, it is not necessary for the decision-maker to establish that the reason for the adverse action was entirely disassociated from the relevant protected workplace right: Barclay at [62].

99    Assessing whether a particular reason was an operative or immediate reason for an adverse action calls for an inquiry into the mental processes of the person responsible for that action. It is appropriate to further interrogate the mental processes of persons whose contribution to that conduct rose beyond some threshold level: Serpanos at [103] and [123]. This threshold level has been described as “indispensable”, “material”, “significant”, “plainly important”, “major”, “substantial” or “essential”: Serpanos at [123]; Wong v National Australia Bank Limited [2022] FCAFC 155 at [82] (Katzmann, Charlesworth and O’Sullivan JJ). Nothing in the FW Act requires the Court to search for “unconscious elements” in the impugned reasoning of persons in the position of the decision maker: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [146] (Heydon J).

100    Actions that have been found to amount to adverse action in the context of s 342(1) of the FW Act include (a) the suspension of an employee’s employment: Barclay at [116]; Bowd at [166], (b) undertaking an investigation into an employee’s conduct, although an investigation undertaken in “good faith and on a proper prima facie evidentiary basis” may not amount to adverse action: Jones v Queensland Territory Admissions Centre Ltd (No 2) (2010) 186 FCR 22; [2010] FCA 399 at [80] (Collier J); Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70; [2013] FCA 525 at [103] (Murphy J); Police Federation of Australia v Nixon (2008) 168 FCR 340; [2008] FCA 267 at [48] (Ryan J), and (c) issuing an employee with a show cause letter: Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 at [163] (Mortimer J, as her Honour then was).

101    In Serpanos, Snaden J stated at [124]-[125]:

124    … A respondent may rebut the statutory presumption for which s 361(1) provides by leading evidence as to why it engaged in the conduct that an applicant seeks to impugn. The question for determination starts and ends with whether, in fact, those reasons actuated that conduct. It is not necessary for a respondent to prove that the reasons for which it did were procedurally or substantively fair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109, [31] (Gray, Cowdroy and Reeves JJ). At issue is simply whether they were, in fact, the reasons that animated that conduct.

125    That is an inquiry in two parts: first, where nominated reasons matters of opinion or belief that formed in the mind of the respondent (or, in the case of bodies corporate, those of its relevant human agents); and, second, did they positively inspire the respondent then to engage in the relevant conduct? If both questions are answered in the affirmative (and if there be no other reasons for which the relevant conduct was engaged in), it is irrelevant that the respondent’s reasons might be impugned as unfair or illogical or otherwise liable to criticism. 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) FCA 17, [48] (Bromberg J).

D.2.    Determination of general protection claims

102    For each of Mr Heal’s general protections claims against Sydney Flames, the Court must determine:

(a)    whether each exercise of a workplace right occurred as alleged by Mr Heal;

(b)    whether each alleged workplace right was a workplace right within the meaning of s 341(1)(c) of the FW Act;

(c)    whether each instance of alleged adverse action occurred;

(d)    whether each instance of alleged adverse action was adverse action within the meaning of s 340 and s 342(1) of the FW Act;

(e)    the decision maker(s) with respect to each instance of alleged adverse action; and

(f)    the reasons for the decision maker(s) taking each instance of alleged adverse action having regard to s 360 and s 361 of the FW Act.

103    Consistently with the reasoning of the Full Court in Alam, Mr Heal bears the onus of establishing the existence of each contested workplace right and each instance of adverse action in contest and it is only then that the reverse onus with respect to the reasons for the decision being taken to pursue the adverse action arises.

104    In sections D.3 and D.4 below, I address the general protection claims directed at the Initial Adverse Actions taken by Sydney Flames culminating in the decision to suspend Mr Heal as the Head Coach of the Team.

105    In sections D.5 and D.6 below, I address the general protection claims directed at the Further Adverse Actions alleged to have been taken by Sydney Flames after the decision was made to suspend Mr Heal as the Head Coach of the Team.

D.3.    Initial Workplace Rights

D.3.1.    Overview

106    Mr Heal alleges that he exercised four workplace rights prior to the decision taken by Sydney Flames to suspend him as an employee and instruct Ovartis Lawyers to conduct an independent investigation into the complaints that the players had made against him.

D.3.2.    First Workplace Right (Alleged Playing Schedule Complaint)

107    Mr Heal alleges that in late August 2022, in a conversation with Mr Pongrass, Mr Heal raised concerns about the Team’s playing schedule and not being consulted about it. Mr Heal submits that this constitutes the exercise of a workplace right within the meaning of s 341(1)(c) of the FW Act.

108    Both Mr Heal and Mr Pongrass gave evidence that in or about late August 2022, following the release of the final playing schedule for the 2022/23 WNBL season, there was a telephone conversation between them in relation to the Team’s playing schedule. It was common ground that during the call (a) Mr Heal said words to the effect that the Team was playing a lot of games on the road and that he referred to the challenges of playing many away games at the start of the season, (b) Mr Heal asked about the availability of the Quay Centre (Sydney Flames’ home venue) and why Sydney Flames did not arrange more “double headers” at Qudos Bank Arena, and (c) Mr Heal did not use the word “complaint” or any similar term.

109    Mr Pongrass gave evidence that he had a number of communications with Mr Heal regarding the schedule for the Team including a conversation in late August 2022 but that he does “not recall the specific words that were used”. He acknowledged that Mr Heal raised issues with the difficulties arising from the schedule and they discussed the issue of playing double headers with the Sydney Kings.

110    In his first affidavit, Mr Heal stated that during his conversation with Mr Pongrass he said words to the following effect:

I would have liked to have been part of the process with you and the front office in establishing the schedule and evaluating ways to get a more favourable draw. I should have been consulted or involved.

111    Mr Heal accepted, however, in cross examination, that in the course of his conversation with Mr Pongrass, he did not say anything to the effect that he “would have liked to have been involved” or he “should have been consulted”. Mr Pongrass also denied that Mr Heal had said anything in the course of their telephone conversations to the effect that he “would have liked to have been involved” or he “should have been consulted”.

112    That Mr Heal did not raise such concerns is consistent with the following matters.

113    First, Mr Heal was in fact consulted about the Team’s proposed schedule for the 2022/23 season. In the period between 12 July 2022 and 22 August 2022, Mr Pongrass provided Mr Heal with a copy of a draft schedule and stated that he was “keen to get your thoughts”, Mr Heal provided feedback which was taken into account in an email sent by Mr Pongrass to the head of Competition and Events at Basketball Australia. Mr Pongrass provided Mr Heal with an updated revised schedule and they exchanged emails in which Mr Heal expressed disappointment with the schedule and Mr Pongrass stated that was “the best we could get” and Mr Pongrass emailed Mr Heal the final version of the revised schedule, which he had received from the WNBL.

114    Second, Mr Heal accepted in cross examination that he had provided feedback on the playing schedule to Mr Pongrass, at least with respect to the significant amount of travel proposed for the Team by the WNBL, and that Mr Pongrass had regard to that feedback.

115    Third, as Mr Heal acknowledged, the playing schedule was determined by the WNBL. Mr Heal also accepted that it was a “really complex and difficult job”, it was affected by venue availability and Sydney Flames did not have control of the Team’s home venue. Whether Mr Heal or Mr Pongrass’ input was accepted by the WNBL is a very different question to whether Mr Heal had any input in the preparation of the playing schedule.

116    For these reasons, I do not accept that Mr Heal said anything to Mr Pongrass that could be characterised as a complaint or grievance about the playing schedule for the Team for the 2022/23 season.

117    Given that finding, the Alleged Playing Schedule Complaint could not qualify as a complaint falling within the meaning of s 341(1)(c) of the FW Act as it did not constitute a grievance, finding of fault or accusation.

118    Further, and in any event, I am not satisfied that the determination of the Team’s playing schedule was an issue that was directed at or concerned with Mr Heal’s employment in a substantive manner. Mr Heal accepted in cross examination that he was never responsible for the Team’s playing schedule. Therefore, any complaint that Mr Heal had about the Team’s playing schedule would not be a complaint “made in the exercise of, or otherwise to protect or vindicate some right or entitlement”: Messenger at [150].

D.3.3.    Second Workplace Right (Alleged Jackie Young Complaint)

119    In or about late November 2022, Mr Heal alleges that he had a conversation with Mr Pongrass, after he had refused Mr Heal’s recommendation to make an offer to American basketballer, Jackie Young. Mr Heal states that he “expressed a concern” in that conversation to the effect that as Head Coach, he expected that he would decide on players to scout and recruit and that the refusal to make an offer to Ms Young would affect the Team’s performance and, in turn, his role as Head Coach. Mr Heal submits that this conversation constitutes the exercise of a workplace right within the meaning of s 341(1)(c) of the FW Act.

120    The Sydney Flames’ player wages budget was governed by the WNBL salary cap system set out in the WNBL Collective Bargaining Agreement (CBA) and a total payment policy agreed between Basketball Australia and the Australian Basketball Players Association (WNBL salary cap). As a member of Basketball Australia, Sydney Flames is required to comply with the WNBL salary cap.

121    The WNBL salary cap for the 2022/23 season included the following provisions:

(a)    a ceiling on total player payments for each team of $430,000 (excluding superannuation), other than payments made to a local (Australian or New Zealander) “marquee player”;

(b)    if the ceiling was exceeded, a team was required to pay a “Luxury Tax” to Basketball Australia;

(c)    a “marquee player” could be paid outside of the salary cap but with an amount of $66,500 per annum (excluding superannuation) being attributed to the team’s salary cap regardless of the amount that the marquee player was actually paid; and

(d)    each teams’ roster could include up to two restricted (or international) players.

122    For the 2022/23 season, the Sydney Flames’ “marquee player” was Ms Heal.

123    Mr Heal largely accepted in cross examination, and I am satisfied that:

(a)    while Mr Heal had primary responsibility for scouting and recruiting players, he was not solely responsible for recruiting players for the Team;

(b)    Mr Heal’s role in recruiting players was not unrestrained – he was subject to budget restraints including the WNBL salary cap; and

(c)    the final decision as to whether Sydney Flames would recruit a particular player lay with Mr Smith.

124    Mr Pongrass used a spreadsheet, which displayed all player wages and other player expenses, to assist with determining wages when negotiating and determining offers to players as part of the overall Team budget and keeping the Team budget within the WNBL salary cap. Mr Pongrass shared the spreadsheet with Mr Heal who also used that spreadsheet to maintain an awareness of the Team’s budget.

125    In May 2022, Sydney Flames made an offer to sign Ms Young, for an amount of $140,000 gross, plus a car, accommodation and agent’s fees, for the 2022/23 WNBL season. If Ms Young had accepted the offer, she would have been the highest paid Sydney Flames player during the 2022/23 season.

126    Ms Young rejected the offer. Mr Pongrass was told that there was no point making another offer, as she had received a far higher offer. Mr Heal understood that she had accepted a “far more lucrative” offer elsewhere.

127    On 17 November 2023, Mr Heal exchanged WhatsApp messages with Ms Young’s European agent. Mr Heal was told by the agent that Ms Young “maybe will” become available. Mr Heal’s immediate response to the agent was:

It’s not the right fit for what we need but we love Jackie here as you know.

128    Later that day, Mr Heal sent a WhatsApp message to Mr Pongrass to the effect that he had been told that Ms Young was about to become available.

129    That night, Mr Heal sent WhatsApp messages to Ms Young’s agent asking for “the best figure for us” and for a “ball park” figure that Ms Young would accept.

130    On 18 November 2023, Mr Pongrass responded to Mr Heal with a WhatsApp message in the following terms:

Interesting.

But that would involve cutting Jocelyn?

And cost wise, my guess is she would be absurdly expensive.

131    Mr Heal then responded to Mr Pongrass’ WhatsApp message, in which he referred to a proposal to cut Hannah Sjerven (not Sydney Flames’ other international player, Jocelyn Willoughby), and concluded:

It would be unlikely we can get her but the advantage we have after a bad euro experience is maybe she takes an Aussie season to be happy? Just putting it out there.

132    Between 18 and 21 November 2022, Mr Heal and Ms Young’s agent exchanged further messages on WhatsApp, including the following messages:

Mr Heal:    Management are intrigued by Jackie. Our coaches love her. The budget is spent so we need to know what the number is they would have to spend? We also have to pay tax for being over the salary cap. ???

Ms Young’s agent:    … She has a 150,000$ offer from a European team … plus needs 1-2 more weeks rehab.

Mr Heal:        That’s fine mate. What’s her injury and reason for the agreed split in Turkey? Is that 150k US net?

Ms Young’s agent:    I think it’s more 125k with strong bonuses.

133    On 21 November 2022, Mr Heal sent an email to Mr Pongrass and Victoria Denholm with a screenshot of the messages from Ms Young’s agent showing her apparent salary expectations of USD “$125k [net] with strong bonuses”.

134    Following these email and text exchanges, Mr Heal and Mr Pongrass had a conversation in which:

(a)    Mr Heal asked whether Sydney Flames might try to recruit Ms Young, to which Mr Pongrass responded that Sydney Flames was not able to pay the US$125,000 that Ms Young was looking for;

(b)    Mr Heal asked whether Sydney Flames could make an offer within budget, to which Mr Pongrass responded that there was no or insufficient funds available within the Sydney Flames budget or within its WNBL salary cap; and

(c)    Mr Heal suggested cutting Ms Sjerven from the Team’s roster in order to have sufficient funds to recruit Ms Young.

135    Mr Heal accepts that he did not use the word “complaint” or any similar word or expression during his conversation with Mr Pongrass.

136    Mr Heal gave evidence that during his conversation with Mr Pongrass, (a) he stated that given the Team’s losses, Sydney Flames really needed to sign a player of Ms Young’s quality and the owners and management of Sydney Flames would be prepared to increase their budget to sign her, and (b) Mr Pongrass told him that he did not want to cut Ms Sjerven because it “would cause problems with Hannah’s agent”. Mr Pongrass denied that he said words to that effect, and instead, said that he replied that any savings from Ms Sjerven’s salary would not come close to what Ms Young was asking for.

