FEDERAL COURT OF AUSTRALIA

Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481

ORDERS

THE COURT ORDERS THAT:

1.    The cross-appellant’s application for leave to amend her notice of cross appeal be dismissed.

2.    The appeal be allowed in part.

3.    The cross-appeal be allowed in part.

4.    The notice of contention be dismissed.

5.    The orders of the primary judge be set aside and, in lieu thereof—and save insofar as concerns the issues that are to be the subject of the trial referred to in order 6—the further amended application that the respondent lodged in the court below on 20 June 2019 be dismissed.

6.    There be a new trial, to be conducted before the Federal Circuit and Family Court of Australia (Div 2), limited to the following issues, namely:

(a)    whether the first appellant terminated its employment of the respondent in contravention of s 340(1) of the Fair Work Act 2009 (Cth);

(b)    if it did, whether either of the second and third appellants was (or both of them were), for the purposes of s 550 of the Fair Work Act 2009 (Cth), involved in that contravention such that he or they might be taken also to have engaged in or committed it;

(c)    to the extent that any such contraventions are established, what, if any, relief should be granted in consequence; and

(d)    what, if any, relief should be granted in consequence of the first appellant’s having dismissed the respondent contrary to the requirements of s 117(2) of the Fair Work Act 2009 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

INTRODUCTION

1    The respondent and cross-appellant, Ms Shum, is a former employee of the first appellant, Southern Migrant and Refugee Centre Inc (hereafter, “SMRC”). Her employment was terminated on 19 June 2017. At that time, the second and third appellants, Mr Oates and Mr Heeney, were the Chairman and CEO of SMRC, respectively.

2    Ms Shum brought an action in (what was then) the Federal Circuit Court of Australia (hereafter, the “FCCA”) against SMRC and five other respondents (namely Mr Oates, Mr Heeney and three other officers or employees of SMRC) alleging that:

(1)    her dismissal was effected in contravention of ss 340, 351 and 352 of the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”), and the “National Employment Standards” for which that enactment elsewhere makes provision;

(2)    SMRC took various other species of “adverse action” against her because of her exercise of “workplace rights” in contravention of s 340 of the FW Act (including by initiating disciplinary processes against her, and by lying in response to an application to WorkCover made by Ms Shum in relation to allegations that she was bullied at SMRC);

(3)    the individual respondents were involved in (and, therefore, were themselves liable as accessories to) some or all of those contraventions; and

(4)    SMRC had breached her employment contract.

3    By orders made on 5 February 2020, the FCCA partially upheld Ms Shum’s claims: Shum v Southern Migrant and Refugee Centre Inc & Ors [2020] FCCA 214 (the “Primary Judgment”; Judge Riley). It concluded that Ms Shum’s employment was terminated in breach of s 340 of the FW Act, and that Mr Oates and Mr Heeney were accessories to that contravention. The FCCA also found that SMRC had dismissed Ms Shum in contravention of s 352 of the FW Act and that Mr Heeney was liable as an accessory to (which is to say, was relevantly “involved in”) that contravention. The application was otherwise dismissed. Various forms of declaratory relief were granted and the matter was programmed for further hearing to determine what other relief (presumably relief in the nature of compensation and penalties) should flow in consequence of the court’s conclusions.

4    The appellants are the respondents to the FCCA application against whom Ms Shum succeeded (that is, SMRC, Mr Oates, and Mr Heeney). By leave, they appeal against the entirety of the Primary Judgment. Several grounds of appeal are advanced, all of which are discussed below.

5    Ms Shum cross-appeals from the Primary Judgment in relation to other aspects of her suit—namely, the adverse action and contract claims on which she failed before the FCCA. The cross-respondents are all of the respondents to the FCCA Proceeding.

6    The matter before the FCCA was stayed pending the hearing and determination of this appeal. As it happens (and with respect), that was prudent. For the reasons that follow, the Primary Judgment was a product of error and, for that reason, the appeal should succeed. Regrettably, not all of the errors that attend the Primary Judgment are errors that this court can correct. Instead, the matter must (and will) be remitted for limited retrial, as particularised below.

7    Also for the reasons set out below, the cross-appeal must (and will) be dismissed, save in respect of one issue. With respect, the primary judge erred by failing to conclude that Ms Shum’s employment was terminated contrary to the requirements of s 117 of the FW Act (and, therefore, in breach of s 44 of the FW Act). The relief that should flow from that contravention should be the subject of further consideration by the FCCA and I will make orders consistent with that course.

BACKGROUND

8    SMRC is a not-for-profit incorporated association that provides social support services for migrants and refugees. At times relevant for present purposes, it employed Ms Shum in the position of “Team Leader, Finance”.

9    The dispute arises out of what appears to have been a period of some turmoil within SMRC. The primary judge recorded that there was dysfunction at SMRC, both in the workplace and at board level. It is unnecessary to describe that dysfunction in detail. It is, however, necessary to summarise some factual matters relevant to the grounds that both sides advance. In particular, it is necessary to describe the events that gave rise to Ms Shum’s exercising of “workplace rights” under the FW Act, the circumstances of Mr Heeney’s appointment as interim CEO of SMRC, and the restructure of SMRC that he subsequently propounded (and which was said to have occasioned Ms Shum’s dismissal for reasons of redundancy).

10    On 1 March 2017, Ms Wattegamage (the fifth cross-respondent) made a written complaint to Ms Amandeep Bindra (the sixth cross-respondent) about Ms Shum’s behaviour towards her in the SMRC workplace. It is unnecessary to describe that behaviour. Later that day, Ms Wattegamage spoke to Ms Despina Haralambopoulos (the fourth cross-respondent and then acting CEO) about her written complaint, and made a further oral complaint about separate conduct in which Ms Shum had engaged (and by which she, Ms Wattegamage, felt aggrieved).

11    Ms Shum attended work on 6 March 2017 to meet with Ms Haralambopoulos about what Ms Wattegamage had reported. During that meeting, Ms Haralambopoulos handed Ms Shum a copy of a letter stating, relevantly, that a “disciplinary meeting” with Ms Shum was scheduled for 8 March 2017. Ms Shum told Ms Haralambopoulos that she would not attend any disciplinary meeting and, on 7 March 2017, commenced a period of extended personal leave. Thereafter, no further investigation into Ms Wattegamage’s complaints occurred.

12    On 8 March 2017, Ms Shum lodged a WorkCover claim alleging that she had been subjected to bullying at SMRC and was experiencing stress. Ms Haralambopoulos, in her capacity as acting CEO, was involved in compiling a response to that claim. It was prepared and submitted to SMRC’s insurer, which ultimately rejected the claim. Of relevance to the present dispute, Ms Shum alleged that Ms Haralambopoulos had lied in the response that she (Ms Haralambopoulos) had prepared on SMRC’s behalf.

13    Ms Shum also lodged an application in the Fair Work Commission seeking orders to require that several of the cross-respondents stop bullying her. She remained absent from work from 7 March 2017.

14    Mr Heeney commenced in the role of interim CEO of SMRC nearly two months later (on 1 May 2017). For reasons that needn’t be entertained here, SMRC’s previous CEO had taken a period of sudden and extended leave, as a result of which Mr Oates decided to recruit Mr Heeney to the interim role while a search for a permanent CEO was undertaken.

15    One of Mr Heeney’s mandates as interim CEO was to review SMRC’s structure and finances. Mr Heeney gave evidence in the proceeding below that, shortly after his appointment, he formed the view—or, perhaps, had been told (by a person whose identity he was unable to recall)—that SMRC was losing approximately $250,000 per year. He set about devising some means to address that reality.

16    Mr Heeney was also made aware of the complaints and applications that Ms Shum had made. He was involved in conciliation processes concerning Ms Shum’s applications to WorkCover and the Fair Work Commission.

17    In the weeks following his appointment as SMRC’s interim CEO, Mr Heeney set in train a proposal to restructure SMRC. By that proposed restructure, he identified three positions that would be made redundant, including Ms Shum’s. He estimated that their abolition would save SMRC approximately $250,000 per year.

18    Particulars of Mr Heeney’s proposal were provided by email to SMRC’s board on 25 May 2017, and, subsequently, to certain SMRC staff (including Ms Shum) on 31 May 2017. Mr Oates gave oral evidence that the board accepted his proposal, but there was no other evidence before the learned primary judge that that was so.

19    On 14 June 2017, Mr Heeney sent an email to Ms Shum advising her of his decision to proceed with the proposed restructure, and that her position would become redundant. On 19 June 2017, Mr Heeney sent another email to Ms Shum, informing her of the termination of her employment and that SMRC would shortly pay her one week’s pay in lieu of notice thereof.

20    In the FCCA Proceeding, Ms Shum alleged that she was not given proper notice of termination because she did not read Mr Heeney’s 19 June 2017 email. Her evidence was that she found that email in her “spam folder” on 26 June 2017, although she subsequently conceded in cross-examination that she had become aware of Mr Heeney’s email on 21 June 2017. In any event, Ms Shum insisted that she did not open Mr Heeney’s email at that time. The significance of those dates will shortly become apparent.

21    Mr Heeney maintained that the proposed restructure was effected entirely for budgetary reasons, and that the termination of Ms Shum’s employment was not due to her having made any of the complaints that she had made, nor to any concerns regarding her performance or behaviour.

THE STATUTORY FRAMEWORK

22    The determination of the appeal and cross appeal depends on the interpretation and application of various statutory provisions, principally contained within the FW Act. It is convenient to set out that statutory framework.

23    Section 44 of the FW Act provides as follows:

44 Contravening the National Employment Standards

(1)    An employer must not contravene a provision of the National Employment Standards.

Note:    This subsection is a civil remedy provision.

…

24    Part 2-2 of the FW Act contains the National Employment Standards to which s 44 refers. Relevantly, ss 117 and 119 (which, sitting within pt 2-2, are each provisions that stipulate National Employment Standards), provide as follows:

117 Requirement for notice of termination or payment in lieu

Notice specifying day of termination

(1)    An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

Note 1:    Section 123 describes situations in which this section does not apply.

Note 2:    Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:

(a)    delivering it personally; or

(b)    leaving it at the employee’s last known address; or

(c)    sending it by pre paid post to the employee’s last known address.

Amount of notice or payment in lieu of notice

(2)    The employer must not terminate the employee’s employment unless:

(a)    the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

(b)    the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.

(3)    Work out the minimum period of notice as follows:

(a)    first, work out the period using the following table:

(b)    then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.

(4)    A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer.

…

119 Redundancy pay

Entitlement to redundancy pay

(1)    An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a)    at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)    because of the insolvency or bankruptcy of the employer.

Amount of redundancy pay

(2)    The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

…

25    Part 3-1 of the FW Act is entitled “general protections”. It provides, relevantly, a suite of protections aimed at safeguarding the exercise of “workplace rights”. One of those protections is contained in s 340(1) of the FW Act, which relevantly provides as follows:

340 Protection

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

…

26    Sections 341 and 342 of the FW Act then define “workplace right” and “adverse action”, respectively. They relevantly provide as follows:

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:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

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

…

342 Meaning of adverse action

(1)    The following table sets out circumstances in which a person takes adverse action against another person.

…

27    Section 352 of the FW Act affords protection against adverse action in specific circumstances related to an employee’s absence from work due to illness or injury. It states, relevantly:

352 Temporary absence—illness or injury

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

…

28    Section 352 and subsection 340(1) are each “civil remedy provision[s]”.

29    Section 360 recognises that adverse action might be taken for several reasons, including reasons that are not proscribed by pt 3-1 of the FW Act. Section 361 creates a rebuttable presumption regarding proof of the reasons for which adverse action was taken. Those sections relevantly provide as follows:

360 Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

361 Reason for action to be presumed unless proved otherwise

(1)    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.

…

30    Section 545 of the FW Act provides for the orders that this court can make in circumstances where a person has contravened a civil remedy provision. It states, relevantly, as follows:

545 Orders that can be made by particular courts

Federal Court and Federal Circuit and Family Court of Australia (Division 2)

(1)    The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

(2)    Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:

(a)    an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b)    an order awarding compensation for loss that a person has suffered because of the contravention;

(c)    an order for reinstatement of a person.

…

31    Section 550 of the FW Act concerns accessorial liability. It provides that a person is taken to have contravened a civil remedy provision if he or she is “involved in” another person’s contravention. It reads:

550 Involvement in contravention treated in same way as actual contravention

(1)    A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

(2)    A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a)    has aided, abetted, counselled or procured the contravention; or

(b)    has induced the contravention, whether by threats or promises or otherwise; or

(c)    has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d)    has conspired with others to effect the contravention.

32    The provisions of the Acts Interpretation Act 1901 (Cth) (hereafter, the “AI Act”) and the Electronic Transactions Act 1999 (Cth) (hereafter, the “ET Act”) concerning service of documents are of relevance to the cross appeal. Section 28 of the AI Act provides:

28A    Service of documents

(1)    For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then the document may be served:

(a)    on a natural person:

(i)    by delivering it to the person personally; or

(ii)    by leaving it at, or by sending it by pre‑paid post to, the address of the place of residence or business of the person last known to the person serving the document; or

(b)    on a body corporate—by leaving it at, or sending it by pre‑paid post to, the head office, a registered office or a principal office of the body corporate.

Note:    The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.

(2)    Nothing in subsection (1):

(a)    affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or

(b)    affects the power of a court to authorise service of a document otherwise than as provided in that subsection.

33    The purpose of the ET Act, at a high level, is to ensure that a transaction made under a Commonwealth law is not invalid solely for the reason that it was conducted by means of electronic communication. “Transaction” is defined in s 5 of the ET Act, relevantly, to include “any…notice...that the parties are required to make or choose to make in connection with the formation or performance of a contract, agreement or other arrangement”.

34    Sections 8 and 9 of the ET Act are relevant to the cross-appeal. They provide, relevantly, as follows:

8 Validity of electronic transactions

(1)    For the purposes of a law of the Commonwealth, a transaction is not invalid because it took place wholly or partly by means of one or more electronic communications.

(2)    The general rule in subsection (1) does not apply in relation to the validity of a transaction to the extent to which another, more specific provision of this Part deals with the validity of the transaction.

9 Writing

Requirement to give information in writing

(1)    If, under a law of the Commonwealth, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where:

(a)    in all cases—at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and

(b)    if the information is required to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that the information be given, in accordance with particular information technology requirements, by means of a particular kind of electronic communication—the entity’s requirement has been met; and

(c)    if the information is required to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that particular action be taken by way of verifying the receipt of the information—the entity’s requirement has been met; and

(d)    if the information is required to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity—the person to whom the information is required to be given consents to the information being given by way of electronic communication.

…

Giving information

(4)    This section applies to a requirement or permission to give information, whether the expression give, send or serve, or any other expression, is used.