137    Mr Heal may well have been disappointed at being told by Mr Pongrass that Sydney Flames was not able to make an offer to Ms Young and was not prepared to cut Ms Sjerven. I do not, however, accept that it is plausible that Mr Heal was genuinely surprised or upset. Mr Heal knew prior to the conversation that the Team’s salary cap was exhausted and he had told Mr Pongrass that it was unlikely that they could get Ms Young. Mr Heal had acknowledged that he was just “putting it out there”, Ms Young was seeking far more than the salary that the Sydney Flames had been prepared to pay prior to the commencement of the 2022/23 season and the salary paid to Ms Sjerven was significantly less than what Ms Young was requesting.

138    More significantly, I do not accept that the Alleged Jackie Young Complaint was a complaint directed at or concerned with Mr Heal’s employment in a substantive manner. The recruitment (or not) of a new player did not directly affect or pertain to the terms of Mr Heal’s employment or directly affect his remuneration. Mr Heal’s Contract may have included responsibility for “the management of playing roster”. There is, however, a distinction between “managing a playing roster” and recruiting players for potential selection on the playing roster. Mr Heal was responsible for selecting the team for each game. A responsibility to manage a playing roster did not confer on Mr Heal control over the recruitment of players or gave him the right or responsibility of making the final determination as to which players were recruited by Sydney Flames.

139    Any alleged complaint about Sydney Flames’ decision not to recruit or make an offer to Ms Young was not “made in the exercise of, or otherwise to protect or vindicate some right or entitlement”. Mr Heal had no right or entitlement to require an offer to be made to Ms Young (or any player), particularly in circumstances where it is common ground that the player budget was exhausted at that time and any offer to Ms Young would be an “exceptional circumstance” that required the owners to commit to a large additional salary amount.

140    I am satisfied that the Alleged Jackie Young Complaint is therefore not the exercise of a workplace right within the meaning of s 341(1)(c) of the FW Act.

D.3.4.    Third Workplace Right (Alleged Meg Jeffers Complaint)

141    Mr Heal alleges that in a discussion with Mr Pongrass, Mr Heal expressed a concern that the failure to recruit Ms Jeffers would have a negative impact on the Team’s performance, that he requested that the decision not to contract her be reviewed, and that he should be permitted to manage the Team within the budget parameters. Mr Heal submits that this constitutes the exercise of a workplace right within the meaning of s 341(1)(c) of the FW Act.

142    Ms Jeffers was a young player who was training with the Sydney Flames but was not contracted. Rachel Maenpaa was a more experienced player who was on a game-to-game contract with the Sydney Flames.

143    It was not in dispute that Mr Heal suggested to Mr Pongrass on 7 January 2023 that Sydney Flames sign Ms Jeffers to replace Ms Maenpaa and that Mr Pongrass rejected the idea because of the “locker room” experience of Ms Maenpaa, as a veteran basketballer.

144    Mr Heal also accepted that he didn’t use the word “complaint”, or “grievance”, or anything to that effect, that he did not say that he wanted something further done about signing Ms Jeffers and that he did not take the issue any further.

145    Mr Heal gave evidence, disputed by Mr Pongrass, that (a) Mr Pongrass had told him that Ms Maenpaa could not be replaced as she was a close friend of Victoria Denholm and (b) he had stated to Mr Pongrass, words to the effect that “[a]s Head Coach, I should really be allowed to manage the Team”.

146    Even if Mr Heal’s evidence was accepted on this issue, I am not satisfied that the Alleged Meg Jeffers Complaint was directed at or concerned with Mr Heal’s employment, as Head Coach of the Team, in a substantive manner. As I have stated above at [138], his contractual responsibility for the “management of playing roster” was concerned with player selection for games, not the employment of new players or the termination of contracts for existing players. Similarly, the stated responsibility in his Contract for “all aspects of team performance” was directed at the performance of the Team in the WNBL, not decisions on player recruitment and termination.

147    Nor am I satisfied that the Alleged Meg Jeffrers Complaint was a complaint that was “made in the exercise of, or otherwise to protect or vindicate some right or entitlement” of Mr Heal. Mr Heal had no right or entitlement to require an offer to be made to Ms Jeffrers, or any other player.

148    I am satisfied that the Alleged Meg Jeffers Complaint is therefore not the exercise of a workplace right within the meaning of s 341(1)(c) of the FW Act.

D.3.5.    Fourth Workplace Right (Alleged Victoria Denholm Complaint)

149    Mr Heal alleges that on 9 January 2023, he complained to Mr Pongrass about a confrontation which he had with Victoria Denholm. Mr Heal submits that this constitutes the exercise of a workplace right within the meaning of s 341(1)(c) of the FW Act. Mr Heal contends that the significance of the confrontation needs to be assessed in the light of alleged comments made to him by Victoria Denholm in December 2022 on a number of occasions to the effect that she did not support the Team having a male coach and she did not think that it was appropriated that middle aged men work in women’s sport.

150    Mr Heal submits that the relevant “source of entitlement” upon which the complaint must be founded, is his entitlement to a safe workplace which includes the entitlement not to be bullied, as underpinned by the Workplace Health and Safety Act 2011 (NSW) and as an implied term of Mr Heal’s Contract.

D.3.5.1.    Conversation between Victoria Denholm and Mr Heal

151    Both Mr Heal and Victoria Denholm gave evidence about a conversation that they had at a Team training session on 9 January 2023, following the Team’s loss to the Perth Lynx.

152    Mr Heal gave the following account of the conversation with Victoria Denholm in his affidavit evidence:

  1. Following the video session, and as the players and I were walking from the video session upstairs at the PCYC to the warm-up area to start the practice session, Ms Denholm approached me and we had a conversation to the following effect:

Ms Denholm:    What’s going to change?

Me:        What do you mean?

Ms Denholm:    What is going to change? That result [against Perth] is unacceptable.

Me:    We will continue to show videos and then drill on court and go through the process needed to keep improving.

Ms Denholm:    That’s not good enough- what’s going to change?

Me:    It’s too late to change the roster now. We had our chance to sign the best player in the league from last year [Jackie Young] and we missed it.

Ms Denholm:    Would Jackie [Y]oung have stopped Lauren Sherf from scoring?

Me:    Maybe not but she would have helped us score more points and given us a chance to win.

At this point in the conversation, Ms Denholm’s phone rang and she answered it and left.

(Confrontation).

  1. During the Confrontation, Ms Denholm spoke in an aggressive tone.
  2. The Confrontation was visible to the Assistant Coaches and they were in the near vicinity. The Team was warming up in the gym next door to the court and they were finishing their warm up and starting to come back to the court during the exchange.
  3. I was upset by this conversation as it made me feel that I did not have the support of the management of the Sydney Flames to perform my role and that I was being undermined by the management of the Sydney Flames.

153    Victoria Denholm’s recollection of her conversation is substantially consistent with Mr Heal’s recollection. In her affidavit, she gave the following account of the conversation:

  1. Following this film session, I walked downstairs with Mr Heal towards the training court, and we had a conversation during which words to the following effect were spoken:

I said:        What happened in Perth? It seems like déjà vu.

Mr Heal said:     You saw the film – it’s just defensive breakdown after breakdown. I keep trying to drill into them but the talent on the team just isn’t there.

I said:    We were in that game in the first half. I can understand the frustration – but what’s going to change? It’s frustrating we keep losing games like that.

Mr Heal said:    Well, I keep showing them the film and trying to drill it into them on the court to understand where they keep making mistake after mistake in missed rotations and bad decisions.

I said:    I’ll defer to you on the plays and the basketball side of the conversation, but I feel like if it’s mental lapses – there has to be something you can do. You’re a coach – you’ve been in hard situations as player – how can you coach them differently? How can you change what you’re saying to them to get through to them? Maybe trying something different will help. You know what they say about doing the same thing over and over and expecting a different result.

Mr Heal said:    No it’s just about drilling it into them and getting them to learn it. They’re all young and we don’t have the experience.

I said:    Is it a leadership problem? Can we play Ness or some of our veterans in those key moments?

Mr Heal said:    I would love to play Ness – but she’s shooting at 9%. She can’t be on the floor in crunch time.

I said:    Is Rachel an option?

Mr Heal said:    No Rachel is the worst WNBL player I’ve ever seen. She has no leadership and struggles to just get up and down the court. I was thinking of giving Meg Jeffers a go – she’s not WNBL ready either but Rachel is terrible.

I said:    I understand, but there has to be something we can do. I know you want to win as much as I do!

  1. At this point in the conversation, the players had completed their warm-ups and Mr Heal walked over to start practise and I walked over to the side of the court to sit in the stands and watch practice.
  2. I do not believe that at any point during the conversation described in paragraph 44 above I raised my voice, or used an aggressive tone, or acted in an aggressive manner towards Mr Heal. I also did not say words to the effect of “the result against Perth is unacceptable” or “that’s not good enough”.

154    In cross examination, Mr Heal accepted that Victoria Denholm did not raise her voice or make any aggressive gestures during that conversation, and he did not feel intimidated physically by Victoria Denholm. He maintained his affidavit evidence, however, that she used “an aggressive tone”.

155    An “aggressive tone” may be conveyed by a voice being raised or making aggressive gestures. Having observed both Victoria Denholm and Mr Heal in cross examination, I conclude that it is more likely that the tone used by her in the conversation, irrespective of whose recollection of the specific words that was used was more accurate, was more in the nature of an exasperated and frustrated tone, rather than an aggressive tone.

156    I am otherwise satisfied that there are no material differences between their respective recollections of the conversation. In particular, I do not see any substantive difference between on the one hand, “the result against Perth is unacceptable” and “that’s not good enough”, and on the other hand, “[w]hat happened in Perth? It seems like deja vu.”, “I can understand the frustration – but what’s going to change? It’s frustrating we keep losing games like that.”, “[y]ou’re a coach – you’ve been in hard situations as a player – how can you coach them differently?” and “I understand, but there has to be something we can do. I know you want to win as much as I do!”.

157    Mr Heal’s complaint, however, was more directed at feeling undermined and insecure because Victoria Denholm came from a powerful and wealthy family with a significant financial interest in Sydney Flames and considerable influence over its operations.

D.3.5.2.    Conversation between Mr Heal and Mr Pongrass

158    In his first affidavit, Mr Heal gave evidence that as soon as the training session on 9 January 2023 had concluded, he approached Mr Pongrass, who had been sitting in the stands and watching the session and had a conversation to the following effect:

Me:    Victoria came up to me prior to the practice session we’ve just finished and spoke to me aggressively, asking “What is going to change? That result [against Perth] is unacceptable.” I don’t think it’s acceptable for her to speak to me like that, particularly not right before a practice session. It’s really unprofessional.

Mr Pongrass:    She’s just emotional mate. She just wants to win.

159    Mr Heal also gave evidence in his first affidavit that he was upset because:

I had been thinking about the Confrontation, both in terms of the aggressive manner in which Ms Denholm had acted and the words that she had said, throughout the practice session. I continued to feel undermined and that my job was under threat.

160    Mr Pongrass maintains that the conversation with Mr Heal must have been on 10 January 2023 because his schedule indicated that he was not at training on 9 January 2023 and he recalls that at the time of the conversation, he was aware of the player complaints against Mr Heal. Mr Pongrass gave the following account of his conversation with Mr Heal in his affidavit:

Mr Heal said:     “I had a weird conversation with Vic about the Perth game. She kept asking me ‘what are we going to change’.”

I said:    “She is very passionate, she wants to win, as we all do in this industry. She wants to find ways to correct why we are losing, it’s her first year as President and she obviously really wants to succeed.”

161    Mr Pongrass denied that Mr Heal said to him anything to the effect “[t]hat result [against Perth] is unacceptable” or “I don’t think it’s acceptable for her to speak to me like that, particularly not right before a practice session. It’s really unprofessional”. Mr Pongrass also denied that he said to Mr Heal anything to the effect that “[s]he’s just emotional mate”. Mr Pongrass gave evidence that Mr Heal did not use the word “complaint” or anything to similar effect, and Mr Heal did not describe his conversation with Victoria Denholm as a “confrontation”.

162    On balance, I am prepared to accept Mr Heal’s version of his conversation with Mr Pongrass. In my view, it is more consistent with the apparent logic of events and with Mr Heal’s general demeanour that I observed in the course of his cross examination. I am satisfied that Mr Heal would have taken significant offence to the, at least implicit, criticism of his coaching ability by Victoria Denholm in the conversation on 9 January 2023. Given the extent of Mr Heal’s playing and coaching experience, I can well accept that he would have considered that Victoria Denholm was “speaking out of line”, particularly just before a practice session. Mr Heal is, on any view, a forthright and passionate person. I do not accept that the words conveyed by Mr Heal to Mr Pongrass were merely to the effect that “I had a weird conversation with Vic about the Perth game. She kept asking me ‘what are we going to change’”.

163    I do not see any material difference, however, between words to the effect “[s]he’s just emotional mate. She just wants to win” and words to the effect “[s]he’s very passionate, she wants to win”. I accept “[s]he’s just emotional” conveys a more pejorative tone than “[s]he’s very passionate” but the addition of “[s]he just wants to win” and “[s]he wants to win” respectively, gives a specific context to the “emotion” and the “passion” and, therefore, significantly diminishes the potential difference between the respective recollections of Mr Heal and Mr Pongrass.

164    On balance, I am prepared to accept that Mr Heal’s conversation with Mr Pongrass amounted to conveying a “grievance” regarding Victoria Denholm, however, I do not accept that it amounts to the making of a “complaint” in the context of s 341(1)(c) of the FW Act, because Mr Heal did not seek “consideration, redress or relief”: Alam at [59]; Cummins South Pacific at [13].