(5)    For the purposes of this section, giving information includes, but is not limited to, the following:

(a)    making an application;

(b)    making or lodging a claim;

(c)    giving, sending or serving a notification;

(d)    lodging a return;

(e)    making a request;

(f)    making a declaration;

(g)    lodging or issuing a certificate;

(h)    making, varying or cancelling an election;

(i)    lodging an objection;

(j)    giving a statement of reasons.

35    Section 14A of the ET Act deals with time of receipt of an electronic communication. It provides, relevantly:

(1)    For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:

(a)    the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or

…

(2)    For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.

…

THE PRIMARY JUDGMENT

36    Ms Shum advanced a large number of claims in the FCCA Proceeding, not all of which were easily understood. The difficulties that presented were the subject of the following observations in the Primary Judgment:

231.    …The court asked Ms Shum to specify exactly what she alleged against each respondent. Ms Shum produced to the court a document which became exhibit 7. In addition, Ms Shum produced a key to exhibit 7. The key became exhibit 8.

232.    Exhibit 7 is a table with 75 separate claims. Multiple respondents are alleged in exhibit 7 to be involved in many of the breaches. Moreover, for each of the 75 claims, exhibit 7 refers in the last column to a number. Exhibit 8, which is the key, explains that each number refers to particular group of transgressions. For example, group 1 is organisation-wide workplace bullying. Group 1A is targeted workplace bullying. Group 3 is disciplinary action. There are 14 groups in total.

233.    This was a very unusual way to present a case. And the case is multitudinous. However, I have done my best to capture and address all of Ms Shum’s claims. The respondents and the court relied on exhibits 7 and 8 to state the boundaries of Ms Shum’s case.

37    It is unnecessary to recite all of the findings that the primary judge made in relation to each of Ms Shum’s many claims. Obviously though, mention must be made of those that the parties seek to impugn on the appeal and cross-appeal.

The reasons for Ms Shum’s dismissal

38    Of greatest relevance to the present appeal, the primary judge did not accept Mr Heeney’s evidence that he alone decided to make Ms Shum’s position (and two others) redundant, and that he did so for budgetary reasons wholly unrelated to her having made any complaints connected with her employment.

39    The primary judge found that Mr Heeney had “…decided who he would make redundant before he knew how much making them redundant would save”, despite his claims that the motivation for the redundancies was the cost savings that they would produce: Primary Judgment [160]. Her Honour also found that the evidence given by Mr Heeney suggested that he “had a pre-determined outcome that he was aiming for” by means of the proposed restructure (that pre-determined outcome presumably being, or including, the termination of Ms Shum’s employment): Primary Judgment [166].

40    During the trial of the FCCA Proceeding, Ms Shum called for the production of any budgetary documents that had been prepared in relation to the restructure. In response, the respondents produced certain documents, including a note addressed to Mr Heeney from an unnamed author detailing the budgetary consequences of the proposed restructure, an excel spreadsheet, and a budget prepared by Mr Heeney for the financial year ending 30 June 2018. Those documents became exhibit 11. The primary judge made specific findings in relation to the content of the note, which needn’t be rehearsed in full, save that her Honour expressed significant doubts about the costs savings to which the proposed restructure would give rise, as well as the necessity to achieve costs savings in the order of $250,000. Having made those findings, her Honour concluded:

188.    This makes Mr Heeney’s explanation of the motivation for the restructure appear very exaggerated, and that alone casts doubt on the reliability of his evidence. It also makes his claim about the need to save $250,000 look like a matter of recent invention, and that casts further doubt on the reliability of his evidence overall.

189.    Exhibit 11 shows that SMRC did not need, for budgetary reasons, to make Ms Shum redundant. Ms Shum’s salary was stated in the note to be $88,223. Making redundant the positions of the other two targeted staff…would have saved SMRC, according to the note, $145,912. That was more than enough for SMRC to turn a profit. This also undermines Mr Heeney’s explanation for the redundancy of Ms Shum’s position.

41    Having considered the contents of the note addressed to Mr Heeney, her Honour concluded:

196.    In view of all of the evidence in the case, I infer that the note was written by Mr Oates, as Chairperson of the Board. As it indirectly referred to the Board meeting on 18 May 2017, it must have been prepared after that meeting. It must also have been prepared before 19 June 2017, because it refers to the current salaries of people whose positions were made redundant on 19 June 2017.

…

199.    The note casts doubt on Mr Heeney’s claim that he and he alone decided who to make redundant following his analysis of the business. The note suggests that Mr Oates told Mr Heeney who to make redundant.

42    The primary judge made other findings that, in her Honour’s view, detracted from Mr Heeney’s credibility and the reliability of his evidence, including the lack of documentation about the proposed restructure. Having regard to those findings, her Honour concluded:

209.    In other words, the lack of contemporaneous, written records about the working up of the restructure and redundancies, and the failure to provide to the court the notes said to be attached to the Board minutes of 10 May 2017, the minutes relating to the Managing Director’s report given to the Board on 18 May 2017, and the strategic plan mentioned in the minutes of the Board meeting on 10 May 2017, detract from the credibility of Mr Heeney’s claims about how and why the restructure and redundancies occurred. I infer that the respondents had documents about the proposed restructure and redundancies that were not produced to the court because they did not suit the respondents’ case…

43    The primary judge also considered the matters contained in the minutes of the meeting of the SMRC board on 18 May 2017 and the timing of the proposed restructure, which led her Honour to form a “suspicion” that it was Mr Oates, rather than Mr Heeney, who decided upon the proposed restructure. Her Honour observed:

216.    [Those matters lead] to a suspicion that there was a person superior to Mr Heeney, and the Board, who decided on the restructure and the redundancies and the speed at which they happened. Mr Oates is the obvious suspect. However, for present purposes, it is sufficient to note that the minutes of the 18 May 2017 Board meeting, and particularly item 34, detract from the credibility of Mr Heeney’s account, particularly at paragraph 33 of his affidavit but also overall.

…

220.    The speed with which Mr Heeney claims to have decided to make the three positions redundant also casts doubt on the truth of his evidence. He started with SMRC on 1 May 2017. For him to have gained sufficient knowledge of the organisation to accurately work out who was surplus to requirements by 25 May 2017 strains credulity. The timeframe alone suggests that Mr Heeney was told whose positions to make redundant.

221.    As noted above, when asked whether he looked at the position description of each of the members of the finance team prior to deciding who to make redundant, Mr Heeney said:

I didn’t select the two staff that were already in the organisation. They were already there.

222.    When he referred to the two staff, Mr Heeney meant Ms Wattegamage and Ms Mazie. As noted above, that answer made no sense, in the context of this case, given that Ms Shum was also already there. The whole point about redundancies is that the staff are already there. This evidence suggests that Mr Heeney had a pre-determined outcome that he was aiming for, and that he was not motivated by cost savings in identifying whose position to make redundant.

44    In light of the concerns expressed about the credibility of Mr Heeney’s evidence, her Honour was led to conclude that SMRC failed to rebut the statutory presumption to which s 361 of the FW Act gives rise; and, consequently, that SMRC had contravened s 340 of the FW Act.

45    Ms Shum claimed, pursuant to s 550 of the FW Act, that Mr Heeney, Mr Oates, Ms Haralambopoulos and Ms Bindra were each involved in SMRC’s contravention of s 340 of the FW Act. The primary judge upheld part of that claim, finding that Mr Oates and Mr Heeney (but not the other cross-respondents) were accessories to that contravention. Her Honour’s reasons for so concluding, which are critical to the resolution of the present appeal, were as follows:

243.    I have rejected Mr Heeney’s claim that Ms Shum was dismissed for budgetary reasons. I have rejected Mr Heeney’s claim that Ms Shum was dismissed because her skills were no longer needed by SMRC. Taking into account all of the evidence in the case, I conclude on the balance of probabilities that Mr Heeney knew that Ms Shum was being dismissed for reasons including her complaints, sick leave, and prospective or actual lodging of proceedings with external bodies. I conclude that Mr Heeney was knowingly and directly involved by his actions in the contravention contrary to s.550(2)(c) of the Act.

244.    Paragraph 550(2)(d) of the Act concerns conspiracy. Mr Oates said at paragraph 104 of his affidavit that he gave his support and approval to the restructure proposal, which involved the dismissal of Ms Shum in breach of the Act. Mr Oates denied in the same paragraph that his support and approval was informed by any of Ms Shum’s protected actions or attributes. Mr Oates said that he had no direct involvement in relation to the process or timing of Ms Shum’s redundancy.

245.    Mr Oates was not a good witness. He was off hand, tried to launch into explanations that suited his case, and gave evasive answers to questions. For example, he had to be asked four times if he was dissatisfied with the performance of the finance team before he finally conceded that he was. He denied that Ms Shum was dismissed for a prohibited reason. However, taking into account all of the evidence in the case, including Mr Oates’ presentation in the witness box, and the reasons that I doubted Mr Heeney’s credibility, I am not persuaded that Mr Oates was telling the truth about that issue.

246.    On the contrary, in view of the evidence discussed above, I infer that Mr Oates recruited Mr Heeney on a short term contract, without interviewing any other candidates, partly for the purpose of dismissing Ms Shum and ensuring that Mr Lee left SMRC. I infer that Mr Oates made it clear to Mr Heeney that he was required to remove Ms Shum and Mr Lee from SMRC and Mr Heeney did so. I consider that it would be naïve to think otherwise.

247.    In my view, the reasons Ms Shum was dismissed from SMRC included that:

a)     she was in the finance team, and the leaders of that team, Mr Lee and Ms Shum, supported [former SMRC CEO] Ms Semple;

b)    Mr Oates saw Ms Shum and Mr Lee as obstacles to his control of SMRC;

c)    Ms Shum embarrassed Mr Oates by demonstrating to SMRC generally that he had unlawfully tried to prevent her and others from voting at the AGM;

d)    Ms Shum had complained about numerous matters;

e)    she had lodged a WorkCover claim, and, when that was rejected, took the matter further; and

f)    she had lodged an anti-bullying claim with the Fair Work Commission.

248.    It may be that Ms Shum’s exercises of her workplace rights were not the primary reasons for her dismissal. However, it is enough that those reasons were substantial and operative reasons for her dismissal. I consider that they were.

249.    I consider, on all the evidence in this case, that not only was Mr Oates aware that among the real reasons Ms Shum was dismissed were protected reasons, but he himself was actuated by those reasons, and encouraged if not required Mr Heeney to dismiss Ms Shum for those reasons.

250.    Consequently, I consider that Mr Oates conspired with Mr Heeney to dismiss Ms Shum. Therefore both Mr Oates and Mr Heeney were involved in the dismissal of Ms Shum within the meaning of s.550(2)(d) of the Act. For the reasons discussed, I also consider that Mr Oates aided, abetted, counselled and procured Ms Shum’s dismissal, and, by his acts, was knowingly concerned in her dismissal in breach of s.550(2)(c) of the Act. There will be declarations accordingly.

The WorkCover claim

46    Ms Shum also alleged in the FCCA Proceeding that she was injured in her employment (and, thereby, subjected to adverse action) by several of the cross-respondents in various ways. Relevantly to her cross-appeal, Ms Shum contended that SMRC and Ms Haralambopoulos injured her in her employment or altered her position to her prejudice by opposing, and making untrue representations in response to, her WorkCover claim. Those actions, it was alleged, resulted in SMRC’s insurer rejecting Ms Shum’s WorkCover claim (which was, in turn, detrimental to her).

47    The primary judge found that at least some of the representations made by Ms Haralambopoulos in response to Ms Shum’s WorkCover claim were, in fact, untrue; and that, as a result of those untrue representations, SMRC injured Ms Shum in her employment. However, her Honour found that none of the untrue representations was made because she had possessed or exercised any workplace rights: Primary Judgment [323]. Accordingly, Ms Shum’s claims under s 340 of the FW Act in respect of those untrue representations failed.

The disciplinary process

48    Ms Shum also alleged that she was injured in her employment and that her position was altered to her prejudice when SMRC instituted a “disciplinary process” against her. Ms Shum’s complaint was that SMRC should have conducted an investigation prior to inviting Ms Shum to a “disciplinary” meeting (as to which see [11] above), and that the “disciplinary” descriptor presupposed that Ms Shum had engaged in conduct requiring discipline. At that stage, no such conduct had been established.

49    The primary judge agreed that Ms Haralambopoulos should not have used the word “disciplinary” when inviting Ms Shum to the meeting scheduled for 8 March 2017. However, her Honour did not consider that Ms Haralambopoulos used that word for a prohibited reason: Primary Judgment [334].

Ms Shum’s absence from work

50    The primary judge also found that Ms Shum was absent from work from 7 March 2017 onwards due to illness. Her Honour considered that Ms Shum’s absence from work was part of the reason for her dismissal, and that SMRC thereby contravened s 352 of the FW Act. Her Honour concluded further that Mr Heeney was involved, within the meaning of s 550(2)(a), (b), and (c) of the Act, in that contravention: Primary Judgment [367].

The notice of termination

51    As to the purported notice of termination, the primary judge rejected Ms Shum’s evidence that she had not read Mr Heeney’s email sent on 19 June 2017 until 26 June 2017, and considered that it was “deliberately false”: Primary Judgment [123]. That being so, the primary judge found that Ms Shum read the notice of termination on 19 June 2017, and it was therefore effective from that date. Her Honour also considered that the notice of termination otherwise accorded with the requirements of s 117 of the FW Act.

Finding of dishonesty

52    The primary judge found that Ms Shum lied to the court when she gave evidence that she had not telephoned Mr Jacob Lee, another employee of SMRC, whilst he was on sick leave: Primary Judgment [122]. By her notice of cross-appeal, Ms Shum takes issue with that finding of dishonesty.

The SMRC Code of Conduct and Human Resources Policies and Procedures

53    Ms Shum also alleged before the FCCA that SMRC had breached her contract of employment because her dismissal was effected in contravention of SMRC’s “Code of Conduct” (hereafter, the “Code”) and its “Human Resources Policies and Procedures” (hereafter, the “HR Policies”). The primary judge found that Ms Shum’s contract of employment, by clause 14, specified that “the contract itself contains all the terms of the contract” and, accordingly, neither the Code nor the HR Policies were incorporated into it by reference or otherwise.

54    By clause 15, the contract required Ms Shum to adhere to that code and those policies and procedures but, as the primary judge found, there was nothing in the contract that compelled SMRC’s compliance with those documents. That being so, the primary judge found that SMRC could not have breached Ms Shum’s contract of employment by any failure to abide by their terms: Primary Judgment [132], [135].