165    I do not accept that Mr Heal’s conversation with Mr Pongrass rises to the level of Mr Heal asserting his rights to a safe workplace or his right not to be bullied. In substance, Mr Heal’s complaint to Mr Pongrass was that Victoria Denholm had “spoken out of line”. The language of “I don’t think it’s acceptable for her to speak to me like that, particularly not right before a practice session. It’s really unprofessional” is directed much more at a criticism of Victoria Denholm’s conduct, rather than any concern about any infringement of his rights to a safe workplace or genuine concern about being bullied. The absence of any further action on the part of Mr Heal, in particular given the response by Mr Pongrass that she was just “emotional” or “passionate” and that “she just wants to win”, also tells against the conversation being an assertion of Mr Heal’s rights to a safe workplace or his right not to be bullied. Mr Heal accepted in cross examination that he did not ask Mr Pongrass to do anything about Victoria Denholm’s behaviour and he did not feel unsafe or that he felt physically threatened. He also accepted that during his conversation with Mr Pongrass he did not say that he felt unsafe or there was any risk to his safety.

166    Mr Heal made no request to Mr Pongrass that he take any steps to protect him, such as preventing her from attending practice sessions or speaking to him about the Team’s performance. Mr Heal was understandably sensitive about the Team’s poor performance in the period up to and including the loss to the Perth Lynx and clearly did not appreciate Victoria Denholm’s implicit criticism of his coaching methods. I am satisfied, however, given the above matters, that any feelings Mr Heal might have had of being undermined or feeling insecure as a result of his conversation with Victoria Denholm, including because of any professional concern that he felt particularly threatened because Victoria Denholm was a member of a powerful and wealthy family with a significant interest in Sydney Flames, were relatively slight and transitory and did not elevate the subsequent conversation with Mr Pongrass to the exercise of a claim for an entitlement to a safe workplace.

167    Nor am I satisfied that any comments that Victoria Denholm may have made to Mr Heal about middle aged men coaching women’s’ sport or her preference for a female coach for the Team were capable of elevating the grievance expressed by Mr Heal to Mr Pongrass as a workplace complaint. Victoria Denholm denies that she made any comments to that effect. The only evidence that she made the comments was given by Mr Heal. Given, Mr Heal bears the onus I am not satisfied that any comments that Victoria Denholm made to Mr Heal about middle aged men coaching women’s’ sport or her preference for a female coach for the Team rose above passing casual observations and did not cause Mr Heal any material concern for the safety of his workplace. Moreover, there was no evidence that Mr Heal reported the alleged comments made to him by Victoria Denholm about middle aged men coaching women’s’ sport or her preference for a female management at any time prior to his FWC application.

168    In my view, for these reasons, the grievance expressed by Mr Heal about Victoria Denholm’s comments following the game against the Perth Lynx was not the exercise of a workplace right within the meaning of s 341(1)(c) of the FW Act because it was not a “complaint” which sought “consideration, redress or relief” and in any event was not founded on a source of entitlement, whether pursuant to an instrument or otherwise.

D.4.    Initial Adverse Actions

169    Given my findings in relation to the purported exercise of workplace rights by Mr Heal with respect to each of the Initial Workplace Rights, it is not necessary to consider any alleged adverse actions claimed to be taken because of the Initial Workplace Rights, as I have found that none of those alleged complaints constituted the exercise of a workplace right for the purposes of s 341(1)(c)(ii) of the FW Act.

170    On the assumption, however, that this matter is taken further, and those findings are overturned on appeal, I turn now to consider the Initial Adverse Actions, alleged by Mr Heal to have been taken because he exercised the Initial Workplace Rights.

171    Mr Heal contends that Sydney Flames took the following adverse actions against him because of his alleged exercise of the Initial Workplace Rights:

(a)    suspending him from his employment as Head Coach of the Team on 16 January 2023 pending an investigation (First Adverse Action);

(b)    informing him on 16 January 2023 that he was not permitted to coach, attend his workplace or interact with any Team members or Sydney Flames employees (Second Adverse Action);

(c)    by Ms McLaughlin of Ovartis Lawyers sending an email to him on 17 January 2023 informing him that she would undertake the investigation into allegations made against him (Third Adverse Action); and

(d)    failing to take any or appropriate steps to address certain behaviours of Victoria Denholm and, thereby, failing to provide Mr Heal with a workplace free from risks to his health and safety, so far as is reasonably practicable (Fourth Adverse Action).

(together, the Initial Adverse Actions).

172    It can readily be accepted that the facts alleged to give rise to the first three of the Initial Adverse Actions have been established. The same cannot be said, however, for the Fourth Adverse Action.

173    The Fourth Adverse Action is inherently problematic. It is limited to a “failure to take steps” case but the nature of the specific risk against which it is alleged unidentified steps should have been taken is not identified in any meaningful manner. Mr Heal gave evidence that he did not feel physically threatened by Victoria Denholm, Mr Heal did not make any request for steps to be taken to provide him with a safe workplace following his discussion with Victoria Denholm and it is not apparent what practical steps could or should have been taken to provide him with a safe workplace. Mr Heal made no request prior to his suspension that Victoria Denholm should be dismissed as President, that she be prohibited from speaking to him, counselled or prohibited from attending any training sessions of the Team or any games.

174    I am therefore not satisfied on the evidence, bearing in mind that Mr Heal bears the onus, that the Fourth Adverse Action occurred.

175    Sydney Flames submits, and I accept, that the First Adverse Action and the Second Adverse Action are both, in substance, the suspension of Mr Heal from his employment and should be treated as a single instance of adverse action (Suspension Adverse Action). Sydney Flames accepts, and I find, that the act of suspending Mr Heal was “adverse action” that it took against him within the meaning of s 342 of the FW Act.

176    Further, in my view, the Third Adverse Action was not relevantly distinguishable from the Suspension Adverse Action. Mr Heal had already been informed by Sydney Flames on 16 January 2023 that an external investigation into the allegations that had given rise to his suspension was to take place. The email from Ovartis Lawyers did no more than notify Mr Heal as to who would be undertaking the external investigation of the allegations that had given rise to his suspension. The Ovartis Lawyers notification could, therefore, not independently injure or prejudice Mr Heal or otherwise constitute adverse action within the meaning of s 342 of the FW Act. I am satisfied that the Third Adverse Action is best characterised as a continuation of the Suspension Adverse Action, not any additional or discrete adverse action undertaken by Sydney Flames.

D.4.1     The relevant decision makers

177    It is first necessary to identify who was materially involved in the decision to suspend Mr Heal and commission the external investigation into the allegations made against him.

178    As explained above, Mr Smith and Robyn Denholm were co-owners of Sydney Flames (through their shareholdings in various corporate entities). Mr Smith was also the chairman of Sydney Flames, Victoria Denholm had recently been appointed in December 2022 as the President of Sydney Flames and Mr Pongrass had been appointed as the CEO of Sydney Flames in May 2022.

179    Sydney Flames submits that Mr Smith was the person who made the decision to suspend Mr Heal and to proceed with the external investigation into the allegations that had been made by players of the Team against Mr Heal. It submits that the Court should accept Mr Smith’s evidence, corroborated by the evidence of Mr Pongrass and Victoria Denholm, that he was the person “calling the shots” and that he made all major decisions affecting Sydney Flames, including the decision to suspend Mr Heal and to commission the external investigation. It also seeks to rely on Robyn Denholm’s evidence that Mr Smith could make major decisions irrespective of her opinion. Having observed each of Mr Smith, Mr Pongrass and Victoria Denholm in cross examination, I have no doubt that Mr Smith “called the shots”, at least insofar as Mr Pongrass and Victoria Denholm were concerned. Given, however, Robyn Denholm’s experience and the extent of her ultimate ownership of Sydney Flames, I am not persuaded that Mr Smith would make a major decision affecting Sydney Flames “irrespective of her opinion”.

180    I accept that Mr Smith, despite not being a director of Sydney Flames, proceeded on the basis that he did not require any formal approval from anyone else to make major decisions affecting Sydney Flames. I also accept that Mr Smith was the person who made the decision to suspend Mr Heal and to commission an external investigation into the allegations made against him.

181    At the same time, however, I am also satisfied that each of Mr Pongrass, Victoria Denholm and Robyn Denholm materially contributed to the making of the decisions to suspend and commission an external investigation against Mr Heal, because:

(a)    Mr Smith discussed the suspension and investigation decisions with Robyn Denholm, Victoria Denholm and Mr Pongrass prior to making them;

(b)    Robyn Denholm had a significant financial interest in the success of the Team and both Mr Pongrass and Victoria Denholm held senior positions with Sydney Flames;

(c)    each was directly involved in bringing the allegations in respect of Mr Heal to Mr Smith’s attention and each was genuinely concerned about the impact of the allegations on the morale and performance of the Team and, therefore, the need to address the allegations as soon as possible; and

(d)    both Victoria Denholm and Mr Pongrass supported the taking of the Suspension Adverse Action, for essentially the same reasons as Mr Smith;

(e)    Robyn Denholm recommended to Mr Smith that the external investigation be conducted into the allegations; and

(f)    in no relevant sense were they a “mere conduit” passing on allegations made by others for Mr Smith to consider.

D.4.2.    The Decision Makers’ stated reasons

182    Given my conclusion that each of Mr Smith, Robyn Denholm, Victoria Denholm and Mr Pongrass (Decision Makers) was materially involved in taking the Suspension Adverse Action, it is necessary to analyse each of their reasons for taking the action.

183    An immediate and profound hurdle for Mr Heal, is the express denials of each of Mr Smith, Robyn Denholm and Victoria Denholm that they were aware of any of the Initial Workplace Rights at the time that Mr Smith took the Suspension Adverse Action, combined with the absence of any evidence to suggest that they were aware at that time of those complaints. A further, but less significant hurdle, are the denials by Mr Pongrass that the Initial Workplace Rights played any part in his decision to support the proposal to suspend Mr Heal.

184    Each of the Decision Makers gave evidence that their decision to take or support the taking of the Suspension Adverse Action was based on their knowledge of the allegations made by the players about the conduct of Mr Heal. By way of summary, those allegations were brought to their attention in the following manner:

(a)    on 9 January 2023, Victoria Denholm and Mr Pongrass were informed by Ms Froling and Ms Mangakahia of complaints that some Sydney Flames’ players had regarding Mr Heal’s conduct, and by Mr Fuller that there were problems with Mr Heal’s conduct towards the players;

(b)    on 10 January 2023, Mr Pongrass met with Ms Froling for about an hour, in which she gave examples of a number of instances where Mr Heal had acted towards players in a bullying or belittling manner;

(c)    Mr Smith was informed of what Victoria Denholm and Mr Pongrass had been told on 9 and 10 January 2023 about the players’ complaints, without being provided with the players’ names or the specific details of the allegations, but he was told that there were serious concerns about the players’ wellbeing due to Mr Heal’s treatment of them;

(d)    the reports that Sydney Flames received included references to players “really struggling”, that one player had had a panic attack, and that another was struggling with mental health issues;

(e)    on 11 January 2023, Mr Pongrass received a call from an agent for two Sydney Flames players following up on their complaints against Mr Heal and asking whether those complaints were being managed appropriately; and

(f)    Mr Pongrass told Mr Smith of the call that he had received from the agent.

185    On 15 January 2023, Mr Smith, Victoria Denholm and Mr Pongrass met. Mr Smith said that Sydney Flames should conduct an independent investigation, and either on that day or the following day, they discussed the need to suspend Mr Heal.

186    On the morning of 16 January 2023, Mr Smith obtained legal advice and confirmed the decision to suspend Mr Heal and commission an investigation into the allegations made by the players regarding Mr Heal’s conduct.

D.4.3.    Mr Heal’s challenge to the Decision Makers’ reasons

187    Mr Heal seeks to challenge the credibility of the asserted reasons of the decision makers and, thereby, asks the Court to infer that the alleged exercise of the Initial Workplace Rights was a substantial or operative reason in taking the Suspension Adverse Actions.

188    Mr Heal places particular reliance on the following statements of Snaden J in Serpanos at [126] and [127]:

That is not to say, however, that any substantive or procedural unfairness or illogicality inherent in what a respondent nominates as its reasons for conducting itself in any given way are wholly irrelevant. In Wong v National Australia Bank Limited [2021] FCA 671 (Snaden J), [83] I made the following observations, which bear repeating now:

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 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)?

Similarly, where the reasons for which a respondent claims to have conducted itself were formed in consequence of a process that was tainted by obvious or significant shortcomings, that too might, in the right circumstances, ground a finding that they did not, in fact, form in the mind or minds of those who effected—or substantially or indispensably or significantly or materially contributed to—the conduct, and/or did not, in fact, actuate or partially actuate it.

189    Next, Mr Heal submits for the following reasons, that this issue is “front and centre” in these proceedings as it goes directly to the credibility of the reasons advanced by the Decision Makers.

190    First, Mr Heal challenges the seriousness of the allegations made by the players. He submits that while Ms Froling and Ms Mangakahi “appeared to be genuine” in what they said:

it does seem that the incidents were of a nature that occurs in a high pressure environment from time to time and which would have properly been dealt with by management talking to, and perhaps counselling, Mr Heal about what had happened. On their face, there was no reason why the alleged incidents would require Sydney Flames to take the steps which it did.

191    Second, Mr Heal submits that the investigation itself was manifestly inadequate and was conducted over a rushed timeframe. In addition to pointing to the expedited timetable for the investigation to be completed, Mr Heal relies on the failure of the investigator to speak to the three witnesses that he had nominated, in particular, Ms Gorman and Mr Granger, whom he states “on any reading” of his response provided to the investigator were, “plainly material witnesses to almost all of the allegations”. Mr Heal also challenges the adequacy of the particulars provided to him of the allegations made by the players and the decision of the investigator not to provide him with a copy of the Investigation Report prior to him being required to respond to the Show Cause letter.

192    Third, Mr Heal submits that the allegations against Mr Heal were treated differently to the allegations that Mr Heal made against Victoria Denholm, and allegations that Ms Heal had made against Mr Fuller. He contends that there was no investigation of the allegations he made against Victoria Denholm and Mr Fuller was not suspended during the period in which Ms Heal’s allegation that Mr Fuller had been aggressive towards her and had grabbed her by the shoulder after she had asked him to leave her alone was investigated.

193    Fourth, Mr Heal submits that despite the decision makers’ claims that they relied on the expertise of the investigator, there was no evidence as to the investigator’s experience, that any of the decision makers were aware of her experience, or that any of them made any enquiry as to what experience she might have had.

194    Fifth, Mr Heal submits that although the Decision Makers claimed that they wanted the investigation into the allegations made against Mr Heal to be fair, they were not able to explain what they understood that to mean other than point to the appointment of an independent investigator. In particular, Mr Heal submits that it is telling that none of the Decision Makers were even prepared to accept the “straightforward proposition” that it was important to interview all relevant witnesses. Mr Heal submits these issues were particularly problematic for Mr Smith given:

(a)    the following explanation in his affidavit for accepting the findings in the Investigation Report:

After reading the report, I was satisfied that the allegations that were found by the investigation to be substantiated had in fact occurred, and that as a consequence Mr Heal’s conduct towards those players was unacceptable and had placed their wellbeing at risk. I had no reason not to accept the findings, in circumstances where the investigator had spoken to the relevant players as well as a number of witnesses, and had also had regard to Mr Heal’s response to the allegations. I decided to accept the findings. That was my decision.

(b)    the representation he made in the Show Cause letter:

The process provided you with the opportunity to respond to the allegations and your interactions with your colleagues in respect to the allegations and provide any other material that you wished the investigator to consider. Other persons with relevant information concerning the allegations were interviewed as well.

195    Mr Heal submits that by reason of these matters, the investigation had all the hallmarks of being a “rush job” or “smoke screen” that was conducted “solely for the reason of obtaining a report which would make adverse findings”.

D.4.4. Consideration

196    I am satisfied that the alleged exercise by Mr Heal of the Initial Workplace Rights was not a substantial or operative reason for the decision makers taking the Suspension Adverse Action, for the following reasons.

197    First, there was no evidence that Mr Smith had been informed of Mr Heal’s alleged exercise of the Initial Workplace Rights at the time that he made the decision to proceed with the Suspension Adverse Action, and he expressly denied having such knowledge.

198    Second, there was no evidence that either Robyn Denholm or Victoria Denholm had been informed of Mr Heal’s alleged exercise of the Initial Workplace Rights at the time that each contributed to the decision to proceed with the Suspension Adverse Action, and each expressly denied having such knowledge.

199    Third, Mr Pongrass was aware of the matters relied upon by Mr Heal as constituting his alleged exercise of the Initial Workplace Rights, but Mr Pongrass denied that Mr Heal’s alleged exercise of the Initial Workplace Rights had any impact on his decision to support, or otherwise contribute to the taking of, the Suspension Adverse Action. I accept that denial. Only five days before the Suspension Adverse Action was taken, Mr Pongrass had a one hour meeting with Ms Froling, the Team captain, in which she explained, at times tearfully, the concerns that she and other Team members had about Mr Heal and the impact of his conduct and behaviour on the Team.

200    Next, I accept the evidence of the Decision Makers that their decision to take the Suspension Adverse Action was because of the complaints made by members of the Team about the behaviour and conduct of Mr Heal. In my view, Sydney Flames has discharged the reverse onus of proof under s 361 of the FW Act in taking the Suspension Adverse Action. I have reached that conclusion for the following reasons.

201    First, I accept the evidence given by each of the Decision Makers that their decision to make or otherwise contribute to the making of the decision to proceed with the Suspension Adverse Action was taken because of the players’ complaints conveyed by Ms Froling, as the captain of the Team, and Ms Mangakahia to Mr Pongrass and Victoria Denholm on 9 and 10 January 2023 and indirectly by Mr Fuller on 9 January 2023. Their evidence was not shaken in cross examination and is consistent with the apparent logic of events.

202    I do not accept the contention advanced by Mr Heal that the players’ complaints were a “smoke screen” advanced by Sydney Flames to disguise the fact that the Suspension Adverse Action was taken because of Mr Heal’s alleged exercise of the Initial Workplace Rights.

203    I reject Mr Heal’s submission that the players’ complaints could not be characterised as matters that could reasonably support a decision to suspend Mr Heal. Nor do I accept Mr Heal’s contention that the failure of Sydney Flames to pursue alternative, less dramatic solutions to address the Team’s concerns gives rise to a compelling inference that the Suspension Adverse Action was not taken because of the players’ concerns conveyed by Ms Froling and Ms Mangakahia.

204    The complaints were objectively serious. They were principally advanced by the captain of the Team in a one hour meeting to senior management on behalf of the Team, they concerned four players, and they included claims that players were struggling, a player had had a panic attack and another player was struggling with mental health issues. These were not complaints advanced in an “off the cuff” or informal manner in the course of a game or in its immediate aftermath. The seriousness of the complaints was compounded by the call from a player agent to Mr Pongrass the day after his one hour meeting with Ms Froling asking him what Sydney Flames were going to do about the players’ complaints.

205    Second, the “smoke screen” theory necessarily suggested the existence of a somewhat elaborate conspiracy between the decision makers to use the players’ complaints as a device to suspend Mr Heal to disguise the alleged real reason for his suspension. Even more telling, it suggests that ultimately the independent investigator would have to be involved or at least was thought by the conspirators to be able to be improperly influenced to arrive at a particular result, contrary to all the evidence that the manner in which the investigation was to be undertaken was left entirely up to the independent investigator. I am satisfied there was no plausible evidence from which I could find that such a conspiracy existed or that there was any evidence that the independent investigator had been improperly influenced to reach a particular conclusion or that there was any intention by the Decision Makers to do so.

206    Third, I do not accept that the criticism advanced by Mr Heal of the manner in which the independent investigation was commissioned and conducted into his conduct relevantly impugns the Decision Makers’ evidence of their reasons for taking the Suspension Adverse Action. The contentions advanced by Mr Heal do not amount to “obvious or significant shortcomings”.

207    Given the reports that the Decision Makers had received as to the extent and seriousness of the bullying allegations and the impact they were having on the Team, I do not accept that there was anything sinister or manifestly unfair in the expedited timetable. Mr Heal was not able to point to any evidence that the independent investigator had been given any improper instruction or was otherwise influenced by the decision makers to arrive at a particular conclusion. The criticism that the decision makers did not interrogate or independently assess for themselves the findings of the independent investigator, if anything, demonstrates their concern not to second guess the findings in circumstances where they had not been involved in the interviews conducted by the independent investigator of the players.

208    The decision by the independent investigator not to interview the three witnesses nominated by Mr Heal was a decision taken by the independent investigator. It might well have been seen as an oversight or at least not the best course for the independent investigator to take. I do not accept, however, that it was sufficient to impugn the integrity of the investigation in the minds of the decision makers. It was clear from the Investigation Report that the independent investigator had interviewed the players and some witnesses and had given Mr Heal an opportunity to respond to the allegations and that she had regard to his response.

209    Fourth, any lack of investigation into Mr Heal’s alleged complaints about Victoria Denholm, and any alleged deficiency in the investigation undertaken by Sydney Flames of Ms Heal’s complaints about Mr Fuller, cannot rationally impugn the investigation of the complaints made concerning Mr Heal. They were of fundamentally different character and bore little, if any, relationship to complaints made by multiple other players about the conduct of the Head Coach of the Team.

D.5.    Further Workplace Rights

D.5.1.    Overview

210    Mr Heal alleges that he exercised the Further Workplace Rights after Sydney Flames decided to suspend him as an employee and instructed Ovartis lawyers to conduct an independent investigation into the complaints made against him by players.

D.5.2.    Fifth, Sixth and Ninth Workplace Rights (Investigation Inquiries)

211    It is convenient to address the alleged Fifth, Sixth and Ninth Workplace Rights together. Each ultimately turns on the proposition that Mr Heal had a right to procedural fairness in connection with the investigation and that right to procedural fairness constituted the “source of entitlement” upon which the alleged complaints or inquiries were founded, for the purposes of s 341(1)(c) of the FW Act.

212    The Fifth Workplace Right is alleged to be a letter sent by Khan Law on Mr Heal’s behalf on 18 January 2023, in which it is alleged that Khan Law sought information about the allegations against Mr Heal and raised various concerns about the investigation and prejudice to Mr Heal. In my view, the letter is more accurately characterised as a request for particulars of the allegations and other information regarding the investigation including a request for the “Terms of Reference which articulate the scope of the matters subject of the complaint” and the “policy and procedure (if any)” that was used by Sydney Flames for the purpose of investigating the complaints. It sought information as to how the investigation was to proceed.

213    The Sixth Workplace Right is alleged to be a letter sent by Khan Law on Mr Heal’s behalf on 20 January 2023, seeking further and better particulars relating to the allegations and raising various concerns about the investigation, allegations, and prejudice to Mr Heal. In my view, the letter is more accurately characterised as a letter that was limited to a request for further and better particulars of the allegations that had been made against Mr Heal.

214    The Ninth Workplace Right is alleged to be a letter sent by Khan Law on Mr Heal’s behalf on 6 February 2023, raising concerns about the investigation and prejudice to Mr Heal and requiring a copy of the Investigation Report to be provided to Mr Heal before he provided any response to the Show Cause letter. In my view, that is an accurate characterisation of the letter.

215    Mr Heal sought to rely on a right to procedural fairness pursuant to the unfair dismissal provisions in the FW Act. Section 387 of the FW Act provides that in considering whether a dismissal was unfair, the FWC must take into account, amongst other things, procedural fairness considerations such as whether the employee was given an opportunity to respond. Mr Heal also sought to rely on a common law right to procedural fairness where Sydney Flames is required to act reasonably in connection with any summary dismissal: Bartlett v Australia & New Zealand Banking Group (2016) 92 NSWLR 639; [2016] NSWCA 30.

216    Sydney Flames accepts that each of the letters sent by Khan Law on 18 and 20 January 2023 and 6 February 2023 (together, Kahn Law letters) can be characterised as, at least, an “inquiry”, and a letter “in relation to” Mr Heal’s employment.

217    Sydney Flames submits, however, that at the time that each of the Kahn Law letters was sent Mr Heal was still employed by Sydney Flames and therefore he had no right or entitlement to procedural fairness in connection with the FW Act provisions dealing with unfair dismissal or at common law for Sydney Flames to act reasonably in connection with any summary dismissal. It submits that it therefore follows that none of the Khan Law letters was a complaint or inquiry that Mr Heal was able to make in relation to his employment for the purposes of s 341(1)(c) of the FW Act, because at the time of making the complaints or inquiries Mr Heal did not have a right or entitlement to protect.

218    I accept, as submitted by Sydney Flames, that a general protections claim does not give rise to a “broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome” and nor does it give an applicant a right to raise whatever issues they wish to raise about the validity of steps taken prior to the adverse action, citing Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48] (Bromberg J); Serpanos at [124]-[127].

219    I do not accept, however, the contention that any right to procedural fairness that might arise because of the provisions of s 387 of the FW Act in connection with dismissal does not arise until after an employee has been dismissed. In my view, such a contention cannot be maintained in the light of the reasoning of the High Court in Qantas Airways Ltd v Transport Workers Union of Australia (2023) 412 ALR 134; [2023] HCA 27.

220    At a time when its operations were severely affected by the COVID-19 pandemic, Qantas Airways Ltd (Qantas) made a decision to outsource its ground handling operations. The issue before the High Court in Qantas Airways was whether the outsourcing decision by Qantas contravened s 340(1)(b) of the FW Act because it was undertaken for substantial and operative reasons that included preventing affected employees from exercising workplace rights to engage in protected industrial action and participate in enterprise bargaining. The affected employees had no right to exercise those workplace rights at the time of the outsourcing decision, but it was expected at that time that the employees would be able to exercise those workplace rights in the future once the relevant enterprise agreement had passed its nominal expiry date, had their employment not been terminated. Relevantly, for present purposes, Qantas submitted that s 340(1)(b) of the FW Act was only engaged where a workplace right is presently in existence at the time adverse action is taken.

221    The plurality in Qantas Airways, Kiefel CJ, Gageler, Gleeson and Jagot JJ, concluded that if a substantial and operative reason for a decision to take adverse action against another person was to prevent them from exercising a workplace right, that will constitute a contravention of s 340(1)(b) irrespective of whether the other person had the relevant workplace right at the time the adverse action was taken: Qantas Airways at [6].

222    The plurality observed that the concept of a workplace right is central to the operation of Div 3 of Pt 3-1 of the FW Act and that s 341 of the FW Act, “identifies as a matter of substance that a person has a workplace right in specified circumstances”: Qantas Airways at [32].

223    The plurality noted at [33] that s 341(1) uses the present tense “has” a workplace right, but then stated at [34]-[35]:

The reference in s 341(1)(a) to a person having a workplace right if the person is entitled to the benefit of a workplace law or workplace instrument is sufficiently broad to encompass a present entitlement under a workplace law or workplace instrument to receive a benefit at some future stage of the employment relationship on the occurrence of an expected event or on the occurrence of a contingency. In this way, s 341(1)(a) has a forward‐looking dimension. For example, s 108 provides that an employee who engages in an eligible community service activity, such as jury service or volunteer bushfire fighting, “is entitled to be absent from his or her employment” in certain circumstances. An employee “has” a workplace right in the nature of an entitlement to the benefit of s 108, although the circumstances for asserting that entitlement have not arisen and may never arise.