THE GROUNDS OF APPEAL

55    The appellants advance ten grounds of appeal. It is convenient to address them in groups.

56    By grounds one to three, the appellants assert that the primary judge’s finding of conspiracy against Mr Oates and Mr Heeney—and, by extension, against SMRC (insofar as concerned its reasons for terminating Ms Shum’s employment)—were not open to be made because:

(1)    the material facts supporting that finding were not put to either Mr Oates or Mr Heeney in cross-examination;

(2)    in the alternative, the material facts supporting that finding were not put to either Mr Oates or Mr Heeney by the primary judge, in breach of what was described as the “judicial duty to put”; and

(3)    the primary judge failed to consider or apply the standard required under s 140(2) of the Evidence Act 1995 (Cth) (“Evidence Act”) having regard to the gravity of the facts alleged against Mr Oates and Mr Heeney in the context of allegations involving the breach of a civil penalty provision of the FW Act.

57    By ground four, the appellants assert that the primary judge erred by inferring that SMRC’s decision makers were actuated to dismiss Ms Shum for reasons proscribed by pt 3-1 of the FW Act, as there was “no clear and disclosed factual foundation set out in the reasons from which each inference could be drawn”.

58    By grounds five and six, the appellants assert that the primary judge’s findings that Mr Oates and Mr Heeney were not credible were demonstrably wrong by reference to incontrovertible facts or uncontested testimony or, alternatively, were glaringly improbable having regard to the evidence in the proceeding.

59    Grounds seven and eight are likewise connected and, on the first day of the hearing, the appellants made an oral application for leave to amend their notice of appeal—namely seeking the addition of grounds eight A and eight B. Ms Shum had been on notice of the proposed amendments for several weeks before the hearing and, although she objected to the application on the basis that she would suffer prejudice by the grant of leave, I was satisfied (for reasons then given) that it was appropriate to permit the agitation of the additional grounds. The substance of them is that:

(1)    the primary judge erred in finding a contravention of s 352 of the FW Act (that is, by finding that Ms Shum was dismissed because she was “temporarily absent from work because of illness or injury of a kind prescribed by the regulations”) without first having found that Ms Shum was absent from work and that that absence was of a kind prescribed by reg 3.01 of the Fair Work Regulations 2009 (Cth);

(2)    there being no primary liability under s 352 of the FW Act, the primary judge erred in finding that Mr Heeney was accessorially liable for that contravention;

(3)    the primary judge failed to provide reasons as to how she determined:

(a)    the duration of Ms Shum’s absence from work of a kind prescribed by the Fair Work Regulations 2009 (Cth); and

(b)    the facts and circumstances in which Mr Heeney was actuated to contravene s 352 of the FW Act; and

(4)    there was a failure by Ms Shum and/or the primary judge to put to Mr Heeney that he had been involved in the contravention of s 352 of the FW Act.

60    By ground nine, the appellants assert that the primary judge erred by failing to identify which workplace right was said to have actuated the adverse action visited upon Ms Shum.

61    By ground ten, the appellants assert that the primary judge erred by providing declaratory relief in circumstances where such relief was not sought by Ms Shum and the parties did not have the opportunity to address the court as to whether it should be granted. They say, further, that there was no basis or utility in granting such relief.

THE GROUNDS OF CROSS-APPEAL

62    Ms Shum advances seven grounds in her notice of cross-appeal. Again, it is convenient to address them in groups.

63    By grounds one and two, Ms Shum asserts that the primary judge was wrong to conclude that the untrue representations made by Ms Haralambopoulos in SMRC’s response to Ms Shum’s WorkCover application were “innocent”. Ms Shum also asserts that, because Ms Haralambopoulos did not give reasons as to why she declared the representations to be “true and correct” when signing off on the materials submitted to WorkCover, SMRC failed to discharge the statutory presumption created by s 361 of the FW Act. Ms Shum also asserts, in the alternative, that Mr Oates and Ms Haralambopoulos breached the Code and the HR Policies (although the basis for that assertion is unexplained), and that SMRC is vicariously liable for those breaches.

64    By ground three, Ms Shum asserts that the primary judge erred by concluding that SMRC was not bound to comply with the Code or the HR Policies. She maintains that the primary judge ought to have found that SMRC’s failure to honour the requirements of the Code and the HR Policies amounted to a breach of her contract of employment.

65    Grounds four and five concern various aspects of the disciplinary process that was instituted against Ms Shum (and with which she takes issue). Principally, the grounds allege that the primary judge erred in finding that the word “disciplinary” was used inadvertently, and not for a reason prohibited by the FW Act. Ground four also asserts that Ms Shum was denied natural justice after the disciplinary process commenced, and alleges that the primary judge failed to take account of the evidence given by Ms Perla Mazie, which, it was asserted, conflicted with that given by other witnesses. Both grounds further assert that, because Mr Heeney, Ms Haralambopoulos, Ms Bindra, Ms Wattegamage and Ms Mazie (who is not a party to the cross-appeal) did not give reasons as to why they commenced any disciplinary process against Ms Shum, SMRC failed to rebut the statutory presumption created by s 361 of the FW Act. Finally, each ground again asserts in the alternative that Mr Heeney, Ms Haralambopoulos, Ms Bindra and Ms Wattegamage breached the Code and the HR Policies, and that SMRC is “vicarious[ly]” liable for those breaches.

66    Ground six asserts that the primary judge erred, and did not properly consider s 140 of the Evidence Act, by finding that Ms Shum lied to the court when she gave evidence that she:

(1)    had not contacted Mr Lee while he was on sick leave; and

(2)    did not see the emails sent by Mr Heeney on 14 and 19 June 2017 until 26 June 2017.

67    Ground seven asserts that the primary judge erred by finding that Ms Shum was given correct written notice of the termination of her employment. It is said that her Honour ought to have found that such notice was not given in accordance with s 117 of the FW Act (and, consequently, that her dismissal was effected in contravention of the requirements of that section).

68    On the second day of the appeal hearing, Ms Shum made an oral application for leave to add an eighth ground of cross-appeal regarding her failed claim under s 351 of the FW Act. Ms Shum was unable to articulate that ground during the hearing in a way that I could understand; but, rather than foreclose upon it (and despite the concise and polite objections of the cross-respondents) I gave leave to the parties to file further submissions as to why leave to amend should (or should not) be granted. I requested that Ms Shum’s submissions identify precisely the cross-appeal ground that she sought to advance, the reasons why she should have leave to advance it at such a late stage, and the submissions that she wished to put in support of that ground in the event that such leave were granted. Ms Shum complied with that request.

69    In summary, the proposed eighth ground is that the primary judge erred by not giving adequate reasons for Ms Shum’s claim under s 351 of the FW Act and by finding that SMRC did not take adverse action against Ms Shum because of her mental disability. As with some of the other grounds of cross-appeal, it is put in the alternative that Mr Oates, Mr Heeney, Ms Haralambopoulos, Ms Bindra and Ms Wattegamage breached the Code and the HR Policies (presumably by dismissing Ms Shum on the grounds of her mental disability), and again that SMRC is vicariously liable for those breaches.

70    Ms Shum’s submissions as to why leave ought to be granted seem to involve a concession that the protection afforded by s 352 of the FW Act is not (or might not be) available to her and that, in those circumstances, she ought to be permitted to rely upon s 351 of the FW Act instead. Ms Shum submitted that the grant of leave would “permit the real issues in dispute between the parties to be finally resolved”.

71    Ms Shum’s submissions in support of the proposed eighth ground (in the event that leave were granted) are lengthy and revisit several issues that have no apparent relevance to the ground sought to be introduced. They recite a number of findings made by the primary judge and then repeat, in a conclusory fashion, the substance of the ground itself—namely that SMRC took adverse action against Ms Shum on the basis of her mental disability, and that the primary judge erred in finding to the contrary. They also assert that the primary judge failed to provide adequate reasons in the Primary Judgment for Ms Shum’s claim under s 351, and again make the alternative allegation that the cross-respondents breached the Code and the HR Policies. The submissions do not identify the basis or bases on which it is alleged that the primary judge erred; they simply repeat the allegation that her Honour did so. The submissions also fail to identify the matters that her Honour failed to record in the Primary Judgment (aside from an alleged failure to consider the “reverse onus”); they simply assert that the reasons were inadequate.

72    The cross-respondents oppose the grant of leave to amend the notice of cross-appeal on three bases, namely that:

(1)    Ms Shum did not establish on the evidence before the FCCA the existence of a mental disability, and so there is no utility to the proposed ground (as it necessarily must fail at the proverbial first hurdle);

(2)    Ms Shum did not cross-examine Mr Heeney or any other witness about whether any adverse action was actuated by her mental disability; and

(3)    Ms Shum should not now be permitted to prosecute a different case on appeal than that advanced below.

73    Having regard to Ms Shum’s submissions in support of the proposed new ground, it is not entirely clear how the case that she seeks to prosecute by the proposed new ground differs from that which she advanced in the FCCA Proceeding. As just recorded, those submissions recite a number of irrelevant matters and assert, in a conclusory fashion, that the primary judge erred by failing to find for Ms Shum in respect of her claim under s 351 of the FW Act, and that her Honour failed to provide adequate reasons in that regard.

74    In an affidavit that she made and read before the FCCA, Ms Shum deposed to the fact that she suffered from a mental disability and asserted that she was discriminated against on the basis of it. There was no other evidence before the primary judge as to the existence of Ms Shum’s mental disability, nor was there any evidence that any adverse action visited upon her was actuated by reason of any such disability. To the contrary, each of the respondents before the FCCA denied that he or she discriminated against Ms Shum on the grounds of any mental disability. That being so, the only outcome available to the primary judge was to dismiss Ms Shum’s claim under s 351 of the FW Act. Further, and with respect, the primary judge’s reasons by which that conclusion was expressed are understandably brief, given the dearth of evidence before her Honour in respect of the claim. The proposed ground of cross appeal therefore has little, if any, prospect of succeeding. Furthermore, there is no explanation for why it was agitated as late in the appeal process as it was. In those circumstances, I consider that it is contrary to the interests of justice to grant the leave that Ms Shum requires (and sought) in order to agitate this new ground of cross-appeal. Ms Shum’s application for leave to amend her notice of cross-appeal will, accordingly, be dismissed.

NOTICE OF CONTENTION

75    SMRC filed a notice of contention on the narrow issue of whether Ms Shum was given effective notice of termination of her employment. By that notice of contention, SMRC contends that the emails sent to Ms Shum on 14 and 19 June 2017, by which notice of termination was said to have been given to her, engaged the operation of the ET Act. Relevantly, s 14A of the ET Act provides that the time of receipt of an electronic communication is “the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address”. That being so, SMRC contends that it gave effective written notice to Ms Shum by the emails sent on 14 and 19 June 2017, given each of those emails was capable of being retrieved by Ms Shum at her email address. That, it was said, satisfied the requirement to provide Ms Shum written notice of termination in accordance with s 117 of the FW Act; and ought to be sufficient to establish that her dismissal was not effected in contravention of that section.

76    For completeness, Ms Shum’s notice of cross-appeal also contained a series of grounds styled as a “notice of contention”. In truth, however, those “grounds” were merely responsive to each of the grounds contained in the appellants’ notice of appeal. In other words, the notice of cross-appeal contained, immediately after the cross-appeal grounds, a defence to each of the appeal grounds contained in the notice of appeal. Although I make no criticism of her for doing so, it was unnecessary for Ms Shum to articulate any such response in that document. The matters there listed were replicated and expanded upon in her outline of written submissions.

THE HEARING

77    The hearing of the appeal and cross-appeal was beset by avoidable complications. In the lead up to the hearing, Ms Shum repeatedly contacted my chambers to report that material served on her by email by the solicitors for the appellants and cross-respondents had not been properly served. That was said to be so because Ms Shum refused to open any documents served on her by email, as it was not a mode of service to which she had consented. Ms Shum also refused to download any documents from file share links provided to her by the solicitors for the appellants and cross-respondents, apparently on the basis that doing so might jeopardise the security of her computer. Those stances were self-evidently unreasonable and unnecessary.

78    To their credit, the solicitors for the appellants and cross-respondents took steps to serve all material on Ms Shum by post as well as by email. However, Ms Shum also claimed not to have received any documents so served at her residential address—that is, the address that she had nominated as her sole address for service. That included her copy of the appeal book. It transpired at the commencement of the hearing that Ms Shum had been informed by Australia Post that attempts to deliver the appeal book had been made but were unsuccessful, and that the appeal book was available for collection at her local post office. She intentionally decided not to collect it prior to the hearing.

79    The hearing was accordingly delayed by nearly two hours in order to allow Ms Shum to attend at her local post office to collect her copy of the appeal book (after she indicated that she was, not unreasonably, uncomfortable proceeding with the hearing without it). She resisted the court’s insistence upon that course on the basis that she could not simply attend the post office “like a lunatic” without a postal collection card. She ultimately agreed to do so and the hearing thereafter proceeded in a more orthodox manner.

CONSIDERATION: THE APPEAL

80    It is convenient to address each of the appeal ground groupings that were described earlier.

Appeal grounds one to three

81    In the appellants’ written submissions, grounds one to three of the appeal are described, collectively, as the “natural justice error”. As already outlined, the gravamen of the appellants’ complaint expressed in grounds one and two of the appeal is that certain findings were made that should not have been made because, first, the rule in Brown v Dunne was not followed; and, secondly, the judicial obligation to put was not followed (to the extent that it applied). A distinct but related complaint, which finds voice in ground three, is that because the proceeding below involved allegations that, if substantiated, would expose the appellants to penalty, s 140 of the Evidence Act required a quality to the evidence led in proof of those allegations that was ultimately unmet. The appellants’ complaint on this score is that the primary judge failed to consider the quality of the evidence to the standard required by that section and, thereby, erred.

82    In reaching her conclusions, the learned primary judge analysed the budgetary reasons by which Mr Heeney said that his decision to make Ms Shum’s position redundant was animated. Her Honour rejected those reasons, largely by reference to the financial information contained in exhibit 11 (being the note addressed to Mr Heeney about the financial consequences of the proposed restructure and other budgetary documents), which sowed doubt in her Honour’s mind over both the necessity to achieve the anticipated costs savings and whether the proposed restructure would, in fact, bring about that objective. As will shortly be explored, the rejection of that evidence by the primary judge—and, perhaps more importantly, the finding of the existence of an alternative narrative—was ultimately fatal to the appellants’ defence.

83    The appellants assert that it was impermissible for the learned primary judge to reason from a conclusion that Ms Shum’s dismissal was not made for budgetary reasons that it was, instead, made for a reason or reasons proscribed by s 340(1) of the FW Act. There is, of course, no statutory presumption that either Mr Heeney or Mr Oates—whose liability, if there was any, arose under s 550 of the Act—acted for a prohibited reason: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 [59] (Greenwood, Flick and Rangiah JJ); Australian Red Cross Society & Queensland Nurses’ Union of Employees (2018) 273 FCR 332, 348-349 [97] (Greenwood, Besanko and Rangiah JJ); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) (2013) 216 FCR 70, 117 [241] (Murphy J); Australian Building and Construction Commissioner v Hall (2017) 269 IR 28, 39 [26] (Flick J). That is a matter that must be positively established by evidence, which, the appellants say, did not occur.