Thus, a person can have a workplace right, comprising an entitlement to the benefit of a workplace law or workplace instrument, within s 341(1)(a), even though the person’s capacity to exercise the workplace right may depend on accrual over time or on the occurrence of a future event or contingency. The broad scope of s 341(1)(a) is confirmed by the Explanatory Memorandum, which states that “[a] benefit under a workplace law or workplace instrument is also intended to include benefits that are contingent or accruing (eg, long service leave)”.

(Footnotes omitted).

224    Section 387 of the FW Act provides that in the course of considering whether an employee has been unfairly dismissed, the FWC must have regard to, amongst other things, factors relevant to whether the employee was afforded procedural fairness associated with the dismissal.

225    Here, the Khan Law letters were written in the course of an investigation into whether the complaints made by the players were substantiated and if so whether Mr Heal would be subject to disciplinary action including dismissal. Although Mr Heal had not yet been dismissed, the reasoning of the plurality in Qantas Airways when applied to s 387 of the FW Act means that rights to procedural fairness in connection with dismissal conferred by that provision can constitute a workplace right for the purposes of s 341(1)(a) prior to the dismissal of an employee. Section 341(1)(a) provides that a person has a workplace right if the person “is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body”. It therefore follows, that such a right, can be the “source of entitlement” that underpins a complaint or inquiry for the purposes s 341(1)(c) of the FW Act.

226    Mr Heal’s reliance, however, on Bartlett as suggesting that there is some general common law right to procedural fairness is of limited assistance. The decision turns on its facts. In Bartlett, the Court was concerned with a specific contractual clause that provided for summary termination if “in the opinion of [the employer]”, Mr Bartlett had engaged in serious misconduct. The principal issue before the Court was whether that clause required the objective existence of serious misconduct, as opposed to the employer’s opinion that serious misconduct had occurred. The Court of Appeal’s obiter observations that the employer must act reasonably in forming their opinion as to whether serious misconduct occurred does not provide any specific assistance in determining the scope and content of any right that Mr Heal may have had to procedural fairness, including any entitlement to be provided with further and better particulars of the allegations that had been made against him.

227    In my view, the Khan letters did constitute a complaint or inquiry that Mr Heal was “able to make” because it was “founded on” or “underpinned by” or in the “exercise of, or otherwise to protect or vindicate” an entitlement: Alam at [97], [74], [76]; Shea at [29(f)]; PIA Mortgage at [13]; Messenger at [150].

228    I am satisfied that Mr Heal had a right or entitlement, founded on the FW Act, to assert an entitlement to further particulars of the allegations that he had been told would be made (in the case of the 18 January 2023 letter and the 20 January 2023 letter) and to ask to be provided with a copy of the Investigation Report (in the case of the 6 February 2023 letter).

D.5.3.    Seventh Workplace Right

229    On 27 January 2023, Khan Law sent a letter to Sydney Flames, on Mr Heal’s behalf, inter alia, raising bullying allegations against Mr Smith, Victoria Denholm and Mr Pongrass, and requesting that those bullying allegations be investigated. Mr Heal alleges that this is the exercise of a workplace right within the meaning of s 341(1)(c) of the FW Act (Seventh Workplace Right).

230    I am satisfied, and Sydney Flames accepts, that to the extent that the letter of 27 January 2023 and its attached response referred to a “complaint” of alleged bullying against Victoria Denholm, it was a complaint or inquiry that Mr Heal was able to make in relation to his employment for the purposes of s 341(1)(c) of the FW Act.

D.5.4.    Eighth Workplace Right

231    On 27 January 2023, Khan Law, on behalf of Mr Heal, filed an application with the FWC for a stop bullying order (FWC Application). The FWC Application raised bullying allegations against Mr Smith, Victoria Denholm and Mr Pongrass. The filing and service of the FWC Application is alleged to be the eighth exercise of a workplace right by Mr Heal (Eighth Workplace Right).

232    Sydney Flames accepts, and I am satisfied, that Mr Heal’s FWC Application involved the exercise of a workplace right for the purposes of s 341(1) of the FW Act.

D.5.5.    Tenth Workplace Right

233    On 13 February 2023, Khan Law provided a response to the Show Cause letter and made a request for Mr Heal’s employment records. Further requests were made by Khan Law, on behalf of Mr Heal, for his employment records on 20 February 2023, and on 8 March 2023. The sending of these letters is alleged to be the tenth workplace right exercised by Mr Heal (Tenth Workplace Right).

234    Sydney Flames accepts, and I find, that to the extent this letter made a request for Mr Heal’s employment records, it was an inquiry that Mr Heal was able to make in relation to his employment, and this therefore constituted an exercise of a workplace right within the meaning of s 341(1)(c) of the FW Act.

D.6.    Further Adverse Actions

D.6.1.     Overview

235    I now turn to consider the Further Adverse Actions. Mr Heal alleges that each of the Further Adverse Actions was taken because of “any or all of” the alleged Initial Workplace Rights that have been considered earlier, and/or the alleged Further Workplace Rights addressed above.

D.6.2.     Fifth Adverse Action

236    Mr Heal alleges in the statement of claim that:

The Allegations which were raised against Mr Heal were without any, or proper, evidentiary basis (Fifth Adverse Action).

237    The “Allegations” are defined as the allegations provided to Mr Heal in the Ovartis letter of 20 January 2023. The allegations in the Ovartis letter (a) were stated in summary form and related to complaints from anonymous persons, (b) were expressed to relate to alleged interactions between Mr Heal and anonymous players between the period 5 December 2022 and 10 January 2023, and (c) involved alleged conduct whereby Mr Heal “became visibly angry”, “yelled”, “discredited”, “made remarks about the errors” of players, “questioned” the ability of a player, “made disrespectful and disparaging comments when discussing goals” towards certain players who were not named (Allegations).

238    The Allegations are contended to be the Fifth Adverse Action taken by Sydney Flames against Mr Heal.

239    Sydney Flames submits that the Fifth Adverse Action does not involve any “action” or conduct of Sydney Flames. It submits that the alleged adverse action has never been adequately particularised, despite a request for particulars, including a request to be told:

(a)    what conduct of Sydney Flames is said to constitute the Fifth Adverse Action; and

(b)    how that conduct is alleged to involve injuring Mr Heal in his employment, or altering his position to his prejudice, or to otherwise amount to “adverse action” for the purposes of s 342 of the FW Act.

240    I am satisfied that the Fifth Adverse Action is evasive and ambiguous and likely to cause embarrassment, as alleged by Sydney Flames in its defence. Mr Heal has not pleaded, particularised or otherwise explained, how the information conveyed by the players to Ovartis Lawyers does not provide a “proper evidentiary basis” for the Allegations.

241    I am therefore satisfied that as pleaded, the Fifth Adverse Action cannot constitute adverse action within the meaning of s 342 of the FW Act.

242    Given these findings, it is strictly not necessary to then consider who was the relevant decision maker and their reasons for taking the alleged Fifth Adverse Action. In the event that I am mistaken in making these findings, I now address those issues.

D.6.2.1     Relevant decision maker

243    The Allegations made in the Ovartis letter were formulated by Ovartis Lawyers, not Sydney Flames. Other than giving instructions for the Ovartis letter to be sent, Sydney Flames had no relevant involvement in their formulation. They were formulated by Ovartis Lawyers after interviewing the players who had made the allegations against Mr Heal. Mr Smith acknowledged that he was provided with a copy of the Ovartis letter before it was sent, but he gave evidence, that I accept, that he did not consider it appropriate to get involved in the formulation of the Allegations and did not make any comments or changes prior to the letter being sent.

244    I accept, however, to the extent there was a relevant decision maker for the purposes of the FW Act, it was Mr Smith, given he was provided with a copy of the Ovartis letter before it was sent and confirmed that it should be sent.

D.6.2.2     The decision maker’s stated reasons

245    It is readily apparent that the “evidentiary basis” that Mr Smith relied upon to give instructions for the letter to be sent containing any decision to instruct Ovartis Lawyers to send the letter of 20 January 2023 making the Allegations was the information provided by the players who had made the allegations against Mr Heal. It could not plausibly be suggested that there was “no evidentiary basis” for the Allegations. Any question as to whether the conduct the subject of the Allegations occurred is not part of the statement of agreed issues and Mr Heal makes no submissions as to whether or not the alleged conduct in fact occurred.

246    Further, and in any event, I am satisfied that the Fifth Adverse Action was taken by Mr Smith because of the players’ complaints about Mr Heal’s conduct for the reasons advanced above at [200]-[209], not because of the exercise by Mr Heal of any alleged workplace rights.

D.6.3.    Sixth and Seventh Adverse Actions

247    Mr Heal alleges in the statement of claim that the Sixth Adverse Action was the sending to him of each of:

(a)    the letter dated and sent on 3 February 2023 (Findings letter), which, inter alia, informed Mr Heal of the findings in the Investigation Report and that Sydney Flames accepted those findings; and

(b)    the Show Cause letter dated 3 February 2023 but in fact sent to Mr Heal on 4 February 2023, by which Sydney Flames indicated that it was considering terminating Mr Heal’s employment, with or without notice, and gave him an opportunity to show cause as to why his employment should not be terminated.

248    Mr Heal alleges in the statement of claim:

Both the Findings Letter and Show Cause Letter relied on, and sought to act on, the Allegations, which were:

  1. without any, or proper, evidentiary basis; and
  2. the result of an investigation which was unfair and deficient, including because not all relevant witnesses were interviewed; and
  3. based on an investigation in which Mr Heal had not been provided a reasonable opportunity to access the relevant information about, or meaningfully respond to, the Allegations.

249    These allegations are alleged to be the Seventh Adverse Action taken by Sydney Flames against Mr Heal.

250    It is convenient to address the Sixth and Seventh Adverse Actions together. In substance, both are directed at the decision by Sydney Flames to issue the Findings letter and the Show Cause letter. The Sixth Adverse Action focuses on the dispatch of the letters to Mr Heal and the Seventh Adverse Action focuses on the circumstances leading up to the dispatch of the letters to Mr Heal.

251    Sydney Flames accepts, and I find, that by issuing Mr Heal with each of the Findings letter and the Show Cause letter, it took adverse action against Mr Heal.

252    Sydney Flames, however, denies that it took those actions because of any of the accepted or alleged workplace rights relied upon by Mr Heal.

D.6.3.1.     Relevant decision maker

253    In my view, Mr Smith was the relevant decision maker for issuing both the Findings letter and the Show Cause letter.

254    For the following reasons, I accept Mr Smith’s evidence that the decision to accept the findings in the Investigation Report, and to require Mr Heal to “show cause”, were his decisions, and that he did not discuss the letters with Mr Pongrasss, Victoria Denholm or Robyn Denholm.

255    First, both letters were sent under his name.

256    Second, Mr Pongrass recalled that he discussed the outcome of the investigation with Mr Smith and “that [Mr Smith] was intending to accept the findings of the investigation”, but he did not recall if they discussed the letters themselves.

257    Third, that Mr Smith was the relevant decision maker in respect of both letters, is consistent with my observations of Mr Smith’s demeanour in the witness box, the relatively much younger age and experience, and the demeanour of Victoria Denholm and Mr Pongrass in giving evidence.

258    Fourth, Mr Smith’s evidence that the decision to accept the findings and require Mr Heal to show cause were consistent with the evidence discussed above to the effect that Mr Smith had the final say in all matters relating to Sydney Flames, and with Mr Smith being the Chairman and majority owner of Sydney Flames.

259    Fifth, Mr Smith’s evidence is corroborated by the evidence of both Victoria and Robyn Denholm. Victoria Denholm gave evidence that she was overseas and not working or regularly checking her emails at this time, and that she had no role in deciding whether Sydney Flames should accept the findings, or in determining whether Mr Heal should be asked to show cause, or in drafting, preparing or approving either of the letters. Robyn Denholm similarly gave evidence that she had no role in deciding whether Sydney Flames should accept the findings, or in determining whether Mr Heal should be asked to show cause. She accepted that she was provided with a copy of the Investigation Report, but she gave evidence that she did not review it to satisfy herself that it had been conducted properly.

D.6.3.2.     The decision maker’s stated reasons

260    Mr Smith states in his affidavit that in deciding to accept the findings of the Investigation Report and issue the Findings letter, and in deciding to ask Mr Heal to show cause and issue the Show Cause letter, he was not motivated by:

(a)    any of the alleged “workplace complaints”, covering the Initial Workplace Rights;

(b)    any letters written by Khan Law in respect of the investigation, or any commentary or concerns from Mr Heal or his lawyer about the investigation or the allegations, covering the alleged Fifth and Sixth Workplace Rights; or

(c)    Mr Heal’s response to the allegations or his FWC Application, being the Seventh and Eighth Workplace Rights.

261    I note that the alleged Ninth and Tenth Workplace Rights had not been exercised at the time of these letters.

262    Mr Smith firmly rejected the suggestion in cross examination that he wanted a report with adverse findings because of any complaints Mr Heal had made.

263    Mr Smith maintained in cross examination that he decided to accept the findings and ask Mr Heal to show cause because, (a) he was satisfied that the alleged conduct had in fact occurred, (b) he understood that asking Mr Heal to show cause why he should not be dismissed was the appropriate next step in the process, (c) after reading the Investigation Report he had no reason not to accept the findings, and (d) he relied on the investigator to conduct the investigation and he was not qualified to direct how the investigation should be conducted.