84    The key passage of the learned primary judge’s reasoning that the appellants seek to impugn is extracted at [45] above. It includes a series of adverse inferences drawn against each of Mr Heeney and Mr Oates, and culminates in the finding that Mr Heeney and Mr Oates conspired to dismiss Ms Shum from her employment. That conclusion necessarily involves findings that Mr Heeney and Mr Oates were not truthful in their evidence as to the reason or reasons for which Ms Shum was dismissed; indeed, there and at other parts of the Primary Judgment, her Honour makes adverse credit findings against each of them. The appellants complain that the existence of a conspiracy as between Mr Heeney and Mr Oates was never part of Ms Shum’s case, nor was it ever put to Mr Oates or Mr Heeney, either by Ms Shum in cross-examination or by the primary judge. They assert that there was no evidence supporting the primary judge’s findings of a conspiracy and, relatedly, that neither Mr Heeney nor Mr Oates was given the opportunity to deal with the criticism that was ultimately made of them. That reality, they say, bespeaks a denial of natural justice and a failure to accord procedural fairness.

85    The appellants rely on the principle articulated by the High Court in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 (“Kuhl”), 386 [67] (Heydon, Crennan and Bell JJ):

It is not sound judicial technique to criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party’s claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party-witness must have been given an opportunity to deal with the criticism.

86    The appellants fix upon the second limb of that principle, which was said to be an emanation of the principle in Brown v Dunn (1893) 6 R 67. As to that limb, their Honours in Kuhl expanded (at 387-389 [69]-[74]):

…The second condition is more controversial. Judges are not entitled to inform themselves before taking judicial notice without giving the parties an opportunity to comment on the material referred to. Judges are not entitled to criticise expert witnesses by reference to expert material not in evidence without those witnesses having an opportunity to respond. Judges are entitled to take into account the demeanour of party-witnesses, not only in the witness box, but while they enter and leave it, and also while they are sitting in court before and after giving evidence; but observations by the judge of conduct outside the witness box which the representatives of the parties may not have observed, should, if they are influential in the result, be drawn to the attention of the parties so that they may have an opportunity of dealing with the problem. There is thus no general duty on a judge to advise the representatives of the parties of what they can see for themselves, namely the demeanour of the party-witness in the witness box. Nor, a fortiori, is there a duty on a judge to advise the parties that the party-witness’s evidence is not adequate to make out the case of that party-witness. But there was held to be a breach of the duty of procedural fairness where a party claiming compensation for injury was held to have feigned or exaggerated her symptoms although this had not been suggested in cross-examination and the respondent disavowed that possibility.

If, in the present case, the first respondent had submitted in final address that the plaintiff had answered his own counsel’s questions in chief about how his arm had been drawn into the vacuum hose by deliberately concealing material adverse to his case and favourable to the first respondent’s – an allegation not of inadequacy in evidence but of suppression of evidence supporting an inference that the plaintiff knew his case was bad – a breach of the rule in Browne v Dunn would have taken place.

In Browne v Dunn Lord Herschell LC said:

“[I]t seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”

…

Now if it was not open to counsel for the first respondent to make the postulated allegation, how can it have been open to the trial judge, without warning, to incorporate into his reasons for judgment a finding to the same effect as the allegation?

For those reasons the second condition referred to ought to have been satisfied before the trial judge made the criticism he did.

The second condition was not satisfied. The plaintiff had no opportunity to deal with the criticism…

87    The decision of the New South Wales Court of Appeal in Bale v Mills (2011) 81 NSWLR 498 (“Bale v Mills”) concerns the application of the principles in Kuhl and Brown v Dunne to circumstances similar to those that arise on the present appeal. There, a former client of a firm of solicitors instituted proceedings against that firm for negligence, breach of contract, and misleading or deceptive conduct. The trial judge entered judgment in favour of the former client. A critical issue in the proceeding was whether a solicitor in the employ of the firm had made certain false representations to the former client during the course of settlement negotiations. The trial judge accepted the former client’s evidence on that issue, and rejected the solicitor’s evidence as unreliable, making adverse credibility findings against the solicitor in circumstances where allegations of dishonesty had not been put to him in cross-examination. Relevantly, the Court of Appeal (Allsop P, Giles JA and Tobias AJA) said (at 515-516 [64]-[67]):

It was contended by the appellants on the authority of Kuhl that the rule in Browne v Dunn, being one of fairness, applied equally (and presumably, independently) to a trial judge as to counsel. This is no doubt so, but the issue in the present case is how does it apply to a trial judge where counsel raises the allegation in breach of the rule but no objection is taken to its making by opposing counsel; a fortiori where the latter responds by submitting only that the allegation is not made out to the necessary standard of proof.

In the foregoing context, it was accepted by the appellants that being a rule of practice, objection to senior counsel for the respondent’s written submissions in breach of the rule should have been taken at trial: Gordon Martin Pty Ltd v State Rail Authority of New South Wales [2009] NSWCA 287; (2009) 53 MVR 474 at [69] per Beazley JA, with whom Giles and Ipp JJA agreed. It was thus conceded that that failure to object meant that the primary judge was entitled to consider those submissions, although that did not end the question of the approach his Honour should have taken in any such consideration to the fact that the rule in Browne v Dunn had been breached.

Fairness in the administration of justice extends not only to ensuring a fair trial for the actual parties but also to ensuring that a witness who is not a party is treated fairly. It is especially important in circumstances such as the present, where a witness such as Mr Schipp had himself no right to object to his credit being impugned with respect to the Centrelink representation and where he was not given the opportunity to respond to what was clearly an extremely serious allegation not only going to his credit as a witness but also, as the primary judge was at pains to emphasise, to his honesty as a person and to his probity as a solicitor and an officer of the court. Further, the unfairness consequential upon the breach struck directly at the entitlement of the appellants to a fair hearing and procedural fairness in the making of findings by the District Court.

Here, fairness dictated that, in the absence of any cross-examination on the subject of the Centrelink correspondence, the primary judge refrain from making findings about dishonesty arising from that correspondence.

88    The Court of Appeal there concluded (at [106]) that “[a]ny witness about or against whom the grave submissions or findings of dishonesty are to be made should be confronted with and thus afforded an opportunity to explain the dishonesty of which he or she is to be accused…” (Allsop P, Giles JA and Tobias AJA).

89    Another decision of the New South Wales Court of Appeal, New South Wales v Hunt (2014) 86 NSWLR 226 (“New South Wales v Hunt”), is apposite. There, a person entered the private property of an off-duty police officer and, thereafter, became involved in a physical altercation. The person was arrested and subsequently tried and acquitted of a variety of criminal offences arising out of the incident. He then sued the State of New South Wales for malicious arrest, assault and battery, and misfeasance in public office (on the part of the off-duty police officer). Both he and the police officer prepared written statements and were cross-examined at the trial of that suit. Their evidence conflicted in key respects. The primary judge found that the off-duty police officer had fabricated key aspects of his evidence, which led her Honour to find that each of the alleged torts was made out. Critically, it was not put to the off-duty police officer in cross-examination or to the primary judge in submissions that his evidence was fabricated, and neither party was given an opportunity to deal with that finding. The state appealed. Applying Kuhl and Bale v Mills, the New South Wales Court of Appeal (Barrett and Leeming JJA, and Tobias AJA) allowed the appeal and remitted the matter for retrial. Leeming JA, in whose judgment Barrett JA and Tobias AJA concurred, observed (at 235 [44]-[45]):

…It was unfair to Senior Constable Ochs, to be found to have fabricated evidence without that allegation having been squarely put to him. It was unfair to the State to lose on a basis which was not advanced in evidence or in submissions. And ultimately, it was unfair to Mr Hunt, as the disposition of this appeal indicates, for him to be denied the chance to submit to the primary judge that he should win on a basis that did not involve a finding of fabricating the initial conversation and threat, or that, if the judge had formed the preliminary view that there was fabrication, that the witness should be recalled so that he could be confronted with it.

There has been appellable error giving rise to a substantial wrong or miscarriage so as to warrant a retrial…

90    In Port Kembla Coal Terminal Ltd & Anor v Construction Forestry, Mining and Energy Union & Ors (2016) 248 FCR 18 (“Port Kembla”), a full court of this court (Jessup, Rangiah and White JJ) applied the above principles to a proceeding that involved alleged contraventions of ss 340 and 346 of the FW Act. Before the primary judge, it was contended that the first appellant company took adverse action against the second respondent in contravention of s 340 of the FW Act by dismissing him from his employment because he had exercised, or proposed to exercise, a workplace right. It was alleged that adverse action was taken against the second respondent in contravention of s 346 of the FW Act because he was an officer of an industrial association, or because he engaged in industrial activity. Critically, the primary judge found that, as some witnesses called by the appellants (including the second appellant himself) had deliberately failed to include relevant documents in their affidavit evidence, their evidence was unreliable. Having so found, his Honour disregarded all of the evidence given by those witnesses insofar as it related to the reason for the second respondent’s dismissal, which led him to find that there was no evidence that supported the company’s contention that it had not taken adverse action against the second respondent for a proscribed reason. The primary judge therefore concluded that the company failed to discharge the statutory presumption to which s 361 to the FW Act gives voice.

91    Applying Kuhl, each member of the full court held separately that, where a party is criticised for deliberately withholding the truth in circumstances crucial to a dismissal of his or her claim, the party-witness must be given an opportunity to deal with that criticism: Port Kembla, 77-78 [211] (Jessup J); 121 [411] (Rangiah J); 157 [566] (White J). Justice Jessup further commented (at 94 [263]) that the primary judge’s credibility findings in relation to those witnesses “cannot stand alongside the joint judgment in Kuhl” and that “to have made those findings amounted, in the circumstances, to a miscarriage of justice”.

92    As has already been recorded, the learned primary judge in the present matter made findings that Mr Heeney and Mr Oates knew each other prior to Mr Heeney’s recruitment, that Mr Oates alone recruited Mr Heeney, that he did so partly for the purpose of having Ms Shum’s employment terminated, that Mr Oates required Mr Heeney to dismiss Ms Shum, and that Mr Oates and Mr Heeney conspired to that end. Although Ms Shum asked Mr Heeney in cross-examination whether he knew Mr Oates prior to his employment by SMRC (which he denied), none of the remaining suggestions was put to either Mr Oates or Mr Heeney.

93    Her Honour also made adverse credit findings about each of Mr Heeney and Mr Oates. Neither Mr Heeney nor Mr Oates was given the opportunity to respond to the criticisms that were made.

94    In light of the principles established in Kuhl and its application in the cases recited above, the finding of a conspiracy between Mr Heeney and Mr Oates, and several of the facts supporting that finding, were not in this matter open to be made. It was not open to the FCCA to conclude, as it did, that Mr Heeney and Mr Oates were “involved in” any contravention of s 340(1) of the FW Act by reason of any such conspiracy. The relief that the FCCA granted in respect of that finding cannot stand.

95    The appeal, however, goes further: SMRC contends that if the findings against Mr Heeney and Mr Oates cannot stand, it follows that any finding of contravening conduct on the part of SMRC that arises out of, or that is inextricably linked with, the actions of Mr Heeney or Mr Oates cannot stand either. As has already been explained, while any involvement on the part of Mr Heeney and Mr Oates in a contravention by SMRC of s 340 of the FW Act must be positively established by evidence, SMRC is presumed to have contravened that section by dint of the statutory mechanism contained in s 361 of the FW Act. In other words, SMRC has a higher hurdle to clear.

96    The question that arises for consideration is whether the primary judge’s adverse credibility findings against Mr Heeney and Mr Oates so contaminated her Honour’s reasoning process as to unfairly and improperly foreclose upon SMRC’s ability to defend the claims made against it. I consider that they did. Those findings were inherently fatal to any chance that SMRC had of rebutting the statutory presumption created by s 361 of the FW Act.

97    It is worth setting out the learned primary judge’s conclusion as to SMRC’s liability under s 341 of the FW Act (Primary Judgment, [229]):

It was for SMRC to satisfy the court that it did not dismiss Ms Shum for a prohibited reason. My concerns outlined above about the credibility of Mr Heeney’s evidence, in the context of all of the evidence in the case, lead me to conclude that SMRC has not rebutted the statutory presumption that SMRC dismissed Ms Shum for one or more of the prohibited reasons mentioned above. There will be a declaration accordingly.

98    That conclusion is framed in terms that demonstrate an understanding of the statutory task for which s 361 of the FW Act provides. The learned primary judge considered, in some detail, the positive reasons for Ms Shum’s dismissal, advanced by SMRC through the evidence of Mr Heeney, and rejected them. However, her Honour’s reasons reveal that the rejection of those positive reasons was inextricably and impermissibly linked to several adverse findings against Mr Heeney and Mr Oates, including as to their credibility, about matters that were not put to them as required by the principles just explained. That includes the findings extracted at [40] to [43] above, which formed part of her Honour’s consideration of Ms Shum’s claim against SMRC under s 340 of the FW Act.

99    A similar question arose before the full court in Port Kembla. There, Jessup J said (at 94 [265]) that the primary judge’s rejection of the appellants’ evidence “left the appellants without a leg to stand on in their project of discharging the legal onus for which s 361 provides”. His Honour continued (at 95 [267]-[269]):

By the terms in which the primary judge dealt with Mr Green’s credibility in the proceeding under appeal, his Honour effectively sterilised the evidence of the decision-maker whose reasons were the subject of the central allegation made against the Company. Almost as night follows day, his Honour’s emphatic and comprehensive rejection of Mr Green’s credibility was fatal to the Company’s defence to the respondents’ case.

The only rider which might be attached to that conclusion is that the primary judge’s positive inferential findings as to Mr Green’s reasons, made for the purposes of s 550 of the FW Act, should not be overlooked. Having considered this aspect of the matter, however, I would not regard those findings as sufficient to overcome what I consider to be a miscarriage of justice in relation to Mr Green’s own evidence. Necessarily, that evidence lay at the centre of the Company’s defence under ss 340 and 346, and to attempt to decide the case without reference to it would inevitably deny the Company a fair and just consideration of that defence. With respect to s 550 itself, of course, absent a successful outcome for the respondents under s 340 or s 346, there would be nothing to which to attach the accessorial liability of Mr Green.

In the circumstances, I take the view that the primary judge’s determination in favour of the respondents under ss 340 and 346 of the FW Act cannot stand. It does not follow, of course, that the respondents’ application in this department of the case must now be dismissed. They still have a case of adverse action which requires an answer from the Company. Despite its obvious inconvenience, the only course available to the court is to set aside that determination and to refer the case for rehearing. Because of the tenor of the findings made by the primary judge, it would, in my view, be appropriate that such a rehearing proceed before another judge.