D.6.3.3.     Mr Heal’s challenge to the decision maker’s reasons

264    Mr Heal seeks to challenge Mr Smith’s evidence of his reasons for accepting the findings and requiring Mr Heal to show cause on the basis that the Investigation was “manifestly inadequate”. Mr Heal relies on the following matters:

(a)    he was given notice of the pending investigation on 17 January 2023 at 6.25 pm;

(b)    he was given notice of allegations in summary form at 2.24 pm on Friday, 20 January 2023 with the complainants anonymised;

(c)    he was directed to meet at 12.00 pm on Monday, 23 January 2023 or to provide a written reply by close of business on 24 Tuesday 2023. Mr Heal was later given an extension to 27 January 2023;

(d)    requests by him for further particulars were only partially met;

(e)    he provided a reply on 27 January 2023;

(f)    three of the witnesses that he had put forward were not interviewed, including Ms Gorman and Mr Granger, both of whom on any reading of his reply were plainly material witnesses to almost all of the allegations;

(g)    the Investigation Report was provided to Sydney Flames on Friday, 3 February 2023;

(h)    Sydney Flames then sent Mr Heal the Findings letter the same day and the Show Cause letter on Saturday 4 February 2023 at 12.02 pm. The Show Cause letter gave Mr Heal until 5.00 pm on Monday 6 February 2023 to respond; and

(i)    Mr Heal was not provided with a copy of the Investigation Report prior to being required to respond to the Show Cause letter.

D.6.3.4.     Consideration

265    I accept Mr Smith’s evidence as to his reasons for issuing the Findings letter and the Show Cause letter, and in particular that he did not do so for any alleged prohibited reason. I am satisfied that Sydney Flames has met the onus on it of demonstrating that the Fifth and Sixth Adverse Actions were not taken for any of the accepted or alleged exercises of workplace rights.

266    The matters sought to be relied upon by Mr Heal do not cause me to reject or otherwise doubt Mr Smith’s evidence as to his reasons for issuing the Findings letter and the Show Cause letter.

267    First, the scope, extent and timing of the steps to be undertaken in the investigation were matters solely within the responsibility of the investigator, not Mr Smith. Even if objectively there were any deficiencies in the investigation by reason of the time given for steps to be undertaken or the decision not to interview three of the witnesses identified by Mr Heal, I am satisfied that Mr Smith was entitled to rely on the independent investigator’s experience and legal expertise. Nor, do I accept that Mr Smith was under any obligation to conduct any interrogation himself of the experience and expertise of the investigator. He engaged a reputable law firm to undertake an investigation into the complaints made by the players. There was no suggestion that Mr Smith was aware of any matters suggesting the investigator was not qualified or was otherwise unsuitable to undertake the task.

268    Second, and relatedly, there was nothing on the face of the Independent Report to indicate that the process was fundamentally flawed or unfair to Mr Heal. As I explain above, the tight time frame is explicable given the impact of the Allegations on the Team’s welfare. The report set out for each allegation, the complainant’s account, the accounts of witnesses who observed or were told contemporaneously of the relevant conduct, and Mr Heal’s response. There was then an explanation of whether, and if so why, the complainant’s account should be preferred over Mr Heal’s response. For some complaints, notably those from “Complainant 1”, the complaints were found to be either not an unreasonable act of Mr Heal, such as Allegation 1.2, or not sufficiently serious to amount to bullying under Basketball Australia’s policy, such as Allegation 1.1.

269    Third, Mr Smith learnt of the Allegations and that a number of players were upset and “struggling” due to Mr Heal’s apparent conduct towards them, and then engaged lawyers to conduct an external investigation. In those circumstances, it is consistent with the apparent logic of events that Mr Smith accepted the findings and took the steps he did.

270    Fourth, for the reasons that I provide at [245] above, I do not accept that the complaints made by the players lacked any evidentiary foundation.

D.6.4.        Eighth and Ninth Adverse Actions

271    The Eighth Adverse Action consists of an email sent by Ovartis Lawyers to Khan Law on 7 February 2023 (Ovartis show cause email). Mr Heal was advised in the email that he would not be provided with a copy of the Investigation Report and that he was required to show cause why his employment should not be terminated, by 5.00 pm on 8 February 2023. That timeframe had already been set in previous correspondence in which Mr Heal had been granted an extension to respond.

272    On 10 February 2023, Ovartis Lawyers sent a further email to Mr Heal directing him to provide a response to the Show Cause letter by 5.00 pm on 13 February 2023, with no further extensions to be granted (Ovartis second show cause email). This is alleged by Mr Heal to be the Ninth Adverse Action.

273    It is convenient to address the Eighth and the Ninth Adverse Actions together. Both actions are directed at emails sent by Ovartis Lawyers to Kahn Law requiring Mr Heal to show cause why his employment by Sydney Flames should not be terminated.

274    Sydney Flames accepts, and I am satisfied, that it was responsible for the sending of both the Ovartis show cause email and the Ovartis second show cause email (Ovartis show cause emails), and that it can be treated as conduct taken by Sydney Flames.

275    I do not accept, however, that the sending of these emails injured Mr Heal in his employment, or altered his position to his prejudice in the sense of him being in a worse situation after the email than he was before, or otherwise amounted to adverse action as defined in s 342 of the FW Act. Mr Heal had already requested and been refused a copy of the Investigation Report in earlier correspondence.

276    Sydney Flames had already accepted the findings in the Investigation Report, so I do not accept, contrary to a submission by Mr Heal, that not being provided with a copy of the Investigation Report adversely affected his ability to respond to the process by which the findings had been reached. Nor did the Ovartis show cause email alter the deadline previously set for Mr Heal to respond to the Show Cause letter.

277    On 8 February 2023, Khan Law sent an email to Ovartis Lawyers stating that Mr Heal would not submit any response to the Show Cause letter because the parties were focused on the mediation (which was to occur the next day) and should not be distracted by other processes.

278    Mr Heal submits that the Ovartis second show cause email conveyed a “refusal to allow Mr Heal an extension of time”. I do not accept that characterisation of the email. On its face, the email was re-establishing a timeframe for Mr Heal to show cause, being a timeframe that he was able to comply with. It did not otherwise amount to anything beyond a continuation of the request for Mr Heal to show cause why his employment should not be terminated. These were matters which were already the subject of the Sixth Adverse Action and the Eighth Adverse Action.

279    I am not satisfied that Mr Heal has shown that the Eighth or Ninth Adverse Actions amounted to any, or any discrete, “adverse action” within the meaning of s 342 of the FW Act.

280    Given these findings, it is strictly not necessary to then consider who was the relevant decision maker and their reasons for taking the alleged Eighth or Ninth Adverse Actions. In the event, that I am mistaken in making these findings, I now address those issues.

D.6.4.1.     Relevant decision maker

281    I am satisfied that Mr Smith was the relevant decision maker. He instructed Ovartis Lawyers to send both the Ovartis show cause emails.

282    I do not accept, contrary to the submissions made by Mr Heal, that Victoria Denholm, Mr Pongrass, and Robyn Denholm were relevantly decision makers for the taking of the Eighth and Ninth Adverse Actions. Each gave evidence, that I accept, that they had no role in determining that Sydney Flames should not provide Mr Heal with a copy of the Investigation Report, or in determining whether Mr Heal should again be asked to respond to the Show Cause letter, and had no role in drafting, preparing or approving the Ovartis show cause emails. Further, Victoria Denholm was still overseas and not working as at 7 and 10 February 2023. I accept that evidence because it was not seriously challenged in cross examination and it was consistent with the apparent logic of events. Once the decision had been taken to suspend Mr Heal and engage Ovartis Lawyers to conduct an independent investigation the relevant decision making shifted away from the management group to Mr Smith in response to findings made by Ovartis Lawyers.

283    Further, to the extent that Mr Nicholl’s position might otherwise be thought to be relevant, Mr Nicholls also gave evidence that he had no role in determining whether Mr Heal would be provided with a copy of the Investigation Report, or in preparing or approving any correspondence to be sent to Mr Heal once the investigation was completed.

D.6.4.2.     The decision maker’s stated reasons

284    Mr Smith gave evidence that I accept, that he was not motivated by any of the alleged workplace complaints, any of the letters written by Khan Law, or Mr Heal’s responses to the allegations including, Mr Heal’s FWC Application, in all his decisions as to the steps to be taken by Sydney Flames once it had received the Investigation Report, including giving instructions for the Ovartis show cause emails to be sent.

285    I note that the Tenth Workplace Right had not been exercised at the time the Ovartis show cause emails were sent.

286    Further, Mr Smith gave evidence that having regard to the safety of the players and confidentiality issues, he did not think it was appropriate to provide a copy of the Investigation Report (which, as noted, had already been refused), and he was advised that Mr Heal was not entitled to it. The emails were sent as part of the show cause process that was occurring at that time and, in the case of the Ovartis second show cause email, that had been disrupted by the mediation on 9 February 2023.

287    Even if, contrary to my findings above, it was found that the Eighth and Ninth Adverse Actions were “adverse actions” for the purposes of s 342 of the FW Act, I am satisfied that Mr Smith instructed Ovartis Lawyers to send both the Ovartis show cause email Sydney Flames because of the findings by the independent investigator in the Investigation Report. In my view, Sydney Flames has comfortably met their onus of showing that the actions were not taken because of any accepted or alleged exercise of a workplace right by Mr Heal.

D.6.5.    Tenth Adverse Action

288    On 14 February 2023, Sydney Flames issued a media statement in relation to Mr Heal (Media Statement).

289    Mr Heal alleges that the issuing of the Media Statement was the Tenth Adverse Action taken against him by Sydney Flames.

290    Mr Heal submits that issuing the Media Statement “harmed” him and was therefore adverse action because (a) the Media Statement dealt with the investigation and these proceedings which are in connection with his employment, (b) the timing of its release was intended to disadvantage him and (c) it damaged his reputation.

291    Sydney Flames submits that the Media Statement was factually correct. It submits that the issuing of the Media Statement did not injure Mr Heal in his employment, alter Mr Heal’s position to his prejudice, or otherwise amount to “adverse action” as defined in s 342 of the FW Act.

292    Sydney Flames submits that by the time that it was released, the matters that were the subject of the Media Statement were already the subject of:

(a)    at least seven press articles that referred, amongst other things, to “a club investigation”, an investigation by lawyers, Mr Heal’s FWC Application, and these proceedings; and

(b)    social media commentary, including references to Mr Heal’s sudden absence, “a major drama”, “a club investigation”, a bullying claim, and these proceedings.

293    Sydney Flames submits that the publication of the press articles and the social media commentary were not the result of any action taken by Sydney Flames. It submits that until the Media Statement was issued, the only announcements that Sydney Flames made were brief announcements that Mr Heal was “unavailable to coach” in relation to the first two games after his suspension. Further, the text of each of the announcements was provided to David Wolf, Mr Heal’s manager, ahead of time, and Mr Wolf did not provide any edits to the suggested announcements.

294    Mr Wolf gave evidence that by 18 January 2023, it was public knowledge that Mr Heal would not be attending the game against Southside in Sydney or Perth Lynx in Sydney on 21 January 2023 due to an investigation, and he pointed to press articles dated 19, 20 and 22 January 2023 which referred to the investigation.

295    I am satisfied that the Media Statement did not disclose anything that was not already in the public arena. Given what was already in the public arena, I do not accept that the Media Statement prejudiced Mr Heal in the sense of him being worse off after the Media Statement than before. The issue of the Media Statement did not cause an injury to Mr Heal of any compensable kind, because it did not adversely affect, or cause the loss or alteration of a legal right he held as an employee, so as to amount to injuring Mr Heal in his employment.

296    I therefore do not accept that the issuing of the Media Statement amounted to “adverse action” for the purposes of s 342 of the FW Act. Issuing the Media Statement did not change the course of the investigation process, or Mr Heal’s position in these proceedings, or otherwise impact his ongoing employment. It is not sufficient to simply point to the fact that the Media Statement relates to events in connection with Mr Heal’s employment to engage s 342 of the FW Act.

297    Given these findings, it is strictly not necessary to then consider who was the relevant decision maker and their reasons for taking the alleged Tenth Adverse Action. In the event that I am mistaken in making these findings, I now address those issues.

D.6.5.1.     Relevant decision maker

298    I accept Mr Smith’s evidence that he prepared the first draft of the Media Statement, and that the decision to issue the Media Statement and its content were ultimately his decisions. Circulating the draft of the Media Statement to others for their input did not detract from Mr Smith’s evidence that he made the decision to circulate the statement in the form in which it was published. That evidence is consistent with the other evidence discussed above, that Mr Smith has the final say in all matters relating to Sydney Flames, and with Mr Smith being the Chairman and majority owner of Sydney Flames.

299    Mr Smith’s evidence is corroborated by Mr Nicholls’ evidence that he was not involved in drafting, reviewing, or approving the Media Release. The first time Mr Nicholls recalls seeing it was after it was released.

D.6.5.2.    The decision maker’s stated reasons

300    In any event, Mr Smith and any other persons who might be considered to have been materially involved in issuing the Media Statement, in particular Mr O’Brien, denied that they decided to issue the Media Statement because of Mr Heal’s exercise of any of the accepted or alleged workplace rights. I accept those denials. The denials are consistent with the apparent logic of events and were not seriously challenged in cross examination.

301    In accepting those denials I had particular regard to the context in which the Media Statement was issued, in particular, that Mr Heal had commenced these proceedings against Sydney Flames and the number of press articles and other public commentary about the investigation and these proceedings.

302    The following explanation given by Mr Smith for approving the release of the Media Statement is inherently plausible and consistent with the apparent logic of events given the extent of the speculation in the press about Mr Heal, the Team and Sydney Flames that demanded a response from Sydney Flames:

[M]atters had reached a point where we had to go on the public record regarding what had occurred with Mr Heal, and in response to the speculation in the media and on social media, as well as in response to Mr Heal’s Court proceedings. I wanted to protect the club’s reputation.

303    Even if, contrary to my findings above, the alleged Tenth Adverse Action was “adverse action” for the purposes of s 342 of the FW Act, Sydney Flames has met the onus on it of demonstrating that it did not issue the Media Statement for any of the accepted or alleged prohibited reasons.

D.6.6.        Eleventh Adverse Action

304    Mr Heal alleges that three directions that he received from Sydney Flames to take accrued annual leave, amounted to adverse action for the purposes of s 342 of the FW Act (Eleventh Adverse Action).