100    Justice White agreed with the orders proposed by Jessup J setting aside the disposition of the claims made under ss 340 and 346 of the FW Act and granting a new trial of those claims. Relevantly, his Honour said (at 158 [568]-[570]):

It is apparent that the judge was critical of Mr Green’s evidence in a number of other respects. The judge said variously that he found aspects of Mr Green’s evidence to be “implausible”, “utterly implausible”, “improbable”, and “inherently unlikely”. In these circumstances, I have considered whether it may be said that the judge’s findings that Mr Green had sought deliberately to conceal documents were not essential to his assessment of the reliability of Mr Green’s evidence relied upon by PKCT to discharge the s 361 onus. However, I do not consider such an analysis to be open. The judge’s conclusion about Mr Green’s omission to disclose documents and other information appears to have been an integral part of his overall assessment of the reliability of Mr Green’s evidence. So much is evident from [16], [143]-[144], and [194]. I note also that the judge relied upon his earlier findings concerning the unreliability of Mr Green’s evidence (which included his findings on the topic of concealment) when considering whether PKCT had discharged the s 361 onus, at [444]-[445].

Finally, when considering the claim that Mr Green was liable as an accessory, the judge made a number of findings (which it is not necessary to recount presently) which were strongly critical of Mr Green’s evidence. It is evident that those findings too were influenced by the judge’s view that Mr Green had set out to conceal documents from the Court. In my respectful opinion, it would not be realistic to conclude that the judge’s assessment of these aspects of Mr Green’s evidence did not also influence his consideration of whether PKCT had discharged the s 361 onus.

For these reasons, I consider that this part of the proposed appeal should succeed, and the findings that PKCT contravened ss 340(1) and 346 of the FW Act set aside. The finding of accessorial liability against Mr Green should be set aside for the same reasons. There should be a retrial of these aspects of the applicants’ claims, if they are to be pursued.

101    Not unlike the appellant company in Port Kembla, the primary judge’s adverse findings in respect of Mr Heeney and Mr Oates about matters that were not put to them, including as to their credibility, left SMRC “without a leg to stand on”. The rejection of their evidence—and, more accurately, the unfair or improper acceptance of the alternative “conspiracy” narrative—was a product of error, and was fatal to any prospect that SMRC had of defending Ms Shum’s claims under s 340 of the FW Act.

102    That being so, grounds one and two of the appeal must be allowed in their entirety (that is, to the benefit of all three appellants). For reasons upon which I shall later elaborate, the matter must be remitted to the FCCA (now the Federal Circuit and Family Court of Australia (Div 2)), so that Ms Shum’s claims under s 340 of the FW Act—that is to say, her primary claim against SMRC and her accessorial claims against Mr Heeney and Mr Oates—can be properly determined.

103    Having so concluded, it is not strictly necessary to address ground three of the appeal. It was largely addressed—both in the appellants’ written submissions and orally at the hearing of the appeal—in a rolled up manner together with grounds one and two. As it has transpired, the adverse findings that were made below against Mr Heeney and Mr Oates amounted to a miscarriage of justice quite apart from whether the evidence relied upon in reaching them was as cogent as s 140 of the Evidence Act might have required.

104    Nonetheless, I should briefly address the contentions that were put. Section 140 of the Evidence Act requires that the court take account of certain matters in deciding whether it is satisfied that a party has proved its case on the balance of probabilities. Those matters include the nature of the cause of action or defence, the nature of the subject matter of the proceeding, and the gravity of the matters alleged.

105    It is axiomatic that the “strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 171 (Mason CJ, Brennan, Deane and Gaudron JJ; “Neat Holdings”); see also Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J). There are numerous authoritative statements to the effect that strict proof is required in cases where a serious matter, such as fraud, is to be found (see, eg, Neat Holdings, 171 (Mason CJ, Brennan, Deane and Gaudron JJ, applied in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466, 481-482 [36]-[37] (Weinberg, Bennett and Rares JJ) and Ashby v Slipper (2014) 219 FCR 322, 344-345 [65] (Mansfield and Gilmour JJ)).

106    A finding that two individuals conspired to engage in conduct in contravention of s 340 of the FW Act is a serious one. It serves to establish the existence of conduct engaged in in contravention of a civil remedy provision under the FW Act (and, thereby, to expose the contraveners to the possible imposition of a civil penalty). Such a finding would ordinarily require convincing proof. Although there may be occasions on which it might be found by process of inference, it ought not to be made on the basis of supposition or surmise.

107    The rejection of Mr Heeney’s evidence as to the reasons for Ms Shum’s dismissal was not a sufficient evidential foundation upon which to conclude that he effected that dismissal for a prohibited reason. The latter cannot be inferred from the former (at least not merely from the former). Likewise, a “suspicion” that Mr Oates was involved in Ms Shum’s dismissal (about which more is said below) fell well short of sufficing to ground her Honour’s conclusion that the two men conspired in the manner that was found.

108    Those circumstances acknowledged, I would uphold ground 3 of the appeal. The conspiracy finding was the product of error, which it is proper for this court to correct on appeal.

Appeal ground four

109    In light of the conclusions recorded above, it is not strictly necessary to address ground four, either. It is subsumed by the conclusions to which I have been drawn on grounds one to three. Nonetheless, I consider, with respect, that the inferences drawn by the primary judge were not available to be drawn on the evidence that was before her.

110    The seed from which the finding of a conspiracy apparently grows—that is, the first mention in the Primary Judgment of Mr Oates’s involvement in Ms Shum’s dismissal—can be found at [216] of the Primary Judgment, which bears repeating:

216.    This leads to a suspicion that there was a person superior to Mr Heeney, and the Board, who decided on the restructure and the redundancies and the speed at which they happened. Mr Oates is the obvious suspect. However, for present purposes, it is sufficient to note that the minutes of the 18 May 2017 Board meeting, and particularly item 34, detract from the credibility of Mr Heeney’s account, particularly at paragraph 33 of his affidavit but also overall.

111    Over the ensuing paragraphs, the primary judge makes further remarks consistent with that “suspicion”: her Honour states that the board meeting minutes to which reference was made cast “…doubt on Mr Heeney’s evidence that it was he and he alone who decided to terminate Ms Shum’s position” (at [219]), that the speed with which Mr Heeney claims to have decided to implement the restructure “suggests that Mr Heeney was told whose positions to make redundant” (at [220]), and that she was “not persuaded that Mr Oates was telling the truth” about his involvement in Ms Shum’s dismissal (at [244]-[255]).

112    Her Honour then drew the inferences that “Mr Oates recruited Mr Heeney on a short term contract…partly for the purpose of dismissing Ms Shum” (at [246]), and that “Mr Oates made it clear to Mr Heeney that he was required to remove Ms Shum and Mr Lee from SMRC and Mr Heeney did so” (at [246]). Her Honour’s conclusion as to the existence of a conspiracy likewise bears repeating:

249.    I consider, on all the evidence in this case, that not only was Mr Oates aware that among the real reasons Ms Shum was dismissed were protected reasons, but he himself was actuated by those reasons, and encouraged if not required Mr Heeney to dismiss Ms Shum for those reasons.

250.    Consequently, I consider that Mr Oates conspired with Mr Heeney to dismiss Ms Shum. Therefore both Mr Oates and Mr Heeney were involved in the dismissal of Ms Shum within the meaning of s.550(2)(d) of the Act. For the reasons discussed, I also consider that Mr Oates aided, abetted, counselled and procured Ms Shum’s dismissal, and, by his acts, was knowingly concerned in her dismissal in breach of s.550(2)(c) of the Act. There will be declarations accordingly.

113    The primary judge’s reasoning moves from a suspicion or suggestion that Mr Oates was involved in Ms Shum’s dismissal to the drawing of an inference that Mr Oates in fact orchestrated it. It then culminates, on the basis of “all the evidence in this case”, in the finding of a conspiracy. However, none of the matters giving rise to the suspicion or suggestion of Mr Oates’s involvement was ever established beyond the realm of possibility. As Rangiah J remarked in Port Kembla (at [460]):

The evidence leaves a deep suspicion that the reasons for the termination of Mr Giddings’ employment included his Union roles and industrial activities. Yet, suspicion is not enough. I am not actually persuaded that a substantial and operative reason for Mr Green’s decision to terminate Mr Giddings’ employment was his Union roles or his industrial activities.

114    The principles recited above at [104] to [106] regarding s 140 of the Evidence Act apply equally here. The existence of a conspiracy to dismiss Ms Shum for prohibited reasons was not a finding that the facts permitted by inference, particularly having regard to its gravity. This court is in as good a position to reach that conclusion as the learned primary judge was: Lee v Lee (2019) 266 CLR 129, 148-149 [55] (Bell, Gageler, Nettle and Edelman JJ). The error that, with respect, attended the making of the finding should not be left undisturbed. Accordingly, I would uphold ground 4 of the appeal.

Appeal grounds five and six

115    Grounds five and six of the appeal concern the credit findings that the learned primary judge made in respect of each of Mr Heeney and Mr Oates.

116    It is appropriate to record a well-established truth. An appellate court’s task is to give, on appeal, the judgment which in its opinion ought to have been given at first instance, but, at the same time, to do so whilst observing the natural limitations affecting any appellate court: Fox v Percy (2003) 214 CLR 118, 125 [22]-[29] (Gleeson CJ, Gummow and Kirby JJ). Those limitations include the disadvantage of not having heard or seen the witnesses give their evidence, for which due allowance should be made (particularly when considering alleged errors of fact): Devries v Australian Railways Commission (1993) 177 CLR 472, 478-479 (Brennan, Gaudron and McHugh JJ); 479-480 (Deane and Dawson JJ). For good reason, it is not often that this court on appeal will overturn a finding as to the credibility of a witness whom it has not had the benefit of seeing.

117    In any event, the appellants’ primary concern lies with the finding that Ms Shum’s dismissal was the subject of a conspiracy. For the reasons (and on the grounds) already addressed, that finding cannot stand. It is unnecessary and, in my view, not appropriate in present circumstances, to delve further and second-guess the learned primary judge’s impressions as to credit. I do not accept that there is any clear basis upon which to impugn those findings. Having said that, in light of the course that this matter will hereafter take (which, for the reasons set out below, will include the rehearing of Ms Shum’s complaints regarding her dismissal and its connection with her having possessed or exercised any workplace rights), those findings will likely be stale and of no practical effect in any event.

Appeal grounds seven and eight

118    The primary judge found that, in addition to having been actuated by Ms Shum’s possession and exercise of workplace rights, the termination of her employment was also actuated by the fact that she had been absent from work for health reasons. That being so, her Honour concluded that Ms Shum’s dismissal was effected in contravention of s 352 of the FW Act. It is convenient to set out the reasons underpinning that conclusion (Primary Judgment, [362]-[367]):

Ms Shum said that SMRC breached s.352 of the Act by dismissing her because she was temporarily absent from work because of illness or injury. Section 352 of the Act prohibits dismissal for that reason. Ms Shum was absent from work at SMRC from 7 March 2017 onwards because of illness. She had certificates indicating that she was unfit for work during that time.

In his affidavit, Mr Heeney expressly denied that he had taken any action against Ms Shum because she had been absent from the workplace.

…

The reverse onus applies to applications under s.352 of the Act. That is, it is presumed that action was taken for a prohibited reason unless the respondents prove otherwise. For the reasons discussed above, I am not satisfied by Mr Heeney’s denial. I consider that Ms Shum was dismissed partly because she was temporarily absent from work.

It is sufficient that a prohibited reason was one of the reasons for the contravening conduct, provided that it was a substantial and operative reason. I am satisfied that Ms Shum’s temporary absence from work was a substantial and operative reason for her dismissal.

SMRC contravened s.352 of the Act by dismissing Ms Shum partly because she was temporarily absent from work. In exhibit 7, Ms Shum alleged that Mr Heeney and no one else was involved in her being dismissed for that reason. For the reasons discussed above, I accept that Mr Heeney was involved, within the meaning of s.550(2)(a), (b) and (c) of the Act, in Ms Shum’s dismissal because she was temporarily absent from work. There will be declarations accordingly.

119    It is not controversial that Ms Shum commenced a period of extended leave from 7 March 2017 and remained absent from work until her employment was terminated on 19 June 2017. During her absence, Ms Shum took a period of paid personal leave and paid annual leave, as well as a period of unpaid leave. She had been absent from work for a period of 105 days (that is, in excess of three months) when her employment was terminated. Ms Shum claimed that she was dismissed because she was temporarily absent from work in contravention of s 352 of the FW Act. The appellants denied that claim.

120    Section 352 of the FW Act provides:

352    Temporary absence—illness or injury

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

121    Regulation 3.01 of the Fair Work Regulations 2009 (Cth) (“FW Regulations”), in turn, provides as follows:

3.01    Temporary absence—illness or injury

(1)    For section 352 of the Act, this regulation prescribes kinds of illness or injury.

(2)    A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:

(a)    24 hours after the commencement of the absence; or

(b)    such longer period as is reasonable in the circumstances.

(3)    A prescribed kind of illness or injury exists if the employee:

(a)    is required by the terms of a workplace instrument:

(i)    to notify the employer of an absence from work; and

(ii)    to substantiate the reason for the absence; and

(b)    complies with those terms.

(4)    A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.

(5)    An illness or injury is not a prescribed kind of illness or injury if:

(a)    either:

(i)    the employee’s absence extends for more than 3 months; or

(ii)    the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and

(b)    the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.

(6)    In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation.

122    Section 97 of the FW Act provides:

97    Taking paid personal/carer’s leave

An employee may take paid personal/carer’s leave if the leave is taken:

(a)    because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or

(b)    to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

(i)    a personal illness, or personal injury, affecting the member; or

(ii)    an unexpected emergency affecting the member.

123    The appellants contend that Ms Shum’s circumstances were not sufficient to engage s 352 of the FW Act because her absence was not of a kind prescribed by the FW Regulations. To that end, the appellants fix upon sub-regs 3.01(5) and (6). They say that, as Ms Shum’s absence extended for more than 3 months, reg 3.01(5)(a)(i) applies. Then, the appellants say that the requirement contained in reg 3.01(5)(b), which must be satisfied conjunctively with one of the alternative criteria in reg 3.01(5)(a), is likewise met, as Ms Shum was not on paid personal/carer’s leave for a purpose mentioned in paragraph 97(a) of the FW Act for the duration of her absence. On that score, and as mentioned above, it was common ground that Ms Shum was on unpaid leave during at least some of her absence from SMRC.

124    In order that she might attract the benefit of the statutory presumption for which s 361 of the FW Act provides, it was necessary that Ms Shum first establish that she could satisfy the factual circumstance in respect of which the protection afforded by s 352 was triggered (namely, that she was absent for a period as prescribed): see Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347, 355-356 [14]-[19] (Tracey, Reeves and Bromwich JJ) and the authorities referred to therein.

125    On the facts as they fell below, no finding sufficient to engage any protection under s 352 was made or available to be made. That being so, s 352 of the FW Act had no application to Ms Shum’s circumstances.

126    Before this court, Ms Shum did not advance any cogent argument in response to the contention put against her, save to say that she found it difficult to navigate the regulations. She maintained that her absence was part of the reason for which she was dismissed, but that was not responsive to the complaint levelled by the appellants about the primary judge’s failure to engage with the requirements of s 352 of the FW Act. Even assuming that Ms Shum was dismissed because of her absence, dismissal for that reason could not qualify as adverse action effected in breach of s 352. The illness or injury that kept her absent from work was not of a kind prescribed by the FW Regulations.

127    It follows, with respect, that the primary judge erred in finding that Ms Shum was dismissed in contravention of s 352 of the FW Act. There being no contravention of s 352 of the FW Act by SMRC, there could be no related accessorial liability on the part of Mr Heeney. The learned primary judge’s conclusions to the contrary should be set aside. It follows that grounds seven and eight of the appeal must succeed.

Appeal grounds eight A and eight B

128    Given the success of ground eight, it is not strictly necessary to address grounds eight A and eight B of the appeal. Nonetheless, I shall address them in part (and briefly).

129    In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Kirby P made the following oft-cited observations (at 257-258):

The duty of judicial officers to record the reasons for their decisions has been developed in recent decades in this, as in other jurisdictions of the common law as an attribute of the judicial process and an incident to the necessities of appellate review. Jordan CJ, in Carlson v King (1947) 64 WN (NSW) 65 at 66, stated the principle:

“… It has long been established that it is the duty of a Court at first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. The duty is incumbent, not only upon magistrates, Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 4-5; 63 WN 34 at 36 and District Courts, but also upon this Court, from which an appeal lies to the High Court and the Privy Council: Ex parte Reid; Re Lynch (1943) 43 SR (NSW) 207 at 212; 60 WN 148 at 150.”

In the context of the obligation of District Court judges, the principle was restated and explained by this Court in Pettitt v Dunkley [1971] 1 NSWLR 376. Asprey JA (at 382), after citing Carlson, expressed the judicial obligation in these terms:

“… where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge's findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon as a judicial person to exercise and such a decision on his part constitutes an error of law.”

Moffitt JA (at 390) (with whom Manning JA agreed) considered that it was necessary to give definition to the judicial duty to give reasons. He conceded that the mere failure to give reasons did not in every case establish error. Thus on pure questions of fact, there is no such obligation. But where there were mixed questions of fact and law, a party's right to an appeal on a point of law must not be frustrated by a judicial failure to supply reasons:

“… It is neither possible nor desirable precisely to define the area of [the duty to give reasons]. However, at least, if a case involves mixed questions of fact and law and is such that once the facts are determined in a particular way or ways its resolution will involve some considerations of law, it is the duty of the judge, unless there are exceptional circumstances, to give some indication of the basis of his decision. The purpose of so doing, of course, is directed to indicating his decision on the law either directly or by inference from the facts he has found. To some extent, because the requirement to give reasons depends on the nature and circumstances of the case, it is properly within the decision and discretion of the trial judge to determine whether reasons ought to be given. However, as in other cases of judicial discretion, it may be possible for an appellate court to conclude from the mere circumstances of the case of any reasons assigned that the decision to give no reasons proceeded on some error in principle as to the duty involved.”

130    More recently, a full court of this court in McLoughlin v Randstad Pty Ltd [2021] FCAFC 160, which involved an appeal from the FCCA, made the following remarks (at [25]-[30]):

The duty to give reasons is an inherent aspect of the exercise of judicial power: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6 at [22]. The required content and detail of judicial reasons depends upon the nature of the jurisdiction being exercised and the particular subject matter: Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 at [56] (French CJ and Kiefel J). At the heart of the judicial function is the performance of the duty to ascertain the facts, identify relevant rules of law, apply those rules to the facts and exercise any relevant discretion: Wainohu at [58]; and Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130]-[131] (Hayne J).

In DL v The Queen [2018] HCA 26; (2018) 266 CLR 1, the High Court dealt with the adequacy of reasons provided by a judge sitting without a jury in a criminal case. In that context, the Court at [34] approved of the following passage from AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at [85]:

Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.

The same responsibilities arise in discharging the judicial function in a civil case. The reasons should formulate the issues for resolution that arise from the crucial arguments of the parties and then resolve the issues of fact and law that are necessary to determine those issues. The competing arguments must be addressed and the law as found applied to the facts as found.

Whether the function has been discharged does not depend upon whether the reasons are lengthy or elaborate: Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 at [61]. But they must deal with the essentials needed to discharge the judicial function having regard to the particular case and what is at stake in the litigation.

Even in a busy court with a high volume of cases and limited time for preparation of reasons like the Circuit Court, the basic judicial task of providing reasons that engage with the nature of the case advanced and provide a contextualised explanation for why the claim is to be refused or a defence not upheld must be stated. The cases advanced in such courts often give rise to similar issues and references to established principles can be brief. Also, the task of finding the facts and applying the law to those facts need only deal with those matters necessary to dispose of the 'crucial arguments', but it must be undertaken.

Importantly, the reasons must make those factual findings which are sufficient to enable an appeal court to perform its function and explain to the parties the reason for the outcome, especially as to why the losing party has not been successful: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 260 (Kirby P), 268-269 (Mahoney JA), 280 (McHugh JA); and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 441 (Meagher JA).

131    The reasons that the learned primary judge gave in relation to Ms Shum’s claim under s 352 of the FW Act are extracted at [118] above. Respectfully, the reasoning process exposed by those passages is thin. It is not clear why her Honour rejected the appellants’ submission (which, as it happens, was correct) that s 352 of the FW Act had no application to Ms Shum’s circumstances, given that her illness or injury was not of a kind prescribed by the FW Regulations. Indeed, no engagement with the text of s 352 or the FW Regulations is apparent in the Primary Judgment. It is likewise not clear what evidence the primary judge relied upon to find that Mr Heeney and, through him, SMRC was actuated to dismiss Ms Shum because of her absence from work. Ground eight A is, on those bases, made good and stands as an alternative basis upon which to set aside the conclusion that was reached.

132    Ground eight B relates to the same vice that is the subject of grounds one to three of the appeal—namely, that Mr Heeney’s involvement in any contravention of s 352 of the FW Act was not put to him by Ms Shum in cross-examination or by the primary judge. Given the conclusions that I have reached on other grounds related to the finding that Ms Shum was dismissed in contravention of s 352 of the FW Act, it is unnecessary to address this ground.

Appeal ground nine

133    By ground nine of the appeal, the appellants allege that the primary judge failed to identify the workplace right or rights that Ms Shum possessed or exercised and that actuated (or partly actuated) her dismissal. Again, in light of the conclusions recorded above, it is unnecessary to address this ground. Nonetheless, I shall do so briefly.

134    At [247]-[248] of the Primary Judgment, the learned primary judge made the following findings:

247.    In my view, the reasons Ms Shum was dismissed from SMRC included that:

a)     she was in the finance team, and the leaders of that team, Mr Lee and Ms Shum, supported Ms Semple;

b)    Mr Oates saw Ms Shum and Mr Lee as obstacles to his control of SMRC;

c)    Ms Shum embarrassed Mr Oates by demonstrating to SMRC generally that he had unlawfully tried to prevent her and others from voting at the AGM;

d)    Ms Shum had complained about numerous matters;

e)    she had lodged a WorkCover claim, and, when that was rejected, took the matter further; and

f)    she had lodged an anti-bullying claim with the Fair Work Commission.

248.    It may be that Ms Shum’s exercises of her workplace rights were not the primary reasons for her dismissal. However, it is enough that those reasons were substantial and operative reasons for her dismissal. I consider that they were.

135    Although it could be clearer, her Honour’s comments at [248] suggest that the matters set out in [247] amounted to findings that Ms Shum possessed and exercised workplace rights. The appellants do not challenge whether the circumstances referred to were, in truth (and in each case), capable of establishing the exercise or possession of workplace rights. Rather, they complain that her Honour did not make it clear which of them should be understood to have actuated Ms Shum’s dismissal. I do not accept that that criticism can be drawn. Her Honour’s reasons are sufficiently clear.

136    Appeal ground nine should not be upheld.

Appeal ground ten

137    In light of the appellants’ success on the appeal, the declarations cannot stand. There may also have been a basis to overturn them on the ground that they were not the subject of any debate between, or submissions from, the parties, particularly in circumstances where the trial was bifurcated as between liability and relief. I needn’t entertain that possibility further. I would uphold ground ten.

Conclusion

138    With minimal exception, the grounds of appeal are sound. The relief that the FCCA granted must be set aside in its entirety. The proceeding will be remitted to the Federal Circuit and Family Court of Australia (Div 2); a course upon which I will elaborate later in these reasons.

CONSIDERATION: THE CROSS-APPEAL

139    As with the appeal, it is convenient to address each of the grounds of cross-appeal by reference to the groupings identified earlier.

Cross-appeal grounds one and two

140    By her first two grounds of cross-appeal, Ms Shum takes issue with the primary judge’s findings that the incorrect representations made by Ms Haralambopoulos in SMRC’s response to Ms Shum’s WorkCover application were “innocent”—that is, Ms Shum alleges that the primary judge erred in failing to find that they were made for a reason or reasons proscribed by s 340 of the FW Act. Ms Shum submits that her Honour’s findings were “demonstrably wrong or glaringly improbable” and that she ought to have found that SMRC had failed to discharge the statutory presumption for which s 361 of the FW Act provides.

141    The High Court in Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679,686-687 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ) observed (citations omitted):

A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences".

142    In Lee v Lee (2019) 266 CLR 129, the plurality (Bell, Gageler, Nettle and Edelman JJ) explained (at 148-149 [55]) that the appellate restraint described in Robinson Helicopter extends not to all factual findings but, rather, to factual findings that “are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence”. Their Honours continued (at 148-149 [55]; citations omitted):

Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”.

143    Ms Shum contends that the untrue representations made by Ms Haralambopoulos were not made innocently but, rather, were made deliberately under the direction of Mr Oates as a means of exacting retribution on Ms Shum for the various complaints that she had made during her employment. There is no apparent basis in the evidence before the FCCA for a finding of that nature. Indeed, the findings that were made appear sound based on the evidence as it fell.

144    More to the point, the learned primary judge’s findings must, on any view, have been made with the advantage of having seen the witnesses (and Ms Haralambopoulos in particular) give their evidence. An appeal court will not interfere with such findings unless there is an obvious reason to do so—that is, unless they can be said to have been drawn contrary to “incontrovertible facts or uncontested testimony”, or were glaringly improbable or contrary to compelling inferences. That cannot be said here. There is no basis upon which this court should interfere with the relevant findings.

145    For completeness, Ms Shum submits that SMRC did not plead the “defence of mistakes”—that is to say, SMRC did not plead that Ms Haralambopoulos’s untrue representations were made by mistake. That, with respect, is not to the point. Having found that the untrue representations constituted the taking of adverse action against Ms Shum, the relevant question became whether those representations were made for a prohibited reason. SMRC adduced, through Ms Haralambopoulos, evidence that the untrue representations were made inadvertently. The primary judge accepted that evidence, remarking (at [323]) that they were “innocent mistakes, of the sort any of us makes, and were not for a prohibited reason”. SMRC was not required to plead any specific defence of mistake, or rely on the doctrine of mistake, if that is what is intended by this submission.

146    Ms Shum’s first two grounds of cross-appeal must be rejected.

Cross-appeal ground three

147    The third ground of cross-appeal relies upon the proposition that the terms of Ms Shum’s employment contract required SMRC to abide by the Code and the HR Policies, such that any breach that it committed of those instruments amounted also to a breach of Ms Shum’s employment contract.

148    Clause 14 of Ms Shum’s employment contract provided as follows:

This Employment Contract contains all the terms agreed to by the parties regarding the subject matter of your employment and supersedes any prior agreements, understandings or arrangements between them whether oral or in writing and no representations, undertakings or promise shall be taken to have been given or to be implied from anything said or written in negotiations between the parties prior to this Contract except as set out in the Contract…

149    Clause 15 of Ms Shum’s employment contract, entitled “Policies and Procedures”, provided as follows:

During your employment at SMRC you are required to adhere to all SMRC policies and procedures, including the Code of Conduct, as amended from time to time.

150    The primary judge found that, given the terms of clause 14, neither the Code nor the HR Policies were incorporated by reference into Ms Shum’s employment contract. There is, with respect, an inherent attraction to that conclusion, particularly given recent pronouncements of the High Court about the primacy of contractual terms in employment law contexts: see WorkPac Pty Ltd v Rossato (2021) 309 IR 89; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2. Nonetheless, the terms of clause 15 require some analysis. There is authority that suggests that they could serve to incorporate by reference the Code and the HR Policies into the employment contract. That would (or could) be so notwithstanding the terms of clause 14 (which is directed to “prior agreements, understandings or arrangements”, and “anything said or written in negotiations between the parties prior to” the contract).

151    During the hearing of the appeal, counsel for the cross-respondents noted that the incorporation of the Code and the HR Policies by reference was not something that was raised on the pleadings, nor argued by Ms Shum before the FCCA. That observation was made not in criticism of Ms Shum but, rather, by way of explanation as to why the primary judge’s reasons did not address the possibility as squarely as they could have.

152    Be that as it may (and with respect), her Honour’s conclusion was correct: SMRC was not contractually obliged to abide by the instruments that Ms Shum accused it of breaching.

153    Whether a policy or other document will be incorporated into a contract of employment will depend on the parties’ intentions as objectively ascertained: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179 [40]-[41] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) In ascertaining the parties’ intentions objectively, the authorities reveal an approach that considers the specific facts and circumstances surrounding the formation of the contract and the contents of the document(s) alleged to be incorporated: see McKeith v Royal Bank of Scotland Group PLC (2016) 92 NSWLR 326, 350-360 [79]-[127] (Tobias AJA, Macfarlan JA and Emmett AJA agreeing) (“McKeith”), where his Honour provides a helpful review of the relevant authorities on the topic, including Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193 (“Riverwood”), Goldman Sachs JBWere v Nikolich [2007] FCAFC 120 (“Goldman Sachs”), and Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403 (“Romero”). In short, each case turns on its own facts.

154    At the risk of simplifying the extensive analysis undertaken in those cases, and without intending to set out an exhaustive list, some of the key factors to be considered include:

(1)    the terms of the document alleged to be incorporated—in particular whether the language of the document is contractual, on the one hand, or advisory or aspirational, on the other;

(2)    the extent to which the document alleged to be incorporated contains provisions that are beneficial only to employees;

(3)    whether and, if so, when the document alleged to be incorporated was provided or made available to the employee; and

(4)    whether the employee was required to sign the document alleged to be incorporated, or any part(s) of it.

155    The Code applies to “SMRC People”, which is defined to include employees, volunteers, co-located agencies and agency workers, and states that SMRC People are “expected to comply with the standards of behaviour outlined in the Code”. In that way, it is expressed in the language of expectation, rather than obligation. The Code specifically excludes the board of directors from its scope.

156    The Code itself is “articulated as a set of general principles” and, with three exceptions mentioned below, does not impose specific obligations on individuals. Instead, it “aims to provide a number of statements which underpins/communicates the standard of conduct within SMRC”.

157    The three exceptions fall under the headings “Conflict of interest” (which states that “SMRC people are required to disclose” any conflict of interest), “Corruption and fraud” (which states that “SMRC People must not be involved in any activity involving fraud, dishonesty or deception”), and “On separation with SMRC” (which states that “[u]pon leaving SMRC all people must” do, or not do, certain things). The Code does not include any provision by which entitlements or benefits are conferred on employees. It concludes with an acknowledgement page, with a signature block after the words:

I acknowledge that I have read and understood the SMRC Code of Conduct, that I am bound by it, and I am responsible for ensuring that my behaviour is consistent with the Code. Where I am unclear with any section of the Code, I will seek direction from my immediate supervisor.

158    I do not consider that the Code was incorporated by reference into Ms Shum’s contract of employment. The language of the Code is, in the main, aspirational. It is not expressed in “the language of obligation” nor is it “apt to be treated as expressing mutually enforceable obligations”: cf Riverwood 212 [98] (North J); 223 [151] (Mansfield J); see also Goldman Sachs 8 [30], 8-10 [37]-[38] (Black CJ); 38 [159] (Marshall J). Further, it was not provided to Ms Shum at the time that her contract of employment was executed. Ms Shum’s evidence was that she received a copy of the Code on 15 March 2017, almost nine months after she commenced employment with SMRC. She was not required to sign the acknowledgement page and did not do so when she finally received it. These matters lead me to conclude that the parties did not intend the Code to be incorporated into Ms Shum’s employment contract.

159    The HR Policies differ slightly, in that at least some of them are beneficial to SMRC’s employees—for example, the policies concerning employee leave entitlements, payment of wages, and time in lieu. However, insofar as concerns her cross-appeal, Ms Shum alleges that SMRC (and, separately, several of its employees) breached the anti-bullying, occupational health and safety, and staff grievances policies only. I likewise consider that those policies were not incorporated into Ms Shum’s contract of employment by reference. Like the Code, the language of those policies is generally aspirational. The anti-bullying policy is expressed as follows:

Southern Migrant and Refugee Centre is committed to ensuring that all staff are treated with integrity and respect, recognizing all staff have the right to work in an environment free from harassment and bullying. Harassment and bullying behavior will not be tolerated under any circumstances.

160    There is then set out a procedure to be followed in the event that a formal complaint alleging bullying is made. It commences with the words

When a formal complaint alleging bullying is made, Southern Migrant and Refugee Centre shall take all reasonable steps to secure the health and wellbeing of both the complainant(s) and the respondent(s) throughout the process of resolving the complaint. The complainants and witnesses are not victimized.

161    The enumerated steps that ensue are largely expressed in the language of expectation, rather than contract—for example, “the alleged victim should”, “the Team Leader should” and “the staff member who feels aggrieved… is expected”. Some language is expressed in more certain terms—for example, “the Human Resources Advisor will respond” and “we will provide fair and reasonable administrative practices” but, like the Code, I do not consider that its terms rise to the level of mutually-enforceable obligations.

162    The other policies are likewise expressed in that manner—that is, each commences with an aspirational statement and sets out a procedure that “can” or “should” be followed. While the occupational health and safety policy is expressed to demonstrate SMRC’s “commitment to providing a safe and healthy work environment in accordance with the Occupational Health and Safety Act 2004”, it is nonetheless expressed in the language of expectation and is, in the main, advisory and informative (for instance, setting out the role of the “OHS Committee” and the defining of “hazards” and “risks”) rather than contractual.

163    Further, Ms Shum did not receive the HR Policies until April 2017, sometime after she received the Code. The same observations made above about the timing of her receipt of the Code apply equally with respect to the HR Policies. Finally, none of the HR Policies was required to be signed. It cannot be said that the parties intended that the anti-bullying, occupational health and safety, and staff grievances policies should be incorporated into Ms Shum’s contract of employment.

164    Her Honour reasoned that, while clause 15 of Ms Shum’s contract required that she adhere to the Code and the HR Policies, it did not impose any such requirement upon SMRC. That reasoning, with respect, was sound. The obligation to comply with the Code and the HR Policies, as expressed in clause 15, fell exclusively upon Ms Shum. There is no basis to disturb the primary judge’s conclusion to that effect.

165    Having so concluded, it is unnecessary to deal with Ms Shum’s submissions as to the various ways in which SMRC breached the Code and the HR Policies. Given the primary judge’s conclusions that SMRC was not contractually obliged to comply with the Code and the HR Policies, those matters were not addressed in the Primary Judgment and nor should they be addressed here.

166    Cross-appeal ground three must be rejected.

Cross-appeal grounds four and five

167    As flagged earlier in these reasons, cross-appeal grounds four and five are not easy to follow. They centre upon an allegation that the primary judge erred in finding that SMRC’s use of the word “disciplinary” in connection with the meeting that was scheduled for 8 March 2017 (described at [11] above) was inadvertent.

168    In her written submissions to this court, Ms Shum states that SMRC had a “long history of taking disciplinary processes against board members and staff without substantiation”, and that “[t]here was more than one disciplinary process taken against Ms Shum, during her work and her stress leave”. Those matters are not elaborated upon.

169    As noted earlier in these reasons, no meeting went ahead on 8 March 2017. Ms Shum commenced a period of extended leave from 7 March 2017, and did not return to work before she was dismissed from her employment. Ms Shum nonetheless submits that she has been denied natural justice throughout the “disciplinary” action taken against her, which she says remains on foot.

170    Ms Haralambopoulos conceded in her evidence before the FCCA that it was incorrect to have described the proposed meeting on 8 March 2017 as a disciplinary meeting. Ms Bindra also gave evidence that the letter scheduling the “disciplinary” meeting was a template letter that she gave to Ms Haralambopoulos, and accepted that it should not have used the word “disciplinary” at that stage. In any event, the meeting did not proceed. The primary judge’s finding that the word “disciplinary” was used inadvertently was sound and there is no basis now to disturb it.

171    Particularly is that so given the deference of appeal courts to factual findings of the nature now in focus (see above, [142]). Further, in circumstances where the meeting and the further investigation into Ms Wattegamage’s complaint did not proceed, and more than four-and-a-half years have passed since Ms Shum’s employment was terminated, the basis upon which Ms Shum believes that some disciplinary action against her is still on foot is unclear.

172    For completeness, by these grounds Ms Shum also complains about the primary judge’s treatment of the evidence given by Ms Mazie. Ms Shum’s allegation on this front is vague, but it seems to be directed at the propriety of the circumstances in which Ms Mazie’s witness statement was prepared. Ms Shum submitted to this court that Ms Mazie informed Ms Shum that she, Ms Mazie, had not read her witness statement prior to being asked to sign it, and that she did not agree with a number of the matters contained in it. Ms Shum also complains that the primary judge did not give Ms Mazie’s evidence or credibility adequate consideration in the Primary Judgment, which she says contradicted the evidence given by other witnesses—in particular that given by Ms Wattegamage in relation to her complaint against Ms Shum. It is to be recalled that Ms Mazie was present when the conduct that gave rise to that complaint is alleged to have occurred.

173    Before the FCCA, Ms Mazie was called to give evidence by Ms Shum, and admitted that she did not verify the contents of a draft witness statement that was sent to her by email from Ms Bindra. Instead, she simply replied “confirmed statement no changes” to Ms Bindra’s email to which that draft statement was attached. Ms Mazie said that she did so because she was in the Philippines dealing with the death of an immediate family member and did not wish to review the witness statement. She said that she was not aware that she would be cross-examined on its contents in court, and that she did not know that her email would “come back to haunt” her. Unsurprisingly, in those circumstances, she was unable to recall some of the matters that were addressed in her witness statement during her cross-examination. Given the position Ms Mazie occupied within SMRC, the frank admissions that she made as to the contents of her witness statement, and her inability to recall several matters that were put to her during cross-examination, it is unclear how her evidence could have had any meaningful bearing on any of the issues in dispute, let alone the issues to which these grounds of cross-appeal pertain.

174    Regardless, the learned primary judge’s findings were plainly open to her on the evidence that was led. This court would need a compelling reason to set them aside. No such reason is apparent. Cross-appeal grounds four and five, therefore, must be rejected.

Cross-appeal ground six

175    By her sixth ground of cross-appeal, Ms Shum challenges the primary judge’s findings that she lied to the court in two key respects: first, in her evidence that she did not contact Mr Lee while he was on sick leave; and, second, in her evidence as to when she first read the emails that Mr Heeney sent to her on 14 and 19 June 2017 (by which notice of termination of her employment was foreshadowed and given, respectively). Ms Shum asserts that a finding of dishonesty is necessarily a grave one, a matter to which the primary judge should have had regard in accordance with s 140(2) of the Evidence Act.

The finding that Ms Shum lied about not telephoning Mr Lee

176    In the context of considering when Ms Shum was given notice of termination of her employment, the primary judge made the following credit finding (Primary Judgment, [121]-[122]):

In addition, in relation to her credibility, after much prevarication, Ms Shum denied in cross-examination that she had telephoned Mr Lee while he was on sick leave. She also said that Mr Lee rang the finance team every day. Ms Shum eventually conceded that, at around 28 February 2017, she emailed and telephoned Mr Lee every day. Mr Lee said in cross-examination very definitely that Ms Shum rang him, and he did not ring her.

I prefer Mr Lee’s evidence in this regard. He was called by Ms Shum to give evidence. He had no reasons to lie. On the other hand, Ms Shum was arguing that she was bullied by work people contacting her when she was on sick leave, so it did not sit well for her to admit she had frequently contacted Mr Lee while he was on sick leave. Mr Lee’s evidence also accords with Ms Shum’s eventual concession. I consider that Ms Shum lied to the court when she denied that she telephoned Mr Lee while he was on sick leave.

177    In light of Ms Shum’s concession that she emailed and telephoned Mr Lee every day, together with Mr Lee’s evidence that Ms Shum telephoned him, the primary judge’s finding that Ms Shum lied by initially denying that very fact was, with respect, one that was plainly open to be made. It is not one with which this (or any other appeal) court should interfere.

178    By her submissions to this court, Ms Shum attempted to revise the evidence that fell before the FCCA. She made the following assertions (amongst others), namely that:

(1)    she did not call Mr Lee, as she would not want to be issued a “high phone bill”;

(2)    SMRC failed to provide Mr Lee’s mobile phone records for the relevant period;

(3)    Mr Lee has read the Primary Judgment and told Ms Shum that he could not recall whether she called him during that period;

(4)    her mobile phone was stolen and she has been unable to obtain her mobile phone records for the relevant period; and

(5)    she was suffering from serious mental health issues during the hearing, which affected her ability to answer questions put to her.

179    Ms Shum did not seek to lead any fresh evidence in support of those assertions. By interlocutory application dated 28 July 2021, she applied to the court for orders authorising the receipt of some new evidence on appeal, but none of it related to the ground presently under consideration. That application was, in any event, dismissed: Southern Migrant and Refugee Centre Inc v Shum (No 2) [2021] FCA 1005 (Snaden J). Ms Shum’s attempt to now recast the evidence as to whether she telephoned Mr Lee must be rejected. There is no basis to disturb the primary judge’s finding that Ms Shum lied to the court when she denied telephoning Mr Lee while he was on sick leave.

The finding that Ms Shum lied about when she received Mr Heeney’s emails

180    In the FCCA Proceeding, Ms Shum argued that she was not given notice of termination of her employment on 19 June 2017, being the date on which Mr Heeney sent her an email containing such notice, because she did not read that email until 26 June 2017. The primary judge found that Ms Shum’s evidence as to when she read Mr Heeney’s email was deliberately false, and observed as follows (Primary Judgment, [119]-[125]):

…Ms Shum conceded in cross-examination that she had not found Mr Heeney’s email in her spam folder as late as 26 June 2017, and that her affidavit and oral evidence were wrong when they said otherwise. She acknowledged that Mr Heeney’s email was in her spam folder, to her knowledge, on 21 June 2017, when she sent a screenshot of the spam folder to the chairperson of SMRC.

Ms Shum said in an email to Mr Heeney on 6 July 2017 that she had only seen the letter dated 19 June 2017 which was attached to the email dated 19 June 2017 for the first time when Mr Heeney resent it to her on 6 July 2017. When cross-examined about this, Ms Shum was evasive. She maintained that she had not read Mr Heeney’s email of 19 June 2017 on 21 June 2017 or earlier.

…

It is hard to believe that Ms Shum was simply mistaken about the date when she first saw the emails dated 14 and 19 June 2017. The date was perceived as critical by Ms Shum. I consider that her evidence that she did not see the emails dated 14 and 19 June 2017 until 26 June 2017 was deliberately false.

It is theoretically possible that Ms Shum did not see the email dated 19 June 2017 until 21 June 2017, when she sent a screenshot of her spam folder to SMRC, and did not read the attachment until much later.

However, I do not consider that Ms Shum was at all credible in this regard. I consider that she saw the email from Mr Heeney and read the attachment on 19 June 2017. I do not consider that Mr Heeney’s advice to Ms Shum to open the attachment when she was able to do so delayed her in reading the attachment.

181    Ms Shum’s written submissions to this court as to when she received Mr Heeney’s emails appeared to advance arguments similar to those that she advanced before the FCCA, albeit with the concession that she “discovered but did not open” Mr Heeney’s emails on 20 June 2017. Ms Shum also submitted that her employment contract with SMRC, as well as the Code and HR Policies, did not require employees to communicate electronically, and that she never gave her consent to SMRC to communicate with her by email.

182    Again, Ms Shum’s attempt to recast the evidence by her written submissions on appeal to this court must be rejected. She has failed to identify appellable error in the primary judge’s findings, and has largely sought to argue the same case on appeal as that which she advanced before the FCCA. At the risk of repetition, it will be a rare case in which this court on appeal will overturn a credit finding of a witness whose evidence it has not had the benefit of seeing.

Conclusion

183    There is no basis upon which this court might properly set aside the findings that Ms Shum sought, by cross-appeal ground six, to impugn. That ground must fail.

Cross-appeal ground seven and the notice of contention

184    By her final ground of appeal, Ms Shum maintained that the primary judge erred by misconstruing s 117 of the FW Act and, in consequence of that misconstruction, by finding that the notice of termination of employment given to her was effective. Ms Shum submitted that certain consequences flowed from that, namely that she was entitled to payment equivalent to a further week’s pay in lieu of notice, which she alleged was a consequence of the operation of s 117(3)(a) of the FW Act; and, further, that she was entitled to four weeks’ redundancy pay, which she alleged was a consequence of s 119(2) of the FW Act.