305    On 9 March 2023, Mr Pongrass emailed Mr Heal directing him to take annual leave. At that time Mr Heal’s annual leave entitlement stood at 305 hours (approximately 8 weeks). Mr Pongrass sent an equivalent direction to three other employees of Sydney Flames.

306    Later that day, Khan Law wrote to Ovartis Lawyers challenging the validity of the direction that had been given to Mr Heal to take annual leave.

307    On 14 March 2023, Ovartis Lawyers replied to Khan Law, providing an explanation of the basis for the direction and asking for any circumstances that meant that the direction was not reasonable.

308    On 19 March 2023, Khan Law responded to Ovartis Lawyers disputing the direction to take annual leave in circumstances where Mr Heal had been suspended since 16 January 2023 and represented that the “purpose of annual leave is to provide an employee with an opportunity to take a break from his or her employment”.

309    On 28 March 2023, Ovartis Lawyers wrote to Mr Heal, on behalf of Sydney Flames, providing a further direction to him to take annual leave, commencing from 29 March 2023, but varying the previous direction so that Mr Heal could have two weeks’ annual leave remaining after taking the directed annual leave.

310    In directing Mr Heal to take his accrued annual leave, Sydney Flames relied on s 94(5) of the FW Act. Section 94(5) allows an employer to require an award/agreement free employee such as Mr Heal to take their annual leave if the requirement is reasonable.

311    Section 342(3)(a) of the FW Act provides that “adverse action” does not include action that is authorised by or under the FW Act.

312    The notation to s 94(5) of the FW Act provides that a requirement to take paid annual leave may be reasonable if, for example: (a) the employee has accrued an excessive amount of paid annual leave; or (b) the employer’s enterprise is being shut down for a period (for example, between Christmas and New Year).

313    The final direction, issued on 28 March 2023, was the operative direction. It was the only conduct which in fact changed Mr Heal’s accrued leave balance. It directed Mr Heal to take a period of his accrued annual leave from 29 March 2023, but so that at the end of that period he would still have two weeks’ of accrued leave.

314    I am satisfied that the final direction was reasonable in circumstances where, as submitted by Sydney Flames:

(a)    Mr Heal had not taken (or at least recorded taking) any of his accrued annual leave since commencing employment with Sydney Flames, and as such had accrued an excessive amount of annual leave;

(b)    the 2022/23 WNBL season had recently concluded, meaning it was an appropriate time for Mr Heal (and other coaching staff members) to take any accrued annual leave;

(c)    in the correspondence, and despite being expressly requested to give any reason(s), Mr Heal had not given any substantive reason why he could not take his accrued annual leave, or that there was any reason why he needed to maintain his accrued annual leave; and

(d)    at the end of the direction, Mr Heal would still have two weeks’ of accrued annual leave.

315    For those reasons, I am satisfied that the Eleventh Adverse Action did not constitute adverse action within the meaning of s 342 of the FW Act.

316    Given these findings, it is strictly not necessary to then consider who was the relevant decision maker and their reasons for taking the alleged Eleventh Adverse Action. In the event that I am mistaken in making these findings, I now address those issues.

D.6.6.1.     Relevant decision maker

317    I am satisfied, and Sydney Flames accepts, that each of Mr Smith and Mr Pongrass was relevantly a decision maker in respect of the directions given to Mr Heal to take annual leave.

D.6.6.2.     The decision makers’ stated reasons

318    Mr Heal submits that it is completely unclear what were the reasons of the decision makers for directing him to take his accrued annual leave and therefore Sydney Flames has not discharged its onus pursuant to s 361 of the FW Act on this issue.

319    I do not accept that submission.

320    Even if, contrary to my findings above, the Eleventh Adverse Action was found to be adverse action for the purposes of s 342 of the FW Act, Sydney Flames has met its onus of demonstrating that this alleged adverse action was not taken because of any of the accepted or alleged prohibited reasons.

321    Both Mr Smith and Mr Pongrass gave evidence, that I accept, that in giving the direction to Mr Heal to take annual leave they were not motivated to act by any of the alleged workplace rights and they considered that Sydney Flames should issue the direction for Mr Heal to take annual leave because he had accrued excessive annual leave and the 2022/23 WNBL season had ended.

  1. OTHER ALLEGED FW ACT CONTRAVENTIONS

E.1.    Failure to provide payslips

322    Sydney Flames admits that in the period from March 2021 to January 2023 it did not provide Mr Heal with his payslips within one working day of paying him, contrary to s 536(1) of the FW Act.

323    By reasons of the orders I made on 21 March 2023, the quantum of any penalty to be imposed will be dealt with at a separate hearing.

E.2.    Failure to provide employee records

324    Regulation 3.42 of FW Regulations provides:

Records – – inspection and copying of a record

(1)    For subsection 535(3) of the Act, an employer must make a copy of an employee record available for inspection and copying on request by the employee or former employee to whom the record relates.

Note:     Subregulation (1) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(2)    The employer must make the copy available in a legible form to the employee or former employee for inspection and copying.

Note:    Subregulation (2) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(3)    If the employee record is not kept at the premises at which the employee works or the former employee worked, the employer must:

(a) make the copy available at the premises within 3 business days after receiving the request; or

(b) post a copy of the employee record to the employee or former employee within 14 days after receiving the request.

Note:    Subregulation (3) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

(4) If the employee record is not kept at the premises at which the employee works or the former employee worked, the employer must, as soon as practicable after receiving the request.

(a) make the copy available at the premises; or

(b) post a copy of the employee record to the employee or former employee.

Note 1:     Subregulation (4) is a civil remedy provision to which Part 4-1 of the Act applies. Division 4 of Part 4-1 of the Act deals with infringement notices relating to alleged contraventions of civil remedy provisions.

Note 2:    Under the Act, an inspector is also permitted to inspect and copy an employee record for the purposes of the Act. The inspector may also require the production of the employee record.

325    Sydney Flames is required to make a copy of an employee record available for inspection and copying on request by the employee to whom the record relates. Mr Heal alleged in his statement of claim that Sydney Flames contravened reg 3.42(1) by failing to provide him with his employment records pursuant to requests that he had made to Sydney Flames.

326    Mr Heal requested access to his employee records on:

(a)    13 February 2023 by way of a letter sent by Khan Law requesting his employment records be provided for inspection, including his leave records and payslips;

(b)    20 February 2023 by way of an email sent by Khan Law, requesting Mr Heal’s employment records; and

(c)    8 March 2023 by way of a letter sent by Khan Law, making a further request for Mr Heal’s leave records.

327    Sydney Flames provided Mr Heal with copies of the employee records that he requested and that it held, as follows:

(a)    by its letter dated 20 February 2023, Ovartis Lawyers provided Mr Heal with copies of all of his payslips up to that date; and

(b)    by its letter of 14 March 2023, Ovartis Lawyers subsequently provided Mr Heal with an annual leave record.

328    Mr Heal appears to no longer contend that there was a failure to provide him with his employee records as requested.

329    Instead, Mr Heal now seeks to allege a contravention of reg 3.42(3), which is concerned with the time within which employee records must be made available or provided, or to contend that a breach of reg 3.42(3) is also a breach of reg 3.42(1). Regulation 3.42(3) requires an employer to make available an employee record kept at the premises at which the employees works, at the premises within three days of receiving the request, or to post a copy of the employee record to the employee or former employee within 14 days of receiving the request.

330    Mr Heal alleges that Sydney Flames were “not forthcoming” in their provision of Mr Heal’s annual leave records, and that Sydney Flames breached reg 3.42(3) by providing the annual leave records on 14 March 2023.

331    Regulation 3.42(1) is a different civil penalty provision to reg 3.42(3).

332    Sydney Flames contends that Mr Heal should not be allowed to allege a contravention of a civil penalty provision that is different from his pleaded case.

333    In Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; [2018] FCAFC 83, a Full Court of this Court stated at [49]-[50] (Tracey, Reeves and Bromwich JJ):

[49] One of the main purposes of pleadings is to define the issues in dispute with sufficient clarity to enable the opposite party to understand the case he or she has to meet and to provide him or her with an adequate opportunity to prepare to meet that case: see Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ). A concomitant of this principle is that a party is not entitled to depart from his or her pleaded case except if the parties have both deliberately chosen to conduct the dispute on a different basis.

[50] In our view, these observations apply with even more force in a proceeding such as this where declarations of contravention of the FWA were sought against the respondents and civil penalties were sought to be imposed on them. Faced with those serious consequences, the respondents were entitled to be told clearly and precisely in the Commissioner’s ASOC what case it was they had to meet and, unless they deliberately chose to allow the case to be conducted on a different basis, to direct their evidence and arguments to that case and that case alone….

334    Mr Heal was informed by Sydney Flames in its opening outline of submissions that reg 3.42(3) was a different regulation and was not pleaded. Mr Heal, however, did not make any application to amend his statement of claim to include an alleged contravention of reg 3.42(3).

335    Sydney Flames submits that it is not “necessarily correct that Sydney Flames would not be prejudiced if there was now an amendment to allow Mr Heal to allege a contravention of reg 3.42(3)”. It submits that reg 3.42(3) is concerned with the time within which employee records must be made available or provided where employee records are “kept at the premises at which the employee works”. It submits that a different provision, reg 3.42(4), and a different obligation applies where employee records are not kept at the premises. While it seems clear that Mr Heal’s leave records at least were kept as part of an electronic database, Sydney Flames submits that it has not had a chance to consider or lead evidence as to whether that means that the records were kept at the premises at which Mr Heal works.

336    I do not accept the contention by Mr Heal that a breach of reg 3.42(3) is also a breach of reg 3.42(1), or that the timeframe in reg 3.42(3) should be read into reg 3.42(1). The structure of reg 3.42, the note under each individual provision, and the table in reg 4.01A, all make it clear that each of regs 3.42(1), 3.42(2), 3.42(3) and 3.42(4) are separate civil penalty provisions, each with its own specified maximum penalty.

337    The text of reg 3.42(1) makes it clear that it is directed at making employee records available for inspection and copying on request, not with the timeframe within which that must be done. It is only reg 3.42(3) and reg 3.42(4) that deal with the timeframe within which records must be made available for inspection and copying.

338    For the foregoing reasons, Mr Heal should be held to his pleaded case. I am satisfied that the evidentiary issues raised by Sydney Flames would need to have been addressed before the Court could determine whether reg 3.42(3) had been contravened. Moreover, the issue was expressly brought to Mr Heal’s attention in opening submissions and no application was made to amend the pleading or to introduce new evidence. Rather, Mr Heal made the forensic decision to contend that a breach of reg 3.42(3) could also arise from a breach of reg 3.42(1) or the timeframe in reg 3.42(3) should be read into reg 3.42(1).

  1. ALLEGED BREACHES OF CONTRACT

F.1.    Construing contractual terms

339    The meaning of a contract is to be determined objectively: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 at [22] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [38]-[41] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). The construction of a contract must be determined by what a reasonable person in the positions of the parties would have understood its terms to mean.

340    The process of construing terms in a commercial document or contract involves consideration not only of the text of the documents, but also of the surrounding circumstances known to all the parties, as well as the purpose and object of the transaction: see Cohen v iSoft Group Pty Ltd (2013) 298 ALR 516; [2013] FCAFC 49 at [35] (Rares, Cowdroy and Kerr JJ). The Court’s knowledge of the purpose of a contract presupposes knowledge of the genesis of the transaction, the background, the context, and the market in which the parties are operating: Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989; [1976] 3 All ER 570 at 573-574 (Lord Wilberforce); Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45; [2002] HCA 5 at [10] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). The Court should read the contractual agreement as a whole and construe it in accordance with established principle: Treasury Wine Estates Vintners Ltd v Pearson (2019) 268 FCR 12; [2019] FCAFC 21 at [73] (Rares, Perry and Charlesworth JJ).

F.2.    Breach of Contract claims

341    Mr Heal no longer presses the claim for income from acting as Coaching Director of Sydney Flames academy.

342    Mr Heal’s remaining contract claim is that he procured two sponsorships for the Sydney Flames, being the Architectural Signs sponsorship and the Workplace Law sponsorship and is therefore entitled to sponsorship income pursuant to the terms of his Contract. Mr Heal therefore claims that Sydney Flames breached the Contract by failing to pay him the commission to which he was entitled referable to the sponsorship income.

343    Mr Heal’s entitlement to a commission on sponsorship income turns on whether sponsorship revenue or value-in-kind sponsorship has been “procured” by him in accordance with cl 3(c) of his Contract. Clause 3(c) provides:

Sponsorship income. During the Employment Term, Employee shall be eligible to receive up to (i) 20% share of incremental net cash sponsorship revenue, and (ii) 10% share (non-cash benefits) of value-in-kind sponsorships that has a meaningful value, that has been procured for both Sydney Flames or Sydney Kings by the Employee or The Closer Group.

344    The definitions of “procure” in the Macquarie Dictionary (9th ed, 2023) relevantly include:

  1. To obtain or get by care, effort or the use of special means …
  2. To effect; cause; bring about …;

345    The definitions of “procure” in the Oxford English Dictionary, quoted in CXC Consulting Pty Ltd v Commissioner of State Revenue [2013] VSC 492 at [70]-[73] (Ginnane J) (together with the Macquarie Dictionary definitions referred to above), relevantly include:

To obtain; to bring about.

4a. To bring about, cause, or produce, esp with care or effort; to cause to be done.

346    In HRC Hotel Services Pty Ltd v Chief Commissioner of State Revenue [2018] NSWSC 820 at [118], Ward CJ in Eq (as her Honour then was) said that “procure” should be given its ordinary meaning of “obtain”.

347    In Nearfield Ltd v Lincoln Nominees Ltd [2007] 1 All ER (Comm) 441; [2006] EWHC 2421 (Ch) at [37] and [97], the English High Court considered the meaning of a contractual promise by a company to “procure the payment” of a loan, and held that the normal meaning of “procure” was “see to it”, such that the defendant was liable to “see to it” (or obtain or ensure) that a third party repaid the loan and was liable to pay corresponding damages if the third party did not repay the loan.