185    It should be observed that neither of these matters was pleaded clearly, if at all, in the proceeding below. Rather, the allegation that SMRC had terminated Ms Shum’s employment in contravention of the National Employment Standards (seemingly by reason of its alleged failure to comply with ss 117 and 119 of the FW Act) first emerged in her written closing submissions in that proceeding. In any event, and however it was ultimately framed, the issue that arises for determination on this cross-appeal ground concerns the legality of the notice of termination of Ms Shum’s employment.

186    Ms Shum submitted that the provision of notice of the termination of her employment by email sent on 19 June 2017 did not satisfy sub-s 117(1) of the FW Act, as that sub-section does not contemplate email as a means by which such notice may be given. Ms Shum also submitted that she did not receive any payment in lieu of notice until after 19 June 2017, the effect of which was that the precondition stipulated in s 117(2)(b) of the FW Act was not met.

187    For completeness, Ms Shum argued that, because she had not given her consent to receive communications by email, SMRC was not permitted to communicate with her in that manner. She further argued that the provision of notice by email was unnecessarily callous. She also submitted that the ET Act could not apply without her consent. With respect, none of those arguments has any merit. SMRC did not require Ms Shum’s consent to communicate with her via email, nor does Ms Shum need to give her consent in order that the ET Act might apply to her. SMRC communicated with Ms Shum in an orthodox way (acknowledging, as will almost always be the case, that the experience was unlikely to have been a pleasant one for Ms Shum).

188    The cross-respondents submitted that s 117 of the FW Act by its terms permits the provision of notice of termination by email. They argued that the means of providing notice stipulated in the second note to sub-s 117(1) is permissive rather than mandatory, and therefore does not preclude written notice given by email. It is, in any event, a note to the legislation only. The reference in that note to s 28A of the AI Act is said to bolster that conclusion, as the language in that section is likewise permissive, and the note to s 28A(1) in turn refers to the ET Act.

189    On that score, SMRC’s notice of contention argued that the ET Act applied so as to authorise the giving of effective written notice of termination of Ms Shum’s employment by means of the emails that Mr Heeney sent on 14 and 19 June 2017. SMRC relied on s 9 of the ET Act, which applies in circumstances where, under a law of the Commonwealth, a person is required or permitted to give information in writing. Section 9 then provides any such requirement is taken to have been met by means of an electronic communication provided certain criteria are satisfied. I do not, however, consider that s 9 of the ET Act is relevant to the validity of any notice given pursuant to s 117 of the FW Act, as the latter section neither requires nor permits information to be given in writing. It requires, rather, that an employer must not terminate an employee’s employment unless written notice has been given.

190    I consider instead that s 8 of the ET Act is applicable to the giving of notice of termination by email. Subsection 8(1) provides that “[f]or the purposes of a law of the Commonwealth, a transaction is not invalid because it took place wholly or partly by means of one or more electronic communications”. A notice of termination of employment is a notice of a kind to which the ET Act applies: see the definition of “transaction” in s 5 of that act (at [33] above). That being so, a notice of termination would not be invalid merely because it was provided by email.

191    By reason of the operation of the ET Act, then, SMRC’s email communications sufficed to serve as effective written notice of Ms Shum’s dismissal. I accept that Mr Heeney’s email to Ms Shum sent on 19 June 2017 constituted written notice of termination of Ms Shum’s employment, and that it should be taken to have been received on 19 June 2017: ET Act, s 14A. It follows that the factual precondition specified in sub-s 117(1) of the FW Act was met—that is, Ms Shum was given written notice of the day of her dismissal, and SMRC was not prevented from proceeding to terminate her employment by reason of that sub-section.

192    However, it is apparent that SMRC did fail to satisfy the requirements of sub-s 117(2)(b) of the FW Act prior to terminating Ms Shum’s employment. That paragraph provides that, as a precondition to lawful dismissal, an employer must first make any payment in lieu of notice to an employee whose employment is terminated. Mr Heeney’s email to Ms Shum sent on 19 June 2017, by which notice of immediate termination was given, stated that Ms Shum would receive payment “in the next week”. The evidence discloses that Ms Shum’s final payment, including in lieu of the period of notice to which she was entitled, was made on 23 June 2017—that is to say, after her employment came to an end.

193    It follows that I accept—and, with respect, the learned primary judge ought to have found—that Ms Shum’s employment was terminated contrary to s 117 of the FW Act. Ground seven of the cross-appeal must be allowed.

RELIEF

194    The declaratory relief that the learned primary judge granted must be set aside in its entirety. I will make orders to that effect. What follows concerns what, if any, other relief this court should grant in light of the conclusions recorded above.

195    Section 28(1) of the Federal Court of Australia Act 1976 (Cth) (hereafter, “Federal Court Act”) provides, relevantly:

28 Form of judgment on appeal

(1)    Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:

(a)    affirm, reverse or vary the judgment appealed from;

(b)    give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;

(c)    set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;

…

(f)    grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or

…

196    In Conway v The Queen (2002) 209 CLR 203, the High Court considered s 28(1)(f). The plurality (Gaudrom ACJ, McHugh, Hayne and Callinan JJ) held (at 208 [6] and 219 [36]):

To construe s 28(1)(f) as authorising the dismissal of appeal on the basis that no substantial miscarriage of justice has actually occurred gives effect to the long established rule of the common law that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice…

…

…This power is expressed in wide terms and should be given a liberal construction. It is a power that must, of course, be exercised judicially. But there is nothing unjudicial, arbitrary or capricious in refusing to order a new trial when, although error has occurred, no miscarriage of justice has occurred.

197    In Bale v Mills, discussed above at [87], the New South Wales Court of Appeal considered that the primary judge’s adverse credibility findings against the solicitor in circumstances where allegations of dishonesty had not been put to him in cross-examination involved a substantial miscarriage of justice. It concluded as follows (at 524 [105] (Allsop P, Giles JA and Tobias AJA)):

…the primary judge’s “fundamental” credibility findings with respect to Mr Schipp’s testimony were fatally flawed. As those findings underpinned his Honour’s other findings which reflected adversely upon Mr Schipp’s credibility, it follows that his conclusion at [308] that he should entertain serious reservations about the credibility of Mr Schipp’s testimony, cannot stand. As his Honour’s findings as to the liability of the appellants was founded upon his acceptance of the respondent’s evidence as to the video representation and as that acceptance was in turn dependent upon his Honour’s rejection of Mr Schipp’s evidence on the same issue, it follows that the appeal should succeed and the primary judge’s findings on liability set aside. As there has been a substantial miscarriage of justice, it follows that there should be a new trial.

198    In New South Wales v Hunt, the New South Wales Court of Appeal considered (at 235 [45] (Leeming JA)) that the trial judge’s finding that the off-duty police officer had fabricated key parts of his evidence, despite that having not been put to him, resulted in a “substantial wrong or miscarriage so as to warrant a retrial”. That was so because it was not possible for the Court of Appeal to determine for itself a number of factual matters relevant to the alleged torts. Leeming JA (with whom Barrett JA and Tobias AJA agreed) concluded (at 240 [73]) that “[t]he only thing of which this court can be certain is that the decision at first instance is unfair to the parties and to Senior Constable Ochs, as well as disclosing a series of other errors, which require there to be, regrettably, a retrial”.

199    There is considerable similarity between Port Kembla and the present appeal. That appeal, like this one, involved claims made under s 340 of the FW Act. Justice Jessup’s conclusions bear repeating:

269    In the circumstances, I take the view that the primary judge’s determination in favour of the respondents under ss 340 and 346 of the FW Act cannot stand. It does not follow, of course, that the respondents’ application in this department of the case must now be dismissed. They still have a case of adverse action which requires an answer from the Company. Despite its obvious inconvenience, the only course available to the court is to set aside that determination and to refer the case for rehearing. Because of the tenor of the findings made by the primary judge, it would, in my view, be appropriate that such a rehearing proceed before another judge.

The “case” that was referred for rehearing concerned the claims made against both the corporate employer and one of its officers (the latter of whom was alleged to have been “involved in” the statutory transgressions alleged against the former).

200    In light of the conclusions that I have reached on grounds one to three of the appeal, the matter must be re-tried insofar as it was alleged that:

(1)    Ms Shum’s dismissal was effected in contravention of s 340(1) of the FW Act; and

(2)    pursuant to s 550, Messrs Heeney and Oates were involved in (and, therefore, were themselves liable for) that contravention.

The primary judge’s determinations on those questions were fatally contaminated by the erroneous findings concerning Mr Heeney and Mr Oates. Consistently with the authorities surveyed above, I am persuaded that that amounted to a miscarriage of justice. It is not open to this court to decide for itself whether Mr Oates or Mr Heeney (or, through them, SMRC) were led to terminate Ms Shum’s employment for a reason or reasons proscribed by s 340(1) of the FW Act. Despite the obvious inconvenience to the parties (and the valiant, if somewhat resigned, submissions to the contrary that counsel for the appellants helpfully advanced), the authorities are clear that the appropriate and unavoidable course is to remit the matter (or, more specifically, those aspects of it) for rehearing.

201    By post-hearing submissions filed at the court’s invitation, Ms Shum contended that any such retrial should proceed as against not merely SMRC, Mr Oates and Mr Heeney, but also as against the other respondents below—Ms Haralambopoulos, Ms Bindra and Ms Wattagamage—whom she had unsuccessfully sought to pin as accessories to the contravention of s 340(1) of the FW Act that she attributed to SMRC. It is not necessary that I should recite those submissions in any detail. To a large extent, they ventured beyond the matter of present interest (namely, the scope of the retrial that should be ordered in light of the conclusions herein). It suffices to note that Ms Shum’s contention was that a re-trial would be unfair “…if some parties are not joined…[and that a]ll original parties, witnesses and evidence should be made available for the new Judge in the retrial.”

202    Respectfully, I do not accept that that is so. The primary judge’s rejection of Ms Shum’s case (or this aspect of it) as against Ms Haralambopoulos, Ms Bindra and Ms Wattagamage was orthodox; and, in any event, was not a product of the miscarriage identified above. The matters requiring retrial should be limited to those that are the subject of the errors in respect of which a retrial is necessary: specifically, to whether or not SMRC dismissed Ms Shum in contravention of s 340(1) of the FW Act and, to the extent that it did, whether either or both of Mr Oates and Mr Heeney was or were relevantly involved therein. The orders that I will make will reflect that limited scope.

203    The proceeding against SMRC and Mr Heeney insofar as it relates to Ms Shum’s claim under s 352 of the FW Act has, in light of my conclusions above, run its course. The primary judge’s conclusion that Ms Shum’s dismissal was effected in contravention of s 352 was, with respect, wrong. As has already been noted, the declaratory relief granted on the basis of it should be set aside and, in lieu thereof, it should be ordered that that part of Ms Shum’s application be dismissed (as against both SMRC and Mr Heeney).

204    Ms Shum’s cross-appeal partially succeeds. The termination of her employment was effected in contravention of s 117(2) of the FW Act. As has been rehearsed, Ms Shum argued that two consequences flowed from this. First, she submitted that, because she received payment in lieu of notice on 23 June 2017, that date (rather than 19 June 2017, when she was given notice) was the relevant date for calculating her period of continuous service. If that proposition were accepted, then her period of continuous service with SMRC would be more than one year, and the minimum notice period applicable to her employment, as calculated in accordance with s 117(3)(a), would be two weeks, rather than one week. Ms Shum argued that she was therefore entitled upon the termination of her employment to payment in lieu of two weeks’ notice (instead of one week’s pay in lieu, which is what she received). Second (and also on the footing that the relevant termination date for calculating her period of continuous service with SMRC was 23 June 2017), Ms Shum submitted that because her period of continuous service was at least one year, she was entitled to four weeks’ redundancy pay in accordance with s 119 of the FW Act.

205    As is readily apparent, Ms Shum’s submissions on ss 117 and 119 of the FW Act proceed on the premise that any illegality in the notice of termination of her employment had the consequence that her employment was not terminated on the date on which that notice was given to her, namely 19 June 2017. She maintains that it was instead terminated on the date on which SMRC made payment in lieu of notice to her, being 23 June 2017.

206    That premise is misconceived. A dismissal effected contrary to the requirements of s 117(2) of the FW Act is not void or otherwise of no effect. It is simply effected in contravention of the requirements of that section. That reality potentially visits other consequences, including exposure to relief in the nature of civil penalties and compensation under pt 4-1 of the FW Act. But it does not follow that employment that is terminated in contravention of s 117(2) continues as though not terminated at all. It does not.

207    In the proceeding below, Ms Shum alleged that her employment was terminated in contravention of the National Employment Standards, which includes s 117 of the FW Act. On appeal to this court, Ms Shum alleged that SMRC had contravened, relevantly, s 117 of the FW Act. On the facts as they fell (without any, or any material, dispute), that allegation was made out. It does not follow that the date of her dismissal is recast so as to confer upon her some entitlement to additional notice or severance pay. Indeed, given that she was paid in lieu of notice a short time after the dismissal took effect, it may be that her loss is minimal (if there is any at all) and/or that no occasion to impose a pecuniary penalty upon SMRC arises. Nonetheless, the central contention is sound and should be the subject of further consideration on the question of relief. That issue (relief) having not yet been considered, it is appropriate that I should say nothing further about it, other than that it, too, will be made the subject of remittal to the Federal Circuit and Family Court of Australia (Div 2).

208    Those conclusions stated, the proceeding will be referred to the Federal Circuit and Family Court of Australia (Div 2) for rehearing. For the avoidance of doubt, the only controversies remaining to be determined by the court on remittal are:

(1)    whether SMRC terminated Ms Shum’s employment in contravention of s 340(1) of the FW Act;

(2)    if it did, whether either of Mr Oates or Mr Heeney was (or both of them were), for the purposes of s 550 of the FW Act, involved in that contravention such that he (or they) might be taken also to have engaged in or committed it;

(3)    to the extent that any such contraventions are established, what, if any, relief should be granted in consequence; and

(4)    what, if any, relief should be granted in consequence of SMRC’s having dismissed Ms Shum contrary to the requirements of s 117(2) of the FW Act?

209    The composition of the court will be a matter for it; but, given the trajectory of the matter to date, it might be prudent that it proceed before a different trial judge. It may, as occurred initially, wish to try the question of liability separately from the question of relief—that is to say, it might prefer to determine the first two of the four issues listed above before proceeding to determine the third (if necessary) and fourth. That, too, will be a matter for the court, howsoever it might be constituted.

210    In light of the limitations imposed by s 570(1) of the FW Act, I do not—at least not at this juncture (in the absence of detailed submissions favouring a different end)—propose to make any order as to costs.

Associate:

Dated:    4 May 2022

SCHEDULE OF PARTIES