348    As such, the issue is whether Mr Heal can be said to have procured the sponsors in the sense of having obtained or brought about the sponsors, including by the use of care or effort or the use of special means.

F.2.1.    Architectural Signs sponsorship

349    Mr Heal introduced the managing director of Architectural Signs, Millar McCowan, to Mr Nicholls. Mr Heal had met Mr McCowan through basketball. Mr Heal informed Mr Nicholls that Mr McCowan may be interested in sponsoring the Sydney Flames and asked Mr Nicholls to give Mr McCowan a call. Mr Heal accepted that he played no role in the negotiations of the sponsorship arrangement after he had made the introduction to Mr Nicholls.

350    After that introduction, Mr Nicholls had a telephone conversation with Mr McCowan, as well as email exchanges on 30 November 2021 and 2 December 2021, and then provided Mr McCowan with an “initial proposal” giving an indication of the sponsorship exposure that Architectural Signs’ name and logo could receive. It is apparent from the initial conversation and Mr McCowan’s email of 2 December 2021 that Mr McCowan initially had a budget of “about $10K”, but Mr Nicholls persuaded him to accept the minimum package of $25,000, including $15,000 in sponsorship in kind (referred to in Mr McCowan’s email as “contra”).

351    Mr Nicholls then met with Mr McCowan at a double header game on 5 December 2021, and they discussed various sponsorship options. In subsequent emails, Mr McCowan sought to clarify some parts of the sponsorship arrangement, and Mr Nicholls then provided him with a proposed partnership agreement.

352    On 15 December 2021, Mr Nicholls and Mr McCowan exchanged further emails, discussing free tickets to be provided as part of the sponsorship, and Mr McCowan then confirming that he had posted the signed sponsorship agreement.

F.2.2.    Workplace Law sponsorship

353    The circumstances in which Sydney Flames obtained the Workplace Law sponsorship can be summarised as follows.

354    On 4 May 2022, the principal of Workplace Law, Shane Koelmeyer, sent an email to Mr Smith introducing himself.

355    Mr Koelmeyer then sent a subsequent email to Mr Smith asking to speak to him upon learning that another law firm was no longer “a partner” of Sydney Flames and Sydney Kings.

356    On 14 June 2022, Mr Smith and Mr Koelmeyer spoke, and discussed a potential sponsorship. After the call, Mr Smith sent the following email to Mr Koelmeyer introducing him to Mr Nicholls, and referring to putting a “package” together for Mr Koelmeyer:

Thanks Shane [Koelmeyer]

We will get a package and some options put together. In copy is Sean Nicholls who heads up our basketball business.

I appreciate the feedback.

Best regards

Paul

357    On 15 June 2022, Mr Smith sent the following email to Mr Koelmeyer, introducing Adam Zammit, Hoops Capital’s Commercial Director:

Hi Shane [Koelmeyer]

Just a further follow up/intro.

Adam Zammit heads up commercial for Hoops Capital, and will be able to facilitate a package for your consideration.

Keep me posted if you need anything else.

Thanks

Paul

358    Mr Heal was introduced to Mr Koelmeyer by Ben Madgen, a mutual friend and former Sydney Kings player.

359    On 23 June 2022, Mr Heal had a telephone conversation with Mr Koelmeyer and they then exchanged the following texts:

Hi Shane – thanks for the chat today.

Really useful information about the Flames & WNBL. Genuinely love how & what you are building … it certainly fits with what we are all about.

Cheers,

Shane Koelmeyer (Workplace Law)

  1. Apologies if I sounded like Darth Vader – I was in the middle of walk & didn’t want to miss the call.

Haha. All good and great to chat.

Hope you guys jump on board and are part of the build and journey.

Cheers. Shane [Heal]

360    On 23 June 2023, Mr Koelmeyer also sent an email to Mr Smith and Mr Zammit in the following terms, after his discussion with Mr Heal earlier that day:

Hi Paul and Adam,

Super busy time for all of us I know, so following on from my phone messages, just wanted to ask if you could put a proposal to me around being a/the major partner of the Flames.

I believe in teams/clubs retaining the integrity of their name so not interested in naming rights like Brydens.

Having spoken to Shane Heal (Ben Madgen kindly introduced me) there’s a strong connection with what our firm is about and how/what Shane is building with his team. I think we could add value and help him, the team and the organisation with its female program.

I have no idea what $ you are after for the Flames major sponsor – it could well be out of our budget but let’s see.

Cheers,

Shane [Koelmeyer]

361    On 16 August 2022, Megan Trinh, Account Director – Partnerships, Brand and Talent, sent Mr Koelmeyer a draft sponsorship contract for further discussion.

362    On 19 August 2022, Mr Koelmeyer sent a further email to Mr Heal, in which Mr Koelmeyer noted “[t]hank you for taking the time to chat to me a while back, speaking directly to you and Paul Smith convinced me that we could add value to the Flames program and that there is strong values alignment”.

363    Workplace Law subsequently entered into a sponsorship of the Sydney Flames for the 2022/23 season.

F.2.3     Mr Heal’s submissions

364    Mr Heal submits that, the Court needs to consider, not only whether he was the person who first made contact with the sponsors, but the significance of the role that he played in securing the sponsorships for Sydney Flames.

365    Mr Heal submits that it is plain that, but for his introduction, Architectural Signs would not have become a sponsor of Sydney Flames, and that he “must be regarded as having been critical and key in that process”.

366    Mr Heal submits, in relation to the Workplace Law sponsorship, that the subsequent text on 23 June 2022 from Mr Koelmeyer to him following their telephone conversation, shows the significance of that meeting to Mr Koelmeyer in deciding that Workplace Law would sponsor Sydney Flames, and that Mr Heal was “critical and key” in that process.

367    Further, Mr Heal submits it was not within his responsibilities to engage in the transactional and financial aspects of Sydney Flames’ business, and that his responsibility was to use his standing and profile to procure sponsors. He also submits that it would be a perverse outcome if he is denied any resulting benefit from the sponsorships because he was not involved in the negotiating and finalising of the transactional document.

F.2.4.    Sydney Flames’ submissions

368    Sydney Flames submits that the evidence does not establish that Mr Heal “procured”, in the sense of having obtained or brought about, either Architectural Signs’ or Workplace Law’s sponsorship of Sydney Flames.

369    First, Sydney Flames submits that the concept of “procuring” in cl 3(c) of Mr Heal’s Contract is not satisfied by a “but for” analysis, that is, but for Mr Heal’s introduction, Architectural Signs would not have become a sponsor. It requires that Mr Heal obtained or brought about Architectural Signs as a sponsor, including by the use of care or effort. It submits that the evidence shows that he did not do so, and that it was Mr Nicholls (with, perhaps, others assisting him to prepare relevant documents) who put in the time and effort to convert Mr Heal’s introduction into a sponsorship.

370    Second, Sydney Flames submits that Mr Koelmeyer’s email of 23 June 2022 to Mr Smith and Mr Nicholls, sent after speaking with Mr Heal, does not say that it was Mr Heal who convinced Mr Koelmeyer to pursue the sponsorship. Rather, the appropriate inference, if any inference can be drawn in the absence of evidence from Mr Koelmeyer, is that Mr Koelmeyer was already pursuing a sponsorship with Sydney Flames prior to his discussion with Mr Heal, and that the discussion with Mr Heal, at best, affirmed his intention to do so. It submits that it is also notable that it was Mr Koelmeyer who sought out and contacted Mr Heal, rather than vice versa. Mr Heal had not known Mr Koelmeyer before that conversation.

371    Third, Sydney Flames submits that Mr Nicholls and his team subsequently arranged the details of the Workplace Law sponsorship with Mr Koelmeyer, including providing him with a proposed contract, and no doubt at some point preparing the final sponsorship agreement for signing. Sydney Flames submits that Mr Heal accepts that he played no part in subsequently negotiating, arranging or finalising the Workplace Law sponsorship.

372    Fourth, Sydney Flames submits that notwithstanding that Mr Heal knew that Architectural Signs and Workplace Law had become sponsors, and that he knew about the clause of his employment agreement entitling him to a share of sponsorship income in certain circumstances, Mr Heal never approached anyone within Sydney Flames or Hoops Capital to enquire about the value of either sponsorship to Sydney Flames. Nor did he otherwise make a claim for a share of either sponsorship. Sydney Flames submits that this suggests that Mr Heal understood that he had not played any significant role in obtaining either sponsorship, so as to be entitled to a share of any sponsorship income.

F.2.5.    Consideration

373    Consistently with the principles established in Treasury Wine at [73], it is necessary to construe the language of “procured” in cl 3(c) in the context of Mr Heal’s Contract as a whole and the surrounding circumstances known to the parties. Dictionary definitions may assist in construing words in contracts but they must not be permitted to give rise to constructions that would be inconsistent with these principles. Here, the provisions of Mr Heal’s Contract and the surrounding circumstances known to the parties make plain that Mr Heal was employed as a Head Coach of the Team. In that context “procure” cannot sensibly be construed as requiring Mr Heal to be involved in commercial negotiations leading to the execution of a signed sponsorship agreement. Rather, “procure” must be construed as focusing on who was principally responsible for the sponsor entering into a sponsorship arrangement with the Sydney Flames.

374    I am satisfied for the following reasons that Mr Heal is entitled to a commission for procuring both the Architectural Signs and Workplace Law sponsorship agreements.

375    First, Mr Heal’s entitlement to a share of sponsorship income is a matter to be determined objectively in accordance with established contractual principles of construction. The absence of any inquiry by Mr Heal as to the level of sponsorship negotiated with either Architectural Signs or Workplace Law or request for payment of any commission prior to the commencement of these proceedings is of no material probative value. He may well have relatively overlooked or not yet made a claim for his share of the sponsorship income. Further, it was ultimately the responsibility of Sydney Flames under Mr Heal’s Contract for it to make any commission payment to Mr Heal, not for Mr Heal to request payment. It was Sydney Flames that knew the specific value of the sponsorships that were ultimately negotiated, not Mr Heal.

376    Second, given the surrounding circumstances known to all the parties, in particular, Mr Heal’s commitments as Head Coach and his very high public profile as an international basketballer and more recently as a coach, it can readily be concluded that the objective purpose and object of the procuring sponsorship clause was to provide an incentive for Mr Heal to use his reputation and contacts to attract sponsorship for Sydney Flames. It was not to be construed as requiring him to negotiate the specific commercial terms of any sponsorship that he was instrumental in procuring.

377    Third, in the case of Architectural Signs, the evidence makes plain that it was Mr Heal who introduced it as a sponsor. The relevant principal of Architectural Signs was known to Mr Heal and it was Mr Heal who suggested to him that he become a sponsor of the Sydney Flames. In that sense, I am satisfied that Mr Heal relevantly “procured” Architectural Signs as a sponsor of the Sydney Flames.

378    Fourth, in the case of Workplace Law, I am satisfied that Mr Heal was instrumental in procuring the sponsorship. I accept that Mr Koelmeyer was not previously known to Mr Heal but that is not the critical issue for the “procuring” of the Workplace Law sponsorship. It was not so much a question of who introduced Mr Koelmeyer to Sydney Flames, but rather who was instrumental in securing the sponsorship of Workplace Law. The critical significance of Mr Heal’s role in procuring the Workplace Law sponsorship is evident from the texts exchanged between Mr Koelmeyer and Mr Heal on 23 June 2023, the email from Mr Koelmeyer to Mr Smith and Mr Zammit later that day, and the email from Mr Koelmeyer to Mr Heal on 19 August 2023, referred to above.

379    In his 23 June 2023 text to Mr Heal, Mr Koelmeyer thanked Mr Heal for the telephone call and stated that what Mr Heal had told him was “[r]eally useful information about the Flames & WNBL. Genuinely love how & what you are building … it certainly fits with what we are all about” (emphasis added).

380    In his 23 June 2023 email to Mr Smith and Mr Zammit, Mr Koelmeyer stated that after having spoken with Mr Heal, he was satisfied that “there’s a strong connection with what our firm is about and how/what Shane is building with his team. I think we could add value and help him, the team and the organisation with its female program” (emphasis added). The clear inference from the email is that it was only after the conversation with Mr Heal that Mr Koelmeyer made the decision to proceed with the Workplace Law sponsorship.

381    The significance of Mr Heal’s involvement in procuring the Workplace Law sponsorship was also emphasised in Mr Koelmeyer’s 19 August 2022 email to Mr Heal, in which Mr Koelmeyer thanked Mr Heal “for taking the time to chat to me a while back, speaking directly to you and Paul Smith convinced me that we could add value to the Flames program and that there is strong values alignment” (emphasis added). The suggestion that it was both Mr Heal and Mr Smith that convinced Mr Koelmeyer to proceed with the sponsorship does not preclude a finding that Mr Heal, by his contribution, relevantly “procured” the Workplace Law sponsorship. The sponsorship clause does not require “exclusive” procurement, and such a construction would not readily be inferred, not least because of the difficulty of applying such a construction in a commercial context. In many cases, and certainly in this case, multiple people are involved in identifying, introducing and discussing potential sponsorship arrangements.

  1. DISPOSITION

82    For the foregoing reasons, judgment is to be given to Mr Heal on the breach of contract claims and the admitted payslips claim but the amended originating application and the statement of claim are otherwise to be dismissed. The parties are to confer and seek to reach agreement on the further orders necessary to give effect to these reasons, including a timetable for submissions on penalty for the payslips claim and any other further evidence they might seek to rely upon on penalty, and failing agreement the parties are to file and serve short submissions in support of the further orders that they seek.”……………………………………….

 

 

Heal v Sydney Flames Basketball Pty Ltd [2024] FCA 401 delivered 9 April 2024 per Halley J